Generally, an Oklahoma State court would give full faith and credit to a paternity determination of the Kickapoo Tribe of Oklahoma District Court. The Kickapoo Tribe of Oklahoma District Court has jurisdiction over any person who is a member of the Kickapoo Tribe, any minor who is eligible to be a member of the Kickapoo Tribe, or any person who is alleged to be the parent of a "Kickapoo child" residing within the Kickapoo Tribe's jurisdiction.

In this case, while the evidence indicates that the Claimant and the Claimant’s mother are enrolled members of the Kickapoo Tribe, there is no information regarding the Claimant’s residence or domicile within the Kickapoo Tribe’s reservation. Thus, there is insufficient information to determine that the Kickapoo Tribe of Oklahoma District Court had jurisdiction over a paternity proceeding involving the Claimant and the NH. In addition, the evidence in the record appears insufficient to meet the remaining requirements for establishing paternity under Oklahoma law. Specifically, the record does not contain evidence indicating that the Kickapoo Tribe of Oklahoma District Court presided over a paternity proceeding involving the Claimant and the NH.

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the deceased number holder R~ (NH) and the claimant K1~ (Claimant) for purposes of the Claimant’s application for surviving child’s insurance benefits on the NH’s record under Title II of the Social Security Act (Act) as his child. Applying section 216(h)(2)(A) of the Act, you asked whether the evidence submitted in this case, in particular certain Kickapoo Tribe of Oklahoma court documents, establishes the Claimant’s right to inherit from the NH under Oklahoma intestate succession law. If not, you asked whether the Kickapoo Tribe of Oklahoma court documents meet the federal standards for a parent-child relationship under section 216(h)(3)(C) of the Act.

We believe an Oklahoma court would find that the evidence does not establish the Claimant’s right to inherit under Oklahoma intestate succession law because the Kickapoo Tribe of Oklahoma District Court’s Minute is not a paternity determination and the totality of the evidence provided to the agency does not meet the clear and convincing evidence standard to establish the NH’s paternity as to the Claimant. See 42 U.S.C. § 416(h)(2)(A). Further, we believe the Claimant has not proven the requisite biological relationship with the NH, or any of the circumstances required for a parent-child relationship under the federal standards of section 216(h)(3)(C) of the Act. See 42 U.S.C. § 416(h)(3)(C). Therefore, we believe there is legal support for the agency to reasonably conclude that the Claimant has not established a parent-child relationship between herself and the NH for purposes of entitlement to surviving child’s benefits under Title II of the Act.

You advised that the NH filed for disability benefits in December 2008, listing three dependent children for auxiliary benefits on his application, but that he did not name the Claimant (who was born in November 2008) as his dependent child. The Social Security Administration (agency or SSA) awarded disability and auxiliary benefits effective May 2009. The NH died on June XX, 2011, while domiciled in Oklahoma.

On October 26, 2018, K2~, the Claimant’s mother, applied for child’s insurance benefits on the Claimant’s behalf on the NH’s record as his child. You advised that the Claimant was born on November XX, 2008, and that her birth certificate did not list the NH as her father.

Statements

The Claimant’s mother completed the Form SSA-2519 Child Relationship Statement on January 2, 2019. In this form, she wrote that the NH admitted orally to his best friend that he was the Claimant’s father.^[1] She reported that, though she cannot find it, the NH wrote a letter to her shortly after she married (without explaining if she married the NH or someone else) that referred to the Claimant as his baby and that he sent it to her through his caregiver. She checked boxes on the form confirming that: no court ever decreed the NH to be the Claimant’s parent or ordered him to contribute to the Claimant’s support; the NH did not make regular and substantial contributions to the Claimant’s support and was not making such contributions at the time of his death; and she did not know of any other written evidence of any kind, which would show that the Claimant is the NH’s child.

Documentary Evidence

The Claimant’s mother provided an Absentee Shawnee Housing Authority Notice of Change in Monthly Charge (Housing Authority Notice) dated March XX, 2008 (eight months before the Claimant was born in November 2008). The Housing Authority Notice listed both the Claimant’s mother and the NH as members of the same household in March 2008 with the mother listed as the head of the household.

The Claimant’s mother also provided two documents from the case K2~ v. R~, filed in the District Court for the Kickapoo Tribe of Oklahoma. A Petition for Permanent Custody and Child Support (Petition for Custody and Child Support) dated February XX, 2010 names the Claimant’s mother as the plaintiff and the NH as the defendant and requests the Court to issue an order granting permanent custody and child support. The Petition states that the mother is an enrolled member of the Kickapoo Tribe. The Petition provides a space to identify the marital status of the parties, but this was left blank. However, in another portion of the Petition concerning children born of a common law/legal marriage, the Claimant’s mother listed the Claimant as the child and an enrolled member of the Kickapoo Tribe. A signed Kickapoo Tribe of Oklahoma District Court’s Minute (Court Minute) was entered in this case on March XX, 2020. The Court Minute names the Claimant’s mother as the plaintiff and the NH as the defendant. The Court Minute orders as follows:

Custody is awarded to plaintiff. Visitation is reserved. Plaintiff is to make application for Defendant’s SSI benefits. Payee is to assist in getting SSI benefits for minor child.

