Under the Act, a claimant is a number holder’s natural child if: (1) he or she could inherit property through intestate succession as the number holder’s natural child; (2) he or she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he or she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4)the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died. In this case, the claimant does not qualify as the DNH’s natural child under tests two, three, or four, listed above. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, the claimant must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where the NH had his permanent home when he died.

Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, the child must prove paternity by clear and convincing evidence. The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Claimant and the claimant’s brother were half-biological siblings was a “home kit” DNA test. The DNA report does not comply with Arkansas law and there is no corroborating evidence concerning the claimants mother’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, the claimant has not presented clear and convincing evidence to establish paternity. Based on the evidence submitted, the claimant is not entitled to child’s insurance benefits on the DNH’s record.

QUESTION PRESENTED

You have asked us to provide a legal opinion regarding whether the evidence in the claims file, including a home kit half-siblingship deoxyribonucleic acid (DNA) test report, is sufficient to establish a parent-child relationship between Larry, the deceased number holder (DNH), and Keirstyn ^[1] (Keirstyn), the child claimant.

ANSWER

In our opinion, the evidence submitted does not establish that Keirstyn is entitled to child’s benefits on the DNH’s account. If Keirstyn submits additional relevant evidence, our office will evaluate the new evidence.

BACKGROUND

As we understand the facts, Keirstyn was born on January, to Anita (Anita). Keirstyn’s birth certificate does not identify a father. Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy was her father. Keirstyn’s Numident record lists Stacy as her father. The DNH died in Arkansas on August 7, 2009.

On October 11, 2013, Kristina (Kristina), Keirstyn’s guardian, filed a surviving child’s benefit claim on Keirstyn’s behalf on the DNH’s record claiming that she is the DNH’s biological child. At the time of the application, Keirstyn was 14 years old. In support of establishing a biological parent-child relationship, Kristina submitted a certified half-siblingship DNA test report dated September 12, 2013, showing a 99.84 percent probability that Carl (Carl) and Keirstyn were half-biological siblings. A Certificate of Live Birth from the State of Illinois shows that Carl was born on January, and lists the DNH as his father. Carl stated that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young. Thus, Kristina’s claim is that Carl and Keirstyn are half-siblings and that the DNH is their father.

The agency developed the case to determine whether Keirstyn might be the DNH’s child. In reviewing the case, the agency was concerned, among other things, because the DNA testing was the result of a home kit, the results of the DNA analysis stated that they were “non-legally binding,” and the “photo IDs for the persons submitting these samples were not verified by the witness.”

ANALYSIS

A. Requirements for Child’s Insurance Benefits under the Social Security Act

The Social Security Act (Act) provides that the child of an individual number holder who is entitled to old-age or disability benefits or who dies a fully or currently insured individual is entitled to surviving child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350(a)(1), 404.352(a). To be entitled to survivor’s benefits on an insured individual’s account, a child must show she: (1) is that individual’s child, (2) applies for benefits, (3) is unmarried, (4) is under the age of eighteen, and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Here, it is undisputed that Keirstyn applied for benefits, is unmarried, and is under the age of 18. Thus, our focus is only upon whether Keirstyn is the DNH’s child. ^[2] The term “child” includes a natural child. See 42 U.S.C. §§ 402(d)(1), 416(e)(1); 20 C.F.R. § 404.354.^[3] A claimant proves that she is a number holder’s natural child if:

(1) she could inherit property through intestate succession as the number holder’s natural child;

(2) she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment;

(3) she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or

(4) the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died.

See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Keirstyn does not qualify as the DNH’s natural child under tests two, three, or four, listed above. According to the information that we received, Anita, Keirstyn’s mother, and the DNH were never married and did not participate in a ceremony that would have resulted in a valid marriage. Before his death, the DNH never acknowledged Keirstyn as his child in writing, no court decreed him to be her parent or ordered him to contribute to her support, and he never lived with Keirstyn or contributed to her support. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, Keirstyn must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where he had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).

1. 1. 

   Requirements for Inheritance as a Child Under Arkansas Intestate Succession Laws

Arkansas law states that a child is illegitimate when she is born to parents who are not married to each other. Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). Because the evidence does not show that Anita was married to the DNH when Keirstyn was born, Arkansas law considers Keirstyn an illegitimate child. See Ark. Code Ann. § 28-9-209(a)-(c) (identifying circumstances under which child should be considered legitimate).

Under section 28-9-209(d) of the Arkansas Inheritance Code, an illegitimate child may inherit property from her father through intestate succession under Arkansas intestacy law when the child has commenced an action or a claim against her father’s estate within 180 days of her father’s death and the illegitimate child meets at least one of certain conditions:

(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section; ^[4]

(2) The man acknowledged in writing that he is the child’s father;

(3) The man’s name appears with his written consent on the birth certificate as the child’s father;

(4) The mother and father intermarry prior to the child’s birth;

(5) The mother and putative father attempted to marry each other prior to the child’s birth by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid;

(6) The putative father is obligated to support the child under a written voluntary promise or by court order. See Ark. Code Ann. § 28-9-209(d)(1)-(6). ^[5] Here, Keirstyn did not commence any action or file a claim against the DNH’s estate within 180 days of his death. Furthermore, the evidence does not suggest that any of the conditions listed in section 28-9-209(d)(1) through (6) apply to this case. As stated above, no court properly found that the DNH was Keirstyn’s father, there is no evidence that the DNH ever acknowledged Keirstyn in writing, and his name does not appear on her birth certificate. The evidence does not show that the DNH and Anita ever married, attempted to marry or that the DNH promised or was ordered to support Keirstyn.

SSA will not apply a state inheritance law requirement, such as section 28-9-209,^[6] that an action to establish paternity must be taken with a specified period of time required from a numberholder’s death or a child’s birth, or that an action must have been started or completed before the number holder’s death, if doing so would impose an absolute bar to the child’s ability to prove paternity. ^[7] See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.075. In addition, agency regulations provide that if a state inheritance law requires a court determination of paternity, SSA will not require that the claimant obtain such a determination. See 20 C.F.R. § 404.355(b)(2). Instead, SSA will apply the same standard of proof that the state court would apply in making its own determination of paternity. See id. Consequently, for purposes of this analysis, SSA will not require an Arkansas court determination of paternity. Rather SSA will apply the standard of proof that an Arkansas court would apply in making a paternity determination, which is clear and convincing evidence. See id.; see also McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983) (implementing clear and convincing standard in paternity cases). Therefore, in order to inherit from the DNH, Keirstyn must prove her paternity by clear and convincing evidence.

C. The Evidence Does Not Satisfy the Clear and Convincing Evidence Standard

Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, she must prove paternity by clear and convincing evidence. McFadden, 647 S.W.2d at 432; see Ark. Stat. Ann. § 9-10-103(f) (permitting courts to issue a temporary child support order in cases involving paternity disputes if there is clear and convincing genetic evidence of paternity). Clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted.” Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988).

