PR: Title II Regional Chief Counsel Precedents

Effective Dates: 04/29/2016 - Present

TN 29 (04-16)

A. PR 16-080 Establishing Parent-Child Relationship under California Law

Date: February 4, 2016

1. Syllabus

Here, the NH died while domiciled in California, therefore, the agency looks to California intestacy law to determine whether Claimant is the child of the NH for purposes of entitlement. Pursuant to California Probate law, a natural parent and child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act. The NH is the Claimant’s presumed parent under the Family Code laws because the NH was in a legally recognized domestic partnership with the Claimant’s natural mother when the Claimant was born. In the absence of any evidence rebutting that presumption, the Claimant is able to inherit intestate from the NH under the California Probate Law. Under California law, the NH is the Claimant’s natural parent and the Claimant could inherit intestate from the NH. As the NH’s natural child, the Claimant is deemed dependent on the NH and is therefore entitled to child’s insurance benefits under section 216(h)(2) of the Act.

2. Opinion

QUESTION

You asked whether a parent-child relationship exists between K~ (NH) and D~ (Claimant) for purposes of determining Claimant’s entitlement to child’s insurance benefits on the NH’s account.

SHORT ANSWER

Yes. Claimant is entitled to child’s insurance benefits on the NH’s account. Claimant may inherit intestate as the NH’s child under California law because Claimant was born during the NH’s domestic partnership with Claimant’s natural mother.

SUMMARY OF EVIDENCE

The NH and L~ entered into a California same-sex domestic partnership legally registered with the State on September XX, 2009. L~ conceived Claimant via artificial insemination using anonymous donor sperm and Claimant was born on November XX, 20XX in Sacramento, California. Claimant’s birth certificate lists both L~ and the NH as Claimant’s parents, and shows Claimant’s surname as “D~,” the same surname as the NH.

The NH currently receives disability benefits. Claimant filed his application for child’s insurance benefits on August XX, 2014. At all relevant times, the NH has been domiciled in California.

ANALYSIS

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an individual entitled to old-age or disability insurance benefits shall be entitled to child’s insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child’s insurance benefits, the applicant must qualify as the insured individual’s “natural child” and be dependent on the insured individual at the time he filed his application for child’s insurance benefits. See id.; 20 C.F.R. §§ 404.350, 404.3.55. In determining whether a claimant qualifies as the child of the insured individual, the Commissioner applies the law governing the devolution of intestate personal property by the courts of the State in which such insured individual was domiciled at the time of his or her death. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”).

Here, the NH died while domiciled in California. Therefore, the agency looks to California intestacy law to determine whether Claimant is the child of the NH for purposes of entitlement.

California Law

Pursuant to California Probate Code section 6453, a natural parent and child relationship is established where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code §§ 7600-7730 (UPA).

California Family Code sections 7611(a) and 297.5(d) provide a presumption of a parent-child relationship between the NH and Claimant. This presumption arises out of the relationship between the NH and Claimant’s natural mother. Specifically, under California Family Code section 7611(a), a parent-child relationship is presumed when a child’s natural mother is married to the presumed parent at the time of the child’s birth. Cal. Fam. Code § 7611(a). The presumptions of parentage under 7611 apply equally to children of registered domestic partners. Cal. Fam. Code § 297.5(d)(“The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.”); see Elisa B. v. Superior Court, 37 Cal. 4th 108 (Cal. 2005) (holding that a child can have two parents of the same sex under the UPA); In re M.C., 195 Cal. App. 4th 197, 216-17 (Cal. Ct. App. 2011) (finding a presumption of parentage under 7611(a) for a child born during a same-sex marriage; overturned on other grounds by Cal. Fam. Code § 3040(d)); see also Hunter v. Rose, 463 Mass. 488 (2012) (relying on Cal. Fam. Code §§ 297.5(d) and 7611(a) to hold that, under California law, a non-biological mother is presumed to be a child’s parent if the child is born during the domestic partnership).

Based on the foregoing, the NH is Claimant’s presumed parent under Family Code sections 7611(a) and 297.5(d) because she was in a legally recognized domestic partnership with Claimant’s natural mother when Claimant was born. In the absence of any evidence rebutting that presumption, Claimant is able to inherit intestate from the NH under California Probate Code section 6453(a).

CONCLUSION

Under California law, the NH is Claimant’s natural parent and Claimant could inherit intestate from her. As the NH’s natural child, Claimant is deemed dependent on her. Claimant is therefore entitled to child’s insurance benefits under section 216(h)(2) of the Act.

B. PR 14-141 Establishing Parent-Child Relationship under California Law Deceased Wage Earner – B~ ; SSN ~ Claimant – S~

DATE: July 30, 2014

1. SYLLABUS

Under California’s Uniform Parentage Act (UPA), a man is presumed to be the natural father of a child if he and the child’s natural mother are married at the time of the child’s birth. For the purpose of parentage under the UPA, a “natural parent and child relationship” is a legal relationship not strictly dependent on a biological relationship. Paternity presumptions are driven by the state’s interest in the welfare of the child and the integrity of the family. The presumption may be rebutted only by clear and convincing evidence in an appropriate court action. Here, because the claimant’s mother and the DWE remained married and the DWE provided some financial and emotional support to the claimant, and no other person has come forward actively seeking to be the claimant’s father, a California court would not find the marital presumption of paternity rebutted. As the natural child of the DWE, the claimant may inherit from the DWE’s intestate estate. Therefore, he is entitled to child survivor’s benefits under section 216(h)(2) of the Act.

2. OPINION

QUESTION

You asked whether a parent-child relationship exists between B~, the deceased wage earner (DWE), and Claimant S~ for purposes of determining Claimant’s entitlement to child survivor’s insurance benefits.

SHORT ANSWER

Yes. Under California law, the DWE is Claimant’s natural father because he was married to Claimant’s mother at the time of Claimant’s birth. Therefore, Claimant is entitled to child survivor’s benefits on the DWE’s account.

SUMMARY OF EVIDENCE

The DWE and Claimant’s mother, C~, were married in New York in 1988. They remained married until the DWE’s death on March XX, 2013 and have two adult children.

Claimant was born in Bakersfield, California, on June. His birth certificate lists “mother” as C1~ and “father” as C2~, the DWE’s brother. C1~ identified C2~ as Claimant’s biological father. C1~ stated that when Claimant was born neither the DWE nor C2~ were present. No father was listed on Claimant’s original birth certificate. C1~ claims that, several years later, C2~ signed an affidavit to have his name put on Claimant’s birth certificate. C1~ told the agency that she added C2~’s name to the birth certificate so Claimant would “know he had a father”. However, she also stated that Claimant only knew C2~ as his uncle because neither she nor the DWE wanted to confuse Claimant regarding his biological father.

Claimant’s numident records initially listed the father as “unknown”; this was amended to C2~ in 2009. When asked about these circumstances during the evaluation of Claimant’s survivor claim, C1~ did not recall being involved in this process. However, agency records show that C1~ initiated this change and the address used for the new card in 2009 is the same as C1~’s current address. The available records do not currently show whether C2~ was involved in this amendment to the numident; the application does not identify the proofs of paternity.

On or about April XX, 2013, C1~ filed for survivors benefits on Claimant’s behalf. In the application, C1~ acknowledged that the DWE is not the biological father. In a July XX, 2013 statement, C1~ indicated that the DWE knew this, but nonetheless loved and accepted Claimant as his own and never denied that Claimant was his son. C1~ stated that C2~ does not have a role in Claimant’s life as his father and that the DWE is the only father Claimant has ever known. On the SSA-2519 form (the Child Relationship Statement), C1~ checked boxes indicating that the DWE made regular and substantial contributions to Claimant’s support but also that there was no one to whom the DWE admitted orally or in writing that he was the parent, that he did not register Claimant in school, did not list Claimant as a dependent on tax forms, and that there was no other written evidence to show Claimant was the DWE’s child.

The available evidence does not clearly indicate whether C1~ and the DWE lived together at the time of Claimant’s birth or thereafter. The information in the November 20, 2013 Report of Contact states that the DWE traveled to Joshua Tree, California, for work over the weekends and come home during the weekdays (Nov. XX, 2013 Report of Contact). The July 7, 2013 statement indicates, however, that the DWE traveled for work often and in recent years only came home on weekends and holidays. At the time of the DWE’s death, C1~ and Claimant were living in Bakersfield, California. According to the DWE’s death certificate, the DWE’s usual residence was in Joshua Tree, California, although he died in an unidentified residence in Van Nuys, California. We have no knowledge of who provided the residence information recorded on the death certificate.

C1~ claimed that, since Claimant’s birth, the DWE provided financial support for her and Claimant but she had no supporting documentation. C1~ explained that the DWE had a sporadic work history because he became disabled over the last ten years and was not always able to work. C1~ stated that she and the DWE withdrew funds from a 401(k) account and the DWE collected unemployment; this income supported all three of them until the DWE’s death. C1~ also stated that she takes care of her disabled mother in exchange for room and board.

ANALYSIS

1. Federal Law

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

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

2. California Law

Under California law, a natural parent-child relationship is established for the purpose of intestate succession where the relationship is presumed and not rebutted under California’s Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a); see also Cal. Fam. Code § 7611 (setting out criteria for presuming paternity).

A man is presumed to be the natural father of a child under the UPA if he and the child’s natural mother are married at the time of the child’s birth. Cal. Fam. Code § 7611(a). The presumption affects the burden of proof in an evidentiary proceeding and may be rebutted only by clear and convincing evidence in an appropriate court action. Cal. Fam. Code § 7612(a). “If two or more presumptions arise under section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” Cal. Fam. Code § 7612(b). Here, the DWE is presumed to be the father of Claimant as he was married to C1~ at the time of Claimant’s birth. However, because there is contrary evidence in the record regarding the Claimant’s paternity, we must consider whether this evidence is sufficient to rebut the presumption of parentage. See Cal. Fam. Code § 7612(a).