The Court Minute neither finds the NH to be the Claimant’s father, nor orders the NH to pay child support.

Finally, it is our understanding that the Claimant and her mother are both enrolled members of the Kickapoo Tribe of Oklahoma. We have no information as to whether the NH is a member of the Kickapoo tribe or any other tribe, including the Absentee Shawnee tribe.^[2] In the Petition for Custody and Child Support, the Claimant’s mother indicates that the NH is not a member of any tribe as she wrote “N/A” in the space provided to identify the defendant’s membership in a tribe.

A. Federal Law: Entitlement to Surviving Child’s Insurance Benefits under the Act as a “Child” Per Section 216(h)(2)(A)

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits on an insured number holder’s account if, among other things, he or she is the insured number holder’s child.^[3] See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child” as an insured number holder’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354˗.359; POMS GN 00306.002. Consistent with the evidence provided, our inquiry focuses on whether the Claimant is the NH’s natural child.

To determine a claimant’s status as a natural child, the agency must determine whether the claimant could inherit the insured number holder’s personal property as his child under the intestacy laws of the State where the insured number holder had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); POMS GN 00306.010. We are unaware of any legal authority requiring the agency to apply a different standard under the Act for determining whether a claimant is a number holder’s natural child when the claimant or the number holder is a member of an Indian tribe (i.e., applying tribal law instead of the intestate succession law of the State where the number holder was domiciled). See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Thus, per the Act and regulations and consistent with published legal opinions on the issue from our office and others, we begin the analysis of whether the Claimant is the NH’s natural child by looking to State intestate succession law. See e.g., POMS PR 01115.004 Arizona, A. PR 19-200 (Sept. 26, 2019) (applying Arizona intestacy law to evidence that included a Navajo Family Court order establishing paternity to determine if the claimant is the number holder’s child under section 216(h)(2)(A) of the Act); POMS PR 01115.029 Montana, A. PR 06-009 (Nov. 14, 2005) (applying Montana intestacy law to evidence that included Blackfeet Tribe enrollment documents and an amended Montana birth certificate to determine if the claimant is the number holder’s child under section 216(h)(2)(A) of the Act); POMS PR 01115.034 New Mexico, D. PR 03-085 (Jan. 27, 2003) (applying New Mexico intestacy law to evidence that included a Navajo Nation paternity decree and a New Mexico birth certificate to determine if the claimant is the number holder’s child under section 216(h)(2)(A) of the Act).^[4]

Oklahoma law controls because the NH’s permanent home was in Oklahoma when he died. Therefore, we apply Oklahoma intestate succession laws to determine whether the Claimant could inherit from the NH as his child.

1. Oklahoma Intestate Succession Law and a Child’s Right to Inherit

Oklahoma law allows a child to inherit property from her deceased parent by intestate succession. See Okla. Stat. Ann. tit. 84, §§ 213, 215 (allowing a child to inherit property by intestate succession, and stating that a child born out of wedlock may inherit from her purported father in the same way as a child born in wedlock if one of four requirements is met). However, it provides different standards for children born within marriage and out of marriage to establish a parent-child relationship for inheritance purposes.

For a child born into a marriage, Oklahoma law creates a presumption of paternity to establish a parent-child relationship for inheritance purposes. See In re Estate of Dicksion, 286 P.3d 283, 288-291 (Okla. 2012) (the paternity statute applied to intestate and probate proceedings); Okla. Stat. Ann. tit. 10, § 7700-203 (a parent-child relationship established under the Uniform Parentage Act applies for all purposes). The presumption does not apply in this case because there is no claim or evidence of a marriage between the Claimant’s mother and the NH.

For a child born outside of a marriage, Oklahoma law requires the child to provide proof of the child’s relationship to the father in order to inherit from that father under Oklahoma intestate succession law. See Okla. Stat. Ann. tit. 84, § 215; see also In re Estate of Watson, 135 P.3d 853, 855 (Okla. Civ. App. 2006) (citing Frazier v. McCary, 236 P. 880 (Okla. 1925)). A child born out of a marriage must satisfy one of the following four methods to establish inheritance rights from a purported father:

(a) the father, in writing and signed in the presence of a competent witness, acknowledges himself to be the child’s father,

(b) the father and mother intermarry after the child’s birth, and the father, after such marriage, acknowledges the child as his own or adopts her into his family,

(c) the father publicly acknowledges such child as his own, receiving her as such, with the consent of his wife, if he is married, into his family and otherwise treating her as if she were a child born in wedlock, or

(d) the father is judicially determined to be such in a paternity proceeding before a court of competent jurisdiction.

See Okla. Stat. Ann. tit. 84, § 215.