Arkansas courts consider DNA test reports in determining whether a child has provided clear and convincing evidence of paternity. See Ark. Code Ann. § 9-10-108; R~, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey v. Cox, No. 05-1415, 2006 WL 2687046, at *4, 6 (Ark. Ct. App. Sept. 20, 2006) (unpublished) (applying DNA evidence to satisfy clear and convincing standard). Section 9-10-108(a(6)(A) specifically provides that “[i]f the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony of the mother in regard to access during the probable period of conception, it shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut that proof.” Ark. Code Ann. § 9-10-108(a)(6)(A). In order for the DNA evidence to constitute prima facie proof of paternity, however, the test report must satisfy Arkansas statutory requirements for genetic testing. See Ark. Code Ann. § 9-10-108(a)(4),(5),(6) (setting out qualified expert, chain of custody, and percentage of probability requirements).

When a father, such as the DNH in this case, is deceased or unavailable, the trial court may order the mother and child to submit to scientific testing to determine whether paternity testing excludes the putative father as being the child’s biological father, and if the testing does not exclude the putative father, to establish the probability of paternity. See Ark. Code Ann. § 9-10-108(a)(3)(A). If the putative father is unavailable, an Arkansas court may consider DNA test reports from other paternal relatives, including the putative father’s other children’s. See Ark. Code Ann. § 9-10-108(a)(3)(B).

In this case, while the DNA evidence establishes a 99.84 percent probability that Keirstyn and Carl are half biological siblings, it does not comply with other Arkansas law requirements. Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). In addition, a written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him or her before a notary public may be introduced in evidence in paternity actions without calling an expert witness. Ark. Code Ann. § 9-10-108(a)(5)(A). If contested,^[8] documentation of the chain of custody samples taken from test subjects in paternity testing shall be verified by affidavit of one person witnessing the procedure or extraction, packaging, and mailing of the samples and by one person signing for the samples at the place where the samples are subject to the testing procedure. Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Submission of the affidavits along with the submission of the test results shall be competent evidence to establish the chain of custody of these specimens. Ark. Code Ann. § 9-10-108(a)(5)(B)(ii). Arkansas courts have held that in light of the fact that genetic testing can, with a high degree of certainty, identify the father of a child, and, thus, be viewed as conclusive by the fact-finder in paternity suits, the courts have held that strict adherence to the statutory prerequisites is not unreasonable. R~, 785 S.W.2d at 245 (where the laboratory director signed the DNA report, but did not indicate that he performed the test or was a qualified expert, thus, court would not allow DNA report into evidence for lack of statutory foundation). Id. at 246.

The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Carl and Keirstyn were half-biological siblings was a “home kit” DNA test. Carl’s mother-in-law witnessed the extraction, packing, and mailing of the samples to the laboratory. The DNA report states that it is “Non-Legally Binding” and that “Photo ID’s for the persons submitting these samples were not verified by witness.” Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). A written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him. Here, like in R~, the laboratory director and laboratory manager signed the document, but neither of them indicated on the report that they performed the test or that they were qualified experts. Furthermore, the report does not contain the chain of custody affidavits from the testing laboratory as required by Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Thus, the DNA report does not constitute prima facie evidence of paternity under Arkansas law. Ark. Code Ann. § 9-10-108(a)(6)(a).

Moreover, the totality of the other evidence does not constitute clear and convincing evidence of the DNH’s paternity. See R~, 758 S.W.2d at 424 (clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted). The only other evidence submitted to support the paternity claim were: (1) Carl’s statement that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young; and, (2) that Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy Hodges was her father. This evidence does not establish proof “so clear, direct, weighty and convincing to come to a clear conviction, without hesitation” that the DNH is Keirstyn’s father. Id. As such, we find, under the evidence submitted, that Keirstyn is not entitled to child’s benefits on the DNH’s account.

While the record arguably contains some supplemental testimony supporting the claim that the DNH is Keirstyn’s father, ^[9] Keirstyn’s statement may be insufficient. Section 9-10-108(a)(6)(A) clearly contemplates that the child’s biological mother will provide evidence regarding “access” during the period of conception. Ark. Code Ann. § 9-10-108(a)(6)(A). Anita has not provided evidence of access to the DNH during the probable period of Keirstyn’s conception. Therefore, the evidence provided does not satisfy the clear and convincing standard under Arkansas law.

CONCLUSION

Based on the evidence submitted, as the record is currently composed, Keirstyn is not entitled to child’s insurance benefits on the DNH’s record. The DNA report does not comply with Arkansas law and there is no corrobating evidence concerning Anita’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, Keirstyn has not presented clear and convincing evidence to establish paternity. If Keirstyn submits additional relevant information, our office will evaluate the additional evidence.

 

Michael McGaughran

Regional Chief Counsel

By : ___________

Brock C. Cima

Assistant Regional Counsel

The evidence provided constitutes clear and convincing evidence rebutting the presumption that the number holder is Nathan’s legitimate father under Arkansas law and under the Social Security Act (Act). Consequently, Nathan is not entitled to child’s insurance benefits on the number holder’s account.

QUESTION PRESENTED

Whether the evidence in the claims file is sufficient to rebut the presumption of legitimacy of a child born during the marriage between the child’s mother and her legal spouse. Specifically, you asked whether evidence that Nathan , a minor child, was not a child of the marriage between Ella and Robert , the number holder, is sufficient to rebut the presumption of legitimacy.

ANSWER

In our opinion, the evidence provided constitutes clear and convincing evidence rebutting the presumption that the number holder is Nathan’s legitimate father under Arkansas law and under the Social Security Act (Act). Consequently, Nathan is not entitled to child’s insurance benefits on the number holder’s account.

BACKGROUND

As we understand the facts, on December 30, 1989, the number holder married Ella. On or about December 16, 1991, Ella and the number holder separated. In June, Ella gave birth to Antwan, and in June, she gave birth to Nathan. Nathan’s birth certificate names the number holder as the father. On November 8, 1994, an Arkansas court granted Ella’s petition for divorce. The divorce decree stated that the number holder and Ella ceased to live as man and wife and had lived separate and apart since December 16, 1991. The divorce decree named Antwan as the only child of the marriage, and the court ordered the number holder to pay child support for Antwan only.

In 1996, the number holder married Laurel , and they divorced in August 2006. On March 15, 2007, the number holder remarried Laurel. The number holder filed for disability benefits on March 27, 2007, and listed Antwan , Taylor , and Brandy (stepchild) as his dependent children. On April 20, 2007, the number holder died while domiciled in Arkansas. The number holder’s obituary named Antwan, Brandi, and Taylor as his three children.

On April 24, 2007, Ella filed a claim for child’s insurance benefits on Antwan’s behalf on the number holder’s account. She did not list Nathan as the number holder’s child in the application. On August 23, 2011, Ella filed a claim for child’s insurance benefits on Nathan’s behalf on the number holder’s account. Along with her application, Ella submitted Nathan’s birth certificate, which named the number holder as Nathan’s father. In October and November 2011, Laurel sent two written statements to the agency stating that the number holder had never acknowledged Nathan as his child, that Ella had never claimed the number holder was Nathan’s father while the number holder was alive, and that Ella did not file, on Nathan’s behalf, a claim against the number holder’s estate.

