In Mississippi, a claimant whose relationship to the number holder is established based on DNA testing which establishes a full siblingship to another entitled child will be eligible for benefits effective with the date of the test results.

Question Presented

In considering this claim arising out of Mississippi for child's survivor's benefits, you asked whether a child could be paid retroactively from the date of DNA testing showing her to be the full sibling of a child already receiving benefits on the number holder's record based on a court order of paternity.

Short Answer

This out-of-wedlock child of the number holder, who established paternity through DNA test results and a court order of paternity, would be paid prospectively from the date she established paternity.

Background

Jeffrey H~, the number holder (NH), and Tiffany H~ (Claimant's mother) were married in December 1995 and divorced in February 2000. After their divorce, NH and Claimant's mother continued to live together until his death on January 24, 2002; however, they did not remarry. After NH's death Claimant's mother applied for survivor's benefits on behalf of Sydney H~ (sister), who was born during the course of the marriage on February 1, 1998. The Social Security Administration (SSA) approved this application.

Jaden H~ (Claimant) was born on July 12, 2002, approximately six months after NH's death. Although NH is listed as Claimant's father on her birth certificate, there is no evidence that NH acknowledged Claimant as his child either orally or in writing. On September 23, 2002, Claimant's mother filed an application for survivor's benefits on Claimant's behalf. This application was denied initially on October 8, 2002, and on reconsideration on May 21, 2003. Claimant's mother did not appeal the reconsideration denial of this first application. Claimant's mother subsequently obtained DNA testing in December 2004 showing a 99.99% probability that Claimant and her sister were full siblings. Claimant's mother then filed a second application for benefits on January 31, 2005, that was denied on February 14, 2005. Claimant's mother did not appeal the initial denial of the second application.

On August 3, 2007, the Chancery Court of Harrison County, Mississippi, issued an Order Adjudicating Paternity finding "clear and convincing evidence" that NH was Claimant's biological father pursuant to the Mississippi Uniform Law of Paternity, MISS. CODE ANN. § 93-9-9 (2007). In making this decision, the court considered oral argument, the sibling DNA testing with supporting affidavit, and the presentation of testimony, including the testimony of a court-appointed guardian ad litem. That same day, August 3, 2007, Claimant's mother filed the current application for benefits on Claimant's behalf. SSA found that the court order established NH was Claimant's father and that Claimant was entitled to benefits effective August 2007.

Applicable Law

Program Operations Manual System (POMS) PR 01115.027 sets forth the relevant provisions of the Social Security Act (Act) and applicable Mississippi law governing the ability of illegitimate heirs to inherit through the natural father.

Discussion

Although NH and Claimant's mother had been married in the past, they divorced several years before Claimant's birth; and NH died before her birth. No court adjudicated Claimant's paternity or legitimacy before NH died. Consequently, Claimant can inherit from the NH only if there is an adjudication of paternity based upon clear and convincing evidence. MISS. CODE ANN. § 91-1-15(3) (2007); In re Estate of Grubbs v. Woods, 753 So. 2d 1043, 1052 (Miss. 2000); In re Estates of Davidson v. Shannon, 794 So. 2d 261, 265 (Miss. Ct. App. 2001). Although the Chancery Court adjudicated Claimant's paternity under the Bastardy provisions of Mississippi law, section 91-1-15(3)(c) specifically requires an adjudication of paternity in an "heirship proceeding" brought, at least, within one year after the insured's death. However, SSA does not consider limitations to adjudication by a particular state court or time limits of the sort included here when it determines child status under section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). See 20 C.F.R. § 404.355(b)(2) (2007). SSA uses 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). Here, the state court adjudicated Claimant's paternity under the "clear and convincing evidence" standard.

