A. PR 10-023 Eligibility of Claimant for Child’s Insurance Benefits after Termination of the Number Holder’s Parental Rights – Tennessee

DATE: November 10, 2009

1. SYLLABUS

Although terminating a person’s parental rights "has the legal effect of reducing the parent to the role of a complete stranger" under Tennessee law, the child who is the subject of the order for termination shall be entitled to inherit from a parent whose rights are terminated until the final order of adoption is entered.

In this case, where the number holder was found to be the child's biological father and rights were terminated by the same North Carolina order, the state of Tennessee would find the order clear and convincing evidence of the parent child relationship and would consider the claimant as the number holder's child since the claimant was not adopted after the termination order.

2. OPINION

QUESTION

You have asked whether the claimant is the child of the deceased number holder for the purposes of child’s insurance benefits when the number holder’s parental rights have been terminated, but the child has not been adopted.

OPINION

For the reasons stated below, we believe the claimant qualifies as the number holder’s child for purposes of child’s insurance benefits.

BACKGROUND

According to the information provided, Michael D. J~ (Claimant) was born on May 1, 1993. Claimant’s birth certificate does not identify a father. However, Kevin J~, the number holder (NH), listed Claimant as his child on his disability insurance benefits (DIB) application on June 17, 2008. NH did not marry Claimant’s mother.

NH died on July 5, 2009, in Dyersburg, Tennessee. NH was domiciled in Dyersburg, Tennessee at the time of his death and the record indicates he lived in Dyersburg for at least the previous ten years.

The file contains an order to terminate parental rights, dated October 31, 2001, issued by the District Court for Wake County, North Carolina. In that order, the court found that NH received proper service of the petition to terminate his parental rights and did not answer the petition. The court found that NH was the biological father of Claimant, but found sufficient grounds to terminate NH’s parental rights.

The file also contains a statement from Claimant’s mother and from Claimant’s stepfather asserting Claimant’s stepfather has not adopted Claimant, nor has Claimant ever been adopted.

DISCUSSION

To qualify for child’s insurance benefits on the earnings record of a deceased insured individual, a claimant must be the insured individual’s child. See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2009). “Child” includes the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2009). A claimant can qualify as the insured individual’s natural child if, among other methods, the claimant could inherit the insured's personal property as his child under the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2009). If applicable State inheritance law requires a court determination of paternity, SSA will not require a claimant to obtain such a determination but will decide his paternity by using the standard of proof the State court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2).

The information provided indicates NH was domiciled in Tennessee at the time of his death and had lived in Tennessee for many years. Therefore, Tennessee law applies in determining whether Claimant is the child of NH for the purposes of intestate succession under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4).

Tennessee law provides when any person dies intestate, the deceased’s property passes to the deceased’s heirs. See Tenn. Code Ann. § 31-2-101 (West 2009). The surviving spouse receives the entire intestate estate unless the decedent has surviving children, in which case the children are entitled to a child’s share of the intestate estate. See Tenn. Code Ann. § 31-2-104 (West 2009). A person born out of wedlock is a child of the father if paternity is established by adjudication before the death of the father or is established thereafter by clear and convincing proof. See Tenn. Code Ann. § 31-2-105(a)(2)(B) (West 2009); see also Program Operations Manual System (POMS) GN 00306.635 (providing an overview of Tennessee Intestacy Laws); Bilbrey v. Smithers, 937 S.W.2d 803, 807-08 (Tenn. 1996) (paternity can be established only by clear and convincing proof). The clear and convincing evidence standard is a heightened burden of proof that requires more than the preponderance of the evidence standard but less than the beyond a reasonable doubt standard. See In re S.L.A., 223 S.W. 3d 295, 299 (Tenn. Ct. App. 2006). To satisfy the clear and convincing evidence standard, a party must eliminate any serious or substantial doubt concerning the accuracy of the conclusions drawn from the evidence and should produce a firm belief in the truth of the allegations sought to be established. Id.

In Tennessee, termination of parental rights essentially terminates all legal obligations. Terminating a person’s parental rights “‘has the legal effect of reducing the parent to the role of a complete stranger.’” In re C.T.B., No. M2009-00316-COA-R3-PT, 2009 WL 1939826, at *2 (Tenn. Ct. App. July 6, 2009) (quoting In re W.B., IV, No. M2004-00999-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005)). “An order terminating parental rights shall have the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian.” Tenn. Code Ann. § 36-1-113(l)(1) (West 2009); see In re C.T.B, 2009 WL at 1939826, *2. However, the Tennessee termination of parental rights statute includes a specific exception for inheritance rights of a child who has not been adopted: “Notwithstanding the provisions of subdivision (l)(1), a child who is the subject of the order for termination shall be entitled to inherit from a parent whose rights are terminated until the final order of adoption is entered.” Tenn. Code Ann. § 36-1-113(1)(2); cf. POMS PR 01410.047A (concluding a child cannot inherit from a natural parent when the relationship has been terminated by a final order of adoption).

We believe a Tennessee court would conclude the record provides clear and convincing evidence that Claimant is NH’s child for the purposes of Tennessee intestacy law. NH openly acknowledged Claimant as his child in writing as part of his DIB application to SSA. Tennessee courts have held that such an acknowledgement constitutes clear and convincing evidence to establish paternity. See, e.g., Kelani v. Bowen, 684 F.Supp. 490, 497 (M.D. Tenn. 1988) (witness testimony and father’s acknowledgement constitutes clear and convincing evidence of paternity); In re D.S.P., No. M2008-01690-COA-R3-JV, 2009 WL 1456321, at *1 (Tenn. Ct. App. May 21, 2009) (father’s written acknowledgment of paternity memorialized in court order established paternity); State ex rel. Hickman v. Dodd, No. W2008-00534-COA-R3-CV, 2008 WL 4963508, at *3 (Tenn. Ct. App. Nov. 21, 2008) (written acknowledgment of paternity established paternity of father and was binding); In re B.C.W., No. M2007-00168-COA-R3-JV, 2008 WL 450616, at *1 (Tenn. Ct. App. Feb. 19, 2008) (voluntary acknowledgment of paternity by father sufficient to establish relationship).

Additionally, the North Carolina District Court, in its order terminating NH’s parental rights, concluded NH was Claimant’s biological father. Although the finding that NH was Claimant’s biological father was ancillary to the primary purpose of the order, a Tennessee court likely would give full faith and credit to the finding in determining the issue of NH’s paternity. See U.S. Const. art. IV, § 1; 28 U.S.C. § 1738; Tenn. Code Ann. § 24-7-113 (West 2009); Tenn. Code Ann. § 36-5-101(5) (West 2009); Baker by Thomas v. General Motors Corp., 522 U.S. 222, 231-32 (1998); see also In re Adoption Downey, No. E20021972COAR3CV, 2003 WL 2010753, at *2 (Tenn. Ct. App. April 30, 2003) (final judgments of sister states are presumed to be conclusive and valid; court upheld Georgia order terminating parental rights of Tennessee citizen). Moreover, the finding of the North Carolina court that NH was Claimant’s biological father would constitute further clear and convincing evidence to establish paternity, because the North Carolina court made that finding after a review of the evidence presented to establish paternity. Therefore, we conclude that a Tennessee court would determine that clear and convincing evidence exists to establish that Claimant is the child of NH for the purpose of intestate succession.

As noted above, the record shows that a North Carolina court terminated NH’s parental rights. However, Claimant’s mother and stepfather denied that Claimant was adopted by his stepfather or by anyone else, and no other evidence indicates Claimant has been adopted. Therefore, because Claimant has not been adopted, he retains inheritance rights from NH and would be considered the child of NH for purposes of intestate succession in Tennessee. See Tenn. Code Ann. § 36-1-113(1)(2). Thus, we believe the evidence establishes that Claimant is NH’s child under section 216(h)(2)(A) of the Act.

CONCLUSION

For the foregoing reasons, we believe Claimant would be considered NH’s child for the purposes of child’s insurance benefits.

Very truly yours,
Mary A. S~
Regional Chief Counsel

By: _____/s/_____________
Richard V. B~
Assistant Regional Counsel

B. PR 08-097 Proof of Paternity through DNA Testing of a Half-Sibling under Tennessee Law

April 16, 2008

1. SYLLABUS

In Tennessee, a rebuttable presumption of paternity is established if blood, genetic or DNA testing shows at least a 95% probability of paternity. DNA tests results between the claimant and an alleged child of the deceased number holder showing a 92.3% probability of half siblingship would not be sufficient to create a rebuttable presumption of paternity.

2. OPINION

QUESTION

You asked whether DNA testing of the claimant and an alleged child of the number holder was sufficient to establish the claimant as the child of the number holder for the purposes of child's insurance benefits.

OPINION

After a consideration of the facts as currently developed, we believe the claimant could not inherit from the number holder under Tennessee intestacy law. Thus, the claimant would be ineligible for child's insurance benefits on the account of the number holder.

BACKGROUND

Travis A. Vineyard, the number holder (NH), and Melissa S~ (Mother) never married. NH and Mother lived together in Tennessee when NH died on August 4, 2006. Ashlyn M. S~ (Claimant) was born on March 9, 2007, in Sullivan County, Tennessee. Claimant's birth certificate does not list a father. Mother filed a claim on Claimant's behalf for child's insurance benefits on the account of NH on February 14, 2008. Mother claims NH died before they were sure she was pregnant and there is no written acknowledgment of paternity by NH. Mother submitted a DNA test performed on Claimant and Dru A. H~ (Brother). Mother claims Brother is a child of NH and the half-brother of Claimant. The DNA Test Report indicates "the probability of half-siblingship is 92.3%."

DISCUSSION

Entitlement to Child's Insurance Benefits - In General

To qualify for child's benefits on the earnings record of an insured individual who has died, a claimant must be that individual's "child." See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2008). "Child" includes the natural child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2007). If the putative father never married the child's mother, the claimant's status as the surviving child of the putative father is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A).

To establish child status under section 216(h)(3)(C) of the Act, Claimant must show one of the following: (1) NH acknowledged in writing Claimant was his daughter, (2) a court decreed NH to be Claimant's father, (3) NH was ordered to contribute to Claimant's support, or (4) NH was the father and living with or contributing to Claimant's support at the time the NH died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(3), (4) (2007). We are aware of no evidence satisfying any of the required conditions in section 216(h)(3)(C) of the Act.

To establish her status as the surviving child of the deceased NH under section 216(h)(2)(A) of the Act, Claimant must show she could inherit the NH's personal property as his child under the intestacy laws of the state where NH had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2007). Because NH was domiciled in Tennessee when he died, the question is whether Claimant would be considered NH's child for purposes of intestate succession under Tennessee law.

Tennessee Law Applied to this Claim

Under Tennessee law, the natural or adopted child of NH would be entitled to a share of NH's intestate estate. See TENN. CODE ANN. §§ 31-1-101, 31-2-104 (2008). When the putative father is deceased, a child must establish a parent/child relationship by clear and convincing evidence to inherit through intestate succession. See TENN. CODE ANN. § 31-2-105(a)(2)(B) (2008). In Tennessee, clear and convincing evidence must produce a firm belief as to the truth of the allegations sought to be established and no serious or substantial doubt about the conclusions drawn from the evidence. See POMS PR 01115.047(B).

DNA tests using genetic material acquired from relatives of the decedent along with other evidence may be used to establish clear and convincing evidence of paternity for purposes of intestate succession in Tennessee. See POMS PR 01115.047(B). A rebuttable presumption of paternity is established if blood, genetic or DNA testing shows at least a ninety-five percent probability of paternity. See TENN. CODE ANN. §§ 36-2-304(a)(5), 24-7-112(b)(2)(B) (2008); POMS PR 01115.047(B). The Tennessee statute provides that such a presumption can be rebutted by a preponderance of the evidence. See TENN. CODE ANN. §§ 36-2-304(b)(3). When the results of blood, genetic or DNA tests reveal a statistical probability of paternity greater than ninety-nine percent, a nearly conclusive presumption of paternity is established that can only be rebutted by clear and convincing evidence. See TENN. CODE ANN. § 24-7-112(b)(2)(C) (2008); POMS PR 01115.047(B). The DNA Test Report submitted by Mother indicated only a 92.3% probability that Claimant was Brother's half-sibling. Even if the DNA test results showed a probability of paternity, a 92.3% probability would not establish a rebuttable, much less a conclusive, presumption of paternity under Tennessee law.

Furthermore, the DNA Test Report submitted by Mother refers to a probability of "half-siblingship" as opposed to a probability of paternity. For the test results to have any value in determining paternity, Brother must be the child of NH. The record as currently developed includes no evidence of Brother's relationship to NH other than the unsupported statement of Mother. Under Social Security Ruling 06-02p, if the Social Security Administration (SSA) had determined Brother was the child of NH under section 216(h)(3) of the Act, SSA would presume Brother is the child of NH for the purposes of determining Claimant's relationship to NH. However, SSA made no prior determination regarding the relationship between Brother and NH under section 216(h)(3) or any other provision of the Act. Brother never received benefits on the account of NH and was adopted by another man in January 2002. Nor does the record contain any evidence establishing Brother as the child of NH under the Act. Based on the record as currently developed, we believe the DNA test results are of no value in determining whether Claimant is the child of NH.

In addition to using the results of DNA tests to determine paternity, a Tennessee court would also consider (1) the declarations and conduct of Mother, (2) any acknowledgment by NH, (3) family resemblance, and (4) evidence concerning NH's access, opportunity, and capacity to have children. See POMS PR 01115.047(B). The record contains no evidence concerning a family resemblance or NH's capacity to have children. NH was not listed as Claimant's father on her birth certificate or the Numident associated with her Social Security number. Mother claims she was living with NH when he died on August 4, 2006. Mother states she took a test to confirm she was pregnant on the same day NH died. Such testimony implies but does not conclusively establish NH had access to Mother at the time of conception.