First, C1~ reported that C2~, the DWE’s brother, is Claimant’s biological father. For the purpose of parentage under the UPA, a “natural parent and child relationship” is a legal relationship not strictly dependent on a biological relationship. See Cal. Fam. Code § 7601. The California Supreme Court explained that the “paternity presumptions are driven not by biological paternity, but by the state’s interest in the welfare of the child and the integrity of the family.” Elisa B. v. Superior Court, 117 P.3d 660, 668 (Cal. 2005) (quoting In re Salvidor M., 4 Cal. Rptr. 705, 708 (Cal. App. 2003)). The Court of Appeals for the Ninth Circuit also recognized that “California law does not equate natural parent status with biological parenthood.” Vernoff v. Astrue, 568 F.3d 1102, 1108 (9th Cir. 2009). The California Supreme Court has also expressly held that mere evidence of biological nonpaternity is not sufficient to rebut presumptions under Family Code § 7611. In re Nicholas H., 46 P.3d 932 (Cal. 2002). In Nicholas H., the California Supreme Court held that, although not the biological father, a man met the Family Code requirements to be the presumed father because he acted as the child’s father, including having his name put on the birth certificate, providing a home for the child and his mother for several years, providing financial support, and calling the child his son. See In re Nicholas H., 46 P.3d at 934-35. Therefore, a California court would not likely view evidence of biological paternity as clear and convincing evidence that rebuts the presumption of paternity to the husband, especially where the biological father has no relationship with the child. See id.; Cal. Fam. Code § 7612(a)

Second, both Claimant’s birth certificate and the agency’s numident records list C2~, the DWE’s brother, as Claimant’s father. ¹ C1~ stated that several years after Claimant’s birth, C2~ signed an affidavit to have his name put on the birth certificate. While C1~ did not provide many details, her statement regarding an affidavit is generally consistent with California’s procedures for amending birth certificates to identify a father through the filing of a voluntary declaration of paternity. See Cal. Health & Safety Code § 102425. Such a voluntary declaration of paternity establishes paternity under the UPA. See Cal. Fam. Code. §§ 7570 et seq. Furthermore, a completed voluntary declaration of paternity has the same force and effect as a judgment for paternity, and is recognized as a basis for an order for child custody, visitation, or child support. See Cal. Fam. Code § 7573. To be accepted, the voluntary declaration of paternity must include a statement from the mother that the man signing the declaration is the only possible father and a statement from the father consenting to the establishment of paternity. See Cal. Fam. Code. § 7574. The declaration must be signed before a witness or notary. Id. Thus, assuming that these requirements of California law were followed, both C1~ and C2~ actively sought to declare his paternity rights.

Nonetheless, under California Family Code § 7612(f), a voluntary declaration of paternity is invalid if the child already has a presumed parent because he is born during an on-going marriage. See Cal. Fam. Code §§ 7612(f) (citing Cal. Fam. Code § 7540 (the child of a wife cohabiting with her husband is conclusively presumed to be the child of the marriage) and § 7611(a)-(c) (a man is presumed to be the natural father of a child if he and the child’s natural mother are married at the time of the child’s birth)). Given that the DWE and C1~ were married at the time of Claimant’s birth, it is unclear why the state relied on what we presume to be a voluntary declaration of paternity to amend Claimant’s birth certificate, unless C1~ did not state she was married. Cf. In re D.A., 139 Cal. Rptr. 3d at 233-34 (declining to reach any legal conclusion based on the alleged father’s name on the birth certificate in the absence of evidence). In any event, based on the information available to the agency, it appears that the underlying voluntary declaration of paternity is likely invalid under Family Code § 7612(f). Therefore, that C2~ may have sought to add his name to Claimant’s birth certificate is not sufficient to rebut the presumption of the DWE’s paternity.

Third, although the record suggests that the DWE may have lived apart from Claimant, due either to marital discord or his occupation, a separate residence is also likely insufficient to rebut the presumption set out in Family Code § 7611(a). California courts have held that it is the relationship between the parent and child, not the relationship between the parents, that is of import for determining legal parental status, even where one parent maintained a separate residence. See In re Nicholas H., 46 P.3d at 937-38 (collecting cases); E.C. v. J.V., 136 Cal. Rptr. 3d 339, 349 (Cal. App. 2012) (stressing that the relevant relationship is that between the child and the alleged parent, not between the parents).

Finally, it is well established in California that whenever possible, “a child should have the benefit of two parents to support and nurture him or her.” See E.C. v. J.V., 136 Cal. Rptr. 3d at 346 (citing Librers v. Black, 28 Cal. Rptr. 3d 188, 194 (Cal. App. 2005)). The California Supreme Court explained that the state legislature has “implicitly recognized the value of having two parents, rather than one, as a source of both emotional and financial support[.]” See Elisa B., 117 P.3d at 669. “The paternity presumptions are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child.” Steven W. v. Matthew S., 39 Cal. Rptr. 2d 535, 539 (Cal. App. 1995). Here, because Claimant’s mother and the DWE remained married and the DWE provided some financial and emotional support to Claimant, and no other person has come forward actively seeking to be Claimant’s father, a California court would not find the marital presumption of paternity rebutted. See In re Nicholas H., 46 P.3d at 941 (concluding that an appropriate action to rebut the paternity presumptions is not one that “will render the child fatherless”).

We recognize that the evidence submitted in this case is relatively thin, particularly in terms of the DWE’s role in Claimant’s life. Nonetheless, given the expressed purpose of the paternity presumptions, a California court is unlikely to find that the contrary evidence here rebuts the presumption. This is particularly true where, as here, the evidence does not show that another person has fulfilled the father role, especially in terms of supporting the child.

In sum, a California court is likely to conclude that Claimant is the DWE’s natural child under the UPA and, as such, can establish inheritance rights under Probate Code § 6453(a). ²

CONCLUSION

Because Claimant was born during his mother’s marriage to the DWE, the DWE is Claimant’s presumed parent under California law. Although the agency received some contrary evidence of biological paternity, this evidence is insufficient to rebut the presumptions under the California Family Code. As the natural child of the DWE, Claimant may inherit from the DWE’s intestate estate. He is therefore entitled to child survivor’s benefits under section 216(h)(2) of the Act.

C. PR 12-063 Child born after Wage Earner’s Death Number Holder – E~ Claimant – Mia – Mother, J~

DATE: February 28, 2012

1. SYLLABUS

If properly verified, the genetic evidence establishes that the number holder is the claimant’s presumed father under California law because it would have been impossible for the number holder to “hold out” the child as his own before his death. However, because the evidence submitted does not include the required chain of custody documentation to ensure the accuracy of the genetic evidence, the agency does not currently have sufficient evidence to conclude that the claimant qualifies for child’s insurance benefits.

2. OPINION

QUESTION PRESENTED

You asked whether the agency has sufficient evidence to find that M~ (claimant), a child born after the death of E~ (number holder), qualifies for surviving child’s insurance benefits on the number holder’s earnings record.

SHORT ANSWER

FACTUAL BACKGROUND

The number holder committed suicide on November XX, 2009 in Riverside County, California. The claimant was born approximately eight months later, on August, in San Bernardino County, California to J~ (mother). The claimant’s birth certificate does not identify a father.

In support of the claimant’s application for child survivor benefits, the number holder’s mother submitted a statement dated September 6, 2010, declaring that the claimant’s mother contacted her soon after she was pregnant with the number holder’s child. The number holder’s mother believes that the claimant is the number holder’s daughter. On October XX, 2010, the mother’s parents (claimant’s maternal grandparents) also submitted statements asserting that the number holder and mother resided together in their household prior to the number holder’s death, and that the two planned to get married.

DNA (genetic material) of the claimant and the number holder’s mother was tested by DNA Solutions, Inc., on August 11, 2011. On August 18, 2011, Brandt , Ph.D., and analyst Kelsy reviewed the results of the DNA testing and, under penalty of perjury, opined that the results showed a 99.9786% probability of a relationship, demonstrating that the number holder’s mother likely is the claimant’s paternal grandmother. The test results submitted do not contain information regarding the chain of custody of the samples tested, the proof of identity submitted by each person tested, the means of collection and transmission of the samples to the laboratory, and how the samples were handled and properly identified at the laboratory.

DISCUSSION

Under the Social Security Act (Act), every child, who is the child of an individual who died fully and currently insured, is entitled to child insurance benefits, if the child:

(1) is the insured worker’s child, as defined in § 216(e);

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; ³ and

(5) was dependent upon the insured worker at the time of the worker’s death.

See Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350; Program Operations Manual System (POMS) GN 00306.001(A).

Under the Act, a claimant has child status and is considered dependent if the claimant has inheritance rights under state intestacy laws. ⁴ Social Security Act, § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); Social Security Ruling (SSR) 77-2c. In the case of a deceased insured, the Commissioner applies the intestacy laws of the state where he or she was domiciled at the time of death. Id.; see also POMS GN 00306.055 (stating that an “illegitimate child” has inheritance rights under applicable state law). The agency does not require child to bring a paternity action in state court to establish a right to child’s insurance benefits, but applies the same standards that a state court would use. See 20 C.F.R. § 404.355(b)(2). Since the number holder in this matter was domiciled in California at the time of death, California intestacy law applies.

California Intestacy Law

Under California intestacy law, a child may inherit from the alleged father’s estate if “[i]t was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence.” Cal. Prob. Code § 6453(b)(3), see also Cal. Fam. Code § 7630(c) (providing for action to establish paternity by purported child of a deceased biological father); Cal. Prob. Code § 6407 (“Relatives of the decedent conceived before the decedent’s death but born thereafter inherit as if they had been born in the lifetime of the decedent.”). Legislative history indicates that this section was intended to permit children to establish paternity where the child’s parents were not married and the alleged father died before having an opportunity to acknowledge the child. See Intestate Succession: Establishing A Parent and Child Relationship, Bill Analysis for Assembly Bill No. 1137, Cal. Leg. 1993-1994 Reg. Sess., at 2 (Aug. 1993). As intended, California courts have found that the “impossibility” provision is meant to “cover the situation . . . where the father dies before the child is born.” See, e.g., Cheyanna M. v. A.C. Nielsen Co., 78 Cal. Rptr. 2d 335, 349 (Cal. Ct. App. 1998).

In such cases – where the biological parents were unmarried and the alleged father died before having an opportunity to acknowledge the child – the determination of paternity must be established by clear and convincing evidence. See C~, 78 Cal. Rptr. 2d at 349 (holding that a child born out of wedlock after the death of her alleged father had standing to bring suit under Family Code § 7630 to establish paternity through clear and convincing evidence). The agency also acknowledges genetic evidence as reliable to establish paternity in these circumstances. POMS GN 00306.430(A)(1)(c) (recognizing that California relies on genetic testing that meets certain specifications); accord Cal. Fam. Code § 7555 (declaring that a rebuttable presumption of paternity may be established through genetic testing).