You asked whether Claimant could be paid retroactively from December 2004 when DNA testing showed her to be the full sibling of her sister who is already receiving benefits on NH's record. While DNA tests results in general are probative evidence of paternity in Mississippi, they are not conclusive. See Chisolm v. Eakes, 573 So. 2d 764, 766 (Miss. 1990) ("[t]he general rule appears to be that (genetic) results, properly authenticated and supported by other evidence, are admissible as evidence of paternity, but are not necessarily conclusive"). The Chisolm court quoted with approval the Texas Court of Appeals holding in In re E.G.M., 647 S.W.2d 74, 78 (Tex. Civ. App. 1983) (emphasis added):

While paternity may be conclusively disproved, conclusive proof of paternity remains an unattainable goal . . . . Even probabilities that are high do not necessarily compel a particular finding as a matter of law. Nor do we think that the results of high probability standing alone necessarily equate to a preponderance of the evidence. A trial of paternity is essentially a trial of the complaining mother's credibility . . . blood testing assists in the truth finding process but does not compel a decision in a non-exclusion case.

The Chisolm court concluded that "absent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law." 573 So. 2d at 768; see also Estate of Grubbs, 753 So. 2d at 1052 ("Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.") (citing Chisolm). As a result, paternity tests by themselves, even paternity tests done on the putative father, do not amount to a preponderance of the evidence, a lower standard of proof than the "clear and convincing" standard. See Estate of Grubbs, 753 So. 2d at 1048, 1052. Instead, paternity test results must be coupled with additional, convincing evidence to meet the clear and convincing standard of proof in Mississippi. Thus, while the DNA test results showing siblingship are probative of paternity, the DNA test results alone would not satisfy Mississippi's clear and convincing standard of proof.

Prior to providing the August 2007 order establishing paternity, Claimant offered no statements from her mother or other family members or friends showing that NH was her father. The only statement in the materials provided to us was made by NH's mother and merely states that NH and Claimant's mother were living together at the time of his death. Proof by clear and convincing evidence reflects "the high degree of confidence society demands in adjudications of paternity" and requires a level of proof greater than a preponderance of evidence, but less than beyond a reasonable doubt. Id. at 1048. It does not appear that the DNA test results showing siblingship, coupled with the statement of NH's mother, provided clear and convincing proof that NH was Claimant's father. Although not apparent from the information provided, SSA may have reached the same conclusion when it denied Claimant's second application in February 2005.

Under 20 C.F.R. § 404.621(a)(2) (2007), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which she files her application. If a child proves she is the legitimate child of an insured individual and entitled to benefits, that entitlement will extend through the full retroactive period of her application (that is, from six months before the application or the child's birth, whichever occurs later), because a child is considered legitimate from birth. POMS GN 00306.050 and GN 00306.085. On the other hand, an illegitimate child might not be entitled to retroactive benefits because an applicant is not entitled to benefits before she proves she meets all entitlement factors; and an illegitimate child hasn't proven child status (in this case, would not be able to inherit a child's share of NH's intestate estate) until she 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 the state law granting inheritance rights to an illegitimate child also accords those rights for periods before the act or event that confers those rights, such as when the child has been legitimated. POMS GN 00306.050. MISS. CODE ANN. § 91-1-15 does not confer legitimacy. We were unable to find any cases indicating an illegitimate child is legitimated by establishing paternity under section 91-1-15. Accordingly, Claimant would be entitled to benefits as an illegitimate child with inheritance rights. Therefore, as an illegitimate child, she is not entitled to retroactive benefits.

Conclusion

For the foregoing reasons, we do not believe that Claimant could be paid benefits retroactively to the date of DNA test results. Sincerely,

Very truly yours,

Mary A. S~

Regional Chief Counsel

Joseph P. P~,

Assistant Regional Counsel

In Mississippi, DNA testing showing a 99.99 percent probability that the number holder is father of the claimant is sufficient to reopen a prior disallowance within four years of the initial determination.

The relationship may be established effective with the date of the testing.

In considering this child's claim for survivor's benefits, you asked whether an earlier application for benefits which was previously denied, should be reopened based on new DNA evidence that established the claimant as number holder's child?

Having considered the evidence presented, and the applicable federal and state law, it is our opinion that the addition of the DNA test results would allow reopening of the claimant's earlier determination.

