TN 4 (09-08)

A. PR 08-176 Reopening Child's Benefits Allowance Due to New DNA Evidence Deceased Number Holder - Brian K. L~ Claimant - Felicia A. G~

DATE: August 26, 2008

1. SYLLABUS

In a case where a parent-child relationship was established based on a Mississippi Chancery Court order, DNA evidence showing zero probability of a parent-child relationship between the claimant and the deceased number holder would not be sufficient basis for reopening. If the court were to change its order based on the evidence, reopening could be considered.

2. OPINION

QUESTION

You asked whether newly obtained DNA evidence that allegedly shows the deceased number holder was not the claimant's biological father justifies reopening and revising a prior determination granting child's benefits.

OPINION

The DNA evidence, standing alone, does not provide a basis for reopening SSA's prior determination. However, SSA should monitor the state court proceedings and obtain any ruling by the state court regarding the DNA evidence or the status of number holder's relationship to the claimant. SSA could reconsider the possibility of reopening at that time.

BACKGROUND

According to information made available to us, Brian K. L~, the number holder (NH), died on May 25, 2005, while a resident of Mississippi. Felicia A. G~ (Claimant) became entitled to child's survivor's benefits on the wage record of NH in October 2005 based on a Mississippi Chancery Court order of May 3, 2005, determining NH was Claimant's father. Claimant's mother was not married to NH. Lebron L~ (Son) also receives benefits as a surviving child on NH's record. Gloria L~ (Wife), Son's mother, is listed as NH's wife on NH's certificate of death. Wife has produced a DNA test report dated March 18, 2008, using samples obtained from Claimant on March 12, 2008, and purportedly from NH on May 24, 2005, one day before his death. The report shows zero probability that the alleged father, identified as NH, is the biological father of the child, identified as Claimant. The report contains no information as to how the father was identified or the chain of custody of the samples. On May 5, 2008, an attorney for Claimant's mother filed a motion with the Chancery Court objecting to admission of the test results, arguing the testing did not comply with Mississippi statutory requirements.

DISCUSSION

A claimant may be eligible for child's insurance benefits on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual's "child." See Social Security Act (Act) § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1) (2008). "Child" includes the natural child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2008). Claimant established her status as NH's child through section 216(h)(3)(C)(ii) of the Act. This section provides that a claimant may prove child status by showing, first, that she is the daughter of the number holder; and, second, that a court has decreed the number holder to be the claimant's parent. See Act § 216(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(3) (2008); Program Operations Manual System (POMS) GN 00306.100A.1, C.1. SSA determined Claimant was NH's child based on the May 3, 2005, Mississippi court order that decreed NH to be Claimant's father.

SSA may reopen a determination within four years of the date of the notice of the initial determination if SSA finds good cause to reopen the case. See 20 C.F.R. § 404.988(b) (2008). Good cause includes new and material evidence. See 20 C.F.R. § 404.989(a)(1) (2008). In Claimant's case, the DNA report is new because it did not exist at the time of the determination. However, we do not believe the DNA report is material given the current circumstances. Therefore, we do not believe the DNA report provides a basis for reopening SSA's determination that Claimant is NH's child.

The DNA evidence casting doubt on paternity may be relevant in two ways. The evidence could show Claimant is not the daughter of NH; thus, the first prong of section 216(h)(3) would not be met. The evidence could also lead the state court to change its decree, thus eliminating the second prong found in section 216(h)(3)(C)(ii). We have no information that the court has issued a new decree.

The statutory scheme does not explicitly look to state law or state decrees to establish whether a claimant is the biological child of the number holder for the purposes of section 216(h)(3) of the Act. The relevant POMS section states that the "biological son or daughter" may be deemed a number holder's child "regardless of child's status under State Law" if a court decreed the number holder to be the biological parent prior to the number holder's death. See POMS GN 00306.100A.1, B.1. SSA rules allow use of "genetic test results" to establish biological parentage for living number holders. See POMS GN 00306.125B.1.c. The parallel section for deceased number holders does not mention genetic test results. See POMS GN 00306.125.B.2. However, this section allows additional evidence "per GN 00306.125B.1.c if the other parent's whereabouts are unknown or if he/she is incompetent or deceased." Thus, the POMS appears to disfavor genetic test results in a case such as Claimant's, where NH is deceased, the other parent is available and competent, and the issue is an SSA determination based on "other evidence," rather than, for example, on a state-law right to inherit. POMS GN 00306.100D.1 states, "[E]ven if one of the requirements in POMS GN 00306.100B.1 is met [in this case, the state court decree], you must consider evidence that is submitted showing that the NH is not the child's biological parent. However, such evidence must be very persuasive in order to override a written acknowledgment or court action." Id. We do not believe the unauthenticated DNA report is "very persuasive."

Similarly, Mississippi state law, while not controlling in this case, does not accept a genetic testing report at face value and has strict rules regarding the authentication of the reports. These rules govern qualification of testers and require that the expert attach an affidavit addressing, among other things, how the individuals who supplied the samples were identified and the chain of custody of the samples. See MISS. CODE ANN. § 93-9-23(1) (2008). In addition, Mississippi law establishes notice requirements and a right to demand that the expert be called for cross-examination. See MISS. CODE ANN. §§ 93-9-23(2), (4) (2008). Mississippi applies these requirements strictly. The Supreme Court of Mississippi has reversed a trial court's reliance on a genetic testing report simply because the trial court did not call the expert as a witness, holding that the test results were therefore "inadmissible hearsay." Davis v. Washington, 453 So. 2d 712, 714 (Miss. 1984).

In this case, the information provided does not establish that Wife complied with the Mississippi statutory requirements regarding the admission of genetic testing. The circumstances of the sample purportedly from NH are unusual: allegedly obtained one day before his death and tested almost three years after his death. Furthermore, Wife may have interests adverse to Claimant; for example, the family maximum may limit her son's benefits if Claimant is also entitled. Therefore, we can see no reason why SSA should be more casual about reliability than a Mississippi court would be, especially in light of the reluctance in the POMS to use genetic testing as "other evidence" in cases of deceased number holders. We believe that, because the DNA report is not authenticated, it should not be the basis for reopening and revising SSA's determination that Claimant is NH's child.

Although the information provided does not provide a basis for reopening, SSA should monitor the state court proceedings and obtain any ruling issued by the court regarding NH's status as Claimant's father or the authentication and admissibility of the DNA report. The POMS states that SSA should obtain a current decree if "there is any indication of a modification" in a court's finding of paternity. POMS GN 00306.110c.2. A new decree that NH is not the father would mean that Claimant cannot satisfy section 216(h)(3)(C)(ii) of the Act, which requires a court adjudication of paternity. SSA also should obtain any new evidence of authentication of the DNA report that becomes available during the court proceedings. Evidence of proper authentication of the DNA report may mean that Claimant is not the biological child of NH, as required to satisfy the requirements of section 216(h)(3) of the Act.

Either of these situations would satisfy the standards for reopening. However, the current DNA report lacks authentication and is therefore not reliable. Thus, the DNA report is not material and should not be the basis for reopening.

CONCLUSION

For these reasons, we believe that SSA should not reopen Claimant's allowance based on the genetic testing report.

Mary Ann S~
Regional Chief Counsel
By: ______________
Rollin M~
Assistant Regional Counsel