The facts here fit within this established agency policy: the number holder and mother were unmarried, and, due to the number holder’s suicide, it was impossible for him to hold out the child as his own. See id. In this matter, then, the agency may rely on genetic testing to establish a rebuttable presumption of paternity. See id.

Genetic Testing

In paternity matters, the California Family Code sets forth the requirements for genetic testing. Cal. Fam. Code §§ 7552-7555; see also POMS GN 00306.430(A)(1)(c) (setting forth California intestacy law and the requirements for genetic testing evidence establishing paternity). For example, the testing must be performed “a laboratory approved by any accreditation body that has been approved by the United States Secretary of Health and Human Services.” Id. at § 7552. ⁵ If the paternity index is 100 or greater, there is presumption of paternity, rebuttable by a preponderance of the evidence. Cal. Fam. Code § 7555(a); see County of El Dorado v. Misura, 33 Cal. App. 4th 73, 82-84 (Cal. Ct. App. 1995) (discussing Cal. Fam. Code § 7555(a) and presumption of paternity).

Moreover, the agency accepts genetic evidence of a putative father’s relatives for purposes of establishing paternity. See, e.g., SSR 06-02p (concluding that DNA testing establishing a sibling relationship was sufficient to establish paternity); see also POMS GN 00306.065(C)(1) (contemplating that paternity may be established through DNA testing of relatives), PR 01115.011-California PR 06-349, Opinion: Claim for Child’s Insurance Benefits on Account of Deceased (relying, in part, on grandparent DNA testing to conclude child eligible for benefits on account of deceased wage earner). This policy is consistent with the Act’s instruction to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the methods of taking and furnishing the same in order to establish the right to benefits.” Social Security Act, § 205(a), 42 U.S.C. § 405(a).

In addition, where genetic testing of relatives is used to establish paternity, the agency will not investigate whether a male relative of the number holder may have fathered the child unless the facts of the case raise the issue or the Regional Chief Counsel directs such development in a precedent opinion. POMS GN 00306.065(C)(2); accord PR 01115.011-California PR 06-349 (concluding no further factual development required under California law where relationship established by grandparent DNA testing); PR 01115.011Florida A. PR 09-032 Genetic Testing, Florida Deceased Number Holder – Peter Claimant – Nakeetric (concluding no further factual development required under Florida law where relationship established by twin brother’s DNA testing). Here, the genetic evidence is consistent with the facts provided by the number holder’s mother and the maternal grandparents. The agency has received no contrary evidence or facts to suggest that a male relative of the number holder may have fathered the claimant. Thus, there is no evidence suggesting that the presumption of paternity has been rebutted or should be examined further. See, e.g., County of El Dorado, 33 Cal. App. 4th at 83 (setting out methods for rebutting statutory presumption of paternity).

DNA Solutions, Inc., is an American Association of Blood Banks (AABB) accredited laboratory; AABB is recognized by the United States Department of Health and Human Services as a reliable accreditation body.⁶ DNA Solutions’ tests of the DNA of the number holder’s mother, the claimant, and the claimant’s mother showed a 99.99% probability that the number holder’s mother is the maternal grandmother of the claimant. Accordingly, given the 99.99% probability, the claimant would have established a rebuttable presumption of paternity if the evidence also contained the appropriate chain of custody. See POMS GN 00306.430(A)(1)(c)(5); Cal. Fam. Code § 7552.5(a).⁷ However, because chain of custody information was not included in the test results submitted, the evidence does not meet all requirements of California law. See id. A California court would likely determine that the claimant has not established paternity by clear and convincing evidence. Therefore, based on the currently available evidence, the claimant does not qualify for child’s survivor insurance benefits on the number holder’s account.

CONCLUSION

While genetic evidence shows that the claimant is the number holder’s biological child, the claimant has not presented clear and convincing evidence for the agency to conclude that he is the number holder’s child under the Act, and thus entitled to child survivor’s insurance benefits. We recommend that the agency reach out to the claimant to obtain the required chain of custody information. Assuming it meets the requirements in POMS GN 00306.430(A)(1)(c)(5), the claim may be granted. We remain available to review any additional evidence you may obtain, if you would like our assistance.

D. PR 07-015 OPINION: Child Born 305 days After the Death of the Wage Earner in the State of California Claimant: M~ o/b/o K~ Wage Earner: D~

DATE: November 6, 2006

1. SYLLABUS

Under California statutes, a man is presumed to be the father of a child if "[h]e and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court."

In a case where the child was not born until 305 days after the number holder's death, paternity cannot be presumed and the parent-child relationship must be established through other clear and convincing evidence.

2. OPINION

SUMMARY OF EVIDENCE

On December XX, 2002, D~ (wage earner), who was 33 years old, died of gunshot wounds to the chest and abdomen. See death certificate. At the time of his death, he was domiciled in the State of California. See id. His death certificate names S~ (S~) as his wife and surviving spouse. See id. D~ and S~ married on November XX, 2002, in California. See License and Certificate of Marriage.

On May 20, 2003, an ultrasound ordered by Jill N.P., and interpreted by Marianna , M.D., indicated that the composite ultrasound age of the fetus was 18 weeks old at that time, and that the age of the fetus based on the mother's last menstrual period (LMP) was 18 weeks and 2 days. See Radiology Report, OB Ultrasound Level 1. The date of Shelly's last menstrual period was noted to be January 12, 2003. See id. The ultrasound report showed two estimated dates of delivery (EDD) based on the two estimated ages of the fetus: the EDD based on the composite ultrasound age was October XX, 2003, and the EDD based on the LMP was October XX, 2003. J~ , who provided obstetric care for S~, stated in writing that the date of S~'s last menstrual period was January XX, 2003, and that she delivered a healthy full term baby on October, at 41 weeks and one day (288 days) in gestation. See Letter by Jill , R.N.P., dated December 8, 2003.

K~ (the claimant) was born on October, 305 days after the wage earner's December 27, 2002 death. See Birth Certificate. The birth certificate lists the father as D~ (the wage earner). See id. Notes from a Mother and Infant Home Care Program taken four days after the claimant's birth indicate that the father of the baby (FOB) was deceased. See Kaiser Permanente Home Health Agency Chart Notes dated October 31, 2003. The notes also indicate that the family of the father of the baby is "supporting mom/ assisting her." See id. Shelly stated that she and the wage earner had been living together for seven years, and decided to get married in November 2003. See Report of Contact dated July 10, 2006.

On March 26, 2003, S~ filed an application for a lump sum death payment, in which she stated that she was 2 months pregnant and her due date was October XX, 2003. See Application dated March 26, 2003. On November 17, 2003, S~ filed an application for child's insurance benefits on the wage earner's account on the claimant's behalf. See November 17, 2003 Application for Child's Insurance Benefits. S~ alleged that the wage earner died on December 27, 2002, and that the claimant was born on October . See id.

Both applications were granted. You subsequently referred this case to us for an opinion as to whether that decision was appropriate because it involved a child born after a long gestation period and was identified in an audit conducted by the Office of the Inspector General.

ANALYSIS

A. Social Security Program Requirements

A "child" of an individual who dies fully or currently insured under the Social Security Act (the Act) is entitled to child's insurance benefits if he or she:

(1) is the insured's child, as defined in 42 U.S.C. § 416(e);

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and

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

Social Security Act § 202 (d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2006). If a child is the insured's child (meeting the first requirement), the child is considered dependent upon the insured, satisfying the fifth requirement. See 20 C.F.R. § 404.361(a). Here, it is undisputed that the wage earner was insured at the time of his death; the claimant applied for benefits, was under the age of 18, and was unmarried. The question remains whether the claimant was the child of the wage earner and was dependent on him within the meaning of the Social Security Act, so as to qualify for benefits.

A claimant may prove that he or she is the child of the worker in any of the following four ways:

By State Law:

1. He or she could inherit the worker's property as the worker's child under the law of intestate succession of the state where the worker was domiciled at the time of his death. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

By Alternative Federal Standards:

2. The claimant is the worker's natural child and the mother or father went through a ceremony, which would have resulted in a valid marriage between them except for a "legal impediment." See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

3. Before his death, the worker acknowledged in writing that the child is his natural child; the worker was decreed by a court to be the father; or he was ordered by a court to contribute to the child's support because the claimant was his child. See Social Security Act § 216(h)(3)(C)(i); 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3).

4. The worker is shown by evidence satisfactory to the Commissioner of Social Security to have been the child's father, and he was living with or contributing to the child's support at the time of his death. See Social Security Act § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4).

See also Social Security Ruling 06-02p. We must determine whether the claimant is eligible under the state intestacy law before we can apply the alternative federal standards. See, e.g., Ramo v. Shalala, No. 93-36054, 1994 WL 650005, at *2 (9th Cir. November 15, 1994) (remanding the case back to agency to first determine whether the child is eligible under the state intestacy law before applying the alternative federal standards).

B.Claimant's Status under California Intestacy Law.

1. Application of California Family Code Section 7540.

Under Section 7540 of the California Family Code, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. Cal. Fam. Code § 7540.

Under section 7540, "the words, 'wife cohabiting with her husband,' have been judicially construed to mean cohabiting at the time of conception, not cohabiting at the time of birth." Brian C. v. Ginger K., 77 Cal. App.4th 1198, 1203 (2000). Thus, the conclusive presumption under section 7540 would ordinarily apply if the child is conceived while the mother is married to and cohabiting with the wage earner. See id. at 1203.

Here, Shelly's last menstrual period (LMP) was on January 12, 2003, which is sixteen days after the wage earner's death on December 27, 2002. See Death Certificate; Ultrasound Radiology Report. "The length of most pregnancies is calculated from the first day of the last menstrual period, since, normally, but not invariably, menstruation does not occur during pregnancy." See Whitney v. Whitney, 169 Cal.App.2d 209, 213 (1959). Calculating the start of pregnancy from the first day of the mother's last menstrual period, the claimant could not have been conceived before January 12, 2003, sixteen days after the death of the wage earner. See id. In reality, conception does not ordinarily occur on the first day of a menstrual period, but up to two weeks later, which would place conception in this case as late as January 26, 2003. See Pregnancy, Understanding Conception. http://www.webmd.com/content/article/51/40790.htm. Thus, the claimant could not have been conceived during the marriage ending with the wage earner's death on December 27, 2002.