FACTS

Deceased number holder (NH) Raiford C~, Jr. died on October 21, 2000, while domiciled in Mississippi. Raiford J~ (Claimant) was born on May 15, 2001. SSA originally denied survivor's benefits to Claimant on January 21, 2003, because Claimant failed to prove Claimant's relationship to NH. Claimant then filed a request for reconsideration on March 11, 2003, which was denied on September 22, 2003. Claimant's mother said she thought she filed a request for hearing for Claimant at the same time that she filed one for another one of her children. SSA could not find a request for hearing for Claimant. At the hearing on the other child, the judge instructed Claimant's mother to have both Claimant and her other child DNA tested. DNA testing revealed a 99.99% probability that NH was Claimant's biological father.

Claimant's mother waited for a letter of approval on Claimant. She made an appointment with the local field office with a protective filing date of November 10, 2005. At the initial interview on November 28, 2005, she brought a copy of the DNA test results. SSA ordered the prior file to determine if there was a copy of a hearing request in the file but none was located. SSA approved benefits for Claimant beginning May 2005 (six months retroactive from the filing date). Besides the DNA testing, we are unsure of what additional evidence Claimant presented to establish his relationship to NH.

ANALYSIS:

Retroactivity

Under 20 C.F.R. § 404.621(a)(2), an applicant for child's benefits can receive benefits for up to six months immediately before the month in which he or she files his or her application. If a child proves he or she is the legitimate child of an insured individual and entitled to benefits, that entitlement will extend through the full retroactive period of his or her application (that is, from six months before the application or the child's birth, whichever occurs later), because a child is considered legitimate from birth. See POMS GN 00306.050 and GN 306.085. On the other hand, 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 proven child status (in this case, would not be able to inherit a child's share of NH's intestate estate) 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 the state law granting inheritance rights to an illegitimate child also accords those rights for periods before the act or event that confers those rights, such as when the child has been legitimated (see POMS GN 00306.050). You asked whether, since Claimant qualifies as NH's child, the evidence would entitle Claimant to benefits before the DNA testing or event established his child status.

Even though an illegitimate child in Mississippi establishes entitlement to inheritance rights from and through the illegitimate's natural father and his kindred under Section 91-1-15 of the Mississippi code, see MISS. CODE ANN. § 91-1-15, that statute does not confer legitimacy to the illegitimate child. See MISS. CODE ANN. § 91-1-15. On the other hand, section 93-17-1 provides for legitimation of Claimant if the natural father marries the natural mother and acknowledges Claimant. See MISS. CODE ANN. § 93-17-1 (West. Ann. 2005). Since Claimant's mother and NH never married, this statute would not legitimate Claimant. Another way to legitimate offspring is under the "adoption statute, § 93-17-1 MISS.CODE ANN. (Supp.1988) under which procedure the Chancery Court is authorized to make legitimate any living child of the petitioner not born in wedlock and to decree the offspring an heir of the petitioner." See Perkins v. Thompson, 551 So.2d 204, 207 (Miss. 1989). Here, there was no paternity action, no adoption action, and no legitimation proceeding prior to NH's death. Therefore, this statute would not legitimate Claimant either. Accordingly, since an SSA adjudicator has determined Claimant established paternity for inheritance purposes, then the claimant here is entitled to benefits as an illegitimate child with inheritance rights. Therefore, as an illegitimate child, he is not entitled to benefits prior to the date of the DNA test or whatever event determined paternity.

Reopening

Under the relevant Social Security regulations, 20 C.F.R. §§ 404.987, 404.989 (2006), a decision may be reopened under certain circumstances. A decision may be reopened within 12 months of the date of the notice of the initial determination for any reason. See 20 C.F.R. § 404.988(a). A decision may be reopened within four years of the initial determination, if SSA finds good cause for reopening. See 20 C.F.R. § 404.988(b). Here, the initial application on Claimant's behalf was denied on January 21, 2003, and the DNA testing was presented to SSA on November 28, 2005, which is within four years of the initial 2003 determination. Good cause for reopening includes receipt of "new and material evidence." 20 C.F.R. § 404.989(a)(1)(2006). Evidence is "new" if it is "not duplicative or cumulative" and is "material" if there is a "reasonable possibility that the new evidence would have changed the outcome." Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 711 (6th Cir. 1988). This court standard, applicable to remands under sentence six of § 205(g) of the Social Security Act, 42 U.S.C. § 406(g), is similar to the regulatory standard at 20 C.F.R. § 404.989, POMS GN 04010.030 (new and material evidence is evidence that was not part of the file when the final determination was made, relates back to the time of the original determination, and shows facts that would result in a conclusion different from the conclusion originally reached). The DNA test results here are "new" given that they did not exist at the time of the initial determination.

