SSR 72-32: SECTIONS 216(h)(3)(A)(i)(I), 216(h)(3)(B)(i)(I), and 216(h)(3)(C)(i)(I) (42 U.S.C. 416(h)(3)). -- RELATIONSHIP -- STATUS OF ILLEGITIMATE CHILD -- "ACKNOWLEDGMENT IN WRITING"
20 CFR 404.1101(d)
- When, as a matter of law and in the absence of any regulation to the contrary, there is no affirmative requirement that an "acknowledgment in writing" for purposes of section 216(h)(3) of Social Security Act be attested to by signature of the author, held, the requirement is satisfied if the trier of fact can determine that document in question constitutes a written acknowledgment made or otherwise authorized by the insured worker that an applicant for child's insurance benefits on his account is his son or daughter.
Section 216(h)(3) of the Social Security Act (42 U.S.C. 416(h)(3)) provides, in effect, that a person who is the natural son or daughter of an insured worker but lacks status as his child under State law, may nevertheless qualify, among other ways, as the "child" of the worker, for purposes of entitlement to child's insurance benefits on the insured worker's earnings account, if at an appropriate time (as defined in the Act) the worker
- "has acknowledged in writing that the applicant is his son or daughter."
The question has been raised as to whether this statutory requirement is satisfied if there is clear and convincing evidence that the insured worker timely acknowledged the child in writing, although the document relied upon to establish such acknowledgment was not actually attested to by the insured worker's signature.
From a literal reading of the Act, it is not evident that the statute requires, as a matter of law, that a writing by the insured worker acknowledging a child to be his son or daughter, be attested to by his signature in every case. What is required (as pertinent here) is that the insured worker have "acknowledged in writing that the applicant is his son or daughter." Such a writing, when attested to by the signature of the worker, would ordinarily be of higher probative value with respect to its authorship than one which is not. Conversely, the burden of establishing the authorship of an unsigned written acknowledgment could be a heavier one than if it were signed. In either case, however, the determination of the authorship of a purported written acknowledgment is a question for the trier of fact.
The legislative history of the 1965 Amendments to the Social Security Act, which added section 216(h)(3), does not indicate a contrary intent. Rather, it mainly evidences the concern of the Congress with the inconsistency of treatment afforded to children born out of wedlock by applying the inheritance tests of the several States, which led to the nationally uniform provisions of section 216(h)(3). See S. Rep. No. 404, Part I, 89th Cong., 1st Sess. p.109 (1965). Also see pp. 17 and 267 thereof. Thus, for purposes of section 216(h)93), a single requirement is imposed upon the claimant for child's insurance benefits with respect to the insured individual (i.e., that he be his son or daughter), and a single requirement is reciprocally imposed upon the insured individual with respect to the claimant for child's insurance benefits (i.e., that certain minimum evidentiary requirements prescribed in the statute with respect to the insured individual's relationship to the claimant be met). The Congress has carefully specified in section 216(h)(3) the requisite evidentiary prerequisites, one of which is an "acknowledgment in writing." It could otherwise have specified "an acknowledgment in writing signed by the insured individual." Its failure to do so should not be ascribed to inadvertence. Under the familiar principle of statutory construction, when only one specific item in a class of items is referred to in a statute, other specific items not referred to are intended to be excluded therefrom.
Accordingly, when a claimant for child's insurance benefits is the some or daughter of an insured worker, and there is clear and convincing evidence that the worker timely acknowledged the child in writing, held, the statutory requirement for an acknowledgment in writing may be satisfied even though the document relied upon to establish such acknowledgment was not actually attested to by the insured worker's signature.