Additionally, as noted above, an ultrasound report interpreted by Dr. Jason indicated that the composite ultrasound age of the fetus on May 20, 2003, was 18 weeks old. This would place conception on January 14, 2003, after the wage earner's death. The ultrasound report also indicates that the age of the fetus, based on the last menstrual period, was 18 weeks and two days on May 20, 2003. If the fetus was 128 days old on the date of the ultrasound, this would indicate that conception took place on January 12, 2003.

More importantly, under California case law, the conclusive presumption of section 7540 does not apply where the period of gestation necessary in order that the husband be the father is "exceptional and not according to the usual operation of the laws of nature." W~, 169 Cal.App.2d at 213. The W~ court held that the conclusive presumption of legitimacy does not apply when the necessary period of gestation extends to at least 297 days. See id. at 217. In the present case, the claimant's period of gestation from the date of the wage earner's death was 305 days. Therefore, the conclusive presumption of legitimacy in section 7540 is inapplicable in this case. Id. 2.Application of California Family Code Section 7611 (a).

A man is presumed to be the natural father of a child if "(a) [h]e and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court." Cal. Fam. Code § 7611 (emphasis added).

Here, the claimant was not born until October , 305 days after the termination of the marriage by death. Thus, the wage earner could not be a presumed father under this section of the California Family Code. Cal. Fam. Code § 7611.

C. Application of Other Clear and Convincing Evidence to Establish Parentage.

Under Section 6453 of the California Probate Code, where it is "impossible for the father to hold out the child as his own" (such as in this case where the father dies before the child is born), the existence of a father-child relationship may nonetheless be established by clear and convincing evidence in an action to determine parentage brought under section 7630(c) of the California Family Code. Cal. Prob. Code § 6453(b)(3); Cheyanna M. v. A.C. Nielsen Co., 66 Cal. App. 4th 855, 867 (1998). Under Social Security regulations we apply the standard of proof applied by the state adjudicator. 20 C.F.R. § 404.355(b)(2). In a prior opinion, we applied the "clear and convincing" standard of proof where a paternity order was not binding. Memorandum from Regional Chief Counsel, San Francisco, to Ass't Reg. Comm.-MOS, Richmond, Claim for Child's Insurance Benefits on Account of Wage Earner Michael . (August 22, 2005). As we explained, this standard is more demanding than a preponderance of evidence and requires evidence that is clear, explicit, and unequivocal. Id.

Here, although there is some circumstantial evidence of paternity, it is not clear and convincing. The claimant's mother was married to the wage earner until his death on December 27, 2002, and stated she had been living with him for seven years. See Statements by Shelly. The paternal in-laws remained close to Shelly during her pregnancy, assisting and supporting her. See October 31, 2003, Kaiser Permanente Home Health Agency Chart Notes. However, as discussed above, the evidence suggests that conception took place, at the earliest, in mid-January 2003, approximately sixteen days after the wage earner's death, and could have taken place as late as January 26, 2003, approximately one month after the wage earner's death. The evidence that the claimant is not the child of the wage earner includes ultrasound fetal imaging, a nurse practitioner's written and unrebutted statement that Shelly's last menstrual period was on January 12, 2003 and that the claimant was 288 days in gestation at delivery, placing conception in mid-January 2003. See Letter by Jill , R.N.P., dated December 8, 2003.

Accordingly, the evidence does not support the initial finding that the claimant qualifies as the wage earner's child. However, we recommend that you forward this case to an agency physician for a medical opinion regarding the date of conception, and the medical possibility of whether the claimant could be the wage earner's child. We found an internet article that estimates that "up to 30% of pregnant women will experience some degree of vaginal bleeding while they are pregnant. Doctors do not know for certain what causes this bleeding, but it may occur as a result of the fertilized egg implanting in the uterine wall." See MedicineNet.com@http://www.medicinenet.com/vaginal_bleeding/page5.htm. Heavier bleeding after pregnancy may indicate the presence of a medical complication. See Managing Complications in Pregnancy and Childbirth, @http://www.who.int/reproductive-health/impact/Symptoms/Vaginal_ bleeding_early_S7_S16.html.

E. PR 06-350 Claims for Insurance Benefits of Child Conceived by Artificial Insemination on the Account of Semen Donor in the State of California (1) or of resumed Father in the State of Pennsylvania (2) Claimant: L~ o/b/o J~ Wage Earners: B~ (1); and R~ (2)

DATE: September 30, 2006

1. SYLLABUS

In California in a case where a claim has been filed for an artificially conceived child on the record of the sperm donor, courts would not find the donor to qualify as the child's father for inheritance purposes since he had never acknowledged or held the child out as his own. Additionally, the mother's husband at the time of the child's birth had taking the child in to his home as his own and raised him for seven years. There is no likelihood that a California court would entertain a challenge to the presumed father's paternity of a child born, like the claimant, over 10 years ago. Finally, it is unlikely that the claimant could show that his best interest requires disregarding a long standing father-child relationship.

In the same case, the claimant also filed for benefits on the record of his presumed father, the man married to his mother at the time of conception. In Pennsylvania, the State where the presumed father now resides, the claimant is presumed to be the child of his mother's former husband as the child of a marriage.

Even if the presumption could be successfully overcome, the former husband would be estopped from denying paternity because he consented to the artificial insemination, supported the child as his own for more than seven years, agreed to do so in a marital settlement agreement, and did not appeal the court's support order. Pennsylvania courts would find the claimant to be the child of his mother's former husband.

2. OPINION

You asked whether a child conceived by artificial insemination qualifies for child's insurance benefits as the child of the semen donor or the mother's husband at the time of conception and birth.

PROCEDURAL HISTORY

On January 19, 2006, L~, a.k.a. L~ (the claimant's mother) filed an application for child's insurance benefits (life claim) on behalf of J~ (the claimant) on the account of B~ (the alleged biological father), her husband from a prior marriage. See January 19, 2006 application. You indicated that the biological father was domiciled in the State of California at the time the application was filed. The application was granted with payments retroactive to September 2005. See Notice of Award.

The claimant's mother, however, was married to another man, R~ , at the time of the claimant's conception and birth. See Worksheet Remarks. She had not provided medical evidence that the presumed father was sterile. See id. Thus, on November 22, 2005, the claim on the biological father's account was disallowed on reconsideration. See id.

On June 26, 2006, L~ filed a new application (life claim) on J~'s behalf on the account of the presumed father, R~ . See Development Worksheet dated June 26, 2006. You indicated that the presumed father was domiciled in the State of Pennsylvania at the time the application was filed.

We consolidated the review of the claimant's successive applications in this opinion. The following is a summary of the evidence presented in support of these applications.

SUMMARY OF EVIDENCE

L~ married R~ in Placerville, California. See marriage certificate. They divorced on July 1, 2003 in the State of Nevada. See Decree of Divorce (filed July 1, 2003). Starting in 1991, L~ underwent a course of artificial insemination in a California clinic "due to her husband's history of vasectomy." Report by L.V. , M.D., dated February 25, 1994; see also April 27, 2006 letter from Emerald Bay Center for Women's Health.

The record suggests that R~ was aware of, and consented to the artificial insemination of his wife. There is no written record of his consent because the clinic's policy did not require a husband's consent. See Report of Contact with Practice Manager at Emerald Bay Center for Women's Health on July 6, 2006. There is nonetheless a later record indicating that L~ was accompanied by R~ for a pregnancy care visit. See July 21, 1995 treatment notes.

In addition, L~ stated that R~ and the biological father agreed to her artificial insemination with the latter's semen. See Report of Contact of Claimant's mother on October 7, 2005. According to L~, the artificial insemination was performed not at the clinic, but at the family's home. See Report of Contact of Claimant's mother on October 7, 2005. R~ and L~ lived together at the time. See their declarations of March 14 and 28, 2006. On October, L~ gave birth to J~ in California. See Claimant's birth certificate. The birth certificate lists L~ as the mother and informant, and R~ as the father. See id. According to L~, R~ raised J~ as his child during the marriage. See Report of Contact of Claimant's mother on October 7, 2005.

On July 1, 2003, a Nevada court entered a final decree of divorce incorporating the parties' marital settlement agreement. See Property Settlement and Child Custody Agreement (Agreement) and Decree of Divorce (filed July 1, 2003). In the Agreement, they acknowledge the existence of "one minor child the issue of this marriage, to-wit: J~ , born October . . . ." Agreement. The court ordered R~ to pay child support for J~ and granted legal custody of J~ to both parents. See id. According to L~, however, R~ "now since they are no longer married refuses to pay child support." See Report of Contact of Claimant's mother on October 7, 2005.

On or about January 11, 2006, L~, J~, R~, and B~ were genetically tested. See DNA Parentage Test Report dated January 11, 2006. The results established a 99.99+ percent probability that B~ is J~'s biological father. See id. On January 19, 2006, Bruce acknowledged that he is the biological father based on that evidence. See Child Relationship Statement – B~ . He explained, however, that he did not otherwise acknowledge, provide for, or hold out the child as his own. See id.

In a February 2, 2006 declaration, R~ indicated that he was sterilized in approximately 1972, and that B~ is J~'s biological father. See R~'s declaration (February 2, 2006). In a March 28, 2006 declaration, R~ stated that he was unable to provide medical records of his vasectomy. See R~ declaration (March 28, 2006).

ANALYSIS

A. Federal Law

We determine a claimant's eligibility for child insurance benefits under section 202(d)(1) of the Social Security Act by determining whether he is the "child" of an insured individual as defined in section 216(e) and was dependent on the insured under section 202(d)(3). See Social Security Act § 202(d)(1); 20 C.F.R. § 404.350 (2006). In cases where parentage is in dispute or the child is illegitimate, section 216(h) remains the appropriate analytical framework for determining "child" status under section 216(e). See Gillett-Netting v. Barnhart, 371 F.3d 593, 596-97 (9th Cir. 2004) (holding that parentage need not be established under § 216(h) unless parentage is in dispute or the child is illegitimate); see also Acquiescence Ruling (AR) 05 1(9), 70 Fed. Reg. 55,656 (September 22, 2005).

