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

DATE: October 21, 2008

1. SYLLABUS

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

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

2. OPINION

Question Presented

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

OPINION

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

BACKGROUND

On August 31, 2006, Claimant Michael M~ mother, Vonda L~, applied for auxiliary child's benefits on Claimant's behalf on the earnings record of Edward M~, Jr., the number holder (NH). NH was found disabled in 1994 and receives concurrent benefits. Claimant was born on September 23, 2005. Although Claimant's birth certificate listed Junior Joseph M~ as his father, Claimant's mother states Mr. M~ was not Claimant's biological father. Because Claimant's mother failed to provide sufficient evidence to support her claim that NH was Claimant's father, the Agency denied Claimant's application on May 11, 2007.

On August 4, 2008, Claimant's mother submitted additional evidence to the Agency consisting of (1) a signed and notarized Affidavit of Parentage for Child Born Out of Wedlock dated March 13, 2008, in which NH acknowledged he is the natural father of Claimant; and (2) DNA test results dated June 6, 2008, demonstrating a 99.99% probability that NH is Claimant's biological father. We understand, from our discussion with Nicole R~ that the Social Security Administration (SSA) considered this additional evidence to be "new and material," within the meaning of 20 C.F.R. §§ 404.988 and 404.989, and have reopened the claim to consider it in light of the new evidence.

DISCUSSION

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

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

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

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

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

(2) Any person who has acknowledged himself during his own lifetime and the child's lifetime to be the father of such child in a written instrument executed or acknowledged before a certifying officer named in G.S. 52-10(b) and filed during his own lifetime and the child's lifetime in the office of the clerk of superior court of the county where either he or the child resides.

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

The only provision in subsection (b)(1) that is relevant to Claimant's claim is N.C. GEN. STAT. ANN. § 49-14 (2008), which discusses civil actions to establish paternity. Under North Carolina law, proof of paternity must be established by "clear, cogent, and convincing evidence." N.C. GEN. STAT. ANN. § 49-14(b). "Clear, cogent and convincing evidence describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt." Nash County Dep't of Soc. Servs. v. Beamon, 485 S.E.2d 851, 852 (N.C. Ct. App. 1997). In deciding a paternity claim under § 49-14, a trial court has the duty "to determine whether evidence offered in a particular case is clear, cogent, and convincing," and "it is within the court's discretion to consider some, none or all of the evidence, and to determine the weight to place on the testimony." Brown v. Smith, 526 S.E.2d 686, 687-88 (N.C. Ct. App. 2000) (quotations omitted).

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

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

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

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

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

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

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

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

CONCLUSION

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

Mary A. S~
Regional Chief Counsel

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

B. PR 06-324 Retroactive effect of DNA Testing Used to Establish Paternity - North Carolina

DATE: September 19, 2006

1. SYLLABUS

In cases where the number holder died while residing in North Carolina, DNA testing may be used to establish a parent-child relationship retroactively to the day before the death of the deceased or the full retroactive period of the application, whichever is the most recent.

2. OPINION

Questions

You asked whether our prior precedent opinion and GN 00306.580 should be modified in response to an attorney request and rejection of the precedent opinion by a North Carolina administrative law judge (ALJ). The precedent opinion stated that DNA testing may be used after the death of a number holder (NH) to establish a parent-child relationship in North Carolina, but does not establish the relationship retroactively.

ANSWER

We conclude that the prior precedent opinion should be modified to state that DNA testing may be used to establish a parent-child relationship retroactively to the day before the death of the deceased father (NH), or the full retroactive period of the application, whichever is the most recent.

BACKGROUND

On February 13, 2002, POMS PR 03-038 was published. This provision addressed the effective date of the parent-child relationship when the relationship was established by DNA testing. The precedent opinion concluded that because the establishment of paternity does not have the effect of legitimating a child in North Carolina, the parent-child relationship was established on the date of the DNA tests. Since the publication of POMS PR 03-038 was issued, you stated that ALJs in North Carolina have not always relied upon the precedent opinion. You stated that some ALJs have found that entitlement begins at the birth of the child, although paternity was not established by DNA testing until well after the birth of the child. An attorney representing plaintiff has formally requested the rescission of POMS PR 03-038.

DISCUSSION

In North Carolina, a claimant may be eligible for benefits as a natural child of a NH if the claimant could inherit a child's share of the NH's estate under North Carolina inheritance laws. 20 C.F.R. Sec. 404.355(a) (2006). In North Carolina, the establishment of paternity does not have the effect of legitimating a child. N.C. Gen. Stat. Sec. 49-14(a) (2006). This statute allows the paternity of a child under 18 to be established after the death of the purported father if there is evidence of a blood or genetic marker test establishing paternity. N.C. Gen. Stat. Secs. 49-14(a), 49-14(d). Once paternity is established pursuant to N.C. Gen. Stat. Sec. 49-14, an illegitimate child can inherit from his or her father. N.C. Gen. Stat. Sec. 29-19(b)(1) (2006). Similarly, the Agency does not apply a state inheritance law that requires paternity to be established before a NH's death to be considered eligible to inherit. 20 C.F.R. Sec. 404.355(b)(2) (2006). Accordingly, the Agency would consider a claimant eligible to inherit if a claimant provides sufficient evidence of paternity in the form of a blood or genetic marker test.

Agency policy is that an act or event conferring inheritance rights generally has effect only from the date of the act or event. POMS GN 00306.055. The policy further states that a state law conferring inheritance rights on a child based upon an adjudication of paternity, but not legitimate the child, is effective prospectively only. Id. Accordingly, POMS PR 03-038 concluded that a child claimant could not inherit until paternity was established, which would be the date of the DNA testing or presentation of other clear and convincing evidence establishing paternity.

However, POMS PR 03-038 did not consider one feature of the North Carolina paternity statute, N.C. Gen. Stat. Sec. 49-14. This section provides that any judgment entered under the section establishing a decedent to be the father of a child shall be entered nunc pro tunc to the day preceding the date of death of the father. N.C. Gen. Stat. 49-14(c). If the state law granting inheritance rights to an out-of-wedlock child makes those rights retroactive for some period prior to the act or event that confers those rights, such as when the child has been legitimated, then benefits would be retroactive. See POMS GN 00306.050. Because the North Carolina paternity statute has a retroactive effect back to the day preceding the death of the father, a parent-child relationship could be established as of that date, rather than the date of the DNA testing or submission of other clear and convincing evidence of paternity.

For the foregoing reasons, we believe GN 00306.580 should be revised to reflect that DNA testing may be used to establish a parent-child relationship retroactively to the day before the death of the deceased father in North Carolina. Of course, benefits could not begin more than six months before the date of the claimant's application. 20 C.F.R. Sec. 404.621(a)(2). Thus, the period of retroactivity would run to the more recent of the day before the father's death or six months before the date of the application.

Mary A. S~
Regional Chief Counsel

By: _________________
Laurie G. R~
Assistant Regional Counsel

C. PR 06-039 Effect of indirect evidence of paternity on child's claim in North Carolina Claimant - Kyan J~ R~ Number Holder - Jamal R~

DATE: December 27, 2005

1. SYLLABUS

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

2. OPINION

Questions

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

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

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

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

Short Answers

As discussed in greater detail below, NC intestacy law requires a child born out of wedlock to prove paternity by clear, cogent, and convincing evidence (rather than clear and convincing evidence), though the standards are similar.¹ We conclude that evidence of the type offered here can certainly be considered in determining whether a child as satisfied the requisite standard of proof. Moreover, we find support for a conclusion that the evidence, here, satisfies that standard. There is, however, also some support for a finding that the evidence presented may not satisfy the clear, cogent and convincing standard. Finally, the prior precedent opinion should be modified to state that DNA testing may be used to establish a parent-child relationship retroactively to the day before the death of the deceased father, or the full retroactive period of the application, whichever is the most recent.

BACKGROUND

The facts as presented are that Jamal R~, the deceased number holder (NH), died on December 23, 2004, domiciled in Rocky Mount, North Carolina. Subsequently, Kyan J. R~ (Claimant) was born on March 11, 2005, to Chantal H~. Ms. H~ and the NH were not married or living together at the time of his death, and his name does not appear as the father on Claimant's birth certificate. NH also never acknowledged Claimant in writing. In support of her claim that NH was claimant's father, Ms. H~ has presented the following evidence: (1) her statement that NH is Claimant's father; (2) a letter from the NH's parents stating that NH is Claimant's father; (3) letters from two friends of NH stating they believe NH is Claimant's father; (4) NH and Ms. H~ parented another child, Jayvein C. R~, whom NH acknowledged in an affidavit; and (5) a "family visitation" program for NH's funeral from the Social Union Baptist Church that lists an "unborn baby boy Kyan J." None of the sources, other than Ms. H~, indicate that NH actually acknowledged Claimant in their presence (even orally). Instead, they express their personal knowledge that NH is Claimant's father.

Authority

On April 29, 3005, Ms. H~ filed a claim for child's benefits on Claimant's behalf on the NH's record. Section 216(h)(2)(A) of Social Security Act (Act) provides:

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

42 U.S.C. § 416(h)(2)(A).

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

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

(2) Any person who has acknowledged himself during his own lifetime and the child's lifetime to be the father of such child in a written instrument executed or acknowledged before a certifying officer … and filed during his own lifetime and the child's lifetime in the office of the clerk of superior court of the county where either he or the child resides.

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

Analysis

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

To establish the paternity of a child born out of wedlock, proof of paternity must be by "clear, cogent, and convincing evidence." N.C. Gen. Stat. § 49-14(b) (2005). "Clear, cogent, and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt." North Carolina State Bar v. Sheffield, 326 S.E.2d 320, 323 (N.C. 1985) (citing In re Montgomery, 316 S.E.2d 246 (N.C. 1984)). In Brown v. Smith, 526 S.E.2d 686 (N.C. 2000), the North Carolina Court of Appeals examined whether the trial court had properly found that the plaintiff presented clear, cogent, and convincing evidence to show that the defendant was the putative father of her child. An expert testified at trial that the sexual relations of the parties were consistent with conception of a child and with a pregnancy that came to term on or about the child at issue's birthday. The plaintiff also testified that she had not had sexual contact with any other man than the defendant for a two year period. Exhibits at trial also indicated that the defendant bore a strong resemblance to the child. The appellate court found that this evidence was sufficient for the trial court to conclude that the defendant was the father of the child under the "clear, cogent, and convincing" standard. ³ See id. at 688. Conversely, in Nash County Dept. of Soc. Servs. ex rel. Williams v. Beamon, 485 S.E.2d 851 (N.C. 1997) the appellate court found that the putative father's testimony that he did not know the child's mother, had not had sexual relations with her, and was not the father of her child was sufficient to rebut the presumption created by a 99.96% probability of paternity from paternity test results.

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

CONCLUSIONS

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

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

Mary A. S~
Regional Chief Counsel

By: _________________
Joseph P. P~, III
Assistant Regional Counsel

Footnotes:

[1]

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

[2]

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

[3]

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