Mother confirms NH never acknowledged paternity of Claimant in writing. NH allegedly stated in the presence of his neighbors that Mother needed to take a pregnancy test. We have previously advised an oral acknowledgment of paternity by a NH may constitute clear and convincing evidence of paternity in Tennessee. See POMS PR 01115.047(D). However, that opinion involved a NH who orally acknowledged paternity to family members and friends on multiple occasions. Id. The facts at hand fall well short of the oral acknowledgment we previously advised might be sufficient to establish clear and convincing evidence of paternity. NH's alleged acknowledgment to neighbors that Mother might be pregnant is not equivalent to a statement that she was in fact pregnant and NH was the father.

The Tennessee Court of Appeals previously found clear and convincing evidence of paternity based upon (1) statements by the mother's husband denying paternity, (2) the mother's failure to deny an allegation that her husband was not the father, (3) the treatment of the child by the mother's husband, (4) statements by the putative father acknowledging paternity, (5) the statements and behavior of other family members and acquaintances, and (6) evidence of a physical resemblance. See In re Estate of Armstrong v. Manis, 859 S.W.2d 323, 324-327 (Tenn. Ct. App. 1993) (merging the child's burden to prove she was the child of the decedent with the burden of proving she was not the child of the man married to her mother). Clear and convincing evidence of paternity also exists if the deceased putative father orally admitted to paternity, established a close personal relationship with the child, and supported the child financially. See Majors v. Smith, 776 S.W.2d 538, 539-40 (Tenn. App. 1989). Similarly, clear and convincing evidence was established where the deceased putative father lived with the child's mother as husband and wife although not legally married, acknowledged paternity to family members, and supported the children financially. See Robinson v. Tabb, 568 S.W.2d 835, 836 (Tenn. 1978).

In contrast, clear and convincing evidence was not established where the deceased putative father did not (1) attempt to legitimate the child by adjudication, (2) acknowledge paternity openly to the public, (3) hold the child out to his family as his daughter, (4) provide support to the child's mother, and (5) there was no evidence of community acceptance of the child as the putative father's daughter. See Gentry v. Jordan, 1986 WL 8152, at * 2 (Tenn. Ct. App. July 25, 1986). Due to the timing of NH's death, many of the factors typically analyzed by Tennessee courts are absent in this case. The record contains no evidence of an explicit oral or written acknowledgment of paternity, financial support of Claimant, or a relationship between Claimant and NH. The clear and convincing evidence standard cannot be met with evidence that merely suggests or implies paternity but must produce a state of conviction that NH is in fact Claimant's father. See Majors, 776 S.W.2d at 540. Therefore, we do not believe a Tennessee court would find clear and convincing evidence of paternity for purposes of intestate succession.

CONCLUSION

Under the facts as currently developed, we believe an SSA adjudicator could find Claimant is not the child of NH for the purposes of Tennessee intestacy law and therefore is ineligible for child's insurance benefits on NH's account.

Mary Ann S~
Regional Chief Counsel
By:_____________
Christopher G. H~
Assistant Regional Counsel

C. PR 07-212 Presumption of Paternity and Artificial Insemination under Tennessee Law Number Holder - Bryan G~ Claimants - McKinley C~ and Kathy L. C~

DATE: September 6, 2007

1. SYLLABUS

Under Tennessee law, a man is presumed to be the father of a child who is born either during the course of the marriage between the man and the child's mother or within 300 days after the marriage. Our claimant was conceived during the marriage of NH and Mother and was born fewer than 300 days after their divorce. Therefore, Claimant is presumed to be the natural child of NH and this presumption can only be rebutted by clear and convincing evidence which can include a finding that the husband was impotent or had no access to the mother at the time of conception.

Even were these facts in dispute, the claimant could still able to inherit from the NH because Tennessee law also states that "[a] child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, is deemed to be the legitimate child of the husband and wife."

Additionally, since the mother did not remarry she would be entitled to surviving divorced mother's benefits on this record retroactive to the month in which claimant's application was filed.

2. OPINION

QUESTION

You asked whether the claimant, who was reportedly conceived through artificial insemination from an anonymous sperm donor, is eligible to receive child's insurance benefits on the account of the number holder and if so, what is the earliest date of entitlement. You also asked if the claimant's mother is eligible to receive mother's insurance benefits and if so, what is the earliest date of entitlement.

ANSWER

For the reasons stated below, we believe a Social Security Administration (SSA) adjudicator could find the claimant eligible to inherit from the number holder through intestacy and would thus be eligible for child's benefits on the account of the number holder. We also believe the claimant's mother is eligible to receive mother's benefits. Both the claimant and his mother are eligible to receive benefits for up to six months immediately before the month in which the claimant's application was filed.

BACKGROUND

Bryan G~, the number holder (NH), and Kathy L.L. C~ (Mother) were married on July 10, 1993. NH and Mother signed an artificial insemination agreement on October 11, 1994, for the purpose of obtaining sperm from an anonymous donor. The agreement included the statement "if with the consent of her husband a wife is artificially inseminated, the husband is treated in law as if he were the natural father of a child thereby conceived." NH and Mother were divorced on October 19, 1995, by order of the Circuit Court for the Fourth Judicial District at Newport, Cocke County, Tennessee. McKinley C~ (Claimant) was conceived prior to the divorce of NH and Mother. The Agreed Judgment granting the divorce does not reference Claimant or the issues of custody and child support.

Claimant was born on May 9, 1996, and never lived with NH. Claimant's original birth certificate listed the name of Mother's boyfriend, Michael P~, as Claimant's father. Mother claims Mr. P~ was listed as Claimant's father without her knowledge. A new birth certificate was issued on August 9, 1996, listing no father for Claimant. NH died on June 13, 2006. Mother initiated legitimation proceedings in the Juvenile Court of Cocke County, Tennessee. On June 22, 2007, the court issued an order declaring NH to be Claimant's legal father. The court concluded by a preponderance of the evidence Claimant was conceived by artificial insemination prior to the divorce of NH and Mother and NH voluntarily choose to be part of the artificial insemination program. The State of Tennessee issued a new birth certificate listing NH as Claimant's father on July 26, 2007.

Mother filed a claim on Claimant's behalf for child's insurance benefits on the account of NH. Mother also filed a claim for mother's insurance benefits on her own behalf. Both applications have a protective filing date of June 22, 2007. NH, Mother and Claimant have never received benefits from SSA.

DISCUSSION

Entitlement to Child's Insurance Benefits - In General

To qualify for child's benefits on the earnings record of an insured individual who has died, a claimant must be that individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2007). A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured's personal property as his child under the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(e), (h)(2)(A), 42 U.S.C. § 416(e), (h)(2)(A); 20 C.F.R. § 404.355(b) (2007). Since NH was domiciled in Tennessee when he died, the question is whether Claimant would be considered NH's child for purposes of intestate succession under Tennessee law.

Tennessee Law Applied to this Claim

The natural or adopted child of NH would be entitled to a share of NH's intestate estate. See Tenn. Code Ann. §§ 31-1-101, 31-2-104 (2007). A man is presumed to be the father of a child who is born either during the course of the marriage between the man and the child's mother or within 300 days after the marriage. See Tenn. Code Ann. § 36-2-304(a)(1) (2007). Claimant was conceived during the marriage of NH and Mother and was born fewer than 300 days after their divorce. Therefore, Claimant is presumed to be the natural child of NH. Under Tennessee law, this presumption can only be rebutted by clear and convincing evidence which can include a finding that the husband was impotent or had no access to the mother at the time of conception. See POMS PR 01010.047(A). The clear and convincing evidence standard is a heightened burden of proof which requires more than the preponderance of the evidence standard but less than the beyond a reasonable doubt standard. See In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006). To satisfy the clear and convincing evidence standard, a party must eliminate any serious or substantial doubt concerning the accuracy of the conclusions drawn from the evidence and should produce a firm belief in the truth of the allegations sought to be established. Id.

The juvenile court determined Claimant was conceived through artificial insemination from an anonymous donor (that is, the court determined Claimant was not NH's natural child). However, the juvenile court reached this conclusion by a preponderance of the evidence as opposed to clear and convincing evidence. SSA is not required to accept a state court determination unless (1) an issue in a claim for Social Security benefits previously has been decided by a state court of competent jurisdiction; (2) this issue was genuinely contested before the state court by parties with opposing interests (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Social Security Ruling 83-37c. SSA is not required to accept the findings of the juvenile court because those proceedings were initiated after the death of NH and, therefore, there was no party opposing Mother's request. Furthermore, it is unclear what evidence the juvenile court relied upon in determining Claimant was not NH's natural child. See id. Mother claims NH was sterile, although she did not submit medical evidence to substantiate her claim. Although NH voluntarily entered into an artificial insemination agreement, the agreement contains no statement by NH acknowledging himself as sterile. Nor does the record contain any evidence that NH did not have access to Mother at the time of Claimant's conception. We believe the record does not provide clear and convincing evidence sufficient to rebut the presumption Claimant is NH's natural child.

Even if the evidence were sufficient to rebut this natural child presumption, Claimant would still be entitled to inherit from NH's intestate estate. "A child born to a married woman as a result of artificial insemination, with consent of the married woman's husband, is deemed to be the legitimate child of the husband and wife." Tenn. Code Ann. § 68-3-306 (2007). There is no evidence NH's signature on the artificial insemination agreement was involuntary and the text of the agreement placed NH on notice that he could be considered the legal father of any child produced as a result of artificial insemination. The juvenile court cited to this statute in its determination NH was Claimant's legal father.

An action for paternity and legitimation may be filed in the juvenile court or in any trial court with general jurisdiction. See Tenn. Stat. Ann. §§ 36-2-302(2), 36-2-307(a)(1) (2007). However, a legitimation decree from a juvenile court action filed after the alleged father's death is not acceptable evidence of paternity because the chancery court is the proper place to bring a paternity action for purposes of intestate succession. See POMS PR 0115.0478(I), GN 00306.635(A); Woods v. Fields, 798 S.W.2d 239, 241 (Tenn. Ct. App. 1990). A petition for legitimation can be filed until three years beyond the child's age of majority. See Tenn. Stat. Ann. § 36-2-306(a) (2007). Since Claimant is only eleven years old, Mother could still file an action in chancery court seeking an order of paternity and legitimation for purposes of intestate succession. However, a claimant attempting to establish that he is the child of an insured individual is not required to obtain a court determination of paternity. See 20 C.F.R. § 404.355(b)(2). Given Tennessee law, particularly Tenn. Code Ann. § 68-3-306, we believe a chancery court would reach the same conclusion as the juvenile court that NH was Claimant's legal father. Once the relationship of father and child has been established in such an action, "the child shall be entitled to inherit from the father as if born to the father in wedlock." Tenn. Stat. Ann. § 36-2-313(a) (2007). Therefore, we conclude Claimant can inherit from NH through intestate succession and is eligible for child's insurance benefits.

You also asked for an opinion on when Claimant would become eligible for child's insurance benefits. An applicant for child's benefits can receive benefits for up to six months immediately before the month in which the application is filed. See 20 C.F.R. § 404.621(a)(2) (2007). Since Tenn. Code Ann. § 36-2-313(a) confers inheritance rights equivalent to those of a legitimate child, Claimant would have the same right to retroactive benefits as NH's biological child. See POMS PR 01120.047(A). Therefore, Claimant could receive benefits for up to six months prior to June 2007, the month in which his application was filed.

Entitlement to Mother's Insurance Benefits

A surviving divorced mother is entitled to mother's insurance benefits if she (1) is not married; (2) is not entitled to a surviving spouse's insurance benefit; (3) is not entitled to old-age insurance benefits; (4) has filed an application for mother's insurance benefits; and (5) has in her care the child of the insured person. See Act § 202(g)(1); 20 C.F.R. § 404.340 (2007). A "surviving divorced mother" means a woman who is divorced from an individual who has died and is the mother of his son or daughter. See Act § 216(d)(3). The child must be under the age of sixteen, the natural or adopted child of the surviving divorced mother and entitled to child's benefits on the record of the insured person. See 20 C.F.R. § 404.340(e) (2007).

Mother did not remarry after her divorce from NH. Mother is not entitled to widow's benefits as a surviving divorced spouse because she is less than sixty years old and was married to NH for less than ten years immediately preceding their divorce. See Act § 202(e)(1); 20 C.F.R. § 404.336(a)(2) and (c) (2007). Mother is forty-three years old and thus is not eligible for old-age insurance benefits. See Act § 202(a)(2); 20 C.F.R. § 404.310(a) (2007). Claimant is Mother's natural child, is eleven years old, lives in her care and is eligible to receive child's benefits on NH's account. Therefore,

Mother is entitled to mother's benefits.

Mother's eligibility for mother's benefits begins with the first month covered by her application in which she met all the other requirements for entitlement. See 20 C.F.R. § 404.341(a) (2007). Since Mother's entitlement to mother's insurance benefits is dependent upon Claimant's eligibility for child's insurance benefits, she can only be entitled to benefits six months prior to June 2007, the month in which Claimant's application was filed. See 20 C.F.R. §§ 404.340(e), 404.621(a)(2).

CONCLUSION

We believe an SSA adjudicator could find Claimant entitled to inherit from NH through Tennessee intestacy law and therefore eligible for child's insurance benefits up to six months prior to the month in which his application was filed. We also believe an SSA adjudicator could find Mother entitled to mother's insurance benefits for the same period.

Mary Ann S~
Regional Chief Counsel
By:
Christopher G. H~
Assistant Regional Counsel

D. PR 06-084 Acceptability of DNA Testing of Grandparent to Establish Paternity under Tennessee Law Claimant: James B. H~ Deceased Number Holder: Robert K. W~

DATE: March 3, 2006

1. SYLLABUS

In Tennessee, DNA test results using genetic material from both the claimant and the parents of the deceased number holder and showing a 99.99% probability that those parents are the grandparents of the claimant can be used along with other evidence to establish clear and convincing evidence of paternity.