ANALYSIS

A child may be eligible for Social Security child’s insurance benefits if he is the child of an individual who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. To determine whether an applicant is the child of a deceased wage earner for the Act’s purposes, the Commissioner of Social Security will apply the intestacy laws of the state in which the wage earner had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)^[10] An applicant who would have the same status relative to taking intestate personal property as the deceased’s child, according to such state law, is deemed a child of the insured individual for Social Security purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, the applicant’s eligibility for child’s insurance benefits depends on whether the applicant could inherit property through intestate succession as the child of the deceased wage earner. In this case, we look at Arkansas law because the number holder had his permanent home in Arkansas when he died.

Arkansas law provides that a child born or conceived during a marriage is presumed to be both spouses’ legitimate^[11] child for intestate succession purposes. Ark. Code Ann. § 28-9-209(a)(2). This is one of the most “powerful presumptions” in Arkansas law. R.N. v. J.M., 61 S.W.3d 149, 155 (Ark. 2001). Even so, Ark. Code Ann. § 16-43-901 permits a mother and her husband to testify about the paternity of a child. ^[12] Putt v. Suttles, 2011 WL 5387435, *10 (Ark. App. 2011). To rebut the presumption of legitimacy under Arkansas law, the biological mother or the biological mother’s husband may present evidence that establishes the date of marriage, period of cohabitation with the biological mother, period of nonaccess with the biological mother, or date of separation. Ark. Code Ann. § 16-43-901(a)-(b). Clear and convincing evidence is the standard to rebut the legitimacy presumption. Ark. Code Ann. § 16-43-901(d); R.N. v. J.M., 61 S.W.3d at 155. “Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established.” Dinkins v. Arkansas Dep’t of Human Servs., 40 S.W.3d 286, 291 (Ark. 2001).

The divorce decree dated November 8, 1994, is evidence that rebuts the presumption that Nathan is the number holder’s child. The divorce decree shows that the number holder and Ella ceased to live as man and wife on December 16, 1991. Nathan’s birth was in June. The evidence shows that Nathan’s birth was more than two years after the number holder and Ella separated and ceased to live as man and wife. No evidence shows that the number holder had access to Ella during the period of conception, which would exclude him from being Nathan’s father. Furthermore, Ella filed for divorce from the number holder, and she listed Antwan as the only child of their marriage. Ella’s representation to the Arkansas court during the divorce proceeding that Antwan was the only child of the marriage suggests that Ella knew Nathan was not the number holder’s son. Thus, it appears that she deliberately did not they give the Arkansas court the opportunity to adjudicate the presumption and establish whether the number holder was Nathan’s legitimate father. Therefore, in our opinion, the divorce decree provides evidence rebutting the presumption that the number holder is Nathan’s legitimate father.

The record includes additional evidence rebutting the presumption that the number holder is Nathan’s legitimate father. See Ark. Code Ann. § 16-43-901(a) (the court will consider any other matters necessary to the establishment of paternity of a child). The evidence shows that the number holder filed for disability benefits on March 27, 2007, and listed only Antwan, Taylor, and Brandy as his dependent children. We believe this shows that the number holder did not acknowledge Nathan as a child of the marriage, which rebuts the presumption of legitimacy. Furthermore, as previously noted, on April 24, 2007, Ella filed a claim for child’s insurance benefits on Antwan’s behalf on the number holder’s account, but she did not list Nathan as the number holder’s child in that application. On August 23, 2011, more than four years later, Ella filed on Nathan’s behalf a claim for child’s insurance benefits under the number holder’s account. In our opinion, in light of the filing on Antwan’s behalf in 2007, Ella’s filing on Nathan’s behalf four years later in 2011 is evidence that rebuts the presumption that the number holder is Nathan’s legitimate father.

In addition, the agency received two statements from Laurel that further rebut the presumption that the number holder is Nathan’s legitimate father. In a letter dated October 13, 2011, and in an e-mail message dated November 11, 2011, Laurel stated that during the time she had known and lived with the number holder, she never heard the number holder acknowledge Nathan as his child. Laurel also stated that Ella had never claimed the number holder was Nathan’s father while the number holder was alive, and that Ella did not file, on Nathan’s behalf, a claim against the number holder’s estate. Finally, Laurel noted that the number holder’s obituary listed only Antwan, Brandi, and Taylor as his three children. In our opinion, this additional evidence also rebuts the presumption that the number holder is Nathan’s legitimate father.

As previously noted, with the application she filed on Nathan’s behalf for child’s insurance benefits on the number holder account in August 2011, Ella submitted Nathan’s birth certificate, which named the number holder as Nathan’s father. However, under Arkansas law, if the mother is married at the time of either conception or birth, or between conception and birth, the husband’s name “shall be” entered on the birth certificate as child’s father unless (1) a court of competent jurisdiction has otherwise determined paternity, or (2) the mother, husband, and putative father all execute affidavits attesting to the child’s proper parentage. See Ark. Code Ann. § 20-18-401(f)(1)(A) and (B). Nathan was born during the time Ella was still married to the number holder. Ella provided no evidence to show that a court otherwise determined Nathan’s paternity or that Ella, the number holder, and the putative father executed affidavits attesting Nathan’s proper parentage. Thus, we believe that the birth certificate named the number holder pursuant to statutory authority, rather than because the number holder acknowledged he was Nathan’s legitimate father.

In our opinion, the totality of the evidence shows that Nathan is not the number holder’s legitimate child. Ella filed for divorce and did not include Nathan as a child born during the marriage. Nathan was born on June , but the number holder and Ella ceased to live as man and wife on December 16, 1991, and there is no evidence that the number holder had access to Ella during the period of conception. The number holder filed for disability benefits on March 27, 2007, and listed only Antwan, Taylor, and Brandy as his dependent children. The fact that Ella filed for child’s insurance benefits on Antwan’s behalf in 2007, but waited until 2011 to file on Nathan’s behalf discredits her representation that the number holder is Nathan’s legitimate father. Laurel’s statements maintain that during the time she knew and lived with the number holder, she never heard the number holder acknowledge Nathan as his legitimate child. Laurel also stated that Laurel did not file, on Nathan’s behalf, a claim against the number holder’s estate. The number holder’s obituary listed only Antwan, Brandi, and Taylor as his three children. Accordingly, we believe that the totality of the evidence, which includes Ella never claiming that the number holder was Nathan’s father while the number holder was alive and that the number holder never acknowledged Nathan as his son, support a firm conviction that rebuts the presumption of legitimacy.

CONCLUSION

In summary, we conclude that the totality of the evidence is sufficient to overcome the presumption that Nathan is the number holder’s legitimate child by the clear and convincing evidence standard. Therefore, Nathan is not entitled to child’s insurance benefits on the number holder’s account.

Michael McGaughran

Regional Chief Counsel

By __________________________

Ruben Montemayor

Assistant Regional Counsel

Arkansas intestate succession law provides that an illegitimate child may inherit real or personal property from the father provided that an action is commenced or a claim is asserted against the father’s estate in a court of competent jurisdiction within 180 days of the father’s death and at least one of the following conditions is satisfied: (1) a court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child; (2) the man has made a written acknowledgment that he is the child’s father; (3) the man’s name appears with his written consent on the birth certificate as the child’s father; (4) the mother and father intermarry prior to the child’s birth; (5) the mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or (6) the putative father is obligated to support the child under a written voluntary promise or by court order.