Section 216(h)(2)(A) directs us to "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 the application was filed . . . ." Social Security Act § 216(h)(2)(A). We would apply California law to the claimant's January 19, 2006 application on the account of his alleged biological father who was domiciled in California at that time. If we find that that application was properly denied, we would apply Pennsylvania law to the claimant's June 26, 2006 application on the account of his presumed father who was domiciled in Pennsylvania.

B. California Intestacy Laws and Claimant's Application on the Account of his Alleged Biological Father, B~

Under California intestacy law, a child may inherit the intestate estate of his natural parent. Cal. Prob. Code §§ 6401, 6402, 6450 (2006). A natural parent and child relationship for purposes of intestate succession may be established based on a "presumed father" status under the Uniform Parentage Act (Cal. Fam. Code § 7600, et seq.). Cal. Prob. Code § 6453. A man who was neither legally married nor attempted to legally marry the mother of his child cannot, however, be a "presumed father" unless he receives the child into his home and openly holds out the child as his natural child. Cal. Fam. Code § 7611(d). Further, a "donor" who provided semen for use in the artificial insemination of a woman other than his wife through a physician has no valid paternity claim. See Cal. Fam. Code § 7613(b).

Here, even if Bruce's semen was used, he was only a "donor," and never attained "presumed father" status. See id. Notwithstanding the fact that Bruce may have been L~'s husband by a prior marriage, he was not married or attempted to marry her at any relevant time, and had no relationship with the claimant. See Cal. Fam. Code § 7611. There is no indication that he attempted to create a relationship with the claimant either before or after L~'s divorce from R~. See id.

As further consideration, California law would not recognize Bruce's biological paternity since he had not taken the child into his home nor developed a parent-child relationship; on the other hand, the claimant's longstanding father-child relationship with R~, his presumed father militates against the existence of presumed or natural father status with Bruce. For more than seven years after the child's birth, R~ assumed the obligations and functions characteristic of a father-child relationship. See, e.g., Agreement; and Cal. Fam. Code § 7611(d) (presumed father status based on actual parenting). The existence of a longstanding relationship provides the strongest policy consideration for preserving R~'s status in this case. See Guardianship of C~, 148 Cal. App. 3d 81, 86 (1983) ("in the case of an older child the familial relationship between the child and the man purporting to be the child's father is considerably more palpable than the biological relationship of actual paternity") (internal quotes and citation omitted). In addition, the claimant was born during R~ and L~'s marriage. See Cal. Fam. Code § 7611(a) (husband presumed father of child born in wedlock).

That the presumed father R~ belatedly disclaimed paternity is of no consequence to his status. As the California Supreme Court reasoned in a leading case:

[o)ne who consents to the production of a child cannot create a temporary relation to be assumed and disclaimed at will, but the arrangement must be of such character as to impose an obligation of supporting those for whose existence he is directly responsible.

People v. Sorenson, 68 Cal. 2d 280, 285 (1968). In S~, the California Supreme Court held the father criminally liable for unpaid child support for a child who was not genetically related to him, when he consented to the procreation of the child through artificial insemination of his wife by an anonymous sperm donor. Based in part on the decision in S~ and other case law cited therein, we advised that a husband who had consented to artificial insemination of his wife was the legal father of the child, even though the father and mother separated before the child was born, and the biological father never had any contact with the child. See POMS PR 01105.006.A, Claim for Child Insurance Benefits on account of wage earner, Joseph (September 24, 2003).

Here, the presumed father R~ took J~ into his home and raised him as his own for seven years. Thus, even if R~ later chose to have his DNA tested to disclaim paternity, such evidence would not be admissible because he consented to the claimant's conception by artificial insemination and assumed the obligations of a father for seven years. See Cal. Fam. Code § 7541(e).

Finally, the Nevada stipulated court order would be given full faith and credit by courts and have the same effect as a paternity determination made in California. See Cal. Fam. Code § 5604. The order would be binding on the parties and their privies. See Guardianship of C~ ., 148 Cal. App. 3d 81, 85 (1983). In addition, Cal. Fam. Code § 7630(a)(2) would require that an action to declare the nonexistence of a presumed parent and child relationship be "brought within a reasonable time." Cal. Fam. Code § 7630(a)(2). The statute reflects the strong California public policies of maintaining established parent-child relationships and ensuring the finality of paternity judgments, which go beyond the doctrines of res judicata and collateral estoppel. See Guardianship of C~ ., 148 Cal. App. 3d at 85 (applying policy to preclude a challenge brought by grandparents who were not parties to the action in which the parentage finding was made). There is no likelihood that a court would entertain a challenge to the presumed father's paternity of a child born, like the claimant, over 10 years ago. Finally, it is unlikely that the claimant could show that his best interest requires disregarding a longstanding father-child relationship.

As the foregoing analysis indicates, the court's determination appears to be fair and correct under California law, and is not the result of a judgment by def A~. There is no reason why it should be disturbed by the Agency. See Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973) (Agency is not free to ignore the adjudication of a state trial court in a contested proceedings where it is fair and consistent with the law as enunciated by the highest court of the State); see also SSR 83-37c, http://www.socialsecurity.gov/OP_Home/rulings/oasi/09/SSR83-37-oasi-09.html (adopting that circuit court decision), and Memorandum from Regional Chief Counsel, San Francisco, to Ass't Reg. Comm.-MOS, Richmond, Claim for Child's Insurance Benefits on Account of Wage Earner Michael (August 22, 2005) (reprinted in POMS PR 01215.006).

In light of the foregoing, we believe that the claimant's application for child's insurance benefits on the account of Bruce was properly disallowed on reconsideration. We thus turn to the claimant's application on the account of his presumed father in light of Pennsylvania intestacy laws.

C. Pennsylvania Intestacy Laws and Claimant's Application on the Account of his Presumed Father, R~

Pennsylvania law vests intestate inheritance rights in "the issue of the decedent." 20 Pa. C.S. § 2103 (2006). As to the determination of J~'s paternity, Pennsylvania law relies on the same policy considerations as California. As indicated below, these considerations lead us to conclude that R~ is the claimant's father.

Specifically, R~ is presumed to be the legitimate father of the claimant as a child of the marriage. Miscovich v. Miscovich, 688 A.2d 726, 728-29 (Pa. Super. Ct. 1997). "Although the presumption is rebuttable, one who attempts to overcome it bears a heavy burden." Id.

Even if the presumption could be successfully overcome, R~ would be estopped from denying paternity because he consented to the artificial insemination, supported J~ as his own for more than seven years, agreed to do so in a marital settlement agreement, and did not appeal the court's support order. See, e.g., McConnell v. Berkheimer, 781 A.2d 206, 211 (Pa. Super. Ct. 2001) (applying estoppel doctrine where, in particular, father lived with the mother and the child for four months after the child's birth, accepted the child as his own for over a year; and failed to timely appeal support and contempt order); M~, 688 A.2d at 726 (denying husband's request for blood tests to disprove paternity where husband had an established relationship with child that did not deteriorate until after relationship with wife deteriorated, a familial relationship existed at the time the child was born, and no evidence of nonaccess, sterility, or impotency was offered); Commonwealth ex rel. Gonzalez v. Andreas, 369 A.2d 416, 418 (Pa. Super. Ct. 1976) (same where, for approximately three years, parties lived together following the child's birth and father supported the child as his own and never expressed any doubts about the child's parentage).

That the alleged biological father belatedly acknowledged paternity is of no consequence. As previously indicated and as opposed to R~'s conduct, Bruce has not played any significant role in the child life. As a result, he would be estopped from asserting paternity. See Buccieri v. Campagna, 889 A.2d 1220, 1228 (Pa. Super. Ct. 2005) (finding that delay and inactivity for eight years barred alleged biological father from asserting paternity where mother's husband was involved in child parenting for three years).

Finally, the Nevada court's July 1, 2003 final order would be given full faith and credit by Pennsylvania courts and have the same effect as a paternity determination made in Pennsylvania. See Chrzanowski v. Chrzanowski, 472 A.2d 1128, 1131 (Pa. Super. Ct. 1984). Because R~ was afforded the opportunity to litigate, he would be barred from relitigating the issue of his paternity that was determined by a court of competent jurisdiction. See Ruth F. v. R~ B., 690 A.2d 1171, 1174-75 (Pa. Super. Ct. 1997) ("Principles of res judicata are also applicable to determinations of paternity."). Again, the Agency is not free to disregard the court order, which appears to be fair and correct.

In sum, we believe that the claimant's application for child's insurance benefits on the account of R~ should be granted.

F. PR 04-115 Claim for Child's Insurance Benefits (Survivor) on account of wage earner L~ , SSN: ~

DATE: December 28, 2001

1. SYLLABUS

If the presumption of paternity has not been established, we will accept a court order of paternity entered during the father's life. If there is no court order entered during the father's lifetime, we will apply the clear and convincing standard of proof to determine whether the father has held the child out as his own, or if that was impossible, we determine whether there is clear and convincing evidence of paternity. To establish the presumption of paternity under CA law, it must be proven that the alleged father received the child into his home, not merely that the father resided with the child in the mother's home as a matter of convenience. Prior to 1996 an unmarried mother in CA was able to name a father on the child's birth certificate without his consent. Therefore, the birth certificate naming the wage earner as father is probative evidence, it is not a disposition.

2. OPINION

QUESTION

You asked whether J~ (claimant) can qualify for child's insurance benefits on the wage earner's account.

ANSWER

No, claimant does not qualify as the child of the wage earner for purposes of this claim.

SUMMARY OF EVIDENCE

According to a May 1999 statement submitted by claimant's mother, the wage earner accompanied her to pre-natal medical appointments at the Watts Health Foundation when she was pregnant with claimant.

Claimant's mother submitted claimant's birth certificate, which was registered in February 1985. The certificate states that claimant was born on January, and names the wage earner as claimant's father. Claimant and the wage earner have the same last name.