2. OPINION

QUESTION

You asked whether DNA testing of the parents of a deceased number holder may be used to establish paternity in the State of Tennessee.

ANSWER

Based on the information we received and for the reasons stated below, we believe the evidence submitted can provide clear and convincing proof that the NH is Claimant's father.

BACKGROUND

Robert W~, the number holder (NH), died on August 13, 2004. He was domiciled in Tennessee at the time of his death. On June 6, 2005, an application for child's insurance benefits was filed for James B. H~ (Claimant) on the NH's record. Claimant's mother, KaSandra L. A~ (a.k.a. KaSandra B~), submitted results of DNA tests performed on the NH's parents by Paternity Testing Corporation. The test results revealed a 99.99% probability of grandparentship. Mrs. A~ also submitted DNA testing performed on James S. H~ which revealed a 0% probability of paternity. Claimant's birth certificate only includes his mother's name. NH was incarcerated at the time Claimant was born. However, on Claimant's original social security card Ms. B~ and the NH are listed as his parents. On subsequent social security card applications, Claimant's father is listed as James Scott H~.

STATUTORY AUTHORITY

Entitlement to Child's Insurance Benefits - In General

The Social Security Act (Act) provides that every child of a deceased wage earner is entitled to receive child's insurance benefits. See § 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1. A child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e). If the putative father never married the child's mother, the child claimant's status as the surviving child of the putative father is governed by either § 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) or § 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A).

To establish child status under § 216(h)(3)(C) of the Act, Claimant must show one of the following: (1) that the NH acknowledged in writing that Claimant is his son, (2) that a court decreed NH to be the father of Claimant, (3) that the NH had been ordered to contribute to the support of the Claimant or (4) that the NH is the father and was living with or contributing to the support of Claimant at the time the NH died. We are aware of no evidence which satisfies any of the required conditions in § 216(h)(3)(C) of the Act.

To establish his status as the surviving child of the deceased NH under § 216(h)(2)(A) of the Act, Claimant must show that he would be entitled to a child's share of the NH's intestate personal property under the law of the state in which the NH was domiciled at the time of his death. See also POMS GN 00306.001. According to the record, the NH was a resident of Tennessee at the time of his death. There is no evidence suggesting that the NH's domicile was other than Tennessee. We conclude the NH was domiciled in Tennessee at the time of his death and that Tennessee's law of intestate succession is applicable in determining Claimant's status as the child of the NH for purposes of § 216(h)(2)(A) of the Act.

Tennessee Law Applied to this Claim

Tennessee law provides, for purposes of intestate succession, that a person born out of wedlock is a child of the father, if: (A) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or (B) the paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof. See Tenn. Code. Ann. § 31-2-105(2)(2005)(emphasis added); see also GN 00306.635, Tennessee Intestacy Laws (2004); Bilbrey v. Smithers, 937 S.W.2d 803, 808 (Tenn. 1996). Also, SSA decides a claimant's paternity by using the standard of proof that the State would use as the basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2). Therefore, clear and convincing proof is the standard in this case.

ANALYSIS

If, for purposes of intestate succession, a parent and child relationship must be established, a child born out of wedlock must prove paternity by clear and convincing proof. See Tenn. Code. Ann. § 31-2-105(2). The Tennessee Supreme Court has explained that to be "clear and convincing," evidence "must produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Fruge v. Doe, 952 S.W.2d 408, 412 n. 2 (Tenn. 1997). "Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992).

In assessing whether paternity could be established in this case, we considered the following information and evidence:

DNA test results based on tests performed on Claimant and the parents of NH, which indicate a 99.99% probability of grandparentship;

DNA test results based on tests performed on Claimant and James S. H~, which indicate a 0% probability of paternity;

A court order disestablishing the paternity of James S. H~;

Child Relationship Statement completed by Claimant's mother;

Statements from both the maternal and paternal grandparents;

Statement from NH's only brother, Reed J. W~;

Statement from a disinterested party, Patricia L. M~; and

Birth certificate only listing KaSandra L. B~ as the mother of the child with no father listed.

First, the DNA testing indicated the probability of the NH's parents being Claimant's grandparents as 99.99%. The Tennessee statute provides that a rebuttable presumption of the paternity of an individual is established by blood, genetic, or DNA testing showing a statistical probability of that individual at 95% or greater. Tenn. Code Ann. § 24-7-112(b)(2)(B); see also GN 00306.635. A nearly conclusive presumption of paternity is established if blood, genetic, or DNA testing show that the statistical probability of paternity is 99% or greater. Tenn. Code Ann. § 24-7-112(b)(2)(C). Tennessee law does not distinguish between establishing paternity for legitimation purposes, child support purposes, or intestate succession purposes. Specifically, Tennessee's domestic relations law states that "tests for parentage in actions arising pursuant to this part or in any actions to determine parentage shall be conducted pursuant to § 24-7-112," which covers paternity tests. See Tenn Code. Ann. § 36-2-309 (emphasis added). While we find no statute or case law that specifically addresses the acceptability of the results from a DNA test conducted on a relative, in light of the statutory recognition granted to DNA testing, we believe that the Tennessee courts would accept the paternal grandparents DNA test results along with the other evidence presented here as clear and convincing proof of paternity that § 31-3-105 requires in order to establish intestate inheritance rights after a father's death. Thus, establishing that NH is Claimant's father.

In McDowell v. Boyd, 1997 WL 749470 (Tenn. Ct. App. 1997), a case involving a posthumous paternity dispute, the court provided the following guidance: Parentage may be proved using several different types of evidence. In addition to direct evidence of paternity through blood tests, the courts may consider: (1) the declarations and conduct of the child's biological mother (citation omitted), (2) acknowledgment by the father, (3) family resemblance (citation omitted), and (4) evidence concerning access, opportunity and capacity to have children. Id., at 2. Here, Mrs. A~ also provided a statement from NH's only brother denying that he ever had a sexual relationship with her. Also, the paternal and maternal grandmothers of Claimant provided statements in which they stated that the NH verbally acknowledged a relationship and treated Claimant as his son until the relationship between the NH and the Claimant's mother ended in 1993. The maternal grandmother reported that she and Claimant's mother visited NH often while he was in jail. Claimant's mother also reported that NH completed a written request to visit his son (Claimant) in the hospital after his birth. Finally, a disinterested party acknowledged that she witnessed the NH, stating, introducing, and showing Claimant as his son.

Thus, it is our opinion that a fact finder could rely on the DNA test results and the various statements from NH's family member and acquaintances to determine clear and convincing evidence establishes that NH is Claimant's father. An SSA fact finder, reaching such conclusion, could then find the evidence sufficient to establish that Claimant could inherit from NH through intestacy under Tennessee law and that Claimant is entitled to child's insurance benefits. See § 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1).

However, we note that an adjudication could result in an opposite conclusion due to a possible issue arising regarding the credibility of Claimant's mother. As noted in M~, the declarations and conduct of the child's biological mother are considered. 1997 WL 749470 at 2. Here, Claimant's mother first listed no father on Claimant's birth certificate, then she listed NH on Claimant's original social security card, and then on subsequent social security card applications she listed Mr. H~.

CONCLUSION

Tennessee law recognizes the value of direct evidence such as DNA tests of paternity and other evidence such as statements from individuals. Therefore, we conclude that, under Tennessee law, the NH would probably be presumed to be Claimant's father based on the DNA test results and the statements of NH's family members and acquaintances. Thus, Claimant would probably be entitled to child's insurance benefits on the NH's account.

Very truly yours,

Mary Ann S~
Regional Chief Counsel

By______________
Simone D. P~
Assistant Regional Counsel

E. PR 06-054 Effective Date of Parent-Child Relationship Claimant: Robert S~ D~ Deceased Number Holder: Richard S~, SSN: ~

DATE: January 30, 2006

1. SYLLABUS

DNA test results based on samples from relatives of the deceased number holder, the claimant and the claimant's mother may satisfy the clear and convincing evidentiary standard for proving paternity for inheritance purposes under Tennessee law. In cases where paternity is establish by a clear and convincing evidentiary standard, the claimant's inheritance rights are established retroactively to the date of birth.

2. OPINION

In considering this child's claim for survivor's benefits, you asked two questions regarding the evidentiary value of genetic testing performed by DNA Diagnostics Center on samples from relatives of a deceased number holder (NH) in Tennessee and the retroactive or prospective payment of child's benefits. Specifically, you asked: (1) whether DNA tests of the claimant, the claimant's mother and NH's parents can be used to establish a parent-child relationship to NH under Tennessee law; and (2) whether, if the claimant qualifies as an illegitimate child of NH with inheritance rights, the claimant can be paid retroactively.

Having considered the evidence presented, and the applicable federal and state law, it is our opinion that: (1) the DNA tests based on samples from NH's relatives, the claimant and his mother, may satisfy the clear and convincing evidentiary standard for proving paternity for inheritance purposes under Tennessee law; and (2) while the claimant would not be legitimate, Tennessee law would accord him inheritance rights equivalent to those of a legitimate child and therefore, the child should be paid retroactively.

FACTS

NH died domiciled in Tennessee on October 4, 1992. The claimant was born on June 24, 1993, to Katherine I. D~, approximately eight and one-half months after NH's death. The claimant's mother is also referred to in the file as Katherine I. S~. There is no evidence that NH and the claimant's mother were ever married. There is no evidence that NH was living with or providing support to the claimant's mother at the time of NH's death. On September 16, 2005, the claimant's mother applied for surviving child's benefits on behalf of her son on the earnings record of the deceased NH and to become the claimant's representative payee. According to NH's death certificate, NH was born in North Carolina and was a resident of Tennessee at the time of his death. The claimant's birth certificate lists only the claimant's mother but contains no information on the claimant's father. An application for a Social Security number completed on July 2, 1993, also lists only the claimant's mother's information. In an effort to determine if the claimant was related to NH's family, DNA samples were taken from the claimant, his mother, and NH's mother and father. The results of the DNA test conducted by the DNA Diagnostics Center were reported on October 22, 2003. According to the DNA test report, the probability that the claimant is related to NH's mother and father is 99.99%.

STATUTORY AUTHORITY

For purposes of child's survivor's benefits under the Social Security Act (Act), a child is defined as the child, adopted child or stepchild of an insured individual. See § 216(e) of the Act, 42 U.S.C. § 402(e)(2005).[1] If NH dies prior to the child applicant's birth and NH never married the child's mother, the claimant's status as the surviving child of NH is governed by either section 216(h)(3)(C) of the Act, 42 U.S.C. § 416(h)(3)(C) or section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). To establish child status under section 216(h)(3)(C) of the Act, the claimant must show one of the following: (1) that NH acknowledged in writing that the claimant is his child, (2) that a court decreed NH to be the claimant's father, (3) that a court ordered NH to contribute to the claimant's support, or (4) that NH is the father and was living with or contributing to the claimant's support when NH died. We are aware of no evidence here which satisfies any of the required conditions in section 216(h)(3)(C) of the Act. Therefore, the sole basis for entitlement for surviving child benefits would be under 216(h)(2)(A) of the Act.

To establish his status as the surviving child of the deceased NH under section 216(h)(2)(A) of the Act, the claimant must show that he would be entitled to a child's share of NH's intestate personal property under the law of the state in which NH was domiciled at the time of his death. NH was domiciled in Tennessee when he died. There is no evidence suggesting that NH's domicile was other than Tennessee. We conclude NH was domiciled in Tennessee when he died and that Tennessee's law of intestate succession is therefore applicable in determining the claimant's status as the lineal descendant of NH for purposes of section 216(h)(2)(A) of the Act.

ANALYSIS

For a person born out of wedlock to establish the status of lineal descendant for purposes of intestate succession under Tennessee law, he or she must show: 1) the natural parents participated in a marriage ceremony before or after the child's birth, even though the attempted marriage is void; or 2) paternity is established by an adjudication before the father's death or is established thereafter by clear and convincing proof. See TENN. CODE ANN. § 31-2-105(2) (Thomson/West 2006). The claimant does not qualify under the first criterion because the evidence does not support a finding that his mother and NH participated in a marriage ceremony. Therefore, paternity must be established by an adjudication before the father's death or after the father's death by clear and convincing evidence. Although there has been no actual paternity adjudication under TENN. CODE. ANN. § 31-2-105(2)(B), SSA adjudicators must apply Tennessee intestacy law under these circumstances as follows:

If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

20 C.F.R. § 404.355(b)(2)(2005); See Drake v. Apfel, 2001 WL 705784 (N.D. Tex. 2001) (notes 20 C.F.R. § 404.355(b)(2) removes obligation to obtain an actual state court determination of paternity). Consequently, SSA does not require an adjudication of paternity but applies the requisite standard of proof used by Tennessee courts to determine paternity.

To be adjudicated a lineal descendant under Tennessee intestacy law, a child born out of wedlock who did not establish paternity prior to the putative father's death, must prove paternity by clear and convincing evidence.[2] See TENN. CODE ANN § 31-2-105(2)(B)(T~/W~ 2006); Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989); see also Muse v. Sluder, 600 S.W.2d 237 (Tenn. Ct. App. 1980), cited in Kelani v. Bowen, 684 F.Supp. 490, 496 (M.D.Tenn. 1988)(in a Social Security case for surviving child benefits, the court applied the clear and convincing standard of proof to determine whether an illegitimate child could inherit from his putative father). Clear and convincing is defined in McDowell v. Boyd, 1997 WL 749470, at *2 (Tenn. Ct. App. 1997) as falling somewhere between the preponderance-of-the-evidence standard in civil proceedings and the beyond-a-reasonable-doubt standard required in criminal proceedings. Id. (citing Walton v. Young, 950 S.W.2d 956, 960 (Tenn. 1997)). The Tennessee Supreme Court has further explained that clear and convincing evidence "must produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Fruge v. Doe, 952 S.W.2d 408, 412 n. 2 (Tenn. 1997). According to the court in Majors, the clear and convincing proof's requirements are not satisfied by circumstances that merely "suggest" or "imply parentage, or even support probability;" instead "[t]he circumstances must be such as to produce a state of conviction (by convincing) that the desired fact is indeed true." 776 S.W.2d at 540.

