TN 5 (01-06)

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

DATE: January 30, 2006

1. SYLLABUS

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

2. OPINION

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

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

FACTS

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

STATUTORY AUTHORITY

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

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

ANALYSIS

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

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

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

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

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

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

Tennessee evidentiary laws specifically permit scientific testing of "the parties and the child" and "all necessary parties" to determine paternity for purposes of child support. TENN. CODE ANN. § 24-7-112(a)(1)(A), (2) (T~/W~ 2006). For instance, Section 24-7-112 provides that when the results of blood, genetic, or DNA tests show a statistical probability of 99% or greater, the paternity of the putative father may only be rebutted by evidence of: (1) medical incapacity, (2) no access during the probable period of conception, (3) the putative father has/had an identical twin who had sexual relations with the child's mother during the probable period of conception, or (4) evidence in the form of an affidavit is presented that another man engaged in sexual relations with the mother of the child during the period of probable conception and the results of that genetic test indicate that the other man has a statistical probability of paternity of 95% or greater. Here, although NH has a brother, there is no indication that NH's brother is an identical twin. None of the other effective defenses to the presumption of paternity have been presented.[3] However, the DNA tests here show a probability of grandparentage rather than paternity.

With respect to the admissibility of genetic test results in civil or criminal proceedings involving the question of parentage, Tennessee's evidentiary laws further provide that the DNA testing must be conducted by an "accredited laboratory." TENN. CODE ANN. § 24-7-112(a)(3) (T~/W~ 2006). The materials presented indicate that DNA Diagnostic Center's testing procedure was conducted in accordance with the AABB's guidelines. Though there is no indication in the file that DNA Diagnostic Center is accredited by the AABB, the United States Department of Health and Human Services lists DNA Diagnostics Center on its official website as a genetic-testing laboratory that is accredited by the American Association of Blood Banks, see United States Department of Health and Human Services, (visited January 13, 2006) <http://www.acf.dhhs.gov/programs/cse/pubs/directories/genetic-testing/sec3.html>. Therefore, we believe that DNA Diagnostics Center meets the test for an "accredited laboratory" under Tennessee law. See POMS GN 00306.065. Furthermore, while we find no specific statutory or case law reference to establishing paternity based on testing the putative father's parents, in light of the statutory recognition granted to genetic testing in general, we believe the Tennessee courts would accept this report from DNA Diagnostic Center in the context of domestic relations actions, as an accredited laboratory which conducted the DNA test and determined the probability of grandparentage as 99.99%.

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

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

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

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

Very truly yours,

Mary A. S~
Regional Chief Counsel

By______________
Arthurice B~
Assistant Regional Counsel

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

DATE: September 9, 2005

1. SYLLABUS

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

2. OPINION

QUESTION

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

ANSWER

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

BACKGROUND

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

DISCUSSION

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

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

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

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

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

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

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

Very truly yours,

Mary A. S~
Regional Chief Counsel

__________________________
By:Pamela W. W~
Assistant Regional Counsel