According to claimant's mother's May 1999 statement, the wage earner orally admitted that he was claimant's father. She, the wage earner, and claimant lived together until claimant was about one year old. Claimant's mother stated that the local welfare agency (Aid to Families with Dependent Children - AFDC) “didn't know he was in the household.” However, she also stated that the welfare agency instituted a support action against the wage earner. She did not state when the action was filed. She claimed that the district attorney had obtained a support order but that “Social Services never collected” any support payments. She does not have the court order. Claimant's mother also reported that the wage earner wrote letters in which he acknowledged claimant as his son. She does not have the letters. She claimed that an attorney for the wage earner had filed a lawsuit against the Pasadena hospital where the wage earner died.

According to a “Child Relationship Statement” (undated) completed by claimant's aunt (the sister of claimant's mother), the wage earner had told her and others that he was claimant's father. The aunt stated that he had accompanied claimant's mother to prenatal appointments. The aunt said that the wage earner, claimant's mother, and claimant had lived together for about one year immediately after the birth. She stated that the wage earner had bought food and clothing for claimant. The aunt claimed that the wage earner's mother and sister accepted claimant as a member of their family. They visited claimant and brought clothing and toys.

In a handwritten letter dated June 8, 1999, the aunt also claimed that after the wage earner, claimant's mother, and claimant had stopped living together, the wage earner had visited claimant on his birthday and one or two other times. He had given claimant's mother money for diapers or milk and brought gifts for claimant. “It wasn't much because he didn't have much.” Claimant's mother and claimant moved out of the Watts area in June 1989. At the time, the wage earner was homeless. (According to a summary of the evidence by a Social Security official, there was “little contact” after the move).

According to a “Child Relationship Statement” (undated) completed by claimant's maternal grandmother, the wage earner admitted to her and others that he was claimant's father. He had accompanied claimant's mother to medical appointments during her pregnancy. After claimant was born, claimant's mother and the wage earner had lived together for one year. The wage earner had bought food and clothing for claimant.

According to a detailed earnings query, the wage earner's work history was very minimal and sporadic to mostly non-existent. However, the query indicates that he earned $6,236 in 1993.

The wage earner died on January 2, 1994 domiciled in California. Claimant's mother applied for child's insurance benefits in October 1994. The application was denied.

Claimant's mother filed the current application on May 26, 1999.

ANALYSIS

A. California Law

A claimant is entitled to child's insurance benefits as the “natural child” of the wage earner if she can establish intestacy rights under applicable state law. 42 U.S.C.§ 416(h)(2)(A); 20 C.F.R. § 404.355 (2001).

Under the California Probate Code, a child establishes a natural parent-child relationship for intestate succession if the relationship is presumed and not rebutted under the Uniform Parentage Act (UPA). Cal. Prob. Code § 6453(a). The relationship may also be established under other provisions of the UPA. If a UPA court action is filed under California Family Code section 7630(c), the court order of paternity must be entered during the lifetime of the father. If the court order was not entered during the father's lifetime, there must be clear and convincing evidence that the father openly held the child out as his own, or, if it was impossible for the alleged father to openly hold out the child as his own, there must be clear and convincing evidence establishing paternity. Cal. Prob. Code § 6453(b).

Under Social Security regulations, we do not require a court order, but instead apply the standard of proof applied by the state adjudicator. 20 C.F.R. § 404.355(b)(2) (2001). Therefore, in applying California law, we determine whether a claimant has established a presumption of paternity. If he has not established a presumption, we will accept a court order of paternity entered during the father's life. If there is no court order entered during the father's lifetime, we will apply the clear and convincing standard of proof to determine whether the father has held the child out as his own, or if it was impossible for the father to openly hold the child out as his own, we determine whether there is clear and convincing evidence of paternity.

Under the UPA, there are several rebuttable presumptions. Only one is relevant here. A man is presumed to be the father of a child if he “receives the child into his home and openly holds out the child as his natural child.” Cal. Prob. Code § 6453(a); Cal. Fam. Code § 7611(d). A man must establish this presumption by a preponderance of evidence, which means that the evidence shows that it is more likely than not that the man received the child into his home and openly and publicly acknowledged paternity. Spencer W. v. Leonard B., 48 Cal. App. 1647, 1652 (4th Dist. 1996).

In the alternative, because there was no court order of paternity entered during the wage earner's lifetime and because it was not impossible for the wage earner to openly hold out claimant as his child, claimant may show by clear and convincing evidence that the wage earner openly held him out as his child. Cal. Prob. Code § 6453(b).

In California, openly holding out a child as one's natural child means that the alleged father has “demonstrated a consistent commitment to assume the burdens of parenthood.” Spencer W. v. Leonard B., 48 Cal. App. at 1653. The alleged father demonstrates this commitment when he takes steps such as assuming financial obligation for child support, attempting to establish paternity by legal action, or having his name placed on the child's birth certificate. Ibid. at 1653-1655. Furthermore, to establish the presumption of paternity under California Family Code section 7611(d), it must be proven that the alleged father received the child into his home, not merely that the father resided with the child in the mother's home as a matter of convenience. Id.

Here, the California criteria were not satisfied either by a preponderance of evidence or by clear and convincing evidence. There is no probative evidence that the wage earner ever received claimant into his home or that the wage earner ever admitted paternity of claimant at a time “when there may have been some cost to him (i.e., reduced AFDC benefits).” Id. at 1654.

There is some evidence of a relationship between claimant and the wage earner. Claimant's mother, his maternal aunt and his grandmother stated that the wage earner had accompanied the claimant's mother to some pre-natal appointments. Furthermore, they stated that the wage earner, claimant's mother, and claimant had lived together for about one year after he was born, but they do not claim that they lived in the wage earner's own home. He reportedly had contributed food and clothing to the household and allegedly admitted to their respective families and others that he was claimant's father. After they stopped living together, he became homeless and drug addicted, although he continued to occasionally visit claimant and bring him gifts. However, this minimal contact and commitment do not establish that the wage earner held claimant out as his child.

The wage earner was named as the claimant's father on the birth certificate, and they shared the same last name. Although this is probative evidence, it is not dispositive because prior to 1996, an unmarried mother in California was able to name a father on the birth certificate without his consent. 20 C.F.R. § 404.731 (2001); Former Cal. Health & Safety Code § 10125.

Claimant's mother also stated that “AFDC” (presumably, the agency administering her welfare benefits) “didn't know” that the wage earner resided with her and claimant. This concealment undermines claimant's assertion that the wage earner openly held him out as his child. The wage earner apparently did not inform government authorities that he was claimant's father. This suggests that he was not willing to proclaim paternity when it may have been at some cost to him. Spencer W. v. Leonard B., 48 Cal. App. 4th at 1654-1655. Thus, the evidence does not establish that the wage earner openly held claimant out as his own child under either California Family Code section 7611(d) or California Probate Code section 6453(b).

Therefore, the evidence in this record does not establish a natural parent-child relationship for purposes of California intestacy law.

B. Federal Methods

Alternatively, the Social Security Act provides that a claimant may be entitled to survivor's benefits as the child of a deceased wage earner if (i) the wage earner: (I) had acknowledged in writing that the claimant is his son or daughter; (II) had been decreed by a court to be the father of the claimant; or (III) had been ordered by a court to contribute to the support of the claimant because the claimant was his son or daughter and such acknowledgement or court order was made before the wage earner's death; or (ii) the wage earner was shown by evidence satisfactory to the Commissioner to have been the father of the claimant, and the wage earner was living with or contributing to the support of the claimant at the time the wage earner died. 42 U.S.C. § 416(h)(3)(C).

Here, claimant's mother was not able to produce any written acknowledgement of paternity or a court order of paternity or support. Thus, claimant could qualify as the child of the wage earner only if there was “satisfactory” evidence of paternity and the wage earner was living with or contributing to the support of claimant at the time of his death in 1994. Even assuming that there were satisfactory evidence of paternity, it is clear that the wage earner was not living with or contributing to the support of the claimant at the time of his death in 1994. According to the aunt, after the wage earner stopped living with claimant and his mother in 1986, the wage earner gave claimant's mother money during occasional visits a few times a year but he did not visit as he had before as time went on. The wage earner was living on the street and “unavailable” for notification when the claimant and his mother moved out of Watts in 1989. The detailed earnings query shows that the wage earner, who died in January 1994, earned $2,920 in 1992 and $6,236 in 1993, but the claimant's mother stated that the wage earner was not making regular and substantial contributions to claimant's support at the time of his death. Indeed, the record does not contain evidence that the wage earner made any contributions to claimant's support in 1993 or 1994, much less “regular and substantial” contributions. See generally, Smith v. Heckler, 820 F.2d 1093 (9th Cir. 1987); Doran v. Schweiker, 681 F.2d 605 (9th Cir. 1982).

Therefore, the federal methods were not satisfied, either.

CONCLUSION

Based on the current record, claimant is not entitled to child's insurance benefits on the wage earner's account.

Janice L. Walli
Regional Chief Counsel

By: ______________
Dennis J. Mulshine
Assistant Regional Counsel

G. PR 84-042 Rebuttal of Presumption of Legitimacy – G~ , DWE

DATE: December 4, 1984

1. SYLLABUS

FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- CALIFORNIA

The fact that a child's mother and her husband were in the service and stationed at different places during the probable time of conception and that a third party claims to be the natural father of the child is not sufficient to rebut the presumption of legitimacy which requires “clear and convincing” evidence. A showing of non-access, sterility, impotence, or the results of a blood test conclusively showing that the husband is not in fact the natural father would be sufficient to rebut the presumption. (, Gary, -- RAV , to ARC, 12/04/84.)

OD 2110 -- CA

2. OPINION

This is with reference to your October 15, 1984 request for a legal opinion. You asked whether recent evidence has rebutted the presumption that claimant, E~ is the natural child of the deceased wage earner (DWE) for purposes of child's survivor's benefits under Title II of the Social Security Act.

In our opinion, the evidence is insufficient under the governing law of California to rebut the presumption. Enough of a doubt has been raised that you may wish to gather more evidence, which we outline below.

BACKGROUND FACTS

Claimant E1~ was born in January, to Vita. She was then married to the DWE, who was listed as the father on the birth certificate. Both parents were serving in the U.S. armed services but stationed apart during the time period when conception took place, the DWE in California and the mother in Puerto Rico.

After the child was born, claimant, the DWE and mother lived together in California as a family. The DWE died in 1981. A claim for benefits for the child was made on the DWE's account, and the benefits have been paid until they were recently suspended pending resolution of the present question.