The next issue is whether the DNA test results are material. Mississippi's intestacy statute applicable to persons born out-of-wedlock is silent on the use of scientific tests for purposes of establishing paternity. See MISS. CODE ANN. § 91-1-15(3). However, Mississippi courts do recognize "any" evidence tending to prove or disprove paternity for inheritance purposes, including blood tests. Taylor v. Perkins, 609 So.2d 390, 394 (Miss. 1992)("Today we accept that blood tests can 'produce a high level of discrimination either excluding or including a given male as the father of a particular child'")(quoting Baker by Williams v. Williams, 503 So.2d 249, 253 (Miss. 1987)). While DNA tests results in general are probative evidence of paternity in Mississippi, they are not conclusive. See Chisolm v. Eakes, 573 So.2d 764, 766 (Miss. 1990)("[t]he general rule appears to be that (genetic) results, properly authenticated and supported by other evidence, are admissible as evidence of paternity, but are not necessarily conclusive") (emphasis added). The Chisolm court quoted with approval the Texas Court of Appeals holding in In re E.G.M., 647 S.W.2d 74, 78 (Tex. Civ. App. 1983)(emphasis added):

While paternity may be conclusively disproved, conclusive proof of paternity remains an unattainable goal ... Even probabilities that are high do not necessarily compel a particular finding as a matter of law. Nor do we think that the results of high probability standing alone necessarily equate to a preponderance of the evidence. A trial of paternity is essentially a trial of the complaining mother's credibility … blood testing assists in the truth finding process but does not compel a decision in a non-exclusion case.

The Chisolm court concluded that "absent some statutory pronouncement, paternity test results, even those showing a high probability of paternity, cannot be conclusive as a matter of law." 573 So.2d at 768; see also Estate of Grubbs, 753 So.3d at 1052 ("Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive.")(citing Chisolm). Based on this reasoning in Chisolm then, paternity tests by themselves, even paternity tests done on the putative father do not even amount to a preponderance of the evidence, a lower standard of proof than the clear and convincing standard that is required in cases where paternity must be established after the putative father's death. See Estate of Grubbs, 753 So.2d at 1048, 1052. Instead, paternity tests which are done on the putative father must be coupled with additional, convincing evidence to meet the clear and convincing standard of proof in Mississippi.

We assume the SSA adjudicator did not determine that Claimant was NH's child based on the DNA testing results alone. We assume that Claimant's mother initially provided SSA with non-DNA testing evidence during the initial determination and then later provided SSA with the DNA test results. We assume that the corroborative DNA testing, coupled with that additional evidence, was the basis for the SSA adjudicator's decision that Claimant proved he was NH's biological child. If those assumptions are correct, then the DNA test results would be material evidence.

However, an illegitimate child cannot qualify for benefits before the evidence necessary for a determination of child status is presented. That is, even if SSA reopened the January 2003 determination, Claimant could not qualify for benefits before March 1, 2004, the date of the DNA test results at the earliest. SSA approved benefits for Claimant beginning May 2005 (six months retroactive from the filing date). Therefore, based on the assumptions above, Claimant's prior determination can be reopened and Claimant can be allowed benefits beginning on March 1, 2004.

Very truly yours,

Mary A. S~

Regional Chief Counsel

Arthurice T. B~

Assistant Regional Counsel

In Mississippi, DNA testing showing a 99.71% probability that the number holder is the father of the claimants is not sufficient to overcome the presumption that the husband of the claimants' mother is father to both children.

If the evidence had been sufficient to rebut the presumption of legitimacy and establish the children as illegitimate children of the number holder, the relationship would have been established as effective with the date of the DNA testing.