Here, there is no evidence that the NH acknowledged the Claimant as his child in writing in the presence of a competent witness; no claim or proof of a marriage between the Claimant’s mother and the NH either before or after the Claimant’s birth; and no evidence that the NH publicly acknowledged the Claimant as his own child and otherwise treated her as his child. Thus, the first three methods for establishing a father-child relationship are inapplicable here. See Okla. Stat. Ann. tit. 84, § 215(a)-(c). The final method for establishing a father-child relationship under Oklahoma law requires a judicial determination of paternity in a paternity proceeding from a court of competent jurisdiction. See Okla. Stat. Ann. tit. 84, § 215(d). We consider whether the Kickapoo Tribe of Oklahoma court documents satisfy this method for establishing a father-child relationship that would allow the Claimant the right to inherit from the NH.

2. The Law Provides Generally that an Indian Tribal Court is a Court of Competent Jurisdiction for Parent-Child Proceedings and Tribal Court Judgments are Entitled to Full Faith and Credit

We believe generally that a paternity determination from the Kickapoo Tribe of Oklahoma^[5] District Court would be considered a judicial determination from a court of competent jurisdiction for purposes of Okla. Stat. Ann. tit. 84, § 215(d). Federal law recognizes the jurisdiction and authority of tribal courts over various domestic relations issue. See e.g., IWCA, 25 U.S.C. § 1911(a) (providing that a tribal court has exclusive jurisdiction over a child custody proceeding of “an Indian child who resides or is domiciled within the reservation of such tribe,” or is a ward of a tribal court); National Farmers Union Ins. Companies v. Crow Tribe of Indians, 471 US 845, 856 (1985) (“Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination.”); Montana v. U.S., 450 U.S. 544, 564 (1981) (noting that “the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members,” but also noting that such power did not extent to relations between an Indian tribe and non-members of the tribe); Nat’l Labor Relations Bd. v. Little River Band of Ottawa Indians Tribal Gov’t, 788 F.3d 537, 544 (6th Cir. 2015) (“Indian tribes retain broad residual power over intramural affairs: they may determine tribal membership, regulate domestic relations among members, prescribe rules of inheritance among members, and punish tribal offenders.”).

In addition, under the Kickapoo Tribe of Oklahoma Child Support Code, the Kickapoo Tribe of Oklahoma District Court appears to have jurisdiction over proceedings concerning any action to determine and establish child support – which would appear to also include proceedings to establish paternity – and jurisdiction over any person who is a member of the Kickapoo Tribe, any minor who is eligible to be a member of the Kickapoo Tribe, or any person who is alleged to be the parent of a “Kickapoo child”^[6] residing within the Kickapoo Tribe’s jurisdiction. See Kickapoo Tribe of Oklahoma Child Support Code, Chapter 1, Section 3.^[7] Further, the Kickapoo Tribe of Oklahoma Child Support Code specifically allows a child, the child’s natural mother, or an alleged father of a child to file a petition requesting the Kickapoo Tribe of Oklahoma Tribal Court^[8] to establish paternity in a paternity proceeding. See id., Chapter 5, Section 2(A). Thus, both Federal and tribal law generally supports the Kickapoo Tribe of Oklahoma District Court’s jurisdiction over a paternity proceeding involving a Kickapoo child.

Moreover, under Oklahoma law, an Oklahoma State court would be required to provide full faith and credit to a judicial determination from a tribal court – in this case the Kickapoo Tribe of Oklahoma District Court – based on the rule of mutual reciprocity set forth in both Oklahoma law and Kickapoo tribal law. See Okla. Stat. Ann. tit. 12, Ch. 2, Rule 30 (requiring district courts for the State of Oklahoma to “grant full faith and credit and cause to be enforced any tribal judgment where the tribal court that issued the judgment grants reciprocity to judgments of the courts of the State of Oklahoma . . .”); Okla. Stat. Ann. tit. 12, § 728 (“This Act affirms the power of the Supreme Court of the State of Oklahoma to issue standards for extending full faith and credit to the records and judicial proceedings of any court of any federally recognized Indian nation, tribe, band or political subdivision thereof, including courts of Indian offenses. . . In issuing any such standard the Supreme Court of the State of Oklahoma may extend such recognition in whole or in part to such type or types of judgments of the tribal courts as it deems appropriate where tribal courts agree to grant reciprocity of judgments of the courts of the State of Oklahoma in such tribal courts.”); Barrett v. Barrett, 878 P.2d 1051, 1054 (Okla. 1994) (discussing this statute and rule in holding that tribal court judgments were entitled to full faith and credit in Oklahoma courts when they granted reciprocity to the judgments of the State of Oklahoma); In re Adoption of Standards for Recognition of Judicial Proceedings of Other Sovereigns in the Courts of the Kickapoo Tribe of Oklahoma: Full Faith & Credit, No. AD-94-101, 6 Okla. Trib. 223, 1994 WL 16006119 (Kickapoo Dec. 5, 1994) (providing that Kickapoo courts will grant full faith and credit to such judgments of federal, state, and other tribal courts provided that the federal, state, or other tribal court grants reciprocity to judgment of Kickapoo courts).