Sometime after the DWE's death, the child came to live with the maternal grandmother in Wisconsin, who has been representative payee. For the last two years, the child has lived with an unrelated Wisconsin couple who are candidates to become his adoptive parents, to which the mother has agreed.

More recently, the mother and a third person, E2~ , have claimed that E2~ , not the DWE, is the child's natural father. E2~ was also stationed in Puerto Rico during the period when the child was conceived, and both he and the mother admit to sexual relations during that time; the mother claims that she had sexual relations only with E2~ during this period.

E2~ represents that he stayed out of the child's life until now at the mother's request, coming forward only because of the adoption, which he opposes. He also represents that he has been blocked by the Wisconsin adoption agency from establishing his paternity through blood tests in the Wisconsin proceeding, but exactly how is not clear.

SSA received the information questioning the claimant's father from the maternal grandmother, who realized that he therefore might not be entitled to benefits on the DWE's account. She reportedly has conserved the payments received after she learned of this information.

The factual evidence concerning the possibility that the DWE fathered claimant is that there is none to indicate that he was sterile or impotent, and that the mother has said “it would have been possible” for her and the DWE to have cohabited “during the period when the child was conceived.”

ANALYSIS

Inasmuch as the DWE was a resident of California when he died, legitimacy and intestate inheritance rules under California law at the time of his death controls the issue of the presumption of legitimacy and its rebuttal, and the child's right to benefits. 42 U.S.C. 202(d)(3), 216(h)(2)(B).

The California provisions of POMS GN 00306.045 and 0D306.135 set out the tests for establishing the right to inherit intestate property through a relationship of child and natural father. Since the evidence indicates that the DWE and the mother were not cohabiting at the time of conception, as each was stationed in a part of the country far distant from the other, no “conclusive” presumption of legitimacy arises. ⁸ Id.

The child is nonetheless presumed to be the legitimate child of the DWE. He was born when the mother and the DWE were married. Id. Similarly, it appears that the DWE “received the child into his home and held him out as her natural child,” since the mother and child resided with the DWE until his death. Id. The presumption that arises from these facts may be rebutted, however, but only by “clear and convincing evidence.” Id.

Other than blood tests or a court decree establishing paternity by another man, ⁹ the California paternity statute does not indicate what will satisfactorily rebut the presumption. Therefore, to determine whether there is clear and convincing evidence to rebut the presumption we turn to general principles for the types and sources of such evidence. See POMS GN 00306.050, 00306.060.

Under the general principles, the key question becomes whether the husband/DWE had access to the mother during the period of conception. Id. The current evidence consists of the facts that the DWE and mother were stationed far apart, the mutual claims of the mother and Evan that she had sexual relations only with him during the relevant period, and the mother's brief and non-specific statement that “[access] would have been possible.”

In our opinion, this evidence is not clear and convincing, because it fails to address what contact the DWE and mother had. POMS GN 00306.055 appears to warrant further inquiry, however, as to whether the child is not entitled to benefits after all. The mother's information about this period is imprecise. We suggest that relatives of the mother and DWE be interviewed with regard to whether either visited the other at the different duty stations during this period.

Armed services records might be more conclusive. If either the DWE or mother visited the other, the leave from the duty station would have required presumably recorded approval by commanding officers. If government transport were used, further records might exist. Such records might well establish access or lack thereof by the DWE to the mother at the relevant time.

If access during the relevant time is shown, such evidence would sustain the presumption. Proof of non-intercourse during cohabitation or access, unless due to impotency or sterility, was not allowed under the prior statute. See Benson v. Superior Court, 57 Cal.2d 240 (S. Ct. 1962), Nason v. Walker, 180 Cal. 478 (S. Ct. 1919); S.D.W.v. Holden, 275 Cal. App. 2d 313 (1969). We have not found any indication that this rule is different under the current law other than the additional exception permitting rebuttal by blood tests. See Vincent B. v. joan R., 126 Cal. App. 3d 619 (1981) [where parties cohabited, evidence that they slept in separate bedrooms created no issue].

If any access established amounts to “cohabiting” relevant to the period of conception (late April-early May 1976, absent any indication of a an early or late birth), only blood tests will suffice to rebut the presumption. Evidence of cohabitation appears unlikely here, however. That requires “living or dwelling together or having the same habitation.” S.D.W.v. Holden, supra. The DWE and mother were officially stationed far apart.

If there were access but not cohabitation, where one party is deceased it is difficult to conceive of evidence that there was no intercourse during any contact (other than sterility, impotence or blood tests) that could be “clear and convincing.”

Should you develop evidence that establishes no access, it too must be clear and convincing to rebut the presumption. Such evidence must not leave the matter to speculation. Vomacka v. Vomacka, 36 Cal. 3d 459, 633 P. 2d 248 (S. Ct. 1984). It permits “reasonable certainty.” Gonzales v. Commission on judicial Performance, 33 Cal.3d 359 (S. Ct. 1983). It “leaves no substantial doubt [but is] sufficiently strong to command the unhesitating assent of every reasonable mind.” Angela P. v. Ronald P., 28 Cal.3d 908 (S. Ct. 1981).

The claims folder is returned herewith.

H. PR 79 008 Renetia , Presumption Of Legitimacy (Account of E~ )

DATE: February 28, 1979

1. SYLLABUS

1) FR - STATUS UNDER ACT - CHILD -- Defined - CALIFORNIA

For purposes of section 216(h) (2) (A), the law of the state of the wage earner's domicile at the time an application for child's benefits is filed, applies to establish the status of the applicant as a “child” of the wage earner. ( Renetia TO RSI 2/28/79).

OD 2010 2) FR-- LEGITIMACY --Presumptions and Proof - CALIFORNIA

Pursuant to California Probate Code section 255, the requisite “parent and child relationship” for intestate succession purposes exists if such a relationship is (1)presumed and not rebutted, or (2) established pursuant to, the Uniform Parentage Act (California Civil Code §§7000 et seq.) (Renetia RA IX TO RSI 2/28/79)ú

OD 2110 - California 3 FR - LEGITIMACY--Presumptions and Proof - CALIFORNIA

Under California's Uniform Parentage Act, if a child was born to a wife and husband who were co-habiting, and the husband was not impotent or sterile, the child is conclusively presumed to be the husband's. RENETIA , RA IX TO RSI 2/28/79).

OD 2110 - California

(4) FR - LEGITIMACY -- Presumptions and Proof - CALIFORNIA

Under California's Uniform Parentage Act, if the child's natural mother was married and the child was born during the marriage, the husband is presumed to be the child's father; the presumption is rebuttable by clear and convincing evidence. RENETIA ,

Renetia TO RSI 2/28/79).

OD 2110 - California

5)-FR- LEGITIMACY -- Presumptions and Proof - CALIFORNIA

Question of who may present evidence to rebut presumption of paternity under California's Uniform Parentage Act, reserved. ( RENETIA, RA IX (TRELOAR) TO RSI 2/28/79).

OD 2110 - California

2. OPINION

The claimant, Renetia , was born in Louisiana on January. At the time, her mother, now Fannie, was married to Jessie, who was listed as the father on Renetia's birth certificate. The couple was divorced in 1967. Jessie filed a claim for disability benefits in October 1976; he is domiciled in California. In November 1976, Fannie filed a claim for child's benefits for Renetia on the account of Jessie .

On the child's benefits application form, Fannie stated that a claim for child's benefits for Renetia had previously been filed on the account of Emmett . Emmett claims file contains certain information relative to Renetia's paternity and to Emmett acknowledgment and support of Renetia as his natural child. Pertinent documents indicate that Jessie was incarcerated at a Louisiana state prison from September 1959 through July 1961. In a signed statement, Renetia indicated that she had not seen Jessie from the time of his imprisonment until three months after Renetia's birth. She also stated that she had lived with Emmett from 1960-1963, and that he had fathered Renetia. Emmett regularly gave money, toys, and clothes to Renetia, and he visited her often after her parents' 1963 separation. Renetia lived with Emmett the last few weeks before his death.

Signed statements from Dr. Jason and Mary corroborated various aspects of Renetia allegations. On the basis of the federal parentage test of section 216(h) (3) (C) (ii) of the Social Security Act, ¹⁰ Renetia was found eligible for child's benefits on Emmie account. She is apparently still receiving those benefits.

By applying for child's benefits for Renetia on the account, Renetia is attempting to take advantage of the general presumption of parentage accorded to a child born during a valid marriage. ¹¹ In its opinion request, MAMPSC inquired whether the state law of Louisiana (Renetia's domicile) or of California (Renetia domicile) would be applicable in establishing the child's relationship to the wage earner (Jessie for purposes of the present application). You added an inquiry concerning whether the evidence presented in conjunction with Renetia's claim on the account could be used to rebut any presumption of paternity applicable in the present claim on the account.

Section 216(h) (2) (A) of the Act sets forth the test for determining what state's law applies in establishing status as a “child” of a wage earner. The section reads, in pertinent part:

In determining whether an applicant is the child . . . of a fully or currently insured individual for purposes of this title, the Secretary 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 application . . .

Jessie was domiciled in California when Renetia's application for child's benefits was filed. Therefore, only California (and not Louisiana) law would apply in determining whether Renetia is Jessie child.

Under California Probate Code section 255(a), a child's right to inherit from her parent depends upon the existence, prior to the decedent's death, of a parent and child relationship. Section 255(d) provides that a parent and child relationship exists for purposes of inheritance only if such a relationship is either (1) presumed and not rebutted, or (2) established pursuant to, the Uniform Parentage Act (California Civil Code §§7000 et seq.). ¹² There is no evidence in the file to indicate that Renetia's parentage has been formally established under the UPA provisions for a civil action (California Civil Code §§ 7006 et seq.). The questions therefore become: can Renetia be presumed to be the wage earner's child; and is there evidence to rebut this presumption of paternity?

Section 7004(a) of the California Civil Code delineates the various circumstances under which a man will be presumed to be the natural father of a child. The first such situation is where the wife and husband are co-habiting, and he is not impotent or sterile; this is the conclusive presumption of California Evidence Code section 621. The remaining situations raise rebuttable presumptions of parentage. The only such situation pertinent here is where the child's natural mother is married and the child is born during the marriage.