QUESTIONS

You asked several questions concerning whether Damonicka W~ (C1) and Broderick W~, Jr. (C2) may be entitled to child's insurance benefits on the record of the deceased number holder, Broderick W~, Sr. (NH), on the basis of DNA testing of NH's father, Lawrence W~, and NH's sister, Michelle W~. Specifically, you asked:

Is DNA evidence submitted from the father and sibling of NH sufficient to rebut the presumption of paternity that Donald W~ is C1 and C2's father and to establish the children's relationship to NH under Mississippi intestacy law?

If the children meet the requirements of an illegitimate child with inheritance rights of NH, can the children be paid retroactively or prospectively from the date of the DNA?

If the children can be paid retroactively, should the previous denials be reopened to allowances?

In April 2006, we spoke with Betty C~ to clarify the questions asked, and agreed that the questions should address both the sufficiency of DNA testing when establishing a probability of paternity under Mississippi law and whether DNA testing is sufficient to rebut the presumption that Donald W~ is the children's legitimate father. We also agreed that the opinion should address the accreditation requirements for genetic testing laboratories under Mississippi law. Thus, the questions to be answered are:

Can C1 and C2 be entitled to child's insurance benefits on NH's record on the basis of DNA testing of NH's father and sister?

Is this DNA testing sufficient to rebut the presumption that Donald W~ is the children's father?

If the children are entitled to benefits on NH's record, can the children be paid retroactively or would their benefits be prospective from the date of the DNA testing?

If the children could be paid retroactively, should the Agency reopen the children's previous denials?

What are the accreditation requirements for genetic testing laboratories under Mississippi law?

ANSWERS

The DNA testing on NH's father and sibling that shows a 99.71% probability that NH is the father of the children in this case may create a presumption of paternity under the Mississippi paternity statute, but such evidence alone would not establish that C1 and C2 are NH's children for entitlement purposes.

The DNA testing in this case alone cannot rebut the presumption that Donald W~ is both children's father. Thus, when taking into account all of the evidence before the Agency, including the DNA testing, a Mississippi court would find C1 and C2 to be the children of Donald W~. Thus, an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes.

C1 and C2 are not entitled to benefits on NH's record, and thus, retroactive payment is not at issue. The children's prior applications should not be reopened, because they are not entitled to benefits on NH's record; however, only C2's prior application could have been reopened pursuant to the regulations, if he could be paid retroactively.

Mississippi does not expressly require an accredited laboratory to conduct genetic testing used to establish inheritance rights. We would expect a court that was concerned about the validity of genetic testing in an inheritance proceeding to consider the accreditation requirements found in the state's paternity provisions. The testing facility here appears to satisfy those paternity provisions; however, the issue of accreditation does not seem to be an issue in this case.

BACKGROUND

On January 27, 2001, NH died while domiciled in Mississippi. C1 was born on June 4, 1995. C2 was born on August 18, 2001. The children's mother, Ronda W~, has been married to Donald W~ since December 19, 1988. There is no evidence in the file that they ever divorced. In fact, the children's grandmother, Beulah R~, signed an SSA-795 stating that, to her knowledge, Ronda W~ and Donald W~ never divorced.

On September 10, 2004, Beulah R~ (Applicant), applied for surviving child's benefits on the children's behalf. Applicant submitted the results from a DNA kinship test dated April 12, 2005. The DNA samples were taken from Ronda W~, C1, and C2 as well as Lawrence W~, NH's father, and Michelle W~, NH's sister. The results showed that NH was not excluded as the children's biological father and that the probability of paternity was of 99.71%. The conclusion was based upon the assumption that Michelle W~ was NH's biological full sibling and Lawrence W~ was NH's biological father. This DNA test was conducted by Reliagene Technologies, Inc. Reliagene's stationary claims that it is accredited by "the Parentage Testing Committee of the American Association of Blood Banks."

The record also includes copies of the children's birth certificates. C1's birth certificate lists Donald W~ as the father. C2's birth certificate does not list a father. Furthermore, the record includes a form SSA-795 signed by Donald W~ in July 2001 that states he is not the father of C1 or "the unborn child that Ronda W~ is carrying." We can infer that the referenced unborn child is C2 (who was born on August 18, 2001).