Thus, we believe that generally an Oklahoma State court would give full faith and credit to a paternity determination of the Kickapoo Tribe of Oklahoma District Court as a judgment from a court of competent jurisdiction for purposes of Okla. Stat. Ann. tit. 84, § 215(d). We turn next to the specific tribal court documents provided.

3. Application of the Law to the Facts: The Tribal Court Documents are Insufficient to Determine if the Kickapoo Tribe of Oklahoma District Court had Jurisdiction over the Claimant and the NH, and if the Court Made a Judicial Determination of Paternity as to the NH and the Claimant

As explained above and given the evidence provided, to establish a father-child relationship for inheritance, Oklahoma law requires a judicial determination of paternity in a paternity proceeding from a court of competent jurisdiction. See Okla. Stat. Ann. tit. 84, § 215(d). As discussed, the Kickapoo Tribe of Oklahoma District Court has jurisdiction over any person who is a member of the Kickapoo Tribe, any minor who is eligible to be a member of the Kickapoo Tribe, or any person who is alleged to be the parent of a “Kickapoo child” residing within the Kickapoo Tribe’s jurisdiction. See Kickapoo Tribe of Oklahoma Child Support Code, Chapter 1, Section 3. While the evidence indicates that the Claimant and the Claimant’s mother are enrolled members of the Kickapoo Tribe, there is no information regarding the Claimant’s residence or domicile within the Kickapoo Tribe’s reservation. Thus, there is insufficient information to determine that the Kickapoo Tribe of Oklahoma District Court had jurisdiction over a paternity proceeding involving the Claimant and the NH.

In addition, the evidence in the record appears insufficient to meet the remaining requirements for establishing paternity under Okla. Stat. Ann. tit. 84, § 215(d). Specifically, the record does not contain evidence indicating that the Kickapoo Tribe of Oklahoma District Court presided over a paternity proceeding involving the Claimant and the NH. See Okla. Stat. Ann. tit. 84, § 215(d). In order to establish paternity through court order in a paternity proceeding, the petitioner must file a petition requesting the Kickapoo Tribe of Oklahoma Tribal Court to establish paternity. See The Kickapoo Tribe of Oklahoma Child Support Code, Chapter 5, Section 2(A). The petition must be duly verified by the party alleging paternity and state the facts to support paternity. See id. The proceedings must be entitled in the name of the Kickapoo Tribe of Oklahoma against the accused as defendant. See id. Here, the petition dated February 2010 does not appear to be a petition of paternity, but a petition for permanent custody and child support filed by the Claimant’s mother against the NH. The petition names the Claimant’s mother as the plaintiff and the NH as the defendant, and requests the court to issue an order granting permanent custody and child support. It does not request the court to enter an order determining the Claimant’s paternity. Nor does it state any facts to support a parent-child relationship between the Claimant and the NH. Thus, it does not appear that there was a paternity proceeding to establish a parent-child relationship between the Claimant and the NH as required by Okla. Stat. Ann. tit. 84, § 215(d) to establish paternity.

Even assuming there was a paternity proceeding, there is no evidence that the Kickapoo Tribe of Oklahoma District Court made a judicial determination regarding the Claimant’s paternity. An order determining paternity from the Kickapoo Tribe of Oklahoma Tribal Court must contain provisions concerning adjudication of parentage, determination of current child support owed as well as determination of arrears and payments thereon, medical insurance coverage, child care costs, income assignments, enforcements, and costs, including genetic testing and any payments for it. See The Kickapoo Tribe of Oklahoma Child Support Code, Chapter 5, Section 3(C). Here, the Kickapoo Tribe of Oklahoma District Court Minute dated March 2010 does not appear to contain the provisions required in an order determining paternity. See id. In its Court Minute dated March 2010, the Kickapoo Tribe of Oklahoma District Court merely ordered as follows: “Custody is awarded to plaintiff. Visitation is reserved. Plaintiff is to make application for Defendant’s SSI benefits. Payee is to assist in getting SSI benefits for minor child.” The Court did not find the NH to be the Claimant’s father. Nor did the Court order the NH to pay child support for the Claimant. If there was a prior determination of paternity made by this same tribal court, the Claimant has not provided this evidence and indeed indicated that no such determination exists. In the Child Relationship Statement that she completed for the agency in January 2019, the Claimant’s mother checked a box indicating that no court ever decreed the NH to be the Claimant’s parent or ordered him to contribute to the Claimant’s support.

Thus, we believe an Oklahoma court would find that the Kickapoo Tribe of Oklahoma District Court in the Court Minute issued on March XX, 2010 did not judicially determine the NH to be the Claimant’s father. As such, the agency can reasonably conclude that the Claimant, through the Court Minute and corresponding Petition for Custody and Child Support, has not established a father-child relationship under Okla. Stat. Ann. tit. 84, § 215(d) by showing that a court of competent jurisdiction determined her to be the NH’s child in a paternity proceeding.