In this case, although the claimant has obtained DNA test results showing a 99.999 percent probability that the deceased cannot be ruled out as the claimant’s biological father, the test results are not sufficient to overcome the court issued judgment of paternity indicating that another individual is the claimant’s father.

Additionally, the evidence provided does not meet the requirements for the child to be entitled under section 216(h)(3) of the Social Security Act, either.

The purpose of this memorandum is to respond to your request for a legal opinion to determine the status of a child, Daireus , to the number holder, Donald , based on the results of a deoxyribonucleic acid (DNA) test report. You asked whether DNA test results indicating a 99.999 percent probability that Donald was not excluded as Daireus’ biological father are sufficient to rebut a judgment of paternity in which an Arkansas court established that Daireus is Roderick ’s child. ^[13] Thus, the question is whether Daireus is entitled to child’s insurance benefits on Donald’s account based on the DNA test results. In our opinion, Daireus is not Donald’s child under the Social Security Act (Act), and Daireus has not met the conditions for the agency to deem ^[14] him to be Donald’s natural child, regardless of whether the DNA test results are sufficient to rebut the judgment of paternity. Consequently, Daireus has failed to show that he is eligible for child’s insurance benefits on Donald’s account.

BACKGROUND

As we understand the facts, Channell gave birth to Daireus in August. An Arkansas court issued a judgment of paternity on January 7, 1997, which declared that Daireus was Roderick’s child. The Arkansas court ordered Roderick to pay child support for Daireus and ordered the Arkansas Bureau of Vital Statistics to correct Daireus’ birth certificate and name Roderick as his father. Roderick currently pays child support for Daireus. Donald and Roderick were never married. Channell stated that she and Roderick had always known that Donald was Daireus’ father. Channell and Donald were never married. Donald never acknowledged that Daireus was his child, and he never supported or lived with Daireus.

Donald died on February 22, 2010, while domiciled in Arkansas. On February 27, 2010, Medical Resources Testing, Inc. (Medical Resources), collected mouth swab specimen from Channell and Daireus, and from Donald on location at the funeral home, in preparation for DNA testing for paternity determination. On April 28, 2010, Medical Resources issued a DNA paternity test report indicating a 99.999 percent probability that Donald could not be excluded as Daireus’ biological father. In May 2010, Channell filed, on Daireus’ behalf, an application for child’s insurance benefits on Donald’s account. Daireus was under age 18 at the time Channell filed his application for child’s insurance benefits.

DISCUSSION

The Social Security Act (Act) provides that a child of an individual who dies a fully or currently insured individual (insured) is entitled to child’s insurance benefits, beginning with the first month in which the child meets the criteria for child’s insurance benefits. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(1). The term “child” includes a natural child. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. In the case of a child of such an individual who has died, the child must meet the following criteria: (1) the child must have filed an application for child’s insurance benefits; (2) the child is the insured’s child; (3) the child is dependent on the insured; and (4) the child is under age 18, or 18 years old or older and had a disability that began before the child became 22 years old, or the child is 18 years or older and qualified for benefits as a full-time student. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). channell filed an application on behalf of Daireus for child’s insurance benefits and was under age 18 at the time she filed the application. Thus, to meet the criteria for child’s insurance benefits, Daireus must show that he was Donald’s child under the Act and that he was dependent on Donald.

To be considered an insured’s child for the purposes of the Act, the child must show one of the following: (1) the child would be entitled to inherit property through intestate succession under the laws of the state in which the insured had his permanent home when the application for Social Security benefits was filed, or through the intestacy laws of the state in which the insured was domiciled when the insured died; or (2) the child’s parents went through a marriage ceremony, but the marriage was invalid because of a legal impediment. 42 U.S.C. § 416(h)(2)(A)-(B); 20 C.F.R. § 404.355. A child who is not the deceased insured’s child under section 216(h)(2)(A)-(B) of the Act shall nevertheless be deemed to be the child of the deceased insured if: (1) the insured had acknowledged in writing that the child was his, was decreed by a court to be the child’s parent, or was ordered by a court to provide child support because the child was his, and such acknowledgment, court decree, or court order was made before the death of such insured; or (2) satisfactory evidence shows that the insured is the child’s parent and was living with or contributing to the support of the child when the insured died. 42 U.S.C. § 416(h)(3)(C)(i)-(ii).

We first look to whether Daireus could inherit Donald’s personal property under State intestacy law. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1) (a child is eligible for child’s insurance benefits if he can inherit the insured’s personal property under State inheritance laws). The Act provides that to determine whether an applicant is the insured’s child, the Commissioner of Social Security (Commissioner) must apply the law that would be applied to determine the devolution of intestate personal property by the courts of the State in which the insured was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). In this case, Arkansas law applies because Donald was domiciled in Arkansas when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b).

Arkansas intestate succession law provides that an illegitimate child or his descendants may inherit real or personal property from the father provided that an action is commenced or a claim is asserted against the father’s estate in a court of competent jurisdiction within 180 days of the father’s death and at least one of the following conditions is satisfied: (1) a court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of section  28-9-209 of the Arkansas Code;^[15] (2) the man has made a written acknowledgment that he is the child’s father; (3) the man’s name appears with his written consent on the birth certificate as the child’s father; (4) the mother and father intermarry prior to the child’s birth; (5) the mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or (6) the putative father is obligated to support the child under a written voluntary promise or by court order. Ark. Code Ann. § 28-9-209(d)(1)-(6).

Daireus does not satisfy the conditions to inherit Donald’s personal property under Arkansas intestate succession law. A court cannot establish Donald’s parent relationship or determine legitimacy to Daireus under section 28-9-209(a), (b), or (c) of the Arkansas Code because Donald and Channell were never married and never lived together as man and wife, and Daireus was not conceived following artificial insemination. See Ark. Code Ann. § 28-9-209 (see legal opinion’s footnote 3 for statutory requirements under Ark. Code Ann. § 28-9-209)(a)-(c)). Although a court of competent jurisdiction issued a judgment of paternity, the judgment establishes that Daireus is the child of another man, Roderick. There is no evidence showing that Roderick ever acknowledged in writing that he was Daireus’ father. Daireus’ birth certificate does not name Donald as his father; rather it names Roderick. Donald and Channell were never married, and they never attempted to marry each other. Donald never supported Daireus and was not obligated to support him under a written voluntary promise or by court order. Because the evidence shows that Daireus does not satisfy the conditions to inherit Donald’s personal property under Arkansas intestate succession law, he is not eligible for child’s insurance benefits as Donald’s child under section 216(h)(2)(A) of the Act. ^[16]

We next look to whether Daireus would be eligible for Social Security benefits as Donald’s natural child under section 216(h)(2)(B) of the Act. Daireus has not shown that Donald and Channell went through a marriage ceremony, but the marriage was invalid because of a legal impediment. 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2). Thus, Daireus is not Donald’s natural child under section 216(h)(2)(B) of the Act.

We next look to whether the agency will deem Daireus to be Donald’s child even though he does not meet the requirements of section 216(h)(2)(A)-(B) of the Act. 42 U.S.C. § 416(h)(3)(C)(i)(-ii); 20 C.F.R. § 404.355(a)(3). Under section 216(h)(3)(C)(i) of the Act, the agency will deem Daireus to be Donald’s child if before his death he made a written acknowledgment or a court issued an order showing that Donald is Daireus father or that Donald was under an obligation to pay support for Daireus. 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3). As previously noted, there is no evidence showing that Donald ever acknowledged in writing that he was Daireus’ father or that a court ordered him to pay support for Daireus. Thus, Daireus does not meet the requirements of section 216(h)(3)(C)(i) of the Act.

Under Section 216(h)(3)(C)(ii) of the Act, the agency will deem Daireus to be Donald’s child if Daireus provides evidence that is satisfactory to the Commissioner showing that Donald is his father and that Donald was living with or contributing to his support at the time Donald died. 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4). Thus, for the agency to deem Daireus to be Donald’s child, the evidence must show both that the DNA paternity testing results do not exclude Donald as Daireus’ biological father, and that Donald was living with or contributing to the support of Daireus at the time he died. Id. Daireus has not established that he meets both conditions to establish that he is Donald’s child under section 216(h)(3)(C)(ii) of the Act.

While the DNA testing showed a 99.999 percent probability that Donald could not be excluded as Daireus’ biological father, Daireus has not shown that he was dependent on Donald at the time Donald died, which is a primary condition for entitlement to child’s insurance benefits. 42 U.S.C. §§ 402(d)(1)(C)(ii), 416(h)(3)(C)(ii); Mathews v. Lucas, 427 U.S. 495, 498 (1976);5 20 C.F.R. §§ 404.350(a), 404.361(b)(ii). The agency will deem a child to be dependent upon his father or adopting father at the time of the father’s death, unless, at the time of death, such individual (father) was not living with or contributing to the support of such child, and such child is neither the legitimate nor adopted child of such individual, or such child has been adopted by some other individual. 42 U.S.C. § 402(d)(3); see M~, 427 U.S. at 516 (in failing to extend any presumption of dependency, the Act does not impermissibly discriminate against illegitimate children as compared with legitimate children or those illegitimate children who are statutorily deemed dependent). As previously noted, Donald never supported or lived with Daireus. Thus, there is no evidence that Daireus depended on Donald at the time of Donald’s death; consequently, he does not meet the requirements of section 216(h)(3)(C)(ii) of the Act.

While the DNA testing showed a 99.999 percent probability that Donald could not be excluded as Daireus’ biological father, Daireus has not shown that he was dependent on Donald at the time Donald died, which is a primary condition for entitlement to child’s insurance benefits. 42 U.S.C. §§ 402(d)(1)(C)(ii), 416(h)(3)(C)(ii); Mathews v. Lucas, 427 U.S. 495, 498 (1976); ^[17] 20 C.F.R. §§ 404.350(a), 404.361(b)(ii). The agency will deem a child to be dependent upon his father or adopting father at the time of the father’s death, unless, at the time of death, such individual (father) was not living with or contributing to the support of such child, and such child is neither the legitimate nor adopted child of such individual, or such child has been adopted by some other individual. 42 U.S.C. § 402(d)(3); see M~, 427 U.S. at 516 (in failing to extend any presumption of dependency, the Act does not impermissibly discriminate against illegitimate children as compared with legitimate children or those illegitimate children who are statutorily deemed dependent). As previously noted, Donald never supported or lived with Daireus. Thus, there is no evidence that Daireus depended on Donald at the time of Donald’s death; consequently, he does not meet the requirements of section 216(h)(3)(C)(ii) of the Act.

CONCLUSION

In summary, Daireus is not Donald’s child under the Act, and the agency will not deem Daireus to be his child, as Daireus was not dependent on Donald at the time of Donald’s death. Therefore, Daireus is not entitled to child’s insurance benefits on Donald’s account.

Michael McGaughran

Regional Chief Counsel

By __________________________

Ruben Montemayor

Assistant Regional Counsel

The Arkansas Supreme Court has applied the doctrine of res judicata to the issue of paternity when, as in the instant case, paternity was not contested prior to the entry of a divorce decree stating that children were born of a marriage. Based on this, a DNA test showing a 99.99% probability that the number holder is not the claimant's father would not be sufficient to overcome the presumption of legitimacy under Arkansas law and allow reopening of the original decision to award child's benefits on the number holder's record.

The purpose of this memorandum is to respond to your request for an opinion on whether a deoxyribonucleic acid (DNA) test that excludes a number holder as a child's biological father is new and material evidence allowing the reopening of a prior initial determination that the child was eligible for child's benefits on the account of the number holder. Specifically, you asked whether a DNA test report, showing a 99.99% probability that Charles (number holder) is not the biological father of Jade , is sufficient to rebut the presumption of the number holder's paternity under Arkansas law given the fact that Jade was born during a marriage and that the number holder pays child support and has physical custody. We believe that the DNA report is not sufficient to rebut the presumption of paternity.

The number holder married Timothia on August 7, 1999. In December, Timothia gave birth to Jade. The number holder is listed as Jade's father on her birth certificate. The number holder and Timothia were divorced in April 2002. The divorce decree indicated that one child, Jade, was born during the marriage and ordered the number holder to pay child support for Jade.

According to a report of contact dated September 3, 2005, the number holder reported that Jade was conceived during a time when he and Timothia lived apart and when he did not have access to her. The number holder stated that from March 1999 to on or around April 25, 1999, Timothia lived with Darron . The number holder also reported that on or around April 25, 1999, Timothia told the number holder that she was pregnant and that he was the father, and asked to move in with him.

A December 27, 2002, DNA parentage report obtained by Timothia shows the probability of paternity of 99.99 percent that Darron is Jade's biological father. There is no evidence that the number holder underwent DNA testing. On November 16, 2004, Timothia applied for child's benefits for Jade on the account of the number holder, and the application was granted. The number holder reported that he was not aware of the DNA report until July 21, 2005, after which he submitted the report to the Agency in an effort to terminate the benefits.

In a statement dated July 25, 2005, the number holder reported that he had spoken with Legal Aid to have his divorce decree reopened to show that no child was born of his marriage to Timothia. On December 20, 2005, however, the number holder told Agency employee Delilah that Jade was his child, that he had been awarded temporary and physical custody of her, and that he did not intend to seek to have his divorce decree amended. While it appears that, at this time, the number holder does not want the benefits stopped, the Agency is seeking to reopen the application based upon the DNA report showing that Darron is Jade's biological father.

The child of an individual entitled to old-age or disability benefits is entitled to child's insurance benefits when she has filed for benefits, is under age 18, and was dependent on the individual at the time of the application. See 42 U.S.C. § 402(d)(1); 20 C.F.R. §404.350(a). To determine entitlement as a number holder's child, the Agency first applies the law that would determine devolution of intestate personal property by the courts of the state where the number holder was domiciled at the time the application was filed on behalf of the child. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If, under state law, a child could take intestate personal property as a number holder's child, she is considered the number holder's child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

If a child is not a number holder's child for purposes of intestate succession, however, she could still establish eligibility as the number holder's natural child if the number holder acknowledged paternity in writing, was decreed by a court to be her father, or was ordered by a court to pay child support. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3). The child could also establish by other evidence that a number holder is her natural father, such as that she was living with him or that he was contributing to her support. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

Because the number holder is domiciled in Arkansas, we first consider whether an Arkansas court would consider Jade to be the number holder's child for purposes of intestate succession. Under Arkansas law, a child born to marital partners is presumed to be legitimate for all purposes of intestate succession. See Ark. Code Ann. §§ 28-9-209(a)(1) and (d); Hall v. Freeman, 936 S.W.2d 761, 762 (Ark. 1997). Thus, because Jade was born during the number holder's marriage to Timothia, his paternity is presumed and Jade is entitled to inherit from him. While the presumption of legitimacy may be rebutted in certain instances, the number holder, as the husband of Timothia at the time that Jade was born, could not bring a paternity action to rebut the presumption of his paternity. See Ark. Code Ann. § 9-10-104 (petitions for paternity establishment may be filed only by the biological mother, a putative father, or a person for whom paternity is not presumed or established by court order).

Just as the number holder could not bring a paternity action alleging that he was not Jade's father, nor could he challenge that he was her father in any other court proceeding. The Arkansas Supreme Court has applied the doctrine of res judicata to the issue of paternity when, as in the instant case, paternity was not contested prior to the entry of a divorce decree stating that children were born of a marriage. See State Office of Child Support Enforcement v. Williams, 995 S.W.2d 338, 340-41 (Ark. 1999). In W~, a former husband was prevented from relitigating the issue of his paternity of children born of his marriage to his former wife when he failed to raise and litigate the issue of his paternity before entry of the divorce decree, which stated that children were born of his marriage, and when the child support order stated that he was the father of the children. Id. This was true even though blood tests established that the former husband was not the biological father of two of the children born during marriage. Id. Thus, despite the DNA evidence that shows that the number holder was not Jade's biological father, an Arkansas court would consider the number holder to be Jade's father and Jade would be entitled to inherit property of the number holder under Arkansas intestacy laws.

Jade is entitled to benefits on the number holder's account based on other provisions of section 216(h)(3)(B) as well. Jade is eligible to receive benefits under section 416(h)(3)(B)(i) as the evidence shows that the issue of the number holder's paternity was decided by a court when it issued the divorce decree and when it ordered him to pay child support for Jade. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3); W~, 995 S.W.2d at 340. And Jade is eligible to receive benefits under 416(h)(3)(B)(ii) as other evidence shows that the number holder has temporary physical custody of her and is contributing to her support. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

In conclusion, we believe that the DNA report is not sufficient to rebut the presumption of the number holder's paternity and that the November 2004 determination should not be reopened. Rather, we believe that Jade is entitled to benefits on the number holder's account.

Tina M. Waddell

Regional Chief Counsel

By __________________________

Julia Denegre

Assistant Regional Counsel

Under Arkansas law, where a child seeks to establish paternity that will also result in rebutting of the presumption of legitimacy, paternity, the evidence submitted must be clear and convincing. In this case, the evidence consists of DNA tests showing a 99.8 percent probability of the NH's paternity, voluntary statements from the child's mother and the NH acknowledging paternity, an uncontested divorce decree stating that no children were born of the mother's marriage, and the fact that no child support was ordered by the court. The clear and convincing evidence standard is met, and the child may be entitled based on the NH's record.

NOTE: POMS GN 00306.425 is being revised to reflect that in life cases, not involving the presumption of legitimacy, the standard of proof of paternity is a preponderance of the evidence.

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of Garrett to auxillary childhood benefits on the disability account of Steven under Title II of the Social Security Act (the Act). Steven has been entitled to disability insurance benefits under the Act since March 1998. Garrett was born in June, during the marriage of Lana and Roger . Roger is listed on Garrett's birth certificate as the father. The Lana and Roger’s divorced in 1991. On March 28, 2003, Lana filed a childhood disability claim on behalf of Garrett claiming that he is the biological son of Steven. She also wanted to be selected as the representative payee for Garrett.

Evidence supporting Garrett's claim includes deoxyribonucleic acid (DNA) testing between the putative father and claimant establishing a 99.8 percent probability of Steven's parentage, voluntary statements from both Steven and Lana acknowledging that Garrett is their biological son, a 1991 uncontested divorce decree between Lana and Roger stating that no children were born of their marriage, and the fact no child support was ordered by the court. Specifically, you asked whether, under Arkansas law, this evidence is sufficient to rebut the presumption of legitimacy accorded to Garrett because he was born of the marriage between Lana and Roger. After reviewing the facts and the relevant law, as detailed more fully below, it is our opinion that this evidence is sufficient to overcome the presumption of Garrett's legitimacy by clear and convincing evidence, despite the fact that Roger was listed on Garrett's birth certificate as his father. Consequently, Garrett would be entitled to auxillary childhood benefits on the disability account of Steven.

If the insured is living, the Social Security Administration will apply the law of the State where the insured individual had his permanent home when the application for benefits was filed. 20 C.F.R. §§ 404.355(b)(1), (b)(3) (2003). In this case, the evidence indicates that the number holder is domiciled in Arkansas; therefore, Arkansas law applies. Id.

Arkansas recognizes that a child born during a marriage is presumed legitimate. Ark. Code Ann. § 16-43-901(d) (1987, current through 2003 Reg. Sess.). This is one of the most "powerful presumptions" in Arkansas law. See R.N. v. J.M. and B.M., 347 Ark. 203, 213, 61 S.W.3d 149, 155 (Ark. 2001). This presumption may only be overcome by clear and convincing evidence to the contrary. Ark. Code Ann. § 16-43-901(d). Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. See Black's Law Dictionary at 577 (7th ed. 1999). It is more than preponderance of the evidence and is the highest civil standard in the law. Id.

The trial court is required to consider foremost the interests of the child before taking any evidence to include ordering paternity tests or accepting testimony from the litigants due to the potential social consequences. See Ark. Code Ann. § 16-43-901(g)(2). ^[18] The trial court may order the biological mother, her husband, the putative father, and the child to submit to scientific examinations or tests as provided under the Arkansas general paternity testing statute. See Ark. Code Ann. § 16-43-901(e)(1) (referencing Arkansas general paternity testing statute at § 9-10-108 (1987, current through 2003 Reg. Sess.)). ^[19] Additionally, the results of scientific testing or examination are admissible as provided under § 9-10-108 of the Arkansas Code. See Ark. Code Ann. § 16-43-901(e)(2).

Under the Arkansas general paternity testing statute, the results of a paternity test establishing a 95 percent or more probability of paternity, along with some corroborating testimony from the mother regarding "access" during the probable period of conception, as well as the birth and history of the child constitutes a prima facie case of establishment of paternity. See Ark. Code Ann. §§ 9-10-108(a)(6)(A)and(B). While the putative father is living, the legal standard to establish paternity under this statute is by a preponderance of the evidence and, by contrast, if the putative father is deceased the standard is by clear and convincing evidence (reference: our legal opinion No. 02-960, NH Lee , dated December 13, 2003). See McFadden v. Griffith, 647 S.W.2d 432, 432-33 (Ark. 1983); Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988). After the prima facie case is met, the burden of proof shifts to the putative father to rebut the evidence. Id. In this case, the putative father has apparently accepted the validity of the evidence.

The standards for establishing paternity under the Arkansas general paternity statute should not be confused with the clear and convincing standard necessary to overcome the presumption of legitimacy for a child born during a marriage as found under § 16-43-901(d) of the Arkansas code. See R.N. v. J.M. and B.M., 347 Ark. at 214 (the Arkansas Supreme Court indicated that the clear and convincing standard applies in cases where the challenging party seeks to establish paternity that also results in the rebutting of the presumption of legitimacy). Therefore, in those cases where a putative father seeks to establish paternity that will also result in the rebutting of the presumption of legitimacy, he must prove his case by the higher clear and convincing standard. Id.

Applying these principles to the facts of this case, it is our opinion that the evidence is sufficient to overcome the presumption of Garrett's legitimacy by clear and convincing evidence, despite the fact that Roger was listed on Garrett's birth certificate as his father. In a DNA parentage report dated February 27, 2002, DNA Diagnostics Center determined that the probability Steven is Garrett's biological father was 99.8 percent. Additionally, in a signed but undated statement, Steven acknowledged that he was having an affair with Lana during the period of conception, and had voluntarily consented to the DNA parentage test "… to prove Garrett was actually my biological child." ^[20] See SSA Form 795 ("Statement of Claimant or Other Person"). In a signed statement, Lana stated that she always believed that Garrett was the biological son of Steven as opposed to her ex-husband Roger. See SSA Form 795 ("Statement of Claimant or Other Person" dated March 28, 2003).

SSA field office attempts to contact Roger have proven unsuccessful. See SSA Form 5002 ("Report of Contact" dated May 20, 2003). However, a review of the divorce documents between Lana and Roger revealed that while the initial December 14, 1990, complaint listed Garrett as their son, the final uncontested divorce decree dated January 22, 1991, stated that no children were born during their marriage. Furthermore, no child support was ordered by the court in the divorce decree. In our view, the uncontested divorce decree stating that no children were born during the marriage, as well as the fact no child support was ordered by the court, serves as Roger's constructive acknowledgement that Garrett was not his son.

The fact that Roger was listed on Garrett's birth certificate as his biological father is not determinative for our purposes. The general paternity testing statute in Arkansas states that the appearance of the name of the father with his consent on a birth certificate shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father (Steven) to rebut such in a proceeding for paternity establishment. See Ark. Stat. Ann § 9-10-108(b). Here the putative father has acknowledged, and DNA testing confirms, that he is the biological father of Garrett. We believe the previously discussed evidence supporting the conclusion that Garrett is Steven's biological son is sufficient to overcome the presumption of legitimacy by the clear and convincing standard. Such evidence would also be sufficient to overcome the prima facie case established by Roger's name having been listed as Garrett's father on the child's birth certificate. Id.

Additionally, we believe that Roger's name may have been placed on the birth certificate primarily as a record keeping or ministerial function. Under Arkansas law, if the mother is married at the time of either conception or birth, or between conception and birth, the husband's name "shall be" entered on the birth certificate as the father of the child unless (1) paternity has been determined otherwise by a court of competent jurisdiction, or (2) the mother, husband, and putative father all execute affidavits attesting to the proper parentage of the child. See Ark. Code Ann. § 20-18-401(f)(1)(A)and(B) (1987, current through 2003 Reg. Sess.). Furthermore, state law requires that the State Registrar of Vital Records issue a new birth certificate and seal the old one if a court of competent jurisdiction later determines the proper parentage of the child. See Ark. Code Ann. § 20-18-406.

Based upon the foregoing, it is our opinion that the evidence submitted with Garrett's auxillary claim for childhood benefits overcomes by clear and convincing evidence the presumption of legitimacy accorded to Garrett because he was born of the marriage between his mother and Roger. Evidence supporting Garrett's claim include: (1) DNA testing between the putative father and claimant establishing a 99.8 percent probability of Steven's parentage; (2) voluntary statements from both Steven and Lana acknowledging that Garrett is their son; (3) the 1991 uncontested divorce decree between Lana and Roger that stated no children were born of their marriage; and (4) the fact no child support was ordered by the court. Consequently, Garrett would be entitled to auxillary childhood benefits on the disability account of Steven.

Tina M. Waddell

Regional Chief Counsel

By __________________________

Thomas C. Strafuss

Assistant Regional Counsel

Legitimacy In Arkansas

Because Arkansas law does not define the term "conception" or the duration of a normal pregnancy, these terms are presumed to have the meaning generally accepted by the medical community. A pregnancy of 294 days is within the normal range. In light of Arkansas rules of evidence and the strong presumption of legitimacy, an affidavit by the claims representative who spoke with the physician who delivered the child claimant would not suffice to rebut the presumption; a written statement should be obtained. Also, a medical professional should review the contradictory evidence in file concerning whether the child could have been conceived on or before January 10, 1992. If she was conceived on or before that date, under Arkansas law she would be presumed to be the numberholder's legitimate child.

We are responding to your request for our opinion as to the legitimacy of a child born 294 days after the death of the Millie father. Specifically, Alfred and Millie were married on November 5, 1988 in Arkansas. Alfred died on January 10, 1992. In November , Millie gave birth to a girl, Ebony . Millie applied for surviving child's insurance benefits on behalf of Ebony on October 25, 1993. You have requested our opinion as to whether Ebony may be presumed to be the child of the wage earner for purposes of entitlement to surviving child's insurance benefits. For the reasons set forth below, we believe that the issue of whether Ebony is presumptively entitled to benefits turns on the question of whether she was conceived during the marriage of Alfred to Millie . This is a medical question which we are not qualified to answer. We can, however, provide the legal framework within which a decision can be made once this medical question has been answered.

The file you have provided indicates that Alfred and Millie were married on November 5, 1988 in Gilmore, Arkansas. Alfred died from a gunshot wound on January 10, 1992. Millie alleges that she was living with Alfred in Arkansas at the time of his death, and that she had sexual relations with him the morning of the day he died. Millie had a positive pregnancy test on March 17, 1992, and the initial prenatal examination on March 23, 1992 indicated that her last menstrual period was January 8, 1992. An estimated due date based on this examination was October 17, 1992. Subsequent ultrasound testing on May 1, 1992 and July 13, 1992 resulted in a revision of the estimated due date to November 16, 1992. Ultrasound testing on August 7, 1992 indicated a gestational age of 25.5 weeks and led to an estimated due date of November 15, 1992.

In November, Millie gave birth to a six-pound, seven-ounce girl, who she alleges is the child of Alfred. Dr. Robert, who delivered the child, estimated the gestational age of the child to be 38 weeks at the time of birth. In a telephone conversation with a Social Security claims representative, Dr. Robert opined that Alfred could not have been the father of this child. He based his opinion on the mother's last menstrual cycle, the length of gestation, and the child's birth weight. However, Dr. Robert would not provide a written statement because he was closing his practice.

Ebony may be entitled to child's benefits on the earnings record of Alfred if she is his child, she was dependent on him, she applies for benefits, she is unmarried, and she is under age 18. 20 C.F.R. §404.350. Ebony will be considered Alfred 's natural child if she could inherit his personal property as his natural child under Arkansas inheritance laws, since Alfred 's permanent home was in Arkansas. 20 C.F.R. §§404.354, 404.355(a).

Under Arkansas law, a posthumous child of the deceased who was conceived before his death but born thereafter shall inherit in the same manner as if the child had been born at the time of the father's death. Ark. Code Ann. §28-9-210 (Michie 1987). A child born or conceived during a marriage is presumed to be the legitimate child of both spouses. Ark. Code Ann. §28-9-209(a)(2) (Michie 1987). Arkansas courts have held that this presumption of legitimacy is one of the strongest presumptions found in the law, and is rebuttable only by the strongest type of conclusive evidence. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988); Dunn v. D~ , 291 Ark. 492, 725 S.W.2d 853 (1987); Bankston v. Prime W. Corp., 271 Ark. 727, 610 S.W.2d 586 (1981). A child is presumed legitimate if the parents were married at the time the child was conceived, even though they were not married to each other at the time the child was born. Willmon v. Hunter, 761 S.W.2d at 926. The evidence you have supplied with the claims file shows that Millie , Ebony 's mother, was married to Alfred at the time of his death on January 10, 1992. The question, then, is whether Ebony could have been conceived on or before that date.

We have been unable to find any definition of "conception" or the duration of a normal pregnancy under Arkansas law. Therefore, these terms are presumed to have the meaning generally accepted by the medical community. See Kempner's and Dodson Ins. Co. v. Hall, 7 Ark. App. 181, 183, 646 S.W.2d 31, 32 (1983) (medical terms were given their generally accepted meaning, supported by medical testimony in the record). Medical authority states that pregnancy is considered to last 266 days from the time of conception or 280 days from the first day of the last menstrual period if menses are regular at 28 days. The estimated date of confinement is calculated by subtracting three months from the first day of the last menstrual period and adding seven days. Less than 10% of patients deliver on the calculated day, but 50% deliver within one week and 74% to 88% deliver within two weeks. Delivery up to two weeks early or late is normal. Merck Manual of Diagnosis and Therapy, p. 1851 (16th ed. 1992). Thus, according to accepted medical authority, a pregnancy which lasts up to 294 days (280 days plus two weeks) is considered to be normal.

The only Arkansas caselaw we have found which addresses the length of the gestational period is George v. George, 247 Ark. 17, 444 S.W.2d 62 (Ark. 1969). In that case, the court held that the evidence was not sufficient to rebut the presumption of legitimacy where the child was born 281 days after the date the husband last had access to the wife. G~ at 64-65. We are cognizant of General Counsel (GC) Opinion re: Charles , issued by this office on July 26, 1984. Because the facts at issue in the Charles opinion differ from those at issue here, that opinion is not controlling in the instant case. The GC Opinion re: Charles involved a pregnancy which lasted 339 days, or slightly more than 48 weeks, a gestational period clearly outside the medically accepted range of normal. See Merck Manual of Diagnosis and Therapy, p. 1851 (16th ed. 1992). In contrast, Millie 's pregnancy of 294 days, or 42 weeks, is within the normal range.

Moreover, Social Security Ruling 73-28 indicates that the Social Security Administration will allow surviving child's benefits to be paid for a pregnancy lasting up to 334 days. Social Security Ruling 73-28 involved an application for benefits by the posthumous child of a wage earner who died domiciled in New Jersey. Although the child was born 327 days after the wage earner's death, this longer than average gestation period would not, by itself, rebut the presumption of legitimacy under New Jersey law. A New Jersey court had previously recognized medical references to pregnancies lasting from 220 days to 334 days. Jackson v. Prudential Insurance Company of America, 254 A.2d 141 (N.J. Super. Ct. 1969). The Social Security Administration further noted that the record was devoid of any indication that the mother of the child had had any amorous association with any man other than her husband. Soc. Sec. Rule 73-28 (C.E. 1976- 1980). Under the facts at issue here, the file also lacks evidence that Millie had a relationship with any man other than her husband.

The only evidence that detracts from Millie's assertion that Alfred was the father of Ebony is an oral statement by Dr. Robert, the physician who delivered Ebony. Dr. Robert opined that, based on Millie's last menstrual cycle, the length of gestation, and the child's birth weight, Alfred could not have been Ebony's father. Although we of course would defer to SSA regarding the ultimate weight to be given to Dr. Robert's opinion, we note that the claims representative's repetition of Dr. Robert's oral statement likely would not be admissible in an Arkansas court because it is hearsay. Arkansas law defines hearsay as a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Ark. R. Ev. 801(c) (Michie 1994). Hearsay is not admissible. Ark. R. Ev. 802 (Michie 1994). Although there are several exceptions to the hearsay rule, we do not believe that any of them apply to these facts. See Ark. R. Ev. 803, 804 (Michie 1994). See also Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835, 841 (1992) (residual hearsay exception is intended to be used very rarely, and only in exceptional circumstances).

Moreover, Arkansas case law suggests that an affidavit by the claims representative who spoke with Dr. Robert would not suffice. Ordinary affidavits taken under oath do not carry the same trustworthiness as the exceptions in Ark. R. Ev. 804(b)(5). Poe v. State, 291 Ark. 79, 722 S.W.2d 576, 578 (1987). Thus, the Arkansas Rules of Evidence suggest that the statement of the claims representative who received this opinion from Dr. Robert over the telephone would be considered hearsay and would not be admissible in an Arkansas court to prove that Alfred was not Ebony 's father. In addition, the Arkansas policy that presumptions should work in favor of legitimacy would further deter an Arkansas court from finding that Ebony was not the legitimate child of Alfred based on the hearsay statement of the Social Security claims representative. Cf. Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 501 (8th Cir. 1992) (rejecting hearsay evidence). Accordingly, if SSA is inclined to give significant weight to Dr. Robert's opinion, we would suggest that SSA obtain a written statement from Dr. Robert.

Furthermore, we note inconsistencies in the medical evidence which possibly should be resolved by a medical expert. Dr. Robert's initial impression at Millie's first prenatal examination on March 23, 1992 was that her uterus was the appropriate size for a 10-week-old pregnancy and that her estimated delivery date was October 17, 1992. This estimate would place the date of conception around January 10, 1992. In contrast, ultrasound examinations on May 1, 1992, July 13, 1992, and August 7, 1992 indicated a delivery date of November or November . Ebony was born in November , a date which would make it difficult to determine the reliability of the above assessments. The SSA may wish to resolve these contradictions in the medical evidence by obtaining the opinion of a medical professional to determine whether Ebony could have been conceived on or before January 10, 1992. We note that Gayle , a claims representative, recommended that the evidence be reviewed by someone with a medical background. We were unable to find any such evaluation in the file.

For the above-stated reasons, we believe that the medical evidence of record should be reviewed by a medical professional who should provide a written statement as to whether Ebony could have been conceived on or before January 10, 1992. If Ebony was conceived on or before January 10, 1992, the date Alfred died, then under Arkansas law she would be presumed to be Alfred 's legitimate child. Because she would be able to inherit Alfred 's property, she would be entitled to surviving child's insurance benefits on his account.