DISCUSSION

1. Sufficiency of DNA testing of the father and sister of NH to establish paternity under Mississippi law and entitle C1 and C2 to child's insurance benefits on NH's record.

When determining entitlement to surviving child's benefits, the Agency applies the inheritance laws of the state where the insured had his permanent home when he died. See § 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) (2006). Agency regulations further provide that if applicable state inheritance law requires a court determination of paternity, the Agency will not require a court determination, but will decide paternity by using the standard of proof that the state court would use. 20 C.F.R. § 404.355(b)(2). The Agency will also not apply any state inheritance law that an action to establish paternity must be taken within a specified period of time measured from the worker's death or the child's birth. See id. NH was domiciled in Mississippi when he died.

Under Mississippi law and POMS PR 01115.027A, a child may inherit from the father through intestate succession if paternity is established by an adjudication supported by clear and convincing evidence and if the adjudication is commenced within one year after death of the intestate or within 90 days after the first publication of notice to creditors to present their claims, whichever is less. See Miss. Code § 9-1-15(3)(c). Proof by clear and convincing evidence reflects "the high degree of confidence society demands in adjudications of paternity" and requires a level of proof greater than a preponderance of evidence, but less than beyond a reasonable doubt. See In re Estate of Grubbs, 753 So.2d 1043, 1048 (Miss. 2000); Smith v. Bell, 876 So.2d 1087, 1090-91 (Miss. Ct. App. 2004).

Mississippi's intestacy statute does not address genetic testing, but its paternity statute does. Under the Mississippi version of the Uniform Parentage Act (UPA), there shall be a rebuttable presumption of paternity if the court finds that the probability of paternity (as calculated by the experts qualified as examiners of genetic tests) is 98 percent or greater. See Miss. Code. § 92-9-27(2). This presumption may only be rebutted by a preponderance of the evidence. Id. However, the state of Mississippi does not recognize the use of UPA paternity presumptions in an intestacy proceeding or mandate the necessity of DNA testing "in cases of descent among illegitimates." See Smith v. Bell, 876 So.2d 1087, 1092 (Miss. Ct. App. 2004); see also Grubbs, 753 So.2d at 1052 ("Genetic test results are admissible as evidence of paternity, but are not necessarily conclusive."). Rather, the courts look to both genetic and non-genetic evidence to determine paternity in an intestacy proceeding. See Grubbs, 753 So.2d at 1051-53 (blood tests yielding a 99.59649% probability of paternity is not conclusive, given conflicting non-genetic evidence offered by the parties).

Given this authority, we conclude that the courts will not look to the paternity provisions in the UPA to govern paternity proceedings under the state's intestacy statutes. Thus, it is our opinion that the DNA testing that shows a 99.71% probability that NH is the father of the children in this case may create a presumption of paternity under the Mississippi paternity statute, but such evidence alone would not establish that C1 and C2 are NH's children for entitlement purposes.

2 . Sufficiency of DNA testing to rebut the presumption that Donald W~ is the children's father.

Donald W~ has been married to Ronda W~ at all times relevant to this application for benefits, and both C1 and C2 were born while Ronda W~ was married to Donald W~. Thus, Donald W~ is presumed to be the children's natural father under Mississippi law. See Bell, 876 So.2d at 1091. Consequently, an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes based on the facts provided to the Agency, even with the DNA testing establishing a 99.71% probability that NH is the father of the C1 & C2.

Under Mississippi law, "the presumption of legitimacy is one of the strongest known to our law." Bell, 876 So.2d at 1091 (citing Kareina by Vronsky v. Presley, 526 So.2d 518, 5123 (Miss. 1988). A party challenging legitimacy may prevail if he proves beyond a reasonable doubt that the legal husband of the mother is not, in fact, the biological father. Id. at 1091. The heavy burden is a function of the level of confidence public policy demands in findings of illegitimacy. See In Re Estate of Taylor, 609 So.2d 390, 394 (Miss. 1992). Any evidence tending to support or deny paternity may be considered. Id. The Supreme Court of Mississippi also noted in dicta that to rebut the presumption, the court should be "left with the firm and definite conviction that a mistake had been made" and that the evidence shows that the child was the son or daughter of the putative father and not the son or daughter of the legal husband, despite the strong presumption of legitimacy. See Bell, 876 So.2d at 1091. "The question in the end is whether the court can say beyond a reasonable doubt, given the totality of the circumstances as shown by all of the evidence before it, that the husband is not the father." Taylor, 609 So.2d at 394.