Here, the claimant's birth certificate lists only the claimant's mother's name but not his father's name. An application for a Social Security number completed on July 2, 1993, also lists only the claimant's mother's information. The evidence presented to establish paternity thus, consists solely of DNA testing of the claimant, the claimant's mother, and NH's parents which shows a 99.99% of grandparentage. The question then becomes whether the DNA test results of NH's parents showing a 99.99% of grandparentage demonstrate clear and convincing evidence of paternity.

Tennessee's paternity statutes distinguish between establishing paternity for child support purposes and for purposes of intestate succession. Under Tennessee's domestic relations law, DNA testing that meets the following criteria creates a rebuttable presumption of paternity: (1) an exclusion has not occurred, (2) it was performed in accordance with Tenn. Code Ann. § 24-7-112 (Thomson/West 2006), and (3) shows a statistical probability of parentage greater than 95%. See TENN. CODE ANN. § 36-2-304(a)(5) (Thomson/West 2006). Any presumption of paternity created under Section 36-2-304 can be rebutted by a preponderance of evidence. See Tenn. Code Ann. § 36-2-304(b)(3) (Thomson/West 2006).

Tennessee evidentiary laws specifically permit scientific testing of "the parties and the child" and "all necessary parties" to determine paternity for purposes of child support. TENN. CODE ANN. § 24-7-112(a)(1)(A), (2) (Thomson/West 2006). For instance, Section 24-7-112 provides that when the results of blood, genetic, or DNA tests show a statistical probability of 99% or greater, the paternity of the putative father may only be rebutted by evidence of: (1) medical incapacity, (2) no access during the probable period of conception, (3) the putative father has/had an identical twin who had sexual relations with the child's mother during the probable period of conception, or (4) evidence in the form of an affidavit is presented that another man engaged in sexual relations with the mother of the child during the period of probable conception and the results of that genetic test indicate that the other man has a statistical probability of paternity of 95% or greater. Here, although NH has a brother, there is no indication that NH's brother is an identical twin. None of the other effective defenses to the presumption of paternity have been presented.[3] However, the DNA tests here show a probability of grandparentage rather than paternity.

With respect to the admissibility of genetic test results in civil or criminal proceedings involving the question of parentage, Tennessee's evidentiary laws further provide that the DNA testing must be conducted by an "accredited laboratory." TENN. CODE ANN. § 24-7-112(a)(3) (Thomson/West 2006). The materials presented indicate that DNA Diagnostic Center's testing procedure was conducted in accordance with the AABB's guidelines. Though there is no indication in the file that DNA Diagnostic Center is accredited by the AABB, the United States Department of Health and Human Services lists DNA Diagnostics Center on its official website as a genetic-testing laboratory that is accredited by the American Association of Blood Banks, see United States Department of Health and Human Services, (visited January 13, 2006) <http://www.acf.dhhs.gov/programs/cse/pubs/directories/genetic-testing/sec3.html>. Therefore, we believe that DNA Diagnostics Center meets the test for an "accredited laboratory" under Tennessee law. See POMS GN 00306.065. Furthermore, while we find no specific statutory or case law reference to establishing paternity based on testing the putative father's parents, in light of the statutory recognition granted to genetic testing in general, we believe the Tennessee courts would accept this report from DNA Diagnostic Center in the context of domestic relations actions, as an accredited laboratory which conducted the DNA test and determined the probability of grandparentage as 99.99%.

Unlike Tennessee's domestic relations paternity statute, Tennessee's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See TENN. CODE ANN § 31-2-105 (Thomson/West 2006). We found no Tennessee case law or statute specifically addressing the probative value of genetic testing of the putative father's relatives for purposes of establishing paternity for either support or intestacy purposes. However, we note that the clerk and master concluded in one case that there was clear and convincing evidence that an illegitimate child was the decedent's child after DNA testing revealed a 99.34% probability that the decedent's sister was the illegitimate child's aunt. See In re Estate of Bennett, 2005 WL 2333597, at *1 (Tenn. Ct. App. Sept. 23, 2005). Similarly, DNA testing of the decedent was used to established paternity for inheritance purposes under § 31-2-105 in Brady v. Smith, 56 S.W.3d 523, 525 (Tenn. Ct. App. 2001). Additionally, the McDowell court, after noting clear and convincing evidence as the requisite standard, observed that blood tests are direct evidence of paternity, and that "[n]either party in this case offered evidence of the results of blood testing, even though this evidence would have been the most reliable and conclusive available." 1997 WL 749470, at *2 (emphasis added). Though the probative value of the DNA test results was not at issue and not a part of the Tennessee Court of Appeals' holdings in those cases, the cases support a conclusion that DNA testing, in general, and of relatives in particular, can at a minimum be considered for intestacy purposes, and may by themselves provide clear and convincing evidence of paternity.

Because Tennessee courts look to the law of other states for guidance in matters of first impression, we too have looked to the court decisions of other states that have addressed the genetic testing of a putative father's relatives in intestacy proceedings. See e.g., Pass v. Pass, 1999 WL 95184, at *2 (Tenn. Ct. App. Feb. 24, 1999)(looking to other states to determine in a child support action whether the wife was entitled to child support payments which accrued prior to the parties' remarriage, and excluding the period of cohabitation); Sorrel v. Henson, 1998 WL 886561, at *3 (Tenn. Ct. App. Dec. 18, 1998)(reviewing other state law to determine whether paternity actions brought against a putative father who did not consent to childbirth violate the father's right to procreational autonomy). Our review of the court decisions in other states shows that the genetic tests of the putative father's relatives is, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See e.g., In the Matter of the Application of Ruth Santos, 768 N.Y.S.2d 272 (N.Y. 2003) (court stated DNA testing of a child's putative grandparents, could be used to satisfy the clear and convincing evidence standard for proving paternity); In the Matter of the Estate of Robert Nasert, 748 N.Y.S.2d 654 (N.Y. 2002) (DNA testing on the putative father's twin, coupled with other evidence constituted clear and convincing evidence of paternity); Drake, 2001 WL 705784 (district court concludes DNA testing of the putative father's mother coupled with other evidence supported finding of clear and convincing evidence of paternity); In the Matter of the Estate of Sandler, 612 N.Y.S.2d 756 (N.Y. 1994) (court found DNA testing of a child's putative grandparents could provide clear and convincing evidence of paternity); M.A. v. The Estate of A.C., 643 A.2d 1047 (N.J. Super. 1993) (court ordered the decedent's siblings and mother to submit to DNA testing for paternity purposes in an intestacy proceeding because denying the tests could deprive the child of evidence necessary to establish his right to equal treatment under the law); Tipps v. Metropolitan Life Insurance Company, 768 F. Supp. 577, 580 (S.D. Tex. 1991) (DNA testing of deceased putative father's parents, legitimate son, and putative daughter); In re Estate of Rogers, 583 A.2d 782, 784 (N.J.Super 1990) (court has "inherent power" to order collateral relatives of decedent to submit to blood tests to determine paternity of non-marital child)(cited in In re Estate of Murcury, 868 A.2d 680, 685 n.4 (Vt. 2004)).

While it is unclear whether a Tennessee court might actually hold that DNA testing of the putative father's relatives which shows a 99.99% of grandparentage is clear and convincing evidence of paternity, it is our opinion that Tennessee courts, based on the decisions of other states, would, at a minimum, consider genetic testing of the putative father's relatives along with other evidence on the issue of paternity. Other evidence of paternity may include: "(1) the declarations and conduct of the child's biological father, (2) acknowledgment by the father, (3) family resemblance, and (4) evidence concerning access, opportunity, and capacity to have children." McDowell, 1997 WL 749470, at *2 (internal citations omitted). Unfortunately, the claimant here has not submitted any of this additional evidence which might either: (1) lend further evidentiary support to the DNA test results in order to meet the clear and convincing standard of proof; or actually by themselves meet the clear and convincing evidence, see e.g., Majors, 776 S.W.2d at 540-41 (finding clear and convincing evidence of paternity mainly based on testimonial evidence); Kelani, 684 F.Supp. at 496-97 (same); Rose v. Stalcup, 731 S.W.2d 541, 543 (Tenn. Ct. App. 1987)(same). If unsure as to whether the DNA test results here would amount to clear and convincing evidence, SSA could further develop the record to obtain this additional evidence. However, based on the evidence as presented, Tennessee's statutes and case law which seemingly permit consideration of genetic testing to establish paternity for intestacy purposes and in light of other state law which gives some weight to DNA testing of a putative father's relatives, it is our opinion that an SSA adjudicator could find NH here to be the claimant's father based on genetic test results on his parents under Tennessee law, and that the claimant is entitled to child's insurance benefits pursuant to § 216(h)(2)(A) of the Act.

Next, you asked, if a parent-child relationship is met as an illegitimate child with inheritance rights, whether the child can be paid retroactively. With respect to retroactive entitlement, under 20 C.F.R. § 404.621(a)(2) (2005), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which he files his application. An illegitimate child might not be entitled to retroactive benefits because an applicant is not entitled to benefits before he proves he meets all entitlement factors, and an illegitimate child has not proved child status until he meets the evidence requirements for proving that status under state law. So, "[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event." POMS GN 00306.055A.3. The only exception to this policy is for cases where, as here, the state law granting inheritance rights also accords those rights for periods before the act/event that confers those rights. In Tennessee, when the relationship of father and child is established, the child shall be entitled to inherit from the father as if born to the father in wedlock. See TENN. CODE ANN. § 36-2-313(a)(Thomson/West 2006). Thus, while the claimant would not be legitimate, Tennessee law would accord him inheritance rights equivalent to those of a legitimate child. Therefore, if Claimant is determined by clear and convincing evidence to be NH's child, his rights to retroactive benefits would be equivalent to those of a legitimate child, see POMS GN 00306.635, and he would be eligible for the full retroactive period of the application.

Very truly yours,

Mary Ann S~
Regional Chief Counsel

By______________
Arthurice B~
Assistant Regional Counsel

F. PR 05-272 Whether oral acknowledgment(s) can constitute clear and convincing evidence of paternity under Tennessee intestacy law

DATE: September 9, 2005

1. SYLLABUS

Under Tennessee law, statements alleging that the deceased number holder orally acknowledged the claimant as his child can provide clear and convincing evidence of paternity. Additionally, since the Paternity Chapter of the Tennessee Code states that "the child shall be entitled to inherit from the father as if born to the father in wedlock", the child's rights to retroactive benefits are equivalent to those of a legitimate child.

2. OPINION

QUESTION

You have asked whether oral acknowledgment(s) can be used to establish clear and convincing evidence of paternity and qualify a claimant as a deceased individual's child for purposes of Tennessee intestacy law and 42 U.S.C. § 416(h)(2)(A), and, if so, whether the claimant can receive retroactive benefits.

ANSWER

Oral acknowledgment(s) can provide a basis for establishing clear and convincing evidence of paternity in Tennessee. Under Tennessee law, Claimant, a child born out of wedlock, may inherit from his father through intestacy if there is clear and convincing evidence of paternity. If a determination is made that the evidence of record constitutes clear and convincing evidence of Claimant's paternity, such a determination would allow Claimant to inherit from his father in the same manner as though legitimate and would entitle Claimant to retroactive benefits.

BACKGROUND

On August 15, 1991, the number holder (NH), Carl D. M ~, died domiciled in Tennessee. Carlos C~ (Claimant) was born on May 4, 1991. His Tennessee birth certificate does not name a father. Claimant's mother, Charlotte C~ M~, first applied for child's insurance benefits on his behalf on September 14, 1992, and the application was denied for inadequate of evidence of relationship. Claimant's mother again applied for benefits on Claimant's behalf on March 29, 2005, submitting statements that NH orally acknowledged paternity. In several statements, NH's mother indicated her son told her that Claimant was his baby, and that Claimant and Claimant's mother "were living with us in Memphis" in 1991. She also stated that when NH was killed, he had a baby picture in his pocket, and that it said "To Daddy" as well as "Carlos M~." Two other individuals, Steven S~ and Theresa M~, provided statements indicating that NH had orally acknowledged he was Claimant's father. Each indicated that Claimant, Carlos, was named for NH, Carl. Also, each indicated he/she had written documentation that NH acknowledged that Claimant as his son although neither provided the written documentation. Eddie S~ also provided a statement indicating NH orally acknowledged his paternity of Claimant.

DISCUSSION

In determining whether an applicant is the child of an insured individual, the Commissioner applies such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A). Applicants who according to such law would have the same status as a child relative to taking intestate personal property shall be deemed such. Id. NH died domiciled in Tennessee, and the Tennessee law providing for the intestate inheritance rights of a child born out of wedlock is found at Tenn. Code Ann. § 31-2-105(a)(2) (2005). As relevant to this legal opinion, a child born out of wedlock may inherit from his father if there is "clear and convincing proof" that the child is the child of the father. Id. The Tennessee Supreme Court has explained that to be "clear and convincing," the evidence "must produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Fruge v. Doe, 952 S.W.2d 408, 412 n. 2 (Tenn. 1997). "Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992).

In McDowell v. Boyd, 1997 WL 749470 (Tenn. Ct. App. 1997), a case involving a posthumous paternity dispute, the court provided the following guidance:

Parentage may be proved using several different types of evidence. In addition to direct evidence of paternity through blood tests, the courts may consider (1) the declarations and conduct of the child's biological mother (citation omitted), (2) acknowledgment by the father, (3) family resemblance (citation omitted), and (4) evidence concerning access, opportunity and capacity to have children.