4. In the Absence of a Court Determination of Paternity, SSA Decides Paternity Using the Applicable State’s Standard of Proof for Paternity Determinations

Even in the absence of a court determination of parentage, SSA will decide parentage using the standard of proof that the state court would use in determining paternity. See 20 C.F.R. § 404.355(b)(1) (the agency will apply the intestacy laws of the State in which the number holder had her permanent home at the time of her death to determine whether an applicant is a number holder’s natural child), (2) (if applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity). Thus, we look to the totality of the evidence provided to determine if the Claimant has a right to inherit from the NH under Oklahoma law using the standard of proof that an Oklahoma state court would employ.

The Oklahoma Uniform Parentage Act (UPA)^[9] applies to parental determinations in intestate and probate proceedings. In re Estate of Dicksion, 286 P.3d 283, 290 (Okla. 2012). The UPA governs every determination of parentage in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A). Under the UPA, a man may establish a father-child relationship through an adjudication of paternity. See Okla. Stat. Ann. tit. 10, § 7700-201(B)(3).^[10] As we have discussed, in the absence of an adjudication of paternity in the present claim, the agency applies the standard of proof an Oklahoma court would apply. See 20 C.F.R. § 404.355(b)(1). Courts consider genetic testing and other evidence to adjudicate the issue of paternity for a child that does not have a presumed, acknowledged, or adjudicated father, which we understand to be the case here with the Claimant. See Okla. Stat. Ann. tit. 10, § 7700-631. Under Oklahoma law, the standard of proof to prove paternity is “clear and convincing evidence.” See In re Estate of King, 837 P.2d 463, 464 (Okla. 1990) (overruled on other grounds); see also Kickapoo Tribe of Oklahoma Child Support Code, Chapter 5, Section 2(F) (the petitioner in a paternity proceeding “has the burden of proving, by clear and convincing evidence, that the putative father is, in fact, the natural father.”). Oklahoma courts define “clear and convincing evidence” as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re A.L.F., 237 P.3d 217, 219 (Okla. 2010). Thus, in this case, an Oklahoma court would look to whether the Claimant has established by clear and convincing evidence that the NH is her father.

Here, there is some evidence that weighs in favor of a parent-child relationship between the Claimant and the NH. A notice from a housing authority dated March 2008, shows that the Claimant’s mother and the NH were members of the same household, and were presumably living together eight months before the Claimant was born in November 2008. Further, the Petition for Custody and Child Support establishes that in February 2010, the Claimant’s mother filed a petition against the NH in a tribal court to grant permanent custody and child support as to the Claimant indicating she was at least alleging that the NH was the Claimant’s father. The Court Minute entered in March 2010 appears to show that the tribal court ordered the Claimant’s mother to file for Social Security benefits for the Claimant on the NH’s record, though this is not entirely clear as the tribal court references Supplemental Security Income (SSI) under Title XVI of the Act, as opposed to auxiliary child’s benefits on the NH’s record under Title II of the Act. Finally, the Claimant’s mother has made statements indicating that the NH acknowledged the Claimant to be his child in a letter to the Claimant’s mother, and acknowledged the Claimant as his child orally to his best friend.

However, there is no corroborating evidence to support the Claimant’s mother’s self-serving statements that the NH acknowledged the Claimant as his child orally or in writing. Likewise, while there is evidence that she petitioned the court for permanent custody and child support, the Claimant’s mother did not provide any facts in her petition to support the NH’s paternity as to the Claimant. The Court Minute only orders the Claimant’s mother to apply for Social Security benefits and orders the “payee” to assist in getting SSI benefits for the minor child. See The Kickapoo Tribe of Oklahoma Child Support Code, Chapter 2, Definitions (“payee” is person in whose name child support is paid). The Court Minute did not make a specific determination that the NH was the Claimant’s father and did not meet the requirements for a paternity determination as set forth in the Kickapoo Court of Oklahoma Child Support Code. See Okla. Stat. Ann. tit. 10, § 7700-636 (providing that the court shall issue an order adjudicating whether a man is the child’s parent and the order adjudicating parentage shall identify the child by name and date of birth); The Kickapoo Tribe of Oklahoma Child Support Code, Chapter 5, Section 3(C) (setting forth the provisions to be included in paternity orders). There is no reference to the NH as a father or parent in the Court Minute. And the Claimant’s mother represented to the agency in the Child Relationship Statement that no court ever decreed the NH to be the Claimant’s parent or ordered him to contribute to the Claimant’s support. She said she did not have any other written evidence of any kind that would show that the Claimant is the NH’s child. She indicated on this form that the NH did not undertake any actions with regard to the Claimant from the time of the Claimant’s birth in November 2008 until the time of the NH’s death in June 2011 that would indicate a parent-child relationship. She has not offered any other witness statements to corroborate the alleged parent-child relationship between the NH and the Claimant. There is no genetic testing evidence. In addition, the Claimant’s birth certificate did not list the NH as her father. Moreover, while the NH filed for disability benefits in December 2008 (the month following the Claimant’s birth) and listed three dependent children for auxiliary benefits, he did not name the Claimant as his dependent child.

In weighing the totality of the evidence provided on the Claimant’s behalf, while there is some evidence to support paternity, we believe an Oklahoma court would find that it is not such that it “will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” See In re A.L.F., 237 P.3d at 219. Thus, we believe an Oklahoma court would find that the evidence was not clear and convincing evidence to establish a father-child relationship between the NH and the Claimant. See Kinney o/b/o Kinney v. Sullivan, 746 F. Supp. 1067, 1069-71 (W.D. Okla. 1990) (affirming a Social Security administrative law judge’s decision that there was no clear and convincing evidence of paternity).^[11] As such, we believe an Oklahoma court would find that the Claimant has not proven the right to inherit from the NH under intestate succession law. See Okla. Stat. Ann. tit. 84, § 215(d). Thus, the agency can reasonably conclude that the Claimant would not be considered the NH’s natural child under section 216(h)(2)(A) of the Act upon application of Oklahoma intestate succession law.

B. Federal Law: Entitlement to Surviving Child’s Insurance Benefits as a “Child” under Section 216(h)(2)(B) and (h)(3)(C) of the Act

Having established that the Claimant is unable to establish a parent-child relationship with the NH under section 216(h)(2)(A) of the Act, we also consider whether the Claimant has established the parent-child relationship with the NH under federal standards. See POMS GN 00306.100(A) (“Apply section 216(h)(3) when you cannot establish the parent-child relationship under State law. You may explore all possible relationship provisions consecutively or concurrently.”). Under section 216(h)(2)(B) of the Act, a claimant will be deemed to be a number holder’s child if the claimant is the number holder’s biological child, and the claimant’s parents went through a marriage ceremony that would have been valid but for a legal impediment. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2); POMS GN 00306.090. As there is no indication that the NH and the Claimant’s mother ever married or attempted to marry, this provision does not apply to establish the parent-child relationship.

Under section 216(h)(3)(C)(i) of the Act, the biological child of a deceased number holder may be deemed to be the number holder’s child if, before the deceased number holder’s death: (1) the number holder acknowledged in writing that the child was his child; (2) a court decreed the number holder to be the child’s father; or (3) a court ordered the number holder to contribute to the child’s support. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3)-(4); POMS GN 00306.100. Here, there is no evidence of a written acknowledgment of the Claimant. The Claimant’s mother represented to the agency in the Child Relationship Statement that no court ever decreed the NH to be the Claimant’s parent or ordered him to contribute to the Claimant’s support. As detailed in the prior discussion above with regard to the Court Minute, because there is no evidence of a court order entered before the NH’s death decreeing the NH to be the Claimant’s father or ordering him to pay child support, this provision does not apply to establish the parent-child relationship.

In addition, under section 216(h)(3)(C)(ii) of the Act, a biological child of a deceased number holder may be deemed to be the number holder’s child if the agency finds “by other satisfactory evidence” that the number holder was the child’s biological father, and the number holder was living with or contributing to the child’s support at the time of his death (or if the child was in the womb when the number holder died, the number holder must have been either living with or contributing to the support of the mother at the time of the number holder’s death). See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100(C)(3), GN 00306.125. Here, there is no evidence as to whether the NH was living with or contributing to the support of the Claimant (who was born in 2008) at the time of the NH’s death in 2011. Therefore, this provision does not apply to establish the parent-child relationship.

Furthermore, based on the information we have been given, it would appear that the Claimant has not provided sufficient evidence of a biological relationship with the NH, which is required for all of the above standards under section 216(h)(2)(B) and (h)(3) of the Act. See POMS GN 00306.090, GN 00306.100.

Therefore, under the specific evidence provided with this claim, we believe there is legal support for the agency to conclude that the Claimant does not meet the criteria of section 216(h)(2)(B) or (h)(C) of the Act and thus, has not established a parent-child relationship with the NH as required for child’s insurance benefits on the NH’s record.

Based on the information provided, the agency may reasonably conclude that the Claimant has not established a parent-child relationship between herself and the NH for purposes of entitlement to surviving child’s benefits under the Act.

Based on Oklahoma law, the totality of the evidence establishes that claimant is the number holder’s natural child. As such, the claimant is entitled to child’s insurance benefits on the number holder’s account beginning July 25, 2011, six months immediately before the month the child filed her January 25, 2012, application.

Under Oklahoma law the following evidence may be used to establish that the claimant is the number holder’s child.

* Using DNA from NH’s brother; and

* Statements showing the NH’s brother is not the father.

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether Emily is entitled to Social Security child’s insurance benefits on Mark’s (deceased number holder), earnings record (account). Specifically, you have asked whether deoxyribonucleic acid (DNA) testing results of the deceased number holder’s brother establish that Emily is the number holder’s natural child under Oklahoma law.

ANSWER

In our opinion, based on Oklahoma law, the totality of the evidence establishes that Emily is the number holder’s natural child. As such, Emily is entitled to child’s insurance benefits on the number holder’s account beginning July 25, 2011, six months immediately before the month Emily filed her January 25, 2012, application.

BACKGROUND

As we understand the facts, the number holder was born on June. The number holder filed for disability insurance benefits (DIB) on November 8, 2006. The number holder did not list any children or marriages on his DIB claim application and died on November 30, 2006, during the application’s waiting period, while residing in Oklahoma.

On January, Erin gave birth to Emily. On April 19, 2007, Erin filed a child’s insurance benefits claim on Emily’s behalf, asserting that Emily was the number holder’s natural child. On June 8, 2007, the agency denied the claim because the evidence did not establish the parent-child relationship. Erin is presently incarcerated at the Mabel Bassett Correctional Facility in McCloud, Oklahoma.

On July 16, 2007, an Oklahoma court appointed Sandra, Emily’s great grandmother, as Emily’s legal guardian. On August 3, 2007, Sandra filed a child’s insurance benefits claim on Emily’s behalf, asserting that Emily was the number holder’s natural child. On August 27, 2007, the agency again denied the claim because the evidence did not establish the parent-child relationship. On January 25, 2012, Sandra filed another child’s insurance benefit claim on Emily’s behalf. In support of establishing a biological parent-child relationship, Sandra submitted a certified DNA test report dated December 28, 2011, showing a combined first order index of 11,147 to 1 and a 99.99 percent probability of a biological relationship between Emily and William, the number holder’s brother. Sandra also submitted William’s statement stating that he is the number holder’s biological brother; that he never had sexual relations with Erin; that Emily is not his daughter; and that he is Emily’s uncle. Sandra further submitted Erin’s statement that the number holder only had one brother; that she never had sexual relations with William; that Erin was sexually active only with the number holder; and that the number holder is Emily’s biological father. The record also includes a statement from Joseph, a family friend, stating that he has known the Joseph/Erin family for 25 years and had personal knowledge that Erin and the number holder were in a relationship for a number of years.

ANALYSIS

The Social Security Act provides that the child of an individual who dies as 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) (2012); 20 C.F.R. § 404.352(a)(1) (2012). To be entitled to child’s insurance benefits on the insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). The term “child” includes a natural child. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354.

On January 25, 2012, Sandra filed, on Emily’s behalf, an application for child’s insurance benefits. Emily is unmarried and under the age of 18. The agency will consider Emily to be the number holder’s dependent child if Emily is the number holder’s natural child. See 20 C.F.R.404.361(a). Thus, the only remaining criterion Emily must establish is that she is the number holder’s natural child.

An applicant 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 is the claimant’s natural parent and was either living with the claimant or contributing to her support at the time the claimant applied for benefits.

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

According to the information that we received, Erin and the number holder were never married and did not participate in a ceremony that would have resulted in a valid marriage. The number holder never acknowledged Emily as his child, and no court decreed Emily to be the number holder’s child or ordered the number holder to contribute to Emily’s support. Emily never lived with the number holder or received support from him because Emily was born after the number holder’s death. Thus, we conclude that Emily does not qualify as the number holder’s natural child under tests two, three, or four. Consequently, to prove that she is eligible for child’s insurance benefits on the number holder’s account, Emily must show under the first test that she could inherit property through intestate succession as the number holder’s natural child. Oklahoma law controls on this issue of intestate succession because the number holder had his permanent home in Oklahoma when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b).

Oklahoma law establishes four methods for a child born out of wedlock to establish inheritance rights from her purported biological father. See Okla. Stat. tit. 84, § 215 (2012). These four methods are: (1) the father, in writing, acknowledges himself to be the child’s father, (2) the father and mother intermarry after the child’s birth, and the father, after such marriage, acknowledges the child as his own or adopts it into his family, (3) the father publicly acknowledges such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (4) the father is judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. Id.

The first three methods for establishing inheritance rights are not applicable here because each method requires that the purported father acknowledge paternity. There is no evidence that the number holder ever acknowledged Emily as his child. Emily, therefore, must establish inheritance right under the fourth method. Although no court has determined through paternity proceedings that the number holder was Emily’s father, the agency does not apply a state inheritance-law requirement that an individual must obtain a court determination of paternity within a specified time, measured from the alleged parent’s death or the child’s birth. See 20 C.F.R. § 404.355(b)(2) (use of state law standards). Instead, the agency decides paternity using the standard of proof that the state court would use. Id.

Under Oklahoma law, the standard of proof to prove paternity is “clear and convincing evidence.” In the Matter of the Estate of K~, 837 P.2d 463, 464 (Okla. 1990) (overruled in other grounds). Oklahoma courts define “clear and convincing evidence” as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re A.L.F., 2010 OK 59, ¶ 6, 237 P.3d 217, 219.

The Uniform Parentage Act ^[12] applies to parental determinations in intestate and probate proceedings. Estate of D~, 2011 OK 96, ¶¶ 28, 30, & 39, 2011 WL 5555571, ** 6, 8 (Ok. Nov. 15, 2011). The Uniform Parentage Act governs every determination of parentage in Oklahoma. Okla. Stat. tit. 10, § 7700-103(a) (2012). One of the means of establishing paternity under the Uniform Parentage Act is through genetic testing. Okla. Stat. tit. §§ 7700-501 – 7700-511. A report of a genetic testing expert is generally admissible as evidence of the truth of the facts asserted in the report. Okla. Stat. tit. 10, § 7700-621. In Oklahoma, “a man is rebuttably identified as the father of a child if the genetic testing” reveals a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. See Okla. Stat. tit. 10, § 7700-505(a).