In this case, the evidence does not show beyond a reasonable doubt Donald W~ is not the father of C1 and C2, and that NH is the father. Clearly, the most probative evidence demonstrating that Donald W~ is not the father is the DNA testing on NH's father and sibling that shows a 99.71% probability that NH is the father of the children. However, as noted above, the Supreme Court of Mississippi finds such testing admissible, but not conclusive. In Taylor, the Court noted that "blood tests can 'produce a high level of discrimination either excluding or including a given male as the father of a particular child.'" Id. at 394. As such, the DNA testing alone is insufficient to rebut the presumption that Donald W~ is the father of C1 and C2.

In addition, the non-genetic evidence in the case file is insufficient to rebut the presumption that Donald W~ is the father. In Bell, the court found sufficient evidence to rebut the presumption of legitimacy based on non-genetic evidence. For instance, the court considered the testimony from the child, the child's mother, and the decedent's two sisters, all of whom indicated that the child was the son of the decedent. See id. at 1091. More significantly, the court considered school and military records that listed the decedent as the father and the obituary which listed the child as a survivor. See id. Based on this evidence, the court was "completely satisfied" that the decedent was the biological father. In this case, the evidence falls short of that provided in Bell. First, there are no records of any kind which acknowledges that NH was the father. There are no school records, military records, or any obituary which named C1 or C2 as his children. Likewise, there is no written acknowledgment from NH indicating that he is the father of both children and any evidence that NH pursued any legal avenues to establish paternity of C1. With regard to C2, there is some evidence, albeit not very probative, from C2's kindergarten teacher which suggested NH held himself out as the father; however, there is no evidence that NH acknowledged C2 as his child or made any effort, legal or otherwise, to establish paternity, despite the fact that they share the same name. Given such evidence, a Mississippi court could reasonably conclude that such evidence does not rebut the presumption of legitimacy, because it does not establish that NH is the father to the level of "complete satisfaction."

Furthermore, the file contains minimal evidence suggesting that Donald W~ is not the father of either C1 or C2. While Donald W~ signed a statement for the Agency in July 2001 indicating that C1 was not his child, there is no evidence that Donald W~ did not hold himself out as the father of the child, other than his signed statement. Contrarily, C1's birth certificate lists Donald W~ as the father of the child, and they both share the same last name. Further, Donald W~' statement does not constitute a disclaimer or waiver of his legal rights to C1. Likewise, the file is devoid of evidence that Donald W~ disclaimed his legal rights to C2 or that such a legal waiver was made. However, his statement to the Agency makes reference to "the unborn child that Ronda W~ is carrying," and it can only be inferred that he is referring to C2 who was born one month after this statement was signed in July 2001. Nevertheless, such evidence falls short of demonstrating beyond a reasonable doubt that Donald W~ is not the father of C1 or C2. As such, an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes.

Mississippi law does not treat illegitimate and legitimate children the same, and an established illegitimate relationship would have a prospective effect from the date of DNA testing.

In this case, C1 and C2 are not entitled to benefits on the record of NH, and thus, retroactive payment is not at issue. However, if C1 and C2 met the requirements of an illegitimate child with inheritance rights of NH and were entitled to benefits on the record of NH, they would not have inherited in the same manner as if they were legitimate, and would have been paid prospectively from the date of the DNA testing.

4. The children's prior applications should not be reopened.

In this case, C1 and C2 are not entitled to benefits on the record of NH. Even if they were entitled to benefits, they would be paid prospectively from the date of DNA testing. Thus, whether to reopen C1 and C2's prior applications is not at issue. However, if C1 and C2 could be paid retroactively, you asked whether the children's prior applications should be reopened.