Id., at 1. In McDowell, both parties undertook to support their claims using mainly anecdotal evidence of the statements and conduct of the claimant's mother and of the decedent during their lifetimes. The appeals court found that the evidence was not free of contraction. However, the court concluded that the proof of claimant's mother's repeated insistence that the decedent was claimant's father, coupled with the decedent's solemn acknowledgment of his son on the occasion of claimant's high school graduation, provided clear and convincing evidence that the decedent was the claimant's biological father.

In In re Estate of Walton v. Young, 950 S.W.2d 956, 960 (Tenn. 1997), the Tennessee Supreme Court denied the claim of an alleged illegitimate daughter who intervened in intestacy proceedings and asserted a paternity claim. The court held that the evidence submitted did not reach the "clear and convincing" standard. No written evidence was submitted, and the court found that on every significant issue, the oral evidence was equivocal. Several casual acquaintances testified that the decedent referred to the claimant as his child while both the decedent's sister and a long time friend testified they never heard the decedent acknowledge his paternity of the claimant. The court determined that the critical evidence was the testimony of claimant's mother and that the probative value of claimant's testimony depended on her mother's credibility. The court found the mother's credibility was impeached because she had sworn under oath to the contrary. The court thus held that claimant failed to meet her burden to provide clear and convincing proof of paternity.

It is our opinion that, under Tennessee law, oral acknowledgment(s) may constitute clear and evidence of paternity. We believe the evidence presented here argues in favor of finding clear and convincing evidence supports paternity, since the evidence uniformly supports Claimant's application and is uncontradicted and because Tennessee law does not require written proof of paternity. However, we could find limited support for the opposite conclusion since there is no documentary proof of paternity. If the finders of fact determine that the oral evidence presented in this claim is sufficient to constitute clear and convincing evidence of paternity, then Claimant acquires the status of a child and would be entitled to inherit from NH under Tenn. Code Ann. § 31-2-105(a)(2)(B).

With respect to retroactive entitlement, under 20 C.F.R. § 404.621(a)(2) (2005), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which he files his application. An illegitimate child might not be entitled to retroactive benefits because an applicant is not entitled to benefits before he proves he meets all entitlement factors, and an illegitimate child has not proved child status until he meets the evidence requirements for proving that status under state law. So, "[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event." POMS GN 00306.055A.3. The only exception to this policy is for cases where, as here, the state law granting inheritance rights to an illegitimate child also accords those rights for periods before the act/event that confers those rights. When the relationship of father and child is established under the Tennessee Code's Paternity Chapter, "the child shall be entitled to inherit from the father as if born to the father in wedlock." Tenn. Code Ann. § 36-2-313(a) (2005). Thus, while Claimant would not be legitimate, Tennessee law would accord him inheritance rights equivalent to those of a legitimate child. Therefore, if Claimant is determined by clear and convincing evidence to be NH's child, his rights to retroactive benefits would be equivalent to those of a legitimate child. POMS GN 00306.635.

Very truly yours,

Mary Ann S~
Regional Chief Counsel

__________________________
By:Pamela W. W~/
Assistant Regional Counsel

G. PR 04-342 Arkansas State Law - Establishment of Paternity Based Upon Birth Certificate, NH Maurice J~, SSN ~ - REPLY

DATE: September 23, 2004

1. SYLLABUS

In a case where the number holder was domiciled in Tennessee at the time of his death, but the birth certificate submitted to establish a relationship between the claimant and that number holder was issued in another state in which the claimant was still domiciled, Tennessee courts would defer to that other state's law under the doctrine of "most significant relationship".

In Arkansas, a claimant's birth certificate showing the deceased number holder as the father is not sufficient to establish acknowledgement of paternity without evidence that the number holder provided written consent for his name to be placed on the birth certificate as required by state law.

2. OPINION

The purpose of this memorandum is to respond to your request for a legal opinion regarding whether an Arkansas birth certificate listing the putative father's name is sufficient to establish evidence of paternity, absent written consent of the purported father to have his name to appear on the certificate as required by State law. According to information supplied with your request for an opinion, the number holder Maurice J~ died on August 29, 2003, while domiciled in Tennessee. Three days prior to his death, on August 26, 2003, Mr. J~ filed a claim for disability insurance benefits under Title II of the Social Security Act (the Act). 42 U.S.C. § 423(d)(1)(A). On that disability claim, Mr. J~ acknowledged Demarcus Y~ as his only child. On September 22, 2003, a claim for child's insurance benefits under the Act was filed on behalf of Heaveney L. J~ on Mr. J~' earning's record. According to a certified copy of the Arkansas birth certificate, Heaveney was born in West Memphis, Arkansas, on November 4, 2001. The birth certificate lists Evette S. G~ (H~) as the child's mother, and Mr. J~ as the child's father. Ms. G~ and Mr. J~ never married.

Your request for an opinion states that the Arkansas birth certificate was the only evidence submitted to establish the child relationship. Apparently the claim was initially allowed. However, you have now requested a legal opinion given the fact that the Arkansas birth certificate does not list whether Mr. J~ gave his written consent to have his name placed on the birth certificate as Heaveney's father. Based upon the reasons discussed herein, it is our opinion that no evidence has been provided with your request for a legal opinion demonstrating that Mr. J~ gave his written consent to place his name on Heaveney's birth certificate as the putative father as required by State law. Therefore, the fact that Mr. J~' name appears on the birth certificate cannot by itself serve as written acknowledgement of paternity.

To be considered the insured person's natural child for purposes of entitlement to Social Security benefits under section 216(h)(2) of the Act one of the following conditions must be met: (1) the child would be entitled to inherit through intestate succession under the laws of the state in which the insured person was domiciled when he died; or (2) the parents of the child went through a marriage ceremony which did not create a valid marriage because of a legal impediment. 42 U.S.C. § 416(h)(2)(A) and (B). However, an applicant who is not deemed to be the child of the insured under section 216(h)(2) of the Act shall nevertheless be deemed to be the child of the insured under section 216(h)(3) of the Act if: (1) prior to the death of the insured individual, he acknowledged the child in writing, had been decreed by a court to be the father of the child, or had been ordered to contribute to the support of the child because of paternity; or (2) the insured person is shown by satisfactory evidence to be the father of the child and was living with the child or contributing to the child's support at the time such insured individual died. 42 U.S.C. §§ 416(h)(3)(C)(i) and (ii).

If the insured is deceased, the Social Security Administration will apply the law on inheritance rights in the state where the insured individual had his permanent home when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(b)(1) and (b)(4) (2004). In this case, the evidence indicates that the deceased number holder was domiciled in Tennessee; therefore, Tennessee intestacy law would normally apply. Id. However, on July 29, 2004, the Regional Office of the General Counsel in Atlanta issued a legal opinion where they concluded that under the "most significant relationship" doctrine, Tennessee courts would determine that the birth status of Heaveney, and whether Mr. J~' name was properly placed on the birth certificate, would be governed by Arkansas State law since both Mr. J~ and Ms. G~ were living in Arkansas at the time of Heaveney's birth.

As our Office has previously concluded that, since February 19, 1981, under Arkansas law, if the mother was not married at the time of conception or birth, or anytime between conception and birth, the name of the father shall not be entered on the birth certificate without written consent of the mother and the person to be named as the father. See OGC legal opinion No. 99-163, entitled "Establishing Precedents for Using Information from Child's Birth Certificate as Written Acknowledgment or Proof of Court Order of Paternity," dated November 20, 2000 (reviewing prior Ark. Code Ann. § 20-18-401(e)(2)(1981) and Ark. Code Ann. § 20-18-401(f)(2) (Repl. 2000)). Additionally, we also stated that in any case where the paternity of the child is determined by a court of competent jurisdiction, the name of the father shall be entered on the birth certificate in accordance with the findings and order of the court. Id. A review of the relevant statute at issue shows no major changes from our prior November 2000 opinion./

The method to obtain consent of the mother and putative father is governed through the use of paternity affidavits. See Ark. Code Ann. § 20-18-408 (current through the end of the 2003 Second Extraordinary Sess). Under this statute, "[u]pon the birth of a child to a woman that was unmarried at the time of either conception or birth or between conception and birth, the person responsible under § 20-18-401 for providing birth registration information shall . . . provide an opportunity for the child's mother and natural father to complete an affidavit acknowledging paternity, to include such information as is required by the court to establish paternity and establish child support obligation, and to be filed with the Division of Vital Records of the Department of Health." Ark. Code Ann. § 20-18-408(1). However, prior to signing the affidavit, the mother and natural father must be provided written information explaining the implications of signing the affidavit and their resulting parental rights and responsibilities. Ark. Code Ann. § 20-18-408(2).

Our Office could only find one case which discussed the relevant Arkansas statutory section at issue. In 2001, the Arkansas Court of Appeals reversed a Chancery Court's decision to amended a divorce decree entered 14 months prior to reflect, in part, that the appellant was not the child's biological father when paternity was not even at issue in the original divorce proceeding. See Slusher v. Slusher, 73 Ark.App. 303, 306-07, 43 S.W.3d 189, 191-92 (Ark.Ct.App. 2001). While the court reversed the case primarily because the lower court had amended the judgment outside of the permissible time period specified under the Arkansas rules of civil procedure; nevertheless, in a concurring opinion the honorable Judge N~ stated that:

In this state, if the mother of a child is not married at the time of either conception or birth, the name of the father is not to be entered on the child's birth certificate unless the mother and the putative father sign an affidavit of paternity. [citing to Ark. Code Ann. § 20-18-401(f)(2)]. Prior to signing the affidavit, the mother and natural father are given written information explaining the implications of signing the affidavit and their resulting parental rights and responsibilities. [citing to Ark. Code Ann. 20-18-408(2)]. Once the mother and the putative father execute an acknowledgement of paternity pursuant to section 20-18-408, the man executing the document is the father of the child for all intents and purposes and the acknowledgements, by operation of law, constitute a conclusive finding of paternity. Id.

Applying these principles to the facts of this case, it is our opinion that the proper State law procedure for placing Mr. J~' name on the birth certificate was not followed. Since Heaveney was born in Crittenden Memorial Hospital, it was the responsibility of hospital personnel to obtain the required consent through a paternity affidavit from both the mother and putative father before placing Mr. J~' name on the birth certificate. See Ark. Code Ann. §§ 20-18-401(b), 20-18-408. While State law provides that both the paternity affidavit and birth certificate are to be filed with the Division of Vital Records of the Department of Health, it seems likely that Crittenden Hospital personnel would have also kept a copy of such existing documentation. Id. However, no documentation supporting the existence of the paternity affidavit, thus establishing the putative father's consent to have his name placed on the birth certificate, has been provided. Therefore, the fact that Mr. J~' name appears on the birth certificate cannot by itself serve as written acknowledgement of paternity.

Tina M. W~
Regional Chief Counsel
By:____________________
Thomas C. S~
Assistant Regional Counsel

H. PR 04-327 Eligibility for Child's Insurance Benefits Claimant: Robert I. (Lenoir) T~ Deceased Number Holder: Robert J. T~, SSN: ~

DATE: September 3, 2004

1. SYLLABUS

Neither conflicting DNA test results nor a juvenile court determination create a presumption under Tennessee law that the child claimant is, or is not, the NH's natural child. However, the evidence submitted supports a finding that the claimant is the NH's child based on a preponderance of the evidence.

2. OPINION

In December 2003, you requested a legal opinion as to whether evidence submitted by the mother of the claimant was sufficient to establish that the deceased number holder (DNH) was the claimant's father, thereby establishing entitlement to Child's Insurance Benefits. For the past several months, you have been attempting to secure additional information from the filed office in order to resolve some threshold questions. Based on a conversation with the claims representative in Memphis, we believe that no additional information will be forthcoming. Based on the information that has been provided to us, including information from the Juvenile Court as well as the claims file itself, we believe that the evidence submitted could be interpreted as sufficient to establish by a preponderance of evidence that the DNH is the claimant's father.

Because the number holder was domiciled in Tennessee at the time of his death, Tennessee law applies to determine whether the claimant is the "child" of the DNH. See Sec. 216(h)(2)(A) of the Act. See also 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001. Under Tennessee law, paternity must be established by a preponderance of evidence. See Frazier v. McFerren, 402 S.W.2d 467 (Tenn. Ct. App. 1964). DNA testing, performed in accordance with Tenn. Code Ann. § 24-7-112 (2003), and which shows a statistical probability of parentage greater than 95%, creates a rebuttable presumption of paternity. Tenn. Code Ann. § 36-2-304(a)(5) (2003). Any presumption of paternity can be rebutted by a preponderance of evidence. Tenn. Code Ann. § 36-2-304(b)(3) (2003).

In assessing whether a preponderance of evidence establishes paternity in this case, we considered the following information and evidence:

* May 23, 2003 DNA testing performed on the claimant, the claimant's mother, and the DNH's mother and sister, which showed a 99.997% probability of paternity;

* May 22, 2000 DNA testing performed on the claimant, the claimant's mother, and the DNH's father, which excluded the DMH as the claimant's father;

* Findings and Recommendations of the Referee of the Juvenile Court of Shelby County, TN, dated June 15, 2003, which made a legal finding that the claimant is the "legitimate child of [the DNH] for purpose of inheritance, support and all other lawful purposes…."

* Supplemental information provided by the Juvenile Court in response to questions posed by the field office at our request.

Because the two DNA tests provided conflicting results, we do not believe that either test can be used to presumptively prove or disprove the matter here. The more likely reading of the results of both tests is that the DNH, though the child of his mother (Mary), is not the child of the man identified as his father (Robert, Sr.). The clear implication of the second (2003) test is that the claimant is a direct descendent of DNH's mother (most likely through DNH). While this second test, perhaps rebutted in part by the test performed in 2000, may not conclusively establish the claimant as the DNH's child under Tennessee law, it certainly lends probative support for that conclusion.

Because the DNA tests did not provide a presumption of paternity, we also looked to the Juvenile Court's finding of paternity. As a general principle, a paternity finding of a state court will be conclusive on that issue if four prerequisites are met: 1) An issue in a claim for social security benefits previously has been determined by a State court of competent jurisdiction; 2) this issue was genuinely contested before the State court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973). The Sixth Circuit's decision in Gray was adopted as Agency policy in Social Security Ruling 83-37c.

On July 15, 2003, the Juvenile Court Referee made a finding and recommendation in the matter captioned Lisa Marie Lenoir v. Mattie Thomas and Mary Thomas, Docket No. P832. The referee found that the DNH is "the natural father" of the claimant, based upon DNA testing conducted on the DNH's mother (Mary) and sister (Mattie), and recommending that the claimant is the legitimate child of the DNH, and that the claimant's surname be changed to "T~." In compliance with Tennessee law, the recommendation was confirmed as the decree of the court, and entered into the minutes by the clerk. See generally Tenn. Code. Ann. § 36-2-311 (2003).

Applying the Gray framework to these facts, we believe that although factors 1, 3 and 4 have been satisfied, factor 2, which requires that the issue was "genuinely contested before the State court by parties with opposing interests" was not satisfied. See George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1991); Outwater o/b/o McClinchey v. Secretary of Health and Human Services, 894 F.Supp. 1114, 1120 (E.D. Mich. 1995). Factors which are considered in making this determination include whether witnesses testified in open court and were subject to cross-examination, whether one or both parties were represented by counsel, whether the non-prevailing party pursued appeal rights, and whether the tribunal had all of the relevant evidence before it at the time of the decision. See also Winters v. Sec. of HHS, 1989 WL 280323 *1-2 (S.D. Ohio Dec. 11, 1989).

In an effort to resolve the question in this case, the field office contacted the Juvenile Court twice, and asked the following questions:

* Were the parties represented by counsel?

* Were briefs or other arguments filed by either party?

* Did either party pursue appeal rights of the referee's final decision?

* Did the Juvenile Court have the 2000 DNA test results when it made its determination?

Each of the first three questions was answered in the negative, although the court apparently was aware of the 2000 DNA testing, which excluded the DNH as the father. However, we believe that the other three answers lead to the conclusion that the parties did not have opposing interests leading to a genuine contest in court.

Neither the DNA test results nor the juvenile court's determination create a presumption that the claimant is (or is not) the natural child of the DNH. However, under Tennessee law, paternity must be established by a preponderance of evidence. We believe that when considered as a whole, the record here could support a finding that the claimant is the DNH's child. Should the field office make that determination, then the claimant would be entitled to benefits based on DNH's earnings.

Very truly yours,

Mary Ann S~
Regional Chief Counsel

__________________________
By: Michael S. F~ /s/
Assistant Regional Counsel

I. PR 03-171 Request for Legal Opinion Number Holder - James C. O~, SSN ~

DATE: August 14, 2003

1. SYLLABUS

Genetic testing performed on the NH's parents showed a 99.99 percent probability that the NH was the child claimant's father. The laboratory accreditation requirements of Tennessee law appear to have been met. Thus, Tennessee courts would accept the laboratory report as clear and convincing evidence of paternity, establishing the child's inheritance rights under Tennessee law based on her October 2002 application.

2. OPINION

You have requested our opinion as to whether there is sufficient evidence to entitle Kristina D. T~ to benefits as the child of James C. O~ (NH), deceased, when entitlement would begin and whether earlier applications could be reopened. We conclude that the evidence presented is sufficient to entitle Kristina to benefits on her September 2002 application and that she could be entitled to retroactive benefits as if born to the NH in wedlock. We conclude that her earlier applications cannot be reopened because there was not an error on the face of the evidence.

NH died November 18, 1991 domiciled in Tennessee. Kristina filed a child's claim for benefits on October 30, 1992. She presented the following evidence in support of her claim: 1) a statement from NH's mother that NH suspected that he was Kristina's father, but could not afford a blood test to confirm this; 2) a newspaper story listing Kristina as a child of NH; 3) the allegation of Kristina's mother that NH was Kristina's father; and 4) the results of DNA tests performed on NH's parents showing a 99.99 percent probability that NH was Kristina's father. The field office denied this claim without consideration of state law. The claim also was denied upon reconsideration because the reviewer did not believe that “clear and convincing” evidence of NH's paternity was submitted that would meet state law requirements. The claim was not submitted to the RCC for a legal opinion.

Kristina filed a new claim on October 15, 1997, but submitted no new evidence. Her claim was again denied. She filed a third claim on September 30, 2002. Between the filing of Kristina's first and third claims, the relevant POMs provisions changed as follows: 1) effective July 1, 1994, a rebuttable presumption of paternity arises when DNA testing shows a 95 percent or greater statistical probability of paternity (GN 00306.635A.6)[¹ ]; and 2) effective November 27, 1998, the laws of the state at the time of adjudication, rather than only those in effect at the time of NH's death, can be considered (GN 00306.075).

Tenn. Code Ann. § 31-2-105(2)(B) provides for purposes of intestate succession that a person is the child of a father if paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof. In this claim, there is no evidence that paternity was established by an adjudication before or after the NH's death.

Nevertheless, it appears that genetic test results provide the clear and convincing evidence of Kristina's paternity that § 31-2-105 requires in order to establish intestate inheritance rights after the father's death. Bilbrey v. Smithers, 937 S.W.2d 803, 808 (Tenn. 1996); Woods v. Fields, 798 S.W.2d at 242-243. As defined in McDowell v. Boyd, 1997 WL 749470 (Tenn. App. 1997):

The clear and convincing standard of proof falls somewhere between the preponderance- of-the-evidence standard in a civil proceedings and the beyond-a-reasonable-doubt standard required in criminal proceedings. See In re Estate of Walton, 950 S.W.2d 956, 960 (Tenn. 1997). The Tennessee Supreme Court has recently explained that clear and convincing evidence “must produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Fruge v. Doe, 952 S.W.2d 408, 412 n. 2 (Tenn. 1997).

The McDowell court further observed that blood tests are direct evidence of paternity, and that “Neither party in this case offered evidence of the results of blood testing, even though this evidence would have been the most reliable and conclusive available” (emphasis added).

Tenn. Code Ann. § 24-7-112 provides that when the results of blood, genetic, or DNA tests show a statistical probability of 99% or greater, the paternity of the putative father may only be rebutted by evidence of: (1) medical incapacity; (2) no access during the probable period of conception; (3) the putative father has/had an identical twin who had sexual relations with the child's mother during the probable period of conception; or (4) evidence is presented that another engaged in sexual relations with the mother of the child during the period of probable conception and the results of that genetic test indicate that the other man has a statistical probability of paternity of 95% or greater. In this claim, none of the effective defenses to the presumption of paternity are presented.

Further, the genetic testing appears to have been conducted by an accredited laboratory. Tenn. Code Ann.§ 24-7-112 requires tests ordered in any civil proceeding to be conducted by an accredited laboratory. Roche Biomedical Laboratories, which conducted the testing, is accredited by the Parentage Testing Committee of the American Association of Blood Banks and the results are notarized.

Here, the genetic testing was performed on NH's parents rather than NH. There is neither statutory nor case law that specifically addresses the acceptability of results from a DNA test conducted on a relative. However, the Tennessee statute focuses on tests that show a statistical probability of paternity. Tenn. Code Ann. §24-7-112. And the accredited lab here has expressed its findings in terms of NH's paternity, not the status of NH's parents. After testing Kristina and the grandparents, the lab concludes, “the probability of paternity, for their son, is 99.99 percent.” Therefore, we believe the Tennessee courts would accept the laboratory report as clear and convincing evidence of paternity. Thus, it is our opinion that the genetic test results provide clear and convincing evidence of a parent and child relationship and are sufficient to establish Kristina's inheritance rights under Tennessee law. Thus, Kristina is entitled to child's benefits pursuant to 42 U.S.C. § 416(h)(2)(A).

With respect to the date of entitlement, the court in Marshall v. Marshall, 670 S.W.2d 213 (Tenn. App. 1995), stated that children born out of wedlock may inherit by and through their father where paternity is established by clear and convincing proof, and rights of inheritance are not limited to prospective application but may be applied retroactively. Additionally, we note that the former Tennessee statutes dealing with legitimation, Tenn. Code Ann. § 36-2-2-1 et seq. were repealed effective July 1, 1997. Current Tennessee law provides a single cause to establish parentage of children. Section 36-2-313(a) provides that :

When, under the provisions of this chapter (“Paternity”), the relationship of father and child is established, the child shall be entitled to inherit from the father as if born to the father in wedlock.We conclude that, under Tennessee law, the NH is presumed to be Kristina's father based on genetic test results, and that she is entitled to retroactive child's insurance benefits as if born to the father in wedlock under her October 2002 application. We further believe that her first and second applications could not be reopened.

20 C.F.R. §404.989 (2002); GN 04010.020. An error exists when it is absolutely clear that the determination or decision was incorrect; that is, based upon all of the evidence in the file and any other evidence of record at SSA at the time the determination or decision was made, it is “unmistakenly certain” that the determination or decision was incorrect. GN 04010.020B. However, a determination that was reasonable on the basis of the evidence in the file and the law applicable at the time of the determination will not be reopened merely because: 1) of a shift in the weight of the evidence; 2) a different inference is now drawn from the evidence; 3) a different rule of law would be applied; or 4) a statute or regulation is amended (unless the amendment specifically provides for reopening). GN 04010.020C.

Applying this policy, we believe that the law and evidence in existence at the time of Kristina's earlier applications would not entitle her to benefits as the child of NH. By 1997, Tennessee recognized a rebuttable presumption of paternity based upon DNA testing. Such testing is clear and convincing evidence of paternity unless rebutted and the evidence has not been rebutted here. However, in 1997, the laws of Tennessee at the time of NH's death, not at the time of adjudication, applied. GN 00306.075. The regulations permitting adjudicators to apply a version of the state's intestacy law other than that in effect when the wage earner died (20 C.F.R. §404.355(b)(4)) only became effective November 27, 1998. See 63 Fed. Reg. 57590 (October 28, 1998). At the time of NH's death, no such presumption existed under Tennessee law. While you or I might regard the evidence presented in 1992 and in 1997 as clear and convincing, the adjudicators then did not. An application cannot be reopened because a different inference is now drawn from the evidence and the rules of law have changed. GN 04010.020C.

Very truly yours,

Mary Ann S~
Regional Chief Counsel

__________________________
By: Laurie G. R~
Assistant Regional Counsel

J. PR 03-135 Request for Legal Opinion Number Holder - P.L. M~, SSN ~ C2

DATE: May 16, 2003

1. SYLLABUS

DNA test results showing a 99.99% probability of paternity should provide the requisite clear and convincing evidence of paternity required by Tennessee law to establish intestate inheritance rights after the father's death, assuming the tests were conducted by an accredited laboratory and the results have not been rebutted by any of the means provided under Tennessee law.

2. OPINION

On May 1, 2003, you asked whether a claimant's inability to satisfy the requirements of § 216(h)(3)(c)(ii) of the Social Security Act (Act) would affect her ability to qualify for child's benefits in Tennessee when DNA tests indicate a high probability of paternity. Section 216(h)(3)(c)(ii) of the Act permits a claimant who is the son or daughter of a deceased number holder (NH) to qualify as the NH's child if the NH was living with or contributing to the support of the child at the time of the NH's death. Based on the information you provided and absent any evidence to rebut the state law presumption discussed below, we conclude that the child in this case could qualify as NH's child.

You stated that the NH in this case, P.L. M~, died June 5, 2000, and Claimant, Amyah L. W~, was born eleven days later on June 16, 2000. The NH and Claimant's mother were not living together and the deceased wage earner did not support Claimant's mother. You also stated that an April 22, 2002, DNA test obtained by the Child Support Services of Tennessee showed 99.99% probability of paternity. According to your report, the mother filed for Claimant in January 2003. She did not have a court order of paternity. Although you did not state whether the NH and mother were married, we assume for purposes of our response that they were not.

You frame your request in terms of whether the “living with and/or 1/2 support” requirements apply to a child born after the NH died or to a child who can establish paternity through clear and convincing evidence. Your question shows some confusion about several sections of the Act. As noted above, § 216(h)(3)(c)(ii) provides the “living with” and “contributing to the support” requirements you refer to. (The one half support requirement arises in the context of a claimant who seeks benefits as the adopted child, step-child, grand-child or step grandchild of the NH, see § 216(e) of the Act; 20 C.F.R. §§ 404.362, 404.363, 404.364, and 404.366 (2002); the standard that applies to natural children is whether NH was contributing to the support of the claimant when NH died, see 20 C.F.R. § 404.355(a)(4).) Although one might assert that DNA test results could affect a determination of whether claimant is NH's “son or daughter” under § 216(h)(3) of the Act, we believe your reference to “clear and convincing evidence” more properly focuses the current inquiry to another provision of the Act, which provides, in determining entitlement to surviving child's benefits, the Commissioner shall apply the inheritance laws of the state in which the insured was domiciled at the time of his death. § 216(h)(2)(A) of the Act; 20 C.F.R. § 355(a)(1) and (b)(1). Because you asked about Tennessee state law, we assume the NH died in Tennessee. Tenn. Code Ann. § 31-2-108 provides that 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. Section 36-2-313(a) provides that when the relationship of father and child is established, the child shall be entitled to inherit from the father as if born to the father in wedlock.

Tenn. Code Ann. § 31-2-105 provides that if, for purposes of intestate succession, a relationship of parent must be established, a person born out of wedlock is the child of the father if the natural parents participated in a marriage ceremony even though the attempted marriage is void, or paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof. Here, you did not state that the natural parents participated in a marriage ceremony or that paternity was established by adjudication prior to the NH's death. However, you did state that DNA tests showed a 99.99% probability of paternity.

Tenn. Code Ann. § 24-7-112(a)(3) provides that paternity tests must be conducted by an accredited laboratory. Section 24-7-112(C) provides that when such test results show a statistical probability of 99% or greater, the paternity of the putative father may only be rebutted by evidence of: (1) mental incapacity, (2) no access to the child's mother during the probable period of conception, (3) an identical twin of the putative father who had sexual relations with the child's mother during the probable period of conception, or (4) an affidavit is presented that another man had sexual relations with the child's mother during the probable period of conception and genetic testing shows this other man has a 95% or greater probability of paternity. Assuming the DNA tests you cited were conducted by an accredited laboratory, and the test results have not been rebutted by any of the above-enumerated defenses, the DNA test results showing a 99.99% probability of paternity should provide the requisite clear and convincing evidence of paternity that §31-2-105 requires in order to establish intestate inheritance rights after the father's death. Therefore, we believe Claimant would qualify as NH's child under § 216(h)(2(A).

A claimant who qualifies for benefits under § 216 (h)(2)(A) of the Act need not be considered under § 216(h)(3) of the Act, so questions of whether claimant was living with NH or receiving contributions of support would not alter the analysis. However, if your investigation reveals information that shows claimant could not qualify for benefits under § 216(h)(2)(A) — for example, you discover the DNA tests were not performed by an accredited laboratory or that NH had no access to the mother during the probable period of conception and no other evidence established paternity through clear and convincing evidence — we would be glad to discuss further.

Very truly yours,

Mary Ann S~
Regional Chief Counsel

__________________________
By: Nancy R. B~
Assistant Regional Counsel

K. PR 03-036 Request for Legal Opinion Number Holder - Joe F. R~, SSN ~

DATE: August 8, 2002

1. SYLLABUS

DNA tests showing that the child claimants are not the NH's children, and the resulting court actions, constitute new and material evidence for reopening the children's entitlement within 4 years. The court orders meet the criteria under Gray v. Richardson. A putative father may, within 5 years of execution of an acknowledgment of paternity, challenge the acknowledgment.

2. OPINION

You have requested our opinion as to whether Kristopher B. R~ and Joseph J. R~ continue to be eligible for children's benefits on the account of Joe F. R~, number holder (NH).

Joe F. R~ filed for retirement benefits on February 28, 1997. On his application, he listed two children, Kristopher B. R~ and Joseph J. R~, as being eligible for benefits on his record. Based on his written statement acknowledging paternity, the children were awarded benefits - Joseph on October 14, 1997, and Kristopher on October 29, 1997. In June 2001, NH contacted the Agency to advise us that he is not the biological father of Joseph and Kristopher. He also submitted DNA tests showing that he is not the boys' biological father. The test results were reported on July 16, 2001 for Kristopher and on January 30, 2001 for Joseph. As a result of the tests, the Juvenile Court of Memphis and Shelby County, Tennessee on August 28, 2001 dismissed a petition to establish parentage of Kristopher R~ that had been filed on November 24, 1997. The same court modified its April 12, 1995 order, in which the court found that NH was the father of Joseph, on June 19, 2001. In the June order, the court indicated that NH was not Joseph's father.

We believe that the boys would not be eligible for benefits on NH's account once NH submitted clear and convincing evidence that he was not their father, assuming that NH sought to reopen within the time period allowed by the regulations. This evidence would be the DNA test results and the court order. However, if NH did not reopen the determination within the requisite time frame, the boys' benefits should continue because the determinations would be final and there has been no event that would trigger termination of the benefits under 20 C.F.R. §404.352(b) (2002).

A claimant's status as the “child” of a NH for Social Security benefits purposes is controlled by state laws of intestate succession. Social Security Act, §216(h)(2), 42 U.S.C. §416(h)(2). Pursuant to Tennessee law, an illegitimate child can inherit from his or her father if paternity is established by an adjudication before the death of the father or if paternity is established by clear and convincing proof. Tenn. Code Ann. § 31-2-105. The Agency is required by §205(g) of the Social Security Act, 42 U.S.C. §405(g), to make an independent determination of eligibility based upon all of the evidence, which might include a state court finding. Where the Agency is not a party to state court proceedings, it is not bound by the state court's findings. See Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973); Dennis v. Railroad Retirement Board, 585 F.2d 151, 153 (6th Cir. 1978). However, a state court decision is entitled to “considerable deference” by an agency, particularly when the state law is in an area of law reserved to the states. Id. Determinations of paternity are such an area. Gray, 474 F.2d at 1372. State court determinations should be accepted by an Agency when: 1) an issue in a claim for benefits has been determined by a state court of competent jurisdiction; 2) the issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the state court is consistent with the law enunciated by the state's highest court. Id. ; SSR 83-37c.

Here, the Agency would be required to defer to the juvenile court's orders determining that NH was not the boys' father. The first three elements of the Gray test have clearly been met. The juvenile court is a court of competent jurisdiction in Tennessee for the resolution of paternity issues. Tenn. Code Ann. §37-1-103. The pleadings indicate that the issue of paternity was contested by parties with opposing interests and the issue was, as in Gray, a domestic relations issue. Further, the resolution of the case is consistent with Tennessee law. A putative father may, within five years of execution of an acknowledgement of paternity, challenge the acknowledgement. Tenn. Code Ann. §§24-7-118 c( 1), c (2); Granderson v. Hicks, 1998 WL 886559 (Tenn. App. Dec. 17, 1998). If blood tests exclude a man as the father of a child, a court is required to dismiss a petition to establish paternity. Tenn. Code Ann. §24-7-112(b)(1); Williams v. Campbell, 1995 WL 429265 (Tenn. App. July 21, 1995). If the blood tests exclude a man as the possible father of a child, the tests are considered conclusive evidence of non-paternity. Tenn. Code Ann. §24-7-112; State ex rel Crews v. Preslar, 1994 WL 677593 (Tenn. App. Dec. 6, 1994). Blood tests excluding a man as the possible father of a child also can be the basis for setting aside a previous determination of paternity. W~; State ex. rel Beard v. Franklin, 1998 WL 929644 (Tenn. App. Dec. 31, 1998).

Accordingly, we believe that the boys would not be entitled to benefits on NH's account, assuming that SSA timely began its investigation into whether to revise its prior determination. 20 C.F.R. §404.991a (2002). If NH did not effectively reopen the determinations, benefits to the boys should continue because no event, such as attaining age 18, marriage, or death, has occurred that would trigger the discontinuation of benefits.

Very truly yours,

Mary Ann S~
Regional Chief Counsel

Laurie G. R~
Assistant Regional Counsel

L. PR 01-022 Child's Claim on the Account of Glen R. R~, SSN ~

DATE: May 1, 2000

1. SYLLABUS

A decree arising from a juvenile court action filed after the alleged father's death is not acceptable evidence of paternity. Chancery court is the proper place to bring a paternity action for the purpose of intestate succession.

Genetic test results which show a statistical probability of 99% or greater may only be rebutted by evidence of: medical incapacity; no access during the probable period of conception; the putative father has/had an identical twin who had sexual relations with the child's mother during the probable period of conception; or evidence is presented that another engaged in sexual relations with the mother of the child during the period of probable conception and the results of that genetic test indicate that the other man has a statistical probability of paternity of 95% or greater.

(Under Tennessee intestacy law, a presumption of paternity arises when blood, genetic, or DNA testing shows a 95% or greater probability of paternity. This presumption can be rebutted by a preponderance of the evidence.)

2. OPINION

This claim was submitted for an opinion pursuant to the POMS GN 00306.065 which requires submitting to RCC any case involving blood/genetic test results if the State law digest entry (Tennessee) is silent on the accreditation requirements for testing laboratories. You have requested our opinion as to whether SSA may use DNA test results to find Kaitlin J. B~ (Kaitlin) entitled to child's benefits on the earnings record of the deceased number holder (NH), Glen R. R~, and, if so, the date of her entitlement. It is our opinion that, under Tennessee law, the NH is presumed to be Kaitlin's father based on genetic test results, and that she is entitled to retroactive child's insurance benefits.

The facts presented in this claim are that on March 2, 1999, Jamie P~ (Jamie) filed a claim for child's benefits on behalf of her daughter Kaitlin. The NH died domiciled in Tennessee on April 10, 1997. Kaitlin was born on December 17, 1997. Jamie indicated that at the time of Kaitlin's conception, she was intimate with both the NH and his brother, Alan R. R~. Further, at the time of Kaitlin's conception, Jamie was married to another individual, but she and her husband were separated and in the process of divorce. DNA test results from LabCorp of Burlington, North Carolina, dated May 19, 1998, exclude Alan R. R~ as Kaitlin's father. DNA test results from LabCorp dated June 3, 1999, show a 99.99% probability that the NH was Kaitlin's father as compared to an untested, unrelated man of the Caucasian population. A June 25, 1999, order from the Obion County Juvenile Court, Tennessee, declared the NH to be Kaitlin's father and referenced DNA test results showing a 99.99% probability of paternity.

Contact with Dawn T~ of Child Support Services (CSS) of Tennessee (~) revealed that, pursuant to a March 4, 1999, Administrative Order for Parentage Testing issued by the Juvenile Court, DNA samples were drawn at the CSS office, that the DNA samples were sent to LabCorp for gene type analysis, and “that the results of said tests and the written reports thereof (are) admissible as evidence in any proceeding brought by either party in which the paternity of the child may be an issue pursuant to TCA 24-7-112.”

Tenn. Code Ann. § 31-2-105(2)(B) provides that if, for purposes of intestate succession, a relationship of parent and child must be established, the person is a child of the father if paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof. In this claim, there is no evidence that paternity was established by an adjudication before the NH's death; Kaitlin's paternity was adjudicated in juvenile court after the NH's death. As noted in your March 10, 2000, memorandum, POMS GN 00306.080 (Tennessee) states that a decree arising from a juvenile court action filed after the alleged father died is not acceptable. In Thompson v. Coates, 627 S.W. 2d 376 (Tenn. App. 1981), the court found that the chancery court not the juvenile court, was the proper place to bring a paternity action for the purpose of intestate succession. Woods v. Fields, 798 S.W. 2d 239 (Tenn. App. 1990); Rose v. Stalcup, 731 S.W. 2d 541, 542 (Tenn. App. 1987) (“the juvenile court did not have jurisdiction to establish the relationship of parent-child for the purposes of inheritance”). Thus, as provided in the referenced POMS provision, the June 1999 juvenile court order declaring the NH's paternity is not acceptable for purposes of establishing Kaitlin's entitlement to child's benefits pursuant to 42 U.S.C. § 416(h)(2)(A).

Nevertheless, it appears that genetic test results provide the clear and convincing evidence of Kaitlin's paternity that § 31-2-105 requires in order to establish intestate inheritance rights after the father's death. Bilbrey v. Smithers, 937 S.W.2d 803, 808 (Tenn. 1996); Woods v. Fields, 798 S.W.2d at 242-243. As defined in McDowell v. Boyd, 1997 WL 749470 (Tenn. App. 1997):

The clear and convincing standard of proof falls somewhere between the preponderance-of-the-evidence standard in a civil proceedings and the beyond-a-reasonable-doubt standard required in criminal proceedings. See In re Estate of W~, 950 S.W.2d 956, 960 (Tenn. 1997). The Tennessee Supreme Court has recently explained that clear and convincing evidence “must produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Fruge v. Doe, 952 S.W.2d 408, 412 n. 2 (Tenn. 1997).

The McDowell court further observed that blood tests are direct evidence of paternity, and that “Neither party in this case offered evidence of the results of blood testing, even though this evidence would have been the most reliable and conclusive available" ”(emphasis added).

Tenn. Stat. Ann. § 24-7-112 provides that when the results of blood, genetic, or DNA tests show a statistical probability of 99% or greater, the paternity of the putative father may only be rebutted by evidence of: (1) medical incapacity, (2) no access during the probable period of conception, (3) the putative father has/had an identical twin who had sexual relations with the child's mother during the probable period of conception, or (4) evidence is presented that another engaged in sexual relations with the mother of the child during the period of probable conception and the results of that genetic test indicate that the other man has a statistical probability of paternity of 95% or greater. In this claim, none of the effective defenses to the presumption of paternity are presented.

Further, the genetic testing was ordered by the Juvenile Court in conformity with Tenn. Code Ann. § 24-7-112. Section 24-7-112 requires tests ordered in any civil proceeding to be conducted by an accredited laboratory. It therefore appears the Juvenile Court regarded LabCorp as an accredited laboratory, and, as noted in the materials presented, LabCorp is accredited by the American Association of Blood Banks. Again, no evidence rebuts the presumption of paternity arising as the result of genetic tests. It is our opinion that the genetic test results provide clear and convincing evidence of a parent and child relationship and are sufficient to establish Kaitlin's intestate inheritance rights under Tennessee law. Thus, Kaitlin is entitled to child's benefits pursuant to 42 U.S.C. § 416(h)(2)(A).

The former Tennessee statutes dealing with legitimation, Tenn. Stat. Ann. § 36-2-2-1 et seq. were repealed effective July 1, 1997. Current Tennessee law provides a single cause to establish parentage of children. Section 36-2-313(a) provides that :

When, under the provisions of this chapter ("Paternity"), the relationship of father and child is established, the child shall be entitled to inherit from the father as if born to the father in wedlock.

We conclude that, under Tennessee law, the NH is presumed to be Kaitlin's father based on genetic test results, and that she is entitled to retroactive child's insurance benefits as if born to the father in wedlock.

M. PR 00-303 Request for Legal Opinion Regarding an Application for Child's Benefits for Christian D~ on the Earnings Record of Joelaun S~, ~, Tennessee

DATE: June 9, 2000

1. SYLLABUS

Tennessee courts would accept the report of an accredited laboratory that conducted a DNA siblingship test and determined the probability of half-siblingship to be 99.% or greater.

2. OPINION

You have requested our opinion as to whether Christian D~ (Christian) is entitled to child's benefits on the earnings record of the deceased number holder (NH), Joelaun S~. It is our opinion that, under Tennessee law, the NH may be presumed to be Christian's father based on siblingship genetic test results.

The facts presented are that the NH died May 11, 1996, in the ValuJet plane crash in the Florida Everglades. On July 11, 1996,

Christian's mother, Michelle S~, applied for child's benefits on his behalf. The record contains a Petition for Appointment of Administratrix filed August 6, 1996, referencing affidavits in which Alicia B~ states her daughter, Jasmine S~ (Jasmine), is the NH's daughter, Michelle S~ states her son Christian is the NH's son, and Dionne M~ states that she is the NH's widow and that Michelle S~ and Alicia B~ are mothers of the NH's children. Jasmine is currently drawing child's benefits based on the NH's earnings record. Christian's application was denied at all administrative levels because a parent-child relationship between the NH and Christian had not been established. The Appeals Council denied Christian's request for review. Your informal memorandum indicates that on October 26, 1999, Ms. S~ filed a new application on Christian's behalf. Ms. S~ presented genetic test results dated December 1, 1999, indicating that the probability of half-siblingship between Christian and Jasmine and the likelihood that they share the same biological father is 99.84 percent. The testing laboratory, DNA Diagnostics Center, submitted a Certification of Accreditation issued by the American Association of Blood Banks (AABB) as well as accreditation for the individual who interpreted the results of the DNA siblingship test report, Dr. Susannie C. L~, Ph.D.

Section 31-2-105(2)(B) of the Tenn. Code Ann. provides that if, for purposes of intestate succession, a relationship of parent and child must be established, the person is a child of the father if paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof. It appears the siblingship genetic test results provide clear and convincing evidence of Christian's paternity. As defined in McDowell v. Boyd, 1997 WL 749470 (Tenn. App. 1997):

The clear and convincing standard of proof falls somewhere between the preponderance-of-the-evidence standard in civil proceedings and the beyond-a-reasonable-doubt standard required in criminal proceedings. See In re Estate of W~, 950 S.W.2d 956, 960 (Tenn. 1997). The Tennessee Supreme Court has recently explained that clear and convincing evidence "must produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Fruge v. Doe, 952 S.W.2d 408, 412 n. 2 (Tenn. 1997).

The McDowell court further observed that blood tests are direct evidence of paternity, and that "Neither party in this case offered evidence of the results of blood testing, even though this evidence would have been the most reliable and conclusive available" (emphasis added).

With respect to the admissibility of genetic test results in civil or criminal proceedings involving the question of parentage, Tenn. Code Ann. § 24-7-112 provides the testing is to be conducted by an accredited laboratory. The materials presented indicate that DNA Diagnostic Center is accredited by the AABB. Section 24-112 further provides that when the results of blood, genetic, or DNA tests show a statistical probability of 99% or greater, the paternity of the putative father may only be rebutted by evidence of: (1) medical incapacity, (2) no access during the probable period of conception, (3) the putative father has/had an identical twin who had sexual relations with the child's mother during the probable period of conception, or (4) evidence is presented that another engaged in sexual relations with the mother of the child during the period of probable conception and the results of that genetic test indicate that the other man has a statistical probability of paternity of 95% or greater. In this claim, none of the effective defenses to the presumption of paternity is presented.

The admissibility of DNA test results is also referenced in Tenn. Code Ann. § 24-7-117. This statute defines "DNA analysis" as "the process through which deoxyribonucleic acid (DNA) in a human biological specimen is analyzed and compared with DNA from another biological specimen for identification purposes." While we find no specific statutory or case law reference to establishing paternity based on siblingship testing, in light of the statutory recognition granted to genetic testing, we believe the Tennessee courts would accept the report of the accredited laboratory that conducted the DNA siblingship test and determined the probability of half-siblingship as 99.84%.

Thus, it is our opinion that, under Tennessee law, the NH would be presumed to be Christian's father based on genetic test results, and that Christian would be entitled to child's insurance benefits pursuant to 42 U.S.C. § 416(h)(2)(A).

N. PR 89-009 Status of Legitimated Child - S~, Charles E. - SSN~

DATE: August 16, 1989

1. SYLLABUS

Under Tennessee law, a juvenile court order of paternity and support issued in response to a petition filed pursuant to Tenn.Code Ann. §36-2-101 et seq. renders a child legitimate for inheritance purposes. Tenn. Code Ann. §36-2-113.

(S~, Charles E. - SSN ~ - CCIV [W~] - to ARC, Progs., Atl., 08/]6/89)

2. OPINION

In your memorandum you have asked whether a paternity determination by a juvenile court in Tennessee "legitimated" the child applicant, Dineshie, under Tennessee law and, if not, whether the court order conferred inheritance rights under Tennessee law.

According to the file, Dineshis M, M~ was born out of wedlock on October 10, 1982. On Duly 10, 1987, the mother of Dineshie together with the State of Tennessee (petitioners) filed a petition to establish paternity in the Juvenile Court of Rutherford County, Tennessee, alleging the insured, Charles S~, to be the natural father of Dineshia. The petitioners were seeking both a determination of paternity and an order of support from the court. On July 27, 1988, the juvenile court found the insured, Charles S~, to be the natural father of Dineshia. The court reserved its decision on the issue of support since the father was not working. The court directed the insured to make the Social Security Administration aware of its order. The court further directed the mother to advise the Tennessee Department of Human Services (DHS) of any benefits received by the mother and to forward any lump-sum benefits to DHS for proper disposition.

Dineshia's mother filed an application September 1, 1988, seeking child's benefits on behalf of Dineshia based upon the earnings record of the insured. Dineshia has been entitled to child's benefits on the earnings record of the insured effective July 1988 with possible retroactive entitlement effective July 1987. The insured had previously been awarded disability benefits in 1986.

Pursuant to Tenn.Code Ann. §36-2-101 et seq., a child's mother or the State Department of Human Services may file a petition in juvenile court to establish paternity of the child and to compel the child's father to furnish support and education for the child. These proceedings may be instituted before or after the birth of the child and until one (1) year beyond the child's age of majority. * Tenn.Code Ann. §36-2-103. If such a petition is filed in juvenile' court and the relationship of father and child is established between the alleged father and child named in the petition and further provided an order of paternity and support has been entered k) the juvenile court, the child is the legitimate child of the father for inheritance purposes. Tenn.Code Ann. §36-2-113.

In the present matter, Dineshia's mother and the Tennessee Department of Human Services, on July 10, 1987, jointly filed a petition in juvenile court to establish the insured as Dineshia's father and to compel the insured to support Dineshia in accordance with Tenn.Code Ann. §36-2-101 et seq. The juvenile court, following a hearing, issued an order on July 27, 1988, finding the insured to be the natural father of Dineshia reserving the issue of support until such time as the insured is employed. The effect of this juvenile court order was to render Dineshia a legitimate child of the insured for inheritance purposes.

By:__________

BRUCE R. G~

Chief Counsel

DENNIS R. W~

Assistant Regional Counsel

*Prior to 1984, the petition must have been filed within two years of the child's birth. This two-year statute of limitations was deleted in light of Pickett v. Brown, 462 U.S. 1, 1C3 $.Ct. 2199 (1983) which found a similar two-year statute of limitations unconstitutional.

O. PR 88-018 Inheritance Statute - Wisconsin Court Order Of Paternity - A/N ~, B~ ,Gary W.

DATE: July 21, 1988

1. SYLLABUS

"DE FACTO" MARRIAGE — GOOD FAITH BELIEF IN VALIDITY OF MARRIAGE - TN

Under Tennessee law, illegitimate children may inherit from their natural father if paternity is established by "clear and convincing proof" even without a prior adjudication of paternity under the Tennessee Code Annotated. Allen v. Harvey, 568 S.W.2d 829 (1978). Conflicting evidence, including a Wisconsin default judgment, does not establish paternity by the requisite burden of "clear and convincing proof".

(B~, Gary W. - A/N ~ - RAIV [Walters] - to ARC, Progs., Atl., 07/21/88)

2. OPINION

You have requested our opinion on a number of questions relative to whether the claimant child, Chad J. C~ , may be entitled to benefits on the earnings record of Gary W. B~ based upon the intestacy statute of Tennessee and pursuant to Section 216(h)(2)(A) and (h)(3) of the Social Security Act, 42 U.S.C. §416(h;(2)(A) and (h)(3). The fact situation is that on February 20, 1987, Cynthia C~, filed an application for child's insurance benefits on behalf of Chad J. C~ based upon the earnings record of Gary W. B~. The child was born in Wisconsin on February 12, 1983. Gary W. B~ was domiciled in Tennessee at the time of his death, December 22, 1985, and the time of the child's birth. The decedent and Cynthia C~ were never married.

The only evidence which indicates Chad J. C~ was the child of Gary W. B~ is a Brown Count, Wisconsin, Circuit Court document identified as, "Findings of Fact, Conclusions of Law and Judgment - Default AFDC" which adjudged Gary W. B~ to be the father of Chad J. C~ based upon, "clear and satisfactory evidence". Although the minutes of this paternity proceeding show that the court's finding of paternity and its order for child support were actually made on November 30, 1983, formal judgment in the case was not entered of record until December 22, 1986. The clerk's minutes of November 30, 1983, indicate the judge presiding at the hearing was John B~, who was identified in the judgment as the Family Court Commissioner. The document was signed by Circuit Judge William D~ on December 22, 1986. The counsel for the Brown County Child Support Agency who participated in the November 30, 1983, hearing explained that through oversight of that agency, the default judgment was not entered timely.

Pursuant to the provisions of 42 U.S.C. §416(h)(2)(A), in determining whether an applicant is the child of the insured, the Secretary shall apply such law as would be applied in determining the devolution of the intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. Inasmuch as the insured was domiciled in Tennessee, Tennessee law is determinative of the applicant's status under this section. with respect to actions instituted in the State of Tennessee, a proceeding to establish paternity is a civil suit and only a preponderance of the evidence is required for the complainant to prevail. Frazier v. McFerren, 55 Tenn.App. 431, 402 S.W.2d 467 (1964). Further, when, under Title 36 (domestic relations-paternity of the Tennessee law, the relationship of father and child is established between the defendant and the child named in the petition and an order of paternity and support has seen entered, the child shall be a legitimate child of the defendant for purposes of inheriting from the defendant. Tenn.Code Ann. §36-2-113(a).

In this case, however, the order which adjudged the insured to be the father of the applicant based on "clear and satisfactory evidence" was issued by the Brown County Wisconsin Circuit Court. As indicated in precedent opinions from this office, the Tenn.Code Ann. §31-206(2)(b) as amended in 1978, permits an illegitimate child to inherit from his father if paternity was established by adjudication before the father's death or thereafter provided paternity was established by "clear and convincing evidence". See, M~ , Loyde D. - ~- RAIV [W~] - to Dir., Ins.Progs. Br., Atl., 08/26/83.

In addition, the Tennessee Supreme Court in its decision in Allen v. Harvey, 568 S.W.2d 829 (1978), also changed the Tennessee common law with respect to the inheritance rights of children born out of wedlock; i/legitimate children could inherit from their natural father if paternity was established by "clear and convincing proof" even without a prior adjudication of paternity under Tennessee Code Annotated. Thus, consideration is directed to whether the Wisconsin court order constitutes said "clear and convincing proof".

The evidence in the file supporting the alleged paternity of the insured consists of statements by the child's mother and the Wisconsin court order which indicates its finding is based upon the testimony of the child's mother. The court noted the insured failed to appear after personal service, and it appears from the file that the issue of paternity was never genuinely contested before the State court by parties with opposing interests. See, Gray v. Richardson, 474 F.2d 1370 (1973).

Contrary evidence on the issue of paternity is presented in the statement of Gary B. ~ mother indicating that Gary never told her Chad J. C~ was his son, and that Gary's only child was Bridget M. B~ . In addition, Kathy N~, the divorced wife of the insured, in a statement dated March 23, 1987, certified that the insured, "was on the witness stand (on June 20, 1985) and swore he had no children other than Bridget". The child's birth certificate names no father. Based upon the conflicting evidence presented in the file, it is our opinion that the Wisconsin court order does not constitute "clear and convincing proof" of paternity as contemplated by Tennessee law and, thus, the effective date of the Wisconsin court order is not relevant.

Further, it is our opinion that the Wisconsin court's Judgment of Paternity cannot be accepted effective November 30, 1983, as if a nunc pro tunc order had been issued. While courts are empowered to amend records of their judgments by correcting mistakes or supplanting omissions therein and to apply such amendment retroactively by an entry nunc pro tunc, there is no indication from the record that the Wisconsin court has entered a judgment nunc pro tunc with respect to this matter. 46 Am.Jur.2d, Judgments §186 et seq. In fact, in the April 27, 1987, letter from J. E~, counsel for the Brown Court Child Support agency, it is noted that the default judgment, "should have been dated nunc pro tunc lot that date", but it appears no nunc pro tunc judgment was actually entered by a court of competent jurisdiction. Having no evidence of a court order amended retroactively by an entry nunc pro tunc, the child fails to meet the requirement of Section 216(h)(3) of the Social Security Act, 42 U.S.C. §416(h)(3), that such an order of paternity must be made prior to the death of the insured individual.

Thus, in our opinion, the child has not established entitlement to insurance benefits under the provisions of 42 U.S.C. §416(h)(2)(A) or §416(h)(3).

Footnotes:

[1]

Tennessee law was amended on July 1, 1994 to create a rebuttable presumption of paternity based upon DNA testing showing a statistical probability of paternity of 99 percent or more. Tenn. Code Ann. Sec. 24-7-112.