If we were to limit our present consideration to the facts concerning Renetia's parentage as stated on the pending application only, we would recommend further development: to substantiate the dates of the Jessie - Fannie marriage, ¹³ and to determine whether they were co-habiting at the pertinent time. ¹⁴ If they were married and co-habiting, the conclusive presumption would apply, and no further development would be permitted: Renetia would be entitled to benefits as his child. Assuming no co-habitation, but that they were in fact married at the time of Renetia's birth, we would conclude that Jessie parentage of Renetia would be presumed in this case, and that, unless the presumption was rebutted, she would be entitled to child's benefits on his account. The facts supporting such a conclusion would be that . Renetia averred that Renetia was “legitimate” on the application for child's benefits, and Jessie listed Renetia as his natural child on his application for disability benefits. If they had been married when Renetia was born, and neither disputed that Jessie was her father, the requirements of section 7004(a) would have been satisfied.

This case is not that simple, however. On page 2 of Renetia's pending application for child's benefits, Renetia stated that another claim for such benefits had previously been filed on the account of Emmett . Emmett claims file contains numerous pieces of evidence which would negate a finding under section 7004(a) that Jessie was Renetia's father. You asked whether SSA could consider this evidence, submitted with the prior claim on the Jessie’s account, in conjunction with the pending application on the account. We believe that it is proper for you to do so.

Renetia provided sufficient information on the pending application to necessitate your checking Renetia's status on the Emmett’s account. The evidence which you found in the file was provided to SSA by Renetia herself, on the issue of Renetia's paternity. Thus, even though it is unclear whether SSA is permitted on its own initiative to dispute the presumption of paternity under the UPA, ¹⁵ you would be justified in considering Renetia evidence in the Emmett file in conjunction with your determination as to Renetia's eligibility on the account. That evidence constitutes an attempt by the natural mother to rebut the statutory presumption as to her child's paternity. Although it was actually submitted for purposes of a separate claim, . Renetia referred you to that claims file by virtue of a statement on the pending application. ¹⁶

Focusing now on the statements and documents submitted previously by Renetia and placed in the file, we must determine their potential effect on the section 7004(a) presumptions of paternity. With respect to the conclusive presumption, this evidence shows that Jessie was incarcerated until July 1961 8/ and Renetia did not see him again until after Renetia's birth. This would adequately demonstrate that the couple was not co-habiting, rendering the conclusive presumption inapplicable. The presumption that Jessie was Renetia's father, because he and her natural mother were married at the time of her birth, would be adequately rebutted by the remainder of the evidence. ¹⁷

The preceding discussion could readily lead to a conclusion that Renetia's father was not Jessie and hence that her pending application for benefits as his child should be denied. We would advise against such an action at this time, however, because (as discussed previously) if all the statements in the file are true, then Jessie would be Renetia's father and she would be entitled to benefits on his account rather than on Emmett. Renetia various statements, made in conjunction with Renetia's two distinct claims for child's benefits on two different accounts, present a clear conflict. Only one of the men involved here can be Renetia's father; on the present facts, it would not be possible for a parent and child relationship to be found with both men under the UPA. We are not in a position to say which of Renetia assertions was untruthful, however. ¹⁸ Therefore, we would recommend that you refer this case to your integrity/fraud/abuse unit for further investigation. If they find that Renetia deliberately made false statements on the pending application, in order to secure double benefits, they may wish to consider a recommendation that she be prosecuted for fraud. Should they determine that the evidence submitted previously (with the Emmett’s account application) was fabricated, then you would have a large over-payment to recoup, ¹⁹ in addition to any action for fraud which might be warranted. Pending an investigation into the matter of the inconsistent statements, we would recommend that you take no action on the pending application.

Footnotes:

[1]

^. The mere fact that Craig’s name is on the birth certificate and agency records would not necessarily rebut the presumption in and of itself. See In re D.A., 139 Cal. Rptr. 3d 222, 233-34 (Cal. App. 2012) (holding that the fact that the alleged father’s name was on the birth certificate was not evidence of openly and publicly admitting paternity because he did not sign the birth certificate and there was no evidence he was involved in decision to include his name).

[2]

^. Because we conclude that California would consider the DWE to be Claimant’s presumed father under Probate Code § 6453(a), we do not reach the alternate analysis for establishing intestate inheritance under Probate Code § 6453(b). See POMS GN 00306.001.D (instructing that all avenues of entitlement must be explored and to “follow the line of development that will permit payment as soon as possible”).

[3]

^. The claimant may also be a full-time elementary or secondary student and under age 19. Social Security Act § 202(d)(3), 42 U.S.C. § 402(d)(1).

[4]

^. If a claimant cannot establish child status through state intestacy laws, the Act provides other means to establish dependency and a child relationship, such as by providing satisfactory evidence showing that the insured lived with or contributed to the support of the child prior to the insured’s death and that the claimant is the natural child of the deceased insured. Social Security Act, § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii). Because the number holder died prior to the claimant’s birth, none of these provisions is applicable here.

[5]

^. Our review indicates that POMS GN 00306.430(A)(1)(c)(4) contains a minor misstatement of California law. The POMS states that “[t]he [genetic] tests shall be performed by a laboratory approved by the Secretary of DHHS.” While the California Family Code requires the laboratory to be approved by an accreditation body recognized by the DHHS, DHHS does not perform activities related to approving individual laboratories. We will separately provide suggested language to address that misstatement.

[6]

^. See David , Accreditation of Genetic Testing Labs, U.S. Dep’t of Health and Human Servs., http://www.acf.hhs.gov/programs/cse/pol/IM/1997/im-9703.htm (last visited Feb 24, 2012).

[7]

^. POMS GN 00306.430(A)(1)(c)(5) accurately states California law and provides: In addition, there should be a statement establishing the chain of custody of the genetic samples collected, including the date of collection, the identity of each person from whom the genetic sample was collected, and the identity of the person who performed or witnesses the collecting of the genetic samples and packages them for transmission to the laboratory, the date the laboratory received them, the identity of the person who unpacked the samples, and the identification of the persons who performed the laboratory analysis. The statement should state that the procedures used by the lab to conduct the tests are used in the lab's ordinary course of business to ensure accuracy and proper identification of the genetic samples. The statement should also establish that the results were performed at or near the time of completion of the genetic tests by personnel qualified to perform genetic tests.

[8]

^. This “conclusive” presumption may be rebutted, but only by blood tests. Id.

[9]

^. Neither presently exists in this case. It is possible that the Wisconsin adoption proceeding might produce both. It would then be necessary to determine if either could be given effect under California law

[10]

^. It is unclear whether this decision was based upon the “living with” or the “contributing to the support of” test. (We presume that the decision was not based upon section 216(h) (3) (C) (i) (I), for no written acknowledgment of paternity appears in the claims file.) We have assumed the accuracy of that decision for purposes of this opinion.

[11]

^. No facts have been presented which would question the validity of the Renetia’s marriage. We therefore assume its validity under applicable state law for purposes of this opinion.

[12]

^. The provisions of the Uniform Parentage Act are set forth in GC opinion re “California -- Status of Children -- Uniform Parentage Act,” dated June 25,1976.

[13]

^. Obviously, such further development is not necessary in light of statements contained in the Emmie claims file, which indicate that they were married as of 1959 (when Jessie was admitted to prison) and did not divorce until 1967.

[14]

^. See GC opinion re R~ , D-6041, January 3, 1961. (Again, statements in the Jessie/Fannie’s file indicate that they were not co-habiting.)

[15]

^. It is unclear whether the persons who may dispute the presumptions of section 7004 of the UPA are limited, as they were under former Evidence Code section 661. (The mother could rebut under former section 661 and current section 7006.) We concluded in a previous opinion that anyone could present rebuttal evidence under the UPA. See GC memorandum opinion of June 25, 1976, cited above. Upon further research and consideration of the question, we have reason to doubt the validity of that conclusion. Because the issue presented involves an interpretation of state law, we are submitting a request to the California Attorney General for a formal opinion on the question of who may attempt to rebut the presumption

[16]

^. This case is therefore distinguishable from instances where SSA initiated an independent investigation to challenge the presumption of paternity (see, e.g., GC opinion re W~ , D-13084, March 2, 1970), or relied upon a parent's challenge to presumed paternity in another proceeding to which SSA was not a party (see, e.g., GC opinion re K~ , D-888, August 6, 1951).

[17]

^. We assume, for purposes of this discussion, that no conjugal visits by Renetia occurred during the incarceration. That question would have to be explored before a definitive conclusion could be reached under section 7004(a).

[18]

^. Had the conflicting statements come from two different people, it would be your task as fact- finder to determine whom to believe. Because here a single individual has made contradictory statements, we consider the situation more serious and do not believe that the matter should be handled by simply choosing which statement sounds more credible and acting in conformity with it.

[19]

^. An underpayment would also likely be due to the other children on the Emmett’s account whose benefits were reduced due to Renetia's entitlement

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PS: Title XVI Regional Chief Counsel Precedents

POMS Reference

PR: Title II Regional Chief Counsel Precedents

A. PR 16-080 Establishing Parent-Child Relationship under California Law

1. Syllabus

2. Opinion

B. PR 14-141 Establishing Parent-Child Relationship under California Law Deceased Wage Earner – B~ ; SSN ~ Claimant – S~

1. SYLLABUS

2. OPINION

C. PR 12-063 Child born after Wage Earner’s Death Number Holder – E~ Claimant – Mia – Mother, J~

1. SYLLABUS

2. OPINION

D. PR 07-015 OPINION: Child Born 305 days After the Death of the Wage Earner in the State of California Claimant: M~ o/b/o K~ Wage Earner: D~

1. SYLLABUS

2. OPINION

E. PR 06-350 Claims for Insurance Benefits of Child Conceived by Artificial Insemination on the Account of Semen Donor in the State of California (1) or of resumed Father in the State of Pennsylvania (2) Claimant: L~ o/b/o J~ Wage Earners: B~ (1); and R~ (2)

1. SYLLABUS

2. OPINION

F. PR 04-115 Claim for Child's Insurance Benefits (Survivor) on account of wage earner L~ , SSN: ~

1. SYLLABUS

2. OPINION

G. PR 84-042 Rebuttal of Presumption of Legitimacy – G~ , DWE

1. SYLLABUS

2. OPINION

H. PR 79 008 Renetia , Presumption Of Legitimacy (Account of E~ )

1. SYLLABUS

2. OPINION

Footnotes: