TN 59 (09-16)

A. PR 16-133 Evaluation for payment of benefits: Child born after death of NH with full-siblingship DNA evidence supporting parent-child relationship

Date: May 20, 2016

1. Syllabus

The number holder (NH) was domiciled in Washington at the time of his death, therefore, the agency applies Washington State law to determine if the child is the child of the NH. Washington’s Uniform Parentage Act provides for the establishment of a parent-child relationship via adjudication. The Washington state law has various requirements for genetic testing, including: (1) the testing must be performed by an accredited laboratory, (2) the report of genetic testing must be signed under penalty of perjury by a designee of the testing laboratory, and (3) the report of genetic testing must include a reliable chain of custody. In this case, the report of genetic testing and the record as a whole does not contain sufficient evidence to support the reliability of the testing to establish paternity by a preponderance of the evidence using the report.

An applicant can be deemed a child under the Act if his parents went through a marriage ceremony that turned out to be legally invalid. Alternatively, an applicant can be deemed to be a child under the Act where prior to the NH’s death. Based on the facts provided, the claimant cannot be deemed a child of the NH under sections 416(h)(2)(B) and 416 (h)(3)(C) of the Act. The evidence submitted to the agency is insufficient to establish that the NH is the claimant’s father under the Social Security Act (the Act); therefore, the claimant is not entitled to child survivor’s benefits on the NH’s record.

2. Opinion

Question Presented

Is K~ (claimant) entitled to child survivor’s benefits on the record of number holder T~ (NH) based on the DNA evidence submitted? If so, what is the effective filing date of the application?

Short Answer

No. The evidence submitted to the agency is insufficient to establish that the NH is the claimant’s father under the Social Security Act (the Act). As a result, the claimant is not entitled to child survivor’s benefits on the NH’s record.

Background

The opinion below assumes the following facts are accurate. The claimant was born on October XX, 2008. His NUMIDENT shows the father as unknown. His mother J~ began receiving disability insurance benefits in December 2002, and the claimant has received auxiliary child benefits on his mother’s record since his birth.

The NH and J~ had at least one child together, K2~, born in 2002. Paternity for that child was previously established. K2~’s NUMIDENT lists the NH as his father. K2~ received auxiliary child benefits on his mother’s record until the NH’s death on August XX, 2008, when he started to receive benefits as a surviving child on the NH’s record.

J~ first contacted SSA about surviving child benefits for the claimant on August 18, 2015, but did not file an application until January XX, 2016. At the time of application, J~ provided a DNA test report dated December XX, 2015, for herself, the claimant, and K2~ showing a probability of 99.999996% full siblingship between the children.

This opinion assumes there are no other pertinent facts about the relationship between the NH, the claimant, or the claimant’s mother. For instance, the opinion assumes the NH and J~ were never married or never went through a legally invalid marriage ceremony; the NH and J~ did not live together when J~ was pregnant with the claimant; the NH was not contributing to the support of the claimant at the time of his death; the NH never acknowledged paternity of the claimant in writing; the NH was neither decreed to be the claimant’s father nor ordered to contribute to the support of the claimant by a court; and the claimant was not the legally adopted child, stepchild, or equitably adopted child of the NH.

Discussion

Federal Law on Child’s Benefits

The Act provides that the child of an insured individual who dies fully or currently insured is entitled to benefits if he has applied for benefits, is unmarried and under 18, and was dependent on the insured individual at the time his application was filed. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. To qualify as the child of an insured individual, the child must be the natural child, legally adopted child, stepchild, grandchild or stepgrandchild, or equitably adopted child of the insured individual. See 20 C.F.R. §§ 404.350(a), 404.355-.359.

In this case, the relevant inquiry is whether the claimant qualifies as the NH’s natural child under the Act. An applicant can qualify as the natural child of an insured individual if the child could inherit the individual’s personal property as his child under the intestacy laws (i.e., the laws that apply when the decedent has no will) of the state in which the individual was domiciled at the time of his death. See 42 U.S.C. §§ 416(e), 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If the applicant qualifies as the insured individual’s child, he is deemed dependent upon the individual for purposes of determining eligibility for child’s benefits. See 20 C.F.R. § 404.361(a).

“The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted). Lacking any evidence to the contrary, we take Washington to be NH’s domicile at the time of his death. The agency applies the version of State law that is most beneficial to the claimant. 20 C.F.R. § 404.355(b)(4). Although the agency does not require that a state adjudication of parentage have taken place prior to applying the state’s intestacy laws, the agency does require evidence sufficient to meet the “the standard of proof that the State court would use as the basis for a determination of paternity.” Id. § 404.355(b)(2); see Program Operations Manual System (POMS) GN 00306.665.A.

When a claimant cannot establish that he is the wage earner’s child under state intestate succession laws, the Act allows alternative avenues to establish child status for survivorship benefits. See 42 U.S.C. §§ 416(h)(2)(B), 416(h)(3)(C)(i)(I)-(III). To qualify as “the child” of a deceased insured individual under 42 U.S.C. § 416(h)(3)(C), a claimant must be the son or daughter of the insured individual and meet one of several other requirements. See 42 U.S.C. § 416(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.A, B. To show he or she is the son or daughter of an insured individual, the claimant must show he or she is the biological child of the insured individual. See POMS GN 00306.100.D.1.

Washington State Law

Washington law provides that an intestate estate shall descend to a decedent’s spouse and issue. Wash. Rev. Code § 11.04.015(2)(a) (2015).¹ “Issue” means all the lineal descendants of an individual and, therefore, includes children. Wash. Rev. Code § 11.02.005(8). Washington law specifically provides that “[a] child conceived prior to the death of a parent but born after the death of the deceased parent is considered to be the surviving issue of the deceased parent . . . .” Id.; see also id. § 11.04.081 (noting the parent-child relationship does not depend on the parents being married); see Matter of Estate of Sherry, 698 P.2d 94, 99 (Wash. App. 1985) (holding that paternity can be determined within a probate proceeding if the procedure of the Uniform Parentage Act is incorporated into the proceeding); Rabb v. Estate of McDermott, 803 P.2d 819, 822 (Wash. App. 1991) (providing that “it is clear from the language of [Wash. Rev. Code §] 26.26.080(3) that the Legislature intended that a paternity action survives the putative father’s death”). Thus, if the claimant is the NH’s child under Washington law, then the claimant would be entitled to inherit through intestacy and would therefore meet the Act’s definition of “child.”

Washington’s Uniform Parentage Act provides for the establishment of a parent-child relationship via adjudication. Wash. Rev. Code § 26.26.101(2); see also id. § 26.26.505 (authorizing civil proceeding to adjudicate the parentage of a child). Genetic testing is admissible evidence in such adjudications. Id. § 26.26.570. Washington law anticipates that genetic samples may be taken from individuals other than the purported father. See id. §§ 26.26.405(1)(“other designated individuals”), 26.26.435 (providing for testing of “other children of the man and their mothers”). When genetic testing establishes parentage, the man identified as the father of the child is adjudicated to be the father of the child unless the results of another genetic test rebut the results of the first test. Id. § 26.26.600(2); see also id. § 26.26.420 (providing how a person is rebuttably identified as the parent of a child); see also POMS GN 00306.665.C (discussing Washington’s intestacy laws).

In the present case, the agency has not been presented with any evidence of adjudication of parentage. Thus, the agency applies Washington’s standards of proof for such an adjudication. Washington has various requirements for genetic testing, including: (1) the testing must be performed by an accredited laboratory, Wash. Rev. Code § 26.26.410(1); (2) the report of genetic testing must be signed under penalty of perjury by a designee of the testing laboratory, id. § 26.26.415(1); and (3) the report of genetic testing must include a reliable chain of custody, including testimony or documentation showing:

(a) The names and photographs of the individuals whose specimens have been taken;

(b) The names of the individuals who collected the specimens;

(c) The places and dates the specimens were collected;

(d) The names of the individuals who received the specimens in the testing laboratory; and

(e) The dates the specimens were received.

Id. § 26.26.415(2). In other words, a testing report that satisfies the above criteria and establishes paternity constitutes a preponderance of evidence establishing paternity. State on Behalf of McMichael v. Fox, 937 P.2d 1075, 1078 (Wash. 1997) (explaining that “[t]he appropriate burden of proof in paternity actions under [Wash. Rev. Code §] 26.26 is preponderance of evidence”).

Here, it appears that DDC/DNA Diagnostics Center is accredited by AABB, which meets the accreditation requirements for the State of Washington.² Wash. Rev. Code § 26.26.410(1). The report of genetic testing, however, fails to satisfy the declaration and chain of custody provisions. The declaration states, “I, the undersigned Laboratory Director, verify that the interpretation of the results is correct as reported on 12/XX/2015.” Although signed and notarized, this statement was not made under penalty of perjury and is not an equivalent “oath” under Washington law. See Wash. Rev. Code §§ 9A.72.010(2), 9A.72.085. Further, besides the dates that the specimens were collected, there is no documentation or testimony supporting a reliable chain of custody. Consequently, there is insufficient evidence to meet “the standard of proof that [a Washington] State court would use as the basis for a determination of paternity.” 20 C.F.R. § 404.355(b)(2); see POMS GN 00306.665.A.

To be clear, the fact that a report of genetic testing itself does not satisfy the criteria set forth above may not be fatal to a claim for benefits in all cases. It is well-recognized that chain of custody and foundation go to the weight of the evidence, not the ability to use the evidence. See, e.g., State v. Lui, 315 P.3d 493, 504 (Wash. 2014), cert. denied, 134 S. Ct. 2842 (2014) (stating, “gaps in the chain of custody go to the weight of the evidence and not the admissibility”); Johnston-Forbes v. Matsunaga, 311 P.3d 1260, 1265 (Wash. App. 2013), aff'd, 333 P.3d 388 (Wash. 2014) (stating the challenge to “testimony for lack of foundation go to the weight of the evidence, not its admissibility”). Indeed, United States Courts of Appeal have applied genetic testing in cases in which the chain of custody is imperfect. See, e.g., United States v. Brooks, 727 F.3d 1291, 1299 (10th Cir. 2013); United States v. Vallie, 284 F.3d 917, 920 (8th Cir. 2002). Nevertheless, the problem here is that the report of genetic testing (and the record as a whole) does not contain sufficient evidence to support the reliability of the testing much less to establish paternity by a preponderance of the evidence using the report.

Had the report been reliable, it appears the results would have established a parent-child relationship between the claimant and NH. Washington law recognizes that parentage has been established if genetic testing shows (a) “at least a ninety-nine percent probability of parentage, using a prior probability of 0.50, as calculated by using the combined parentage index obtained in the testing” and (b) “a combined parentage index of at least one hundred to one.” Wash. Rev. Code § 26.26.420(1). Although the report of genetic testing here does not yield a “combined parentage index” per se, we believe a Washington court would likely accept a calculation of “full-siblingship”—meaning both siblings share the same parents—as functionally equivalent. Here, the probability of full-siblingship is 99.999996% and the likelihood of sharing the same biological father is 26,410,494 to 1. The probability of full siblingship was calculated using a prior probability of 0.50. Thus, because there is no dispute that NH is K2~’s father, a reliable report of genetic testing establishing that the claimant has full siblingship with K2~ would be sufficient to establish NH is the claimant’s father. See State ex rel. Wise v. Taylor, 828 P.2d 1143, 1144 (Wash. App. 1992) (stating that “obviously, a 99.55 percent probability of paternity, when not contraindicated by other evidence . . . , far exceeds the applicable standard of proof by a preponderance of the evidence”).

Alternatives to State Law Under the Act

When a claimant cannot establish that he is the wage earner’s child under state intestate succession laws, the Act allows alternative avenues to establish child status for survivorship benefits. An applicant can be deemed a child under the Act if his parents went through a marriage ceremony that turned out to be legally invalid. 42 U.S.C. § 416(h)(2)(B). Alternatively, an applicant can be deemed to be a child under the Act where prior to the NH’s death (1) the NH acknowledged paternity in writing, (2) the NH was decreed a parent by a court, or (3) the NH was ordered by a court to contribute to the support of the applicant. 42 U.S.C. § 416(h)(3)(C)(i)(I)-(III). Finally, an applicant can be deemed a child under the Act if the NH was living with or contributing to the support of the child at the time the NH died. 42 U.S.C. § 416(h)(3)(C)(ii). The agency construes this provision to apply even if the NH was living with or contributing to the support to a child still in the womb. Based on the facts provided, none of these alternative avenues apply. Therefore, we find that the claimant cannot be deemed a child of the NH under sections 416(h)(2)(B) and 416 (h)(3)(C) of the Act.

D. Effective Date of the Claim

It is evident that J~ obtained child benefits for the claimant based on her disability insurance benefits shortly after the claimant was born in 2008. Generally, an application “cover[s] all classes of benefits for which the claimant is eligible on all SSNs regardless of the title of the application unless it is specifically limited by the claimant.” POMS GN 00204.020.A. Nevertheless, there does not appear to be a basis to reopen this earlier determination. See 20 C.F.R. § 404.988. Although NH was deceased when the claimant was born, it is not clear whether the claimant’s entitlement to child benefits based on the father’s insured status was explored at this time. See POMS GN 00204.022. Absent evidence that the claimant failed to seek benefits based on the father’s insured status as a result of misinformation provided by the agency, there is no basis to treat this 2008 application as the effective date for the present claim. See POMS GN 00204.008 (discussing 42 U.S.C. § 402(j)).

Thus, we look to J~’s contact with the agency in August 2015. There is no indication that a written statement was submitted in August 2015 to make this the protective filing date. See POMS GN 00204.010.A.1. Absent evidence that the claimant failed to seek benefits based on the father’s insured status as a result of misinformation provided by the agency at this time, August 2015, cannot be the effective filing date. See POMS GN 00204.008.G.1.

Thus, had paternity been established in this matter, we would treat J~’s application, dated January XX, 2016, as the effective filing date.

Conclusion

As set forth above, the claimant is not entitled to child survivor’s benefits on the record of the NH because paternity has not been established by a preponderance of evidence.

B. PR 16-121 Relationship of a child to a number holder in the State of Washington

Date: May 3, 2016

1. Syllabus

The evidence suggests that the number holder’s (NH) domicile is Washington; therefore, we look to the Washington intestacy laws to determine the parent-child relationship between the NH and claimant. Under the Washington law, a person is presumed to be the parent of a child if the child is born while the person is married to the child’s mother or father, if the child is born within 300 days of the dissolution of marriage between the person and the child’s mother or father, or if the marriage between the person and the child’s mother or father is subsequently declared invalid.

Alternatively, if a person marries the child’s mother or father after the birth of the child, a presumption of parentage arises only if the purported parent voluntarily asserted parentage of the child and one of the following three conditions is satisfied: the assertion of parentage is filed with the state registrar of vital statistics; the purported parent agreed to be and is named as the child’s parent on the child’s birth certificate; or the purported parent promised in a record to support the child as his or her own. These provisions on parentage, including the presumption of parentage, are gender-neutral and apply to same-sex couples who have children together to the same extent they apply to opposite sex couples who have children together.

In this case, at least two of these conditions are met. The NH has voluntarily assented to be the parent of the child and agreed to be listed as a parent on the claimant’s birth certificate, and the NH promised in the petition to support the claimant as her own. Because the NH has satisfied the requirements of the statutory presumption of parentage, the claimant is legally the child of the NH. The claimant meets the definition of child for the purposes of child insurance benefits under Title II of the Act and is entitled to benefits on the NH’s record.

2. Opinion

QUESTION PRESENTED

Is the claimant the child of the insured number holder (NH) for the purposes of child’s insurance benefits when applying Washington State law?

BRIEF ANSWER

Yes. Because the NH has satisfied the requirements of the statutory presumption of parentage, the claimant is legally the child of the number holder. Accordingly, the claimant can inherit as the NH’s child and is therefore her child under Title II of the Social Security Act (the Act).

SUMMARY OF FACTS

On November XX, 2001, the claimant, H~, was born in Denver, Colorado. Her birth certificate lists W~ as her mother and the NH, B~, as her co-parent. Prior to the claimant’s birth, W~ and the NH filed a petition in the District Court of Boulder County, Colorado to recognize the NH as the parent of the claimant. The petition explained that the claimant was conceived through assisted reproduction and carried by W~. On December XX, 2013, W~ and the NH were married in Seattle, Washington, where they shared a residence.

ANALYSIS

Federal Law on Child’s Benefits Under Title II

Under the Act, an individual may be eligible for child survivor’s insurance benefits if: (1) she is the “child” of the insured, as defined in the Act; and (2) she was “dependent upon” the insured at the time of application. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. For the purposes of child’s insurance benefits, “child” is defined as the natural child, legally adopted child, stepchild, or grandchild or stepgrandchild of the insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); see also 20 C.F.R. §§ 404.350, 404.354-59.

Under one method for determining whether the claimant qualifies as the “child” of an insured worker, the agency applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files” the application. 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.355(a)(1), (b) (if the insured is living, apply state law where insured had permanent home at the time of the application); Program Operations Manual System (POMS) GN 00306.001(C) (determining what state law applies). Here, the evidence suggests that the NH’s domicile is Washington. Though earlier documents show the NH living in Colorado, the latest document—her marriage certificate—lists her residence as Seattle, Washington. Therefore, lacking any evidence that could establish otherwise, this opinion will consider Washington as the NH’s domicile.

State Law on Intestacy and the Parent–Child Relationship

Washington State law provides that an intestate estate shall distribute to the decedent’s spouse or domestic partner and to the decedent’s issue. Rev. Code Wash. § 11.04.015 (2014). “Issue” is defined as all the lineal descendants of an individual. Rev. Code Wash. § 11.02.005 (8). A child is considered issue. In re Roberts’s Estate, 146 P. 398, 399 (Wash. 1915).

In order for an individual to be the child of another individual, there must be a parent–child relationship, defined as a the legal relationship between a child and the parent of the child. Rev. Code Wash. § 26.26.011. Parentage is established if the person gives birth to the child, adopts the child, or is adjudicated as the child’s parent. Rev. Code Wash. § 26.26.101. Furthermore, a rebuttable presumption of parentage can arise when the child is born in the context of a marriage.³ A person is presumed to be the parent of a child if the child is born while the person is married to the child’s mother or father, if the child is born within 300 days of the dissolution of marriage between the person and the child’s mother or father, or if the marriage between the person and the child’s mother or father is subsequently declared invalid. Rev. Code Wash. § 26.26.116(1)(a)–(c).

Alternatively, if a person marries the child’s mother or father after the birth of the child, a presumption of parentage arises only if the purported parent voluntarily asserted parentage of the child and one of the following three conditions is satisfied: the assertion of parentage is filed with the state registrar of vital statistics; the purported parent agreed to be and is named as the child’s parent on the child’s birth certificate; or the purported parent promised in a record to support the child as his or her own. Rev. Code Wash. § 26.26.116(1)(d). Finally, a person is presumed to be the parent of a child without marrying the child’s mother or father, if, for the first two years of the child’s life, the person resided in the same household with the child and openly held out the child as his or her own. Rev. Code Wash. § 26.26.116(2).

These provisions on parentage, including the presumption of parentage, are gender-neutral and apply to same-sex couples who have children together to the same extent they apply to opposite sex couples who have children together. Rev. Code Wash. § 26.26.051. The presumption of parentage may only be rebutted by an adjudication in accordance with Washington law. Rev. Code Wash. § 26.26.116(3). In general, genetic testing excluding a person as a parent of the child is sufficient to rebut the presumption. Rev. Code Wash. § 26.26.600(1)–(4). However, a rebuttal with genetic evidence does not apply if the child was conceived through assisted reproduction. Rev. Code Wash. § 26.26.600(5). In such circumstances, parentage can only be disproven by admissible evidence showing the intent of the presumed, acknowledged, or adjudicated parent and the other parent. Id.

Finally, parentage can also be established between a person and a child if the person has consented to assisted reproduction with the child’s biological parent and the assisted reproduction resulted in the birth of the child. Rev. Code Wash. § 26.26.720 (“A person who provides gametes for, or consents in a signed record to assisted reproduction with another person, with the intent to be the parent of the child born, is the parent of the resulting child.”).⁴ The consent must be in a record signed by both persons (not including the donor), and the person must intend to be the parent of the child. Rev. Code Wash. §§ 26.26.710, 26.26.715(1). Lacking a signed record, a person may still establish parentage in a case of assisted reproduction if both persons resided in the same household with the child and openly held the child out as their own. Rev. Code Wash. § 26.26.715(2).

Analysis

Here, the NH is not the biological parent of the claimant, and there is no evidence that the NH has either adopted or been adjudicated as the claimant’s parent. However, the NH meets the criteria of Rev. Code Wash. § 26.26.116(d)(1), thereby triggering the presumption of parentage. As that provision states, when the purported parent has married the child’s mother or father after the birth of the child (as is the case here), the presumption applies to the purported parent where he or she has “voluntarily asserted parentage of the child” and any one of three scenarios applies: (1) “[t]he assertion is in a record filed with the state registrar of vital statistics,” (2) the purported parent “agreed to be and is named as the child’s parent on the child’s birth certificate,” or (3) the purported parent “promised in a record to support the child as his or her own.” Rev. Code Wash. § 26.26.116(1)(d)(ii).

At least two of these scenarios apply in this case. The petition to the District Court of Boulder County, Colorado, indicated that the NH has voluntarily assented to be the parent of the child and agreed to be listed as a parent on the claimant’s birth certificate. NH is listed as a co-parent on the claimant’s birth certificate, as well. Therefore, scenario (2) is met. Scenario (3) is satisfied, too, because the NH promised in the petition to support the claimant as her own. Under Rev. Code Wash. § 26.26.116(1)(d), the presumption of parentage applies.⁵

Though this presumption can be rebutted, Washington law requires an adjudication to do so. Rev. Code Wash. § 26.26.116(2). And, since the NH’s petition indicated that the claimant was conceived through assisted reproduction, the genetic impossibility of the NH being the claimant’s biological parent is insufficient to rebut the presumption. Rev. Code Wash. § 26.26.600(5).

Because the claimant has a parent–child relationship with the NH, the claimant qualifies as the NH’s child. Thus, the claimant may inherit as the NH’s issue. Accordingly, the claimant meets the definition of child for the purposes of child insurance benefits under Title II of the Act. 42 U.S.C. § 416(h)(2)(A).

CONCLUSION

Based on the foregoing analysis, the claimant is able to inherit as the NH’s child and therefore meets the Act’s definition of child for the purposes of child’s insurance benefits.

C. PR 16-063 Evaluation for Benefits-Child Conceived and Born after Marriage-not NH's Natural/Biological Child

DATE: January 13, 2016

1. SYLLABUS

The NH’s marriage began in 1992 and continues to this day. The Claimant was born in 2004, during the marriage. The NH lived in Washington when the child filed her application, therefore, we look to the Washington Intestacy Law to determine the parent-child relationship. The Washington law provides that an intestate estate shall descend to a decedent’s spouse and issue. “Issue” means all the lineal descendants of an individual, including children. Because A~ was born during a lawful marriage between her mother and the NH, the NH is the Claimant’s presumed father unless there is an adjudication to the contrary. The claimant is the NH’s child under the Washington law and is entitled to benefits on the NH’s record.

2. OPINION

QUESTION PRESENTED

Is A~ the legal child of number holder F~ (NH) under Washington law for the purposes of auxiliary child benefits?

BRIEF ANSWER

Yes, A~ has a legal parent–child relationship with the NH under Washington law because the NH is her presumed father and there has been no adjudication to the contrary.

SUMMARY OF FACTS

The below opinion assumes the following facts are accurate. A~ was born in the Philippines in May 2004 to D~. The birth certificate lists D~ as unmarried and names A~’s father as F~. At the time of birth, F~ also completed an affidavit of acknowledgment of paternity, co-signed by D~. Although A~’s birth certificate lists D~ as unmarried, she was actually married to the NH at the time. D~ married the NH in February 1992 in the Philippines, and remarried him in August 1992 in California. The NH admits in his application that A~ was not his natural child, noting that he and D~ were physically separated at the time, but he also acknowledges that he was married to D~ at the time of A~s birth. Documents submitted with A~’s application show that the NH supports her and D~ with his pension and his Social Security benefits.

ANALYSIS

a. Federal Law on Child’s Benefits

Title II of the Social Security Act provides benefits for the child of an insured individual who is entitled to retirement benefits. 42 U.S.C. § 402(d) (2012). At the time of the application for child’s benefits, the child must be unmarried, dependent upon the insured individual, and either under the age of 18 (or the age of 19 if a secondary school student) or under a disability that arose before the age of 22. 42 U.S.C. § 402(d)(1).

In determining whether the claimant is the child of the insured individual, the agency looks to the intestacy law of the domicile state of the insured individual at the time of the application. 42 U.S.C. § 416(h)(2)(A). Alternatively, if the child is the son or daughter of the insured individual but not the child under § 416(h)(2)(A) because of a defect in the marriage, he or she will be deemed the child if the insured individual and the child’s father or mother went through a purported marriage that, but for a legal impediment, would have been a valid marriage. 42 U.S.C. § 416(h)(2)(B).

If neither of the above provisions is availing, the applicant can still be deemed to be the insured individual’s child if the insured individual has acknowledged the applicant as her child in writing, if a court has decreed the insured individual to be the applicant’s parent, or if the insured individual has been ordered to pay child support for the applicant. 42 U.S.C. § 416(h)(3). In the case of old-age benefits, the acknowledgement must occur not less than one year before the insured individual became entitled to old-age benefits or attained retirement age, whichever is earlier. 42 U.S.C. § 416(h)(3)(A)(i). Finally, the applicant may be deemed the insured individual’s child if the insured individual is shown by satisfactory evidence to be the parent of the applicant and to be living with or contributing to the support of the applicant when the application for benefits was filed. 42 U.S.C. § 416(h)(3)(A)(ii).

b. Washington State Law

The first provision for determining family status directs the agency to consider the intestacy law of the domiciliary state. 42 U.S.C. § 416(h)(2)(A). “The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted). Here, the evidence indicates that the NH lived in Washington when the child filed her application. Lacking anything showing the contrary, we take Washington to be NH’s domicile.

Washington law provides that an intestate estate shall descend to a decedent’s spouse and issue. Wash. Rev. Code § 11.04.015(2)(a) (2015). “Issue” means all the lineal descendants of an individual and, therefore, includes children. Wash. Rev. Code § 11.02.005(8). Thus, if the claimant is the NH’s child under Washington law, she would be entitled to inherit through intestacy and would therefore meet the Social Security Act’s definition of “child.”

Washington law provides several means for establishing a parent–child relationship, two of which are relevant here. Wash. Rev. Code 26.26.101. First, the birth of a child during a marriage or domestic partnership establishes a rebuttable presumption that the parties to the marriage are the child’s parents. Wash. Rev. Code § 26.26.116(1)(a). This presumption of parentage may be rebutted only by an adjudication under Washington law. Wash. Rev. Code § 26.26.116(3) (2015). Second, a man may establish his parentage by signing an acknowledgment of paternity. Wash. Rev. Code § 26.26.101(6). A valid acknowledgment of paternity filed with the state registrar of vital statistics equates to an adjudication of parentage. Wash. Rev. Code § 26.26.320(1).

Here, the NH’s marriage began in 1992 and continues to this day. A~ was born in 2004, during the marriage. Thus, Washington law presumes that the NH was A~’s parent unless the presumption is rebutted with an adjudication. The evidence shows that, at the time of A~’s birth, F~ attested that he was A~’s father. While this may be an acknowledgment of paternity, it is insufficient under Washington law to rebut the presumption of paternity established by the NH’s marriage to A~’s mother.

First, the Filipino acknowledgment fails to include the basic information required under Washington law for a valid acknowledgment. Preliminarily, Washington law requires an acknowledgment to be both in a record and signed under penalty of perjury by the mother and the man seeking to establish his paternity. Wash. Rev. Code § 26.26.305(1)(a), (b). However, the acknowledgment must also either name the child’s presumed father or state that the child has no presumed father. Wash. Rev. Code § 26.26.305(1)(c). The acknowledgment must also state that there is no acknowledged or adjudicated father and that there has been no genetic testing. Wash. Rev. Code § 26.26.305(1)(c), (d). The acknowledgment must indicate that the signatories understand that the acknowledgment equates to a judicial adjudication of paternity. Wash. Rev. Code § 26.26.305(1)(e). The Filipino acknowledgment contains none of these criteria.

Second, Washington law requires that, if there is a presumed father, an acknowledgment of paternity filed by another man must be accompanied by a denial of paternity from the presumed father. Wash. Rev. Code §§ 26.26.305(2)(a), 26.26.310. Thus, even if the acknowledgment met the criteria identified above, the lack of a denial from the NH as the presumed father would render it void.

Finally, we note that the analysis accompanying the question presented included discussion of Lord Mansfield’s Rule, a common-law rule that prevents a child’s mother and her legal husband at the time of conception or birth from offering testimony that the child is illegitimate. It is true that Washington does not follow Lord Mansfield’s Rule and allows the statements from the NH and the child’s mother to be considered in a paternity determination. Nevertheless, in light of the invalid Filipino affidavit of paternity and the absence of an adjudication of paternity that satisfies Washington law, Washington’s presumption of paternity applies regardless of the NH’s statements.

3. CONCLUSION

Because A~ was born during a lawful marriage between her mother and the NH, the NH is A~’s presumed father unless and until there is an adjudication to the contrary.

Mary Lisa Lewandowski

Assistant Regional Commissioner, Management and Operations Support, Region X

By: David Morado

Regional Chief Counsel, Region X

D. PR 05-174 Washington Law on Establishment of Paternity Using DNA Analysis of Genetic Material from One of Deceased's Number Holder's Parents

DATE: June 2, 2005

1. SYLLABUS

Under Washington law, the genetic testing of the claimant and of one parent of the deceased number holder showing a 99.71 % likelihood that the deceased number holder's parent is a grandparent of the claimant is as probative and useful DNA testing of the deceased number holder or of both of his parents.

2. OPINION

QUESTIONS PRESENTED

You asked whether, under Washington State law, analysis of DNA samples from one parent of a deceased number holder (DNH) and from the DNH's alleged child, which established a 99.71% likelihood that the DNH's mother is the paternal grandmother of the child, is as probative and useful as a DNA analysis of samples from the DNH or from both of DNH's parents, where the child has applied for surviving child's insurance benefits.

SHORT ANSWER

DNA analysis of genetic material from the alleged child and from one parent of the DNH is as probative and useful as DNA analysis of genetic material from the DNH or from both grandparents of the DNH and may be used to establish the DNH's paternity of such child under Washington intestacy law.

FACTUAL BACKGROUND

Along with the request for a legal opinion, five documents were submitted:

1. A certificate of live birth for "M~," listing the mother as D~ and listing no father.

2. A document titled Genelex Parentage/Kinship Test Results, which states that, based on samples from R~, D~, and M~, M~ is 345 times more likely to be a paternal grandchild of R~ than to be unrelated, and that the probability of M~ being the paternal grandchild of R~ was 99.71%.

3. A Child Relationship Statement, Form SSA-2519, completed by D~, stating that the DNH was never decreed by a court to be M~'s father nor ordered to contribute to her support, and that the DNH did not otherwise acknowledge that M~ was his child.

4. A certificate of death, stating that the DNH died on November XX, 1997, and that his mother was R~.

5. An application for surviving child's insurance benefits, SSA Form 4S, in which D~ stated that DNH "chose not to be in [M~'s] life."

On April XX, 1991, D~ gave birth to a daughter, M~, in the state of Washington. No father is named on M~'s birth certificate. M~, the DNH, was born on April XX, 1958, and was, according to D~, the only son of R~. The DNH died on November XX, 1997, in Washington State. On March XX, 2005, D~ applied to the Social Security Administration for surviving child's disability benefits on behalf of M~, and stated that the deceased worker was M~. Ms. E~ alleged that the DNH was M~s father. Neither M~ nor Ms. E~ resided with DNH at the time of his death. According to Ms. E~, the DNH chose not to be involved with, visit with, or pay child support for M~.

On February XX, 2005, samples of genetic material from Ms. E~, M~, and Mrs. T~ were submitted to Genelex Corporation, an accredited DNA paternity and forensic testing laboratory, for DNA analysis to determine the likelihood that the DNH was M~'s father. The test results, dated February XX, 2005, established that there was a 99.71% probability that M~ was the paternal grandchild of Ms.T~ and that M~ was 345 times more likely to be Ms. T~'s paternal grandchild than to be unrelated.

DISCUSSION

A surviving child is entitled to child's insurance benefits if:

1. The wage earner died either fully or currently insured;

2. The child is the "child," as defined in the Social Security Act, of the deceased wage earner;

3. The child is under the age of 18;

4. The child was dependent upon the deceased wage earner;

5. The child is not married; and

6. An application for child's insurance benefits is filed.

See Social Security Act § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2003). The purpose of surviving child's insurance benefits is to replace the child's loss of income due to the wage earner's death. See Matthews v. Lucas, 427 U.S. 495 (1976). Here, we assume that the DNH was fully insured at the time of his death. The child, M~, is under the age of 18, is not married, and has applied for benefits. Thus, the only issues are whether M~ meets the second and fourth requirements above. If M~ meets the second requirement, i.e., she is the child of the DNH, she is also considered dependent, which would satisfy the fourth requirement, assuming that no exceptions apply. See 20 C.F.R. § 404.361.

M~ may prove that she is the "child" of the DNH (the second requirement) in any of the following four ways:

1. She could inherit the DNH's property under Washington State intestacy law. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

2. She is the natural child of the DNH and the DNH went through a ceremony with Ms. E~ that would have resulted in a valid marriage between them except for a "legal impediment." See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

3. Before his death, the DNH acknowledged in writing that M~ was his daughter; was decreed by a court to be M~'s father; or was ordered by a court to contribute to M~'s support because she was his daughter. See Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3), (POMS) GN 00306.100(B)(1).

4. The DNH is shown by evidence satisfactory to the Commissioner of Social Security to have been M~'s father, and he was living with Ms. E~ while she was pregnant with M~ or contributing to M~'s support at the time of his death. See Social Security Act § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); see also POMS GN 00306.100(B)(2), GN 00306.285.

Number 1 requires application of state intestacy law. Numbers 2 through 4 require the application of alternative federal standards, and are only considered if the child is not entitled to benefits under state intestacy law. See, e.g., Ramo v. Shalala, No. 93-36054, 1994 WL 650005, at *2 (9th Cir. November 15, 1994) (remanding the case back to agency to first determine whether the child is eligible under the state intestacy law before applying the alterative federal standards).

Washington State Intestacy Law

The DNH died while domiciled in Washington. Therefore, the laws of the State of Washington apply to determine whether M~ would be entitled to the DNH's personal property if the DNH had died without a will (intestate). See 42 U.S.C. § 416(h)(2)(A).

In Washington, heirs are defined as "those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the real and personal property of a decedent on the decedent's death intestate." See WASH. REV. CODE § 11.02.005(6). By definition, those persons not entitled to inherit real and personal property on the decedent's death are not heirs.

Under Washington's law of intestate succession, the net estate, if there is no surviving spouse, first descends to the issue of the intestate. "Issue" means all the lineal descendants of an individual. See WASH. REV. CODE § 11.02.005(4). "Descendant" in this context has been defined as "one who is descended from another; a person who proceeds from the body of another, such as a child, grandchild." See Estates of Donnelly v. Iverson, 81 Wash.2d 430, 433 (Wash. 1972), reh'g den., (1973) (internal citations omitted).

Under Washington's Uniform Parentage Act, WASH. REV. CODE § 26.26.435, in order to determine paternity, a court may order the following individuals to submit specimens for genetic testing when a genetic testing specimen is not available from a man who may be the father:

1. The parents of the man;

2. Brothers and sisters of the man;

3. Other children of the man and their mothers; and

4. Other relatives of the man necessary to complete genetic testing.

Id. WASH. REV. CODE § 26.26.420 states that a man is rebuttably identified as the father of a child if genetic test results, including results of genetic testing using specimens from those individuals identified above, show:

1. The man has at least a ninety-nine percent probability of paternity, using a prior probability of 0.50, as calculated by using the combined paternity index obtained in the testing; and

2. A combined paternity index of at least one hundred to one.

Here, the DNA Parentage/Kinship Test Results were interpreted to show that the probability of Mrs. T~ being the grandmother of M~ is 99.71%. Further, the testing revealed that M~ is 345 times more likely to be the paternal grandchild of Mrs. T~ than to be unrelated.

These genetic test results create a rebuttable presumption under Washington's Uniform Parentage Act that the DNH was M~'s biological father. Given the absence of other evidence rebutting the genetic test results or suggesting that the DNH is not M~'s father, the presumption of paternity has not been rebutted. Consequently, M~ would be considered the DNH's child and could inherit his property as an "heir." The appropriate burden of proof in paternity actions under WASH. REV. CODE § 26.26, is a preponderance of the evidence. See State on behalf of McMichael v. Fox, 132 Wash.2d 346, 352 (1997). Unlike some other states, the burden of proof does not shift to "clear and convincing evidence" after the death of the putative father in Washington. See id.

The issue is whether the DNA analysis of genetic material from just one of the DNH's parents is sufficient evidence to establish paternity under WASH. REV. CODE § 26.26.435, which states that in order to determine paternity where the putative father's DNA sample is unavailable, a court may order "the parents of the man" to submit specimens for genetic testing. We researched Washington case law and found no reported cases where genetic testing of one grandparent has been at issue. Therefore, this is an issue of first impression in Washington State. However, our research has shown that other State and U.S. district Courts have found such testing to be useful and probative.

In Drake ex. Rel. Atwood v. Apfel, available at 2001 WL 705784 (N.D. Tex. June 18, 2001), a mother applied for surviving child's benefits on behalf of her child, Ryan, and alleged that Ryan's father was Robert, who died after the birth of Ryan. Id. at *1. Robert lived in California and the parties agreed that if Ryan could establish he was Robert's child under the California intestacy statute, he could meet the criteria for payment of surviving child's benefits under 42 U.S.C. § 416(h)(2)(A) and (B) and (3)(C). Id. at *1. The Court reasoned that because the deceased putative father was the only child of Patricia A~, there was no possibility that Robert had a male sibling who could have fathered Ryan. Id. at *4. The DNA analysis of Robert's mother's genetic material demonstrated a 98% probability that she was a grandparent of Ryan. Id. at *4. The Drake Court found that this was clear and convincing evidence that Robert was Ryan's father. Id. at *4.

In Lach v. Welch, available at 1997 WL 536330 (Sup. Court Conn. 1997), the Court noted that "[t]he DNA 'print' of a father, mother, or other relative of the deceased putative father can be compared to the DNA prints of the child and the available mother to determine whether the parties are related." Id. at *5. Lach relied on Sudwischer v. Estate of Hoffpauir, 589 So.2d 474 (La. 1991), cert. denied sub nom, Estate of Hoffpauir v. Sudwischer, 112 S.Ct. 1937, 118 L.E.2d 543 (1992), in which the Supreme Court of Louisiana affirmed an order requiring the legitimate daughter of a deceased father to provide a blood sample to determine the paternity of an illegitimate daughter. The Sudwischer court reasoned that the DNA fingerprinting of the legitimate daughter would produce relevant evidence which could establish the probability of a relationship between the deceased father, the legitimate daughter, and the illegitimate daughter. Lach, citing Sudwischer, at 475.

Acceptance of DNA test evidence from one parent of the DNH is also advisable for the public policy reasons stated in Lach:

[O]ur cultural reality has changed. More and more children are being born out of wedlock. These "innocent offspring," should not suffer the loss of property and the right to be supported by both parents simply because of the demise of the parents, or inaction by a birth mother in enforcing the property interests of her children against a putative father during his lifetime. No other legal representative is available, unless the child is a recipient of Aid to Families with Dependent Children (AFDC) and the state intervenes to force the mother to name the putative father for support enforcement purposes. While the child may suffer the loss of the parent because of death, there may be at least the hope of reconciliation with his or her extended family and what one would expect to be emotional support for that "innocent" but also possibility of financial support to assist the child in the preparation for the future which is for our future.

Lach, at *7.

In a Michigan case involving the determination of heirs of an intestate decedent, the Court stated that "one method of proving paternity in this case is to utilize a DNA profile by using the child's tissue and the tissue of either decedent or decedent's mother." In re Estate of Jones, 525 N.W. 2d 493, 497 (Mich. Ct. App. 1994).

Courts have acknowledged that scenarios might exist where genetic test results alone may not satisfy the preponderance of the evidence standard. See Ramo 1994 WL 650005 at *3; but see State ex rel. Wise, 828 P.2d 1143, 1144 (Wash. 1992) ("[a] 99.55 percent probability of paternity, when not contraindicated by other evidence (such as compelling evidence of the putative father's sterility or absence during the period of conception), far exceeds the applicable standard of proof by preponderance of the evidence"). Here, the factual record is somewhat sparse because there were no statements from other witnesses that Ms. E~ and DNH had a relationship and only Ms. E~ has asserted that the DNH had no brothers. The only evidence submitted to date that corroborates the 99.71% likelihood that Mrs. T~ is M~'s paternal grandmother, is Ms. E~' statement that the DNH was M~'s father. More factual information from Ms. E~ would be helpful. However, after considering the submitted evidence and in light of the cases and statutes discussed above, it is our legal opinion that you may consider the DNA analysis of samples from one of DNH's parents as probative evidence that the DNH is Mi's father.

Washington courts would likely find that a DNA analysis that utilizes genetic material from only one of the DNH's parents and establishes a 99.71% probability that M~ is DNH's mother's paternal grandchild is highly probative and that it can be as reliable as an analysis using DNA samples from both of the DNH's parents or from the DNH. Although WASH. REV. CODE § 26.26.435 states that "parents" of the unavailable putative father may be ordered to submit specimens for genetic testing, it is unlikely that Courts would construe this statute as requiring samples from both of the DNH's parents, as long as there is "at least a ninety-nine percent probability of paternity" based on a DNA analysis of genetic material from one of the DNH's parents. See WASH. REV. CODE § 26.26.420. For these reasons, DNA analysis of genetic material from one of the DNH's parents is likely to meet the preponderance of the evidence standard and would be admissible to establish paternity under Washington law.

E. PR 05-015 Whether the State of Washington Recognizes DNA Testing Using Blood Specimens from the Parents of the Deceased. Michael N~, ~

DATE: July 17, 2000

1. SYLLABUS

Washington law does not expressly limit blood or genetic test results to those of the putative father. Therefore, in this case, the genetic test results, the mother's testimony, the fact that the mother was living with the NH when the child was conceived, and the fact that they had another child, constitute a preponderance of the evidence that the NH is the child's father.

2. OPINION

This memorandum is in response to your request for our legal opinion as to whether DNA testing (a Pedigree Reconstruction Testing Report), using the blood of the parents of the deceased putative father, may be used to find paternity in the State of Washington.

FACTUAL BACKGROUND

The number holder, Michael N~, was living in the State of Washington when he died on November XX, 1997. After he died, Karey T~ filed for surviving child's benefits on behalf of Benjamin M. T~ who was born on November XX, 1988. Karey reports that she and Michael lived together for five years and separated when she was six months pregnant with Benjamin. Karey never received any support from Michael for Benjamin, and Michael never stated in writing that Benjamin was his son. Karey's other child, Angela B. N~ is currently receiving benefits on Michael's account as Michael's daughter.

In June 1998, Karey had a Pedigree Reconstruction Test done at Oregon Health Sciences University. This test used blood specimens from Karey, Benjamin, and Michael's parents for DNA (deoxyribonucleic acid) blood genetic marker testing. The testing was interpreted by Bradley P~, M.S., M.Sc., Ph.D., who is the Director of the DNA Diagnostic Laboratory, an Associate Professor at OHSU's Department of Molecular Genetics, and a ABMG Certified Molecular Geneticist. The DNA test shows that there is a greater than 99% certainty that Benjamin is Michael's son.

DISCUSSION

A "child" of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he or she: (1) is the insured's child, based upon a relationship described in 20 C.F.R. sections 404.355 through 404.359; (2) has applied for such benefits, (3) is unmarried, (4) is under the age of 18, and (5) was dependent upon the insured individual at the time of the insured's death. See42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350.

The only issues are whether Benjamin meets the first and fifth requirements above. If Benjamin is Michael's natural child under § 404.355, then he is also considered a dependent. See 20 C.F.R. § 404.361. Therefore, Benjamin must meet the requirements of section 404.355.

Benjamin is Michael's natural child under section 404.355 only if: (1) he can inherit Michael's personal property as Michael's natural child under State inheritance laws; (2) Benjamin is Michael's child and Michael and Karey went through a ceremony that would have resulted in a valid marriage for them but for a legal impediment; or (3) Benjamin is Michael's natural child and Karey did not marry Michael, but before his death, he acknowledged in writing that Benjamin was his child, was decreed by a court to be his father, or was ordered by a court to contribute to Benjamin's support because Benjamin was Michael's child. See 20 C.F.R. § 404.355.

According to the facts as you reported them, Michael and Karey never attempted to marry; Michael never acknowledged in writing that Benjamin was his child; and there has been no court order that Benjamin is Michael's child or requiring Michael to pay support for Benjamin. Therefore, the only way that Benjamin can receive benefits is if he can inherit Michael's personal property as his natural child under State inheritance laws. Because Michael died domiciled in Washington, the laws of the State of Washington must be applied to determine whether Benjamin would be entitled to Michael's personal property if he had died without a will (intestate).

Under RCW 11.04.015(2)(a), the net estate, if there is no surviving spouse, first descends to the issue of the intestate. "Issue" includes "all of the lawful lineal descendants of the ancestor and all lawfully adopted children." RCW 11.02.005(4). "Descendant" in this context has been defined as "one who is descended from another; a person who proceeds from the body of another, such as a child, grandchild." Estates of Donnelly v. Iverson, 81 Wash.2d 430, 433 (1972), reh'g den., (1973) (internal citations omitted). Washington State intestacy statutes do not contain a standard under which a child can prove that he or she is the "issue" of a deceased individual. Therefore, the courts turn to the standards set forth in Washington's State Uniform Parentage Act at Chapter 26.26 of the Washington Code. See Ramo v. Shalala, No. 93-36054, 1994 WL 650005, at *2 (9th Cir. November 15, 1994).

The Uniform Parentage Act, enacted in Washington as RCW Chapter 26.26, delineates how paternity may be established. RCW 26.26.060(1)(A) states that:

A child, a child's natural mother, a man alleged or alleging himself to be the father, a child's guardian, a child's personal representative, the state of Washington, or any interested party may bring an action at any time for the purpose of declaring the existence or nonexistence of the father and child relationship.

Although this statute does not specifically state that the phrase "at any time" means after the death of the putative father, RCW 26.26.080(3) reads as follows concerning venue:

The action may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.

The Washington Court of Appeals has held that "it is clear from the language of RCW 26.26.080(3) that the Legislature intended that a paternity action survives the putative father's death." Rabb v. Estate of McDermott, 803 P.2d 819, 822 (Wash. App. 1991). The appropriate burden of proof in paternity actions under RCW 26.26 is a preponderance of the evidence. See State on behalf of McMichael v. Fox, 132 Wash.2d 346, 352 (1997). Unlike some other States, in Washington, the burden of proof does not shift to "clear and convincing evidence" after the death of the putative father. See id. Even if there is no valid State court determination, for claims pending on November XX, 1998, an SSA adjudicator may make a paternity determination using a preponderance of the evidence standard. See Programs Operations Manual System (POMS) GN 00306.075.

Here, the issue is whether the DNA testing using the blood specimens of Michael's parents can be used as evidence to establish paternity under Washington law. RCW 26.26.110 provides that paternity may be proved through any relevant evidence including evidence of sexual intercourse between the mother and putative father at any possible time of conception; an expert's opinion concerning the statistical probability of the putative father's paternity based upon the duration of the mother's pregnancy; an expert's opinion concerning the impossibility or the statistical probability of the putative father's paternity based upon blood or genetic test results; medical or anthropological evidence relating to the putative father's paternity of the child based on tests performed by experts; or all other evidence relevant to the issue of paternity of the child. See RCW 26.26.110 (emphasis added). Thus, Washington law specifically provides that blood or genetic tests may be used to establish paternity. See RCW 26.26.100; see also State ex rel Wise v. Taylor, 828 P.2d 1142 (Wash. App. 1992); State ex rel Coyle-Reite v. Reite, 728 P.2d 625 (Wash. App. Div. 1, 1986). Washington law does not expressly limit test results to those using the blood or tissue sample of the putative father.

We researched Washington case law and found no reported cases where genetic testing of grandparents has been at issue. Therefore, this is an issue of first impression in Washington State. Our research has shown that two other States' courts have found such testing to be useful or probative. See Lach v. Welch, No. FA 930063955, available at 1997 WL 536330 at *4-5 (Conn. Super. August 15, 1997) (alleged paternal grandparent was an indispensable party and was ordered to submit to DNA testing); Estate of Sandler, 612 N.Y.S.2d 756, 758 (N.Y. Sur. 1994) (DNA comparison of the blood of putative paternal grandparents with that of the child may be performed in an effort to provide "clear and convincing evidence" of paternity). We further found that, where the genetic test uses DNA from both parents of the putative father, it is possible to determine paternity with practically the same certainty as if the putative father's DNA was available. See Charles N. L~, Implications of DNA Technology on Posthumous Paternity Determination: Deciding the Facts When Daddy Can't Give His Opinion, 35 Boston College Law Review 747, 765 (May 1994). Therefore, we conclude that genetic testing which includes blood or tissue samples from both of the putative father's parents is as probative and useful as testing using the putative father's blood or tissue samples.

Acceptance of this evidence is also advisable for public policy reasons. In Lach, supra, the Connecticut Superior Court found:

[O]ur cultural reality has changed. More and more children are being born out of wedlock. These "innocent offspring," should not suffer the loss of property and the right to be supported by both parents simply because of the demise of the parents, or inaction by a birth mother in enforcing the property interests of her children against a putative father during his lifetime. No other legal representative is available, unless the child is a recipient of Aid to Families with Dependent Children (AFDC) and the state intervenes to force the mother to name the putative father for support enforcement purposes. While the child may suffer the loss of the parent because of death, there may be at least the hope of reconciliation with his or her extended family and what one would expect to be emotional support for that "innocent" but also possibility of financial support to assist the child in the preparation for the future which is for our future.

Lach, at *7 (citations omitted). For these reasons, we find that this evidence is admissible to establish paternity under Washington Law.

Genetic test results alone may not satisfy the preponderance of the evidence standard. See Ramo 1994 WL 650005 at *3; but see, Wise, 828 P.2d at 1144 ("[a] 99.55 percent probability of paternity, when not contraindicated by other evidence (such as compelling evidence of the putative father's sterility or absence during the period of conception), far exceeds the applicable standard of proof by preponderance of the evidence"). But here, the DNA test result is not the only evidence that Michael is Benjamin's father. In addition to this evidence, there is Karey's testimony that Michael is the father; the fact that they were living together at the time that Benjamin was conceived and during Karey's pregnancy; and the fact that Karey and Michael had another child together. After considering all of this evidence, it is our legal opinion that you are not precluded from considering the DNA testing using the tissue of Michael's parents as evidence that Michael is Benjamin's father, or from finding that Michael is Benjamin's father under Washington law.

Lucille G. M~
Regional Chief Counsel

By: /s/
AMY M. G~
Assistant Regional Counsel

F. PR 04-227 Date of Establishment of a Parent-Child Relationship by DNA Results Number Holder - Jerome L. G~ SSN ~

1. SYLLABUS

Based on DNA test results showing a 99.99% probability that the deceased NH is the father of the child claimant, the NH is presumed to be the child's father under Washington law. Therefore, the child is legitimate as of the date of his birth.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for our legal opinion on the following question: When does the parent-child relationship begin in the State of Washington where paternity was established by a DNA test?

SHORT ANSWER

After consideration of the relevant facts and law, we conclude that the parent-child relationship exists at the date of birth; thereby establishing eligibility for child's insurance benefits as of that date.

FACTUAL BACKGROUND

Jerome L. G~ received disability insurance benefits as of January 2003. He died in January 2004. DNA testing conducted on February XX, 2004, showed that there is a 99.99% probability that Mr. G~ is the father of Nasir Q. R. G~, who was born July XX, 2003. On March XX, 2004, Lauren P~ applied for child's insurance benefits for her son, Nasir.

As of this date, the State of Washington, through the King County Prosecuting Attorney's Office, has not determined whether they will institute proceedings to have Nasir's birth certificate amended to add Mr. G~ as Nasir's father.

DISCUSSION

A. Statutory and Regulatory Background

Nasir is entitled to Title II child's insurance benefits on Mr. G~' account only if he is Mr. G~' “child” under a relationship defined in 20 C.F.R. §§ 404.355 through 404.359. See 20 C.F.R. 404.350(a)(1). A “child” of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he or she:

(1) is the insured's child, based upon a relationship described in 20 C.F.R. sections 404.355 through 404.359;

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and

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

See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Here, Mr. G~ was fully insured at the time of his death. Nasir is under the age of 18, is not married, and has applied for benefits. Thus, the only issues are whether Nasir met the second and fourth requirements above. If Nasir met the second requirement, he is also considered dependent upon Mr. G~, satisfying the fourth requirement. See 20 C.F.R. § 404.361.

Nasir can show that he was the child of the deceased wage earner (the second requirement) in one of the following four ways:

1. he could inherit as Mr. G~'s natural child under state intestacy law. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

2. he is Mr. G~'s natural child and his mother, Lauren P. and Mr. G~ went through a ceremony, which would have resulted in a valid marriage between them except for a “legal impediment.” See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

3. before his death, Mr. G~ acknowledged in writing that Nasir was his son; was decreed by a court to be Nasir's father; or was ordered by a court to contribute to Nasir's support because he was his son. See Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3).

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

Number one requires application of state intestacy law; numbers two through four require the application of alternative federal standards.

B. Washington Paternity and Inheritance Laws

Because Mr. G~ died domiciled in Washington, the laws of the State of Washington must be applied to determine whether Nasir would be entitled to Mr. G~' personal property if he had died without a will (intestate).

Under RCW 11.04.015(2)(a), the net estate, if there is no surviving spouse, first descends to the issue of the intestate. “Issue” includes “all of the lawful lineal descendants of the ancestor and all lawfully adopted children.” RCW 11.02.005(4). “Descendant” in this context has been defined as “one who is descended from another; a person who proceeds from the body of another, such as a child, grandchild.” Estates of Donnelly v. Iverson, 81 Wash.2d 430, 433 (1972), reh'g den., (1973) (internal citations omitted). Washington State intestacy statutes do not contain a standard under which a child can prove that he or she is the “issue” of a deceased individual. Therefore, the courts turn to the standards set forth in Washington's State Uniform Parentage Act at Chapter 26.26 of the Washington Code. See Ramo v. Shalala, No. 93-36054, 1994 WL 650005, at *2 (9th Cir. November 15, 1994).

The appropriate burden of proof in paternity actions under RCW 26.26 is a preponderance of the evidence. See State on behalf of McMichael v. Fox, 132 Wash.2d 346, 352 (1997). Unlike some other States, in Washington, the burden of proof does not shift to “clear and convincing evidence” after the death of the putative father. See id. Even if there is no valid State court determination, an SSA adjudicator may make a paternity determination using a preponderance of the evidence standard. See Programs Operations Manual System (POMS) GN 00306.075.

RCW 26.26.420 states:

(1) Under this chapter, a man is rebuttably identified as the father of a child if the genetic testing complies with this section and RCW 26.26.400 and 26.26.425 through 26.26.450 and the results disclose that:

(a) The man has at least a ninety-nine percent probability of paternity, using a prior probability of 0.50, as calculated by using the combined paternity index obtained in the testing; and

(b) A combined paternity index of at least one hundred to one.

RCW 26.26.111 sets forth the consequences of the establishment of paternity:

Unless parental rights are terminated, the parent-child relationship established under this chapter applies for all purposes, except as otherwise provided by other laws of this state.

Here, the DNA testing shows a 99.99% probability of paternity. Based on these results, Mr. G~ is presumed to be Nasir's father under Washington law. See, e.g., Wise v. Taylor, 828 P.2d 1143, 1144 (Wash.App. 1992) (“[a] 99.55 percent probability of paternity, when not contraindicated by other evidence (such as compelling evidence of the putative father's sterility or absence during the period of conception), far exceeds the applicable standard of proof by preponderance of the evidence”). We have received no evidence rebutting the presumption.

GN 00306.085 states that a child in Washington is legitimate from the date of birth. See also POMS GN 00306.050A. Thus, Nasir is legitimate as of the date of his birth, July XX, 2003.

Lucille G. M~
Regional Chief Counsel

By: /s/
Joanne E. D~
Assistant Regional Counsel

G. PR 99-104 Paternity Case, Tracy S. F~, SSN~ — ACTION

1. SYLLABUS

Washington law provides that the Superior Courts of the State of Washington have sole jurisdiction to determine the existence of a father-child relationship. Therefore, the courts of Washington would hold that the Yakima Tribal Court does not have jurisdiction in Washington State and that any paternity determination made by that court would not be recognized. Moreover, SSA does not have to accept a birth certificate issued as a result of a tribal court order.

Under Washington law (effective 1994), if genetic testing indicates a probability of paternity of 98% or greater, there is a presumption of paternity based on that test. If the probability is less than 98%, there is no presumption of paternity.

2. OPINION

INTRODUCTION

You raise a number of questions regarding establishing paternity using genetic testing and the effect of a tribal court order based on that and other evidence. We answer your questions in the order asked.

STATEMENT OF FACTS

Your memorandum and attachments provide the following facts.

Kaysee was born to Michelle L. H~ on March XX, 1989. Although unmarried at the time, Ms. H~ believed that Tracy S. F~, the wage earner, was Kaysee's father. Mr. F~ reportedly also believed that Kaysee was his daughter. Mr. F~ died in an industrial accident on March XX, 1992. He had not signed an acknowledgment of paternity.

After Mr. F~'s death, Ms. H~ filed an action in the Port Gamble S'klallam Community Court, a tribal court, to establish Kaysee's paternity. That court considered the testimony of Ms. H~ as well as the affidavits of Mr. F~'s parents and his sister all of which state that Mr. F~ had acknowledged that Kaysee was his child and their belief that Mr. F~ was the biological father.

On June XX, 1992, the tribal court found that Mr. F~ was Kaysee's biological father, ordered that the child's name be changed from Kaysee Ann H~ to Kaysee Ann H~-F~, and ordered that the clerk forward a certified copy of the

court's order to the state Bureau of Vital Statistics so that a corrected birth certificate could be issued. In fact, a birth certificate was issued showing that Tracy S. F~ was Kaysee's father.

In July 1992, Ms. H~ applied for Social Security benefits on Kaysee's behalf. In September 1992, SSA, relying on the sworn statements of Ms. H~ and Mr. F~'s family and the order from the tribal court found that Kaysee was Mr. F~'s biological daughter and eligible for Social Security Survivor's Benefits on his record.

Because Mr. F~ had died in an industrial accident, Ms. H~ also applied for benefits from the Washington State Department of Labor and Industries. As part of that claim, blood testing was done to confirm that Mr. F~ was in fact Kaysee's biological father. The test results, dated February XX, 1994, show that Mr. F~ could not be Kaysee's biological father. In a hearing before the Washington State Board of Industrial Appeals the employer and the guardian for Kaysee stipulated that Mr. F~ was not Kaysee's father.

By letter dated June XX, 1994, Ms. H~' attorney asked that Kaysee's benefits be terminated effective February XX, 1994, the date of the blood testing results.

PRIOR OGC OPINIONS

In a Memorandum dated February XX, 1985 to Assistant Regional Commissioner, Programs, Subject: Washington State Recognition of Yakima Tribal Court Paternity Determination: Floyd K~, we opined as follows:

Title 26 of the Revised Code of Washington covers domestic relations. R.C.W. Chapter 26.26 relates to paternity determinations. Jurisdiction to hear a paternity action in the state of Washington is vested in the superior courts. R.C.W. 26.26.080(1).

Because the state of Washington has assumed jurisdiction over all matters subsumed under the heading of domestic relations, it is our opinion that the courts of Washington would hold that the Yakima Tribal Court does not have jurisdiction in this state and that any paternity determination made by that court would not be recognized.

In a March XX, 1992 Memorandum to the Regional Commissioner, Region X, Subject: Genetic testing in Washington State, Bunly T~, we stated that:

The commissioner should not recognize the results of DNA/genetic blood testing in the state of Washington as determinative of the father and child relationship between the deceased insured, Mr. Bunly T~, and the claimant, Jennifer P. T. O~, unless and until the claimant has filed an appropriate action in Washington state court and the state court has issued a ruling on that relationship.

DISCUSSION

You raise several questions regarding the facts set forth above and our prior opinions regarding establishing paternity in the state of Washington. We respond to the questions in the order asked.

Question 1: If we cannot use the sole evidence of genetic testing to establish paternity, can we also not use it to disprove paternity?

Response: The Bunly T~ opinion was issued in 1992. In 1994, the Washington statute setting forth presumptions of paternity was amended as follows: (g) Genetic testing indicates a ninety-eight percent or greater probability of paternity. Thus, Washington has added another presumption of paternity to R.C.W. 26.26.040.

SSA should apply this presumption as it would any other presumption. If genetic testing indicates a probability of paternity of 98 percent or greater, then there is a presumption of paternity based on that test. If the probability is less than 98 percent, then there is no presumption of paternity.

If there are no other facts after full development, and genetic testing indicates a probability of paternity of less than 98 percent, then there could be no presumption of paternity. But if full development leads to other facts, then a decision must be made considering the totality of the situation. In this regard the Washington statute provides that: If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. R.C.W. 26.26.040(2). Of course, any presumption is rebutted by a court decree from a court of competent jurisdiction (id.).

Question 2: Does the state have blanket authority over domestic relations for all tribes in Washington or is it necessary for us to obtain tribe-by-tribe determinations?

Response: This question was recently addressed in Certification from the United States Tax Court in Estate of Millie Cross, Deceased, Silas A. Cross, Petitioner v. The Commissioner of Internal Revenue, Respondent, 126 Wash.2d 43,

891 P.2d 26 (1995). In that case the United States Tax Court was asked to decide whether Washington's community property law should be applied in determining property rights between an Indian and non-Indian living on the Puyallup Indian Reservation. Rather than decide the question of state law, the Tax Court certified the question to the Supreme Court of Washington. The Washington Supreme Court stated the following with respect to R.C.W. 37.12.010:

Pursuant to Public Law 280, the Legislature in 1963 amended RCW 37.12.010. [Footnote omitted.] State v. Sohappy, 110 Wash.2d 907, 909, 757 P.2d 509 (1988). Under RCW 37.12.010, the State of Washington assumed full civil and criminal jurisdiction over Indians and Indian territory within the state with respect to eight areas. Sohappy, 110 Wash.2d at 909, 757 P.2d 509. Domestic relations is one of the eight areas where full jurisdiction was assumed. RCW 37.12.010 provides in pertinent part:

The state of Washington hereby obligates and binds itself to assume criminal and civil jurisdiction over Indians and Indian territory, reservations, country, and lands within this state in accordance with the consent of the United States given in accordance by the act of August 15, 1953 (Public Law 280, 83rd Congress, 1st Session), but such assumption of jurisdiction shall not apply to Indians when on their tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, unless the provisions of RCW 37.12.021 have been invoked, except for the following:

(1) Compulsory school attendance (2) Public assistance; (3) Domestic relations; (4) Mental illness; (5) Juvenile delinquency; (6) Adoption proceedings; (7) Dependent children; and (8) Operation of motor vehicles upon the public streets, alleys, roads and highways....

The United States Supreme Court held RCW 37.12.010 complies with Public Law 280 and is constitutional. Yakima Indian Nation, 439 U.S. at 473-74, 99 S.Ct. at 748; Schumck, 121 Wash.2d at 394, 850 P.2d 1332;.... **** Under RCW 37.12.010(3), the State assumed full jurisdiction over Indians and Indian territory within the state in matters involving domestic relations. Washington domestic relations law is codified at RCW Title 26. Included within RCW Title 26 is Washington community property law. RCW 26.16. We, therefore, conclude when the Legislature passed RCW 37.12.010, it intended to grant jurisdiction to Washington courts to apply Washington community property law to Indians and Indian territory within the state, which includes the authority to determine property rights as between an enrolled member of the Puyallup tribe and his non-enrolled wife.

This conclusion is supported by the recognition that the entire subject of domestic relations belongs t the laws of the states and not to the laws of the United States. In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 500 (1890); Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979)....

It is clear from the court's decision in Cross that the State of Washington has jurisdiction over matters involving domestic relations, and that this jurisdiction extends to all tribes within the state. In view of the foregoing, it is our belief that the opinion we expressed in the K~ case, i.e., . . . that the courts of Washington would hold that [Tribal] court does not have jurisdiction to make paternity determinations in this state and that any paternity determination made by that court should not be recognized is correct. Question 3: The fact that the Bureau of Vital Statistics issued a new birth certificate suggests to us that the state now accepts tribal orders of paternity. Has the state law changed since 1985?

Response: The state law has not changed since 1985. The law, which is found at RCW 26.26.080, provides that the Superior Courts of the State of Washington have jurisdiction to determine the existence of the father-child relationship. We cannot reconcile the fact that the Bureau of Vital Statistics issued a new birth certificate pursuant to tribal court order with RCW 70.58.095, which provides in pertinent part that:

The state registrar of vital statistics shall establish a new certificate of birth for a person born in this state when he receives a request that a new certificate be established and such evidence as required by regulation of the state board of health proving that such person has been acknowledged, or that a court of competent jurisdiction has determined the paternity of such person.

Emphasis added.

Question 4: If the state of Washington accepts the tribal order of paternity, would we have to see a revised order before reopening our decision to entitle the child?

Response: In Bunly Tan, we opined that A child and parent relationship, not presumed to be of natural origin under RCW 26.26.040, must be established by court action under RCW 26.26.060. In the situation presented here there has been no such determination by the state Superior Court.

The question then becomes whether the birth certificate issued as a result of the tribal court order must be accepted by SSA. We believe not. As noted above, only the Superior Court of the state may determine paternity. Since there is no such determination, we believe that SSA may develop the case as it would do in any situation involving paternity. While we do not anticipate what SSA's development will show, we note that there is no order by a court of competent jurisdiction purporting to decide the issue of Kaysee's paternity.

Given the evidence which has been produced since the amended birth certificate was issued, we believe that SSA is not precluded from reopening its prior determination regarding the award of benefits to Kaysee.

Footnotes:

[1]

^. The amendments to the Washington Revised Code following the NH’s death do not affect the analysis here.

[2]

^. The AABB certificate of accreditation for DDC/DNA Diagnostics Center is available at http://www.dnacenter.com/images/AABB-cert.jpg.

[3]

^. Though this opinion only refers to marriage, these provisions also apply in the context of a domestic partnership.

[4]

^. In 2011, the Washington State legislature amended this provision to render it gender neutral and remove any terms referring to marriage. Wash. HB 1267 (2011).

[5]

^. Alternative paths to establishing parentage are also available to the NH, though the evidence as it stands is insufficient to support conclusions. Using any of these paths would require re-contacting the NH to obtain the required evidence. First, the presumption of parentage described above is available to the NH if she lived in the same household as the claimant and held the claimant out as her child. Rev. Code Wash. § Rev. Code Wash. § 26.26.116(2). Though the petition she filed in Colorado District Court presents an intent to do so, evidence that she actually met these requirements was not provided with the request for legal opinion. If such evidence exists, it would provide an alternative means to meet this presumption. Secondly, the NH’s petition indicated that she and W~ both agreed to the assisted reproduction that led to the conception of the claimant. Evidence of the consent to the assisted reproduction in a writing signed by W~ and the NH might establish parentage. Rev. Code Wash. § 26.26.720. Finally, if the petition for parental rights filed in Colorado resulted in a court order of parentage, such order might serve as an adjudication of parental rights and establish a parent–child relationship. Rev. Code Wash. § 26.26.011.