With regard to C1's prior application, there is no regulatory authority to reopen her prior claim even if she were to be paid retroactively. The regulations permit the Agency to reopen the determination within four years of the notice of the initial determination, provided there is good cause. See 20 C.F.R. § 404.988(b). The regulations provide that there is good cause to reopen a determination or decision if "new and material evidence is furnished." 20 C.F.R. § 404.989(a)(1). In this case, however, the initial determination denying C1's prior claim was dated June 30, 2001, more than four years after the initial determination. Although 20 C.F.R. § 404.991a permits the Agency to revise a determination if an investigation into whether to revise the determination began before the applicable time period expired, there is no evidence that such an investigation took place. Furthermore, 20 C.F.R. § 404.988(c) permits the Agency to reopen a determination at any time if one of the conditions in the regulation are met. However, none of these conditions would have been applicable.

With regard to C2's prior application, there would have been authority under 20 C.F.R. § 404.988(b) to reopen this claim if he were to be paid retroactively. The initial determination denying C2's prior claim was dated January 20, 2003, and the receipt of DNA testing establishing that NH is the father of C2 would most certainly qualify as "new and material evidence." Thus, the Agency could have found "good cause" to reopen the January 20, 2003 determination that C2 was not entitled to benefits.

5. Mississippi accreditation for genetic testing.

Under Mississippi law, there are no specific accreditation requirements for genetic testing in connection with establishing inheritance rights. While Mississippi provides for some accreditation requirements for genetic testing in connection with paternity proceedings (§§ 93-9-23 and 93-9-21), we do not find any statutory or case law support for extending these requirements to genetic tests conducted in connection with establishing inheritance rights. In fact, the Supreme Court of Mississippi noted in 2004 that the court was "unable to find any case in which Section 93-9-21(1) has been applied to a case of descent and distribution." Bell, 876 So.2d at 1092. Thus, Mississippi does not require genetic testing to be conducted by an "accredited laboratory" to establish inheritance rights, and sections 93-9-21 and 93-9-23 of the Mississippi Code do not apply to the use of genetic testing for establishing inheritance rights.

We note that the accreditation requirements for genetic testing in connection with paternity proceedings, as stated in Sections 93-9-21 and 93-9-23, may serve as useful guidance to determine the validity of genetic testing in connection with establishing inheritance rights. See POMS PR 01115.027A (discussion of statutory requirements for genetic testing in a paternity proceeding). Specifically, Section 93-9-23 states that genetic testing shall be made by experts qualified as examiners of genetic tests who shall be appointed by the court pursuant to Section 93-9-21(5). Section 93-9-21(5) requires that genetic tests shall be performed by a laboratory selected from the approved list as prepared and maintained by the Department of Human Services. While we could not find the approved list from the Department of Human Services, the U.S. Department of Health and Human Services maintains a directory of approved genetic testing laboratories for each state, and for Mississippi, the website lists only Reliagene as an approved genetic test laboratory for that state. See Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement, http://www.acf.hhs.gov/programs/cse/pubs/directories/genetic-testing/mississippi.html (last visited April 18, 2006).

CONCLUSION

The genetic testing performed in this case may create a rebuttable presumption of paternity that NH is the father in a paternity proceeding, but not in an inheritance proceeding. In addition, this DNA testing cannot rebut the controlling presumption that Donald W~ is the father of either C1 or C2. Thus, when taking into the account the evidence before the Agency, a Mississippi court would find C1 and C2 to be the children of Donald W~, and an Agency adjudicator could not conclude that C1 and C2 are NH's children for entitlement purposes. If C1 and C2 had qualified as NH's children under Mississippi law, they would have been paid prospectively from the date of the DNA testing, and because these children would not have been paid retroactively, the Agency would not need to reopen their prior applications. Furthermore, Mississippi does not require genetic testing in connection with establishing inheritance rights to be conducted by an accredited laboratory; however, we would expect a court that was concerned about the validity of genetic testing in an inheritance proceeding to consider the accreditation requirements found in the state's paternity provisions.

Mary A. S~

Regional Chief Counsel

By: ____________________

Brian S~

Assistant Regional Counsel