Additionally, to be admissible evidence to establish paternity, genetic testing must satisfy certain other requirements. Okla. Stat. tit. 10, § 7700-503. First, the DNA testing must take place in a laboratory accredited by the American Association of Blood Banks (AABB), the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. Okla. Stat. tit. 10, § 7700-503(a). Second, a laboratory designee must sign the DNA test report under penalty of perjury. Okla. Stat. tit. 10, § 7700-504(a). Third, testimony or documentation must establish a reliable chain of custody. Okla. Stat. tit. 10, § 7700-504(b). Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes: (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Id.

A court may order testing of an alleged father or of an alleged father’s relatives, including parents, siblings, other children, and other relatives, when a specimen from an alleged father is not available. Okla. Stat. tit. 10, §§ 7700-502, 7700-508. Under Oklahoma law, DNA from a father’s brother can establish the parent-child relationship between a deceased father and a child. Estate of D~, 2011 OK 96, ¶¶ 28, 30, & 39, 2011 WL 5555571, **6, 8 (Ok. Nov. 15, 2011). Here, the number holder’s specimen was not available for genetic testing because the number holder was deceased. Instead, to establish paternity posthumously, Emily ^[13] submitted evidence to establish a biological relationship between herself and the number holder’s brother. Specifically, Emily presented a DNA test report dated December 28, 2011, showing that a laboratory representative took specimen to test for a biological relationship between Emily and William. The DNA test records included the names and photographs of both Emily and William and identified William as Emily’s uncle. The DNA testing took place at the Genetic Testing Laboratory, Inc., an AABB-accredited facility. John B. S~, Ph.D., the laboratory’s designee, signed the DNA test report before a notary public and verified the interpretation of the results. The DNA test report revealed a combined first order index of 11,147 to 1 and a 99.99 percent probability establishing first-order biological relationship ^[14] with respect to William and Emily. Based on evidence that William is the number holder’s brother, the DNA test report, which established a biological relationship between Emily and William, also established a biological relationship between Emily and the number holder. Thus, in our opinion, the DNA test report is evidence that supports the parent-child relationship between Emily and the number holder.

Under Oklahoma law, if genetic testing neither identifies nor excludes a man as the father of a child, other evidence is admissible to adjudicate the issue of paternity. Okla. Stat. tit. 10, § 7700-631(3). Here, Emily presented additional evidence that supports her claim that she is the number holder’s natural child. Emily submitted William’s statement stating that he is the number holder’s biological brother; that he never had sexual relations with Erin; that Emily is not his daughter; and that he is Emily’s uncle. Emily further submitted Erin’s statement stating that the number holder only had one brother; that she never had sexual relations with William, the number holder’s brother; that she was sexually active only with the number holder; and that the number holder is Emily’s biological father. In addition, Joseph W. Smith, a friend, wrote a statement stating that he had personal knowledge that Erin and the number holder were in a relationship for a number of years. Such statements further support the parent-child relationship between Emily and the number holder. Thus, in our opinion, the totality of the evidence, which includes the DNA test results and the three statements in the record, provide clear and convincing evidence that Emily is the number holder’s natural child and that she could inherit property as the number holder’s natural child under Oklahoma law.

Having found that Emily is the number holder’s natural child under Oklahoma law, we next examine whether Emily is entitled to retroactive benefits. Under the regulations, an applicant for child’s insurance benefits may be paid retroactive benefits for up to six months immediately before the month of application. See 20 C.F.R. § 404.621(a)(2) (filing for dependents’ benefits). ^[15] Agency policy generally provides that an act that gives inheritance rights, but does not legitimate the child, is effective only from the date of the act or event, while an act that legitimates the child is effective retroactively to the birth of the child. See Social Security Ruling (SSR) 85-17.

Under Oklahoma law, an act legitimizes a child from birth. See Program Operations Manual System (POMS) GN 00306.085 (child is legitimate from date of birth in several states, including Oklahoma); see also Okla. Stat. tit. 10, § 7700-202 (equal rights of marital and nonmarital children); see also Okla. Stat. tit. 84, § 215 (child born out of wedlock stand in same relation as a child born in wedlock). As previously noted, agency policy is that an act that legitimates a child is effective retroactively to the birth of the child. See SSR 85-17. As a result, Emily is entitled to retroactive benefits. However, if a claimant files an application after the first month the claimant could have been entitled to benefits, the claimant may receive benefits for up to six months immediately before the month in which she filed her application. 20 C.F.R. § 404.621(a)(2). Emily filed her application on January 25, 2012. Thus, Emily is entitled to retroactive benefits beginning July 25, 2011, six months immediately before the month Emily filed her January 25, 2012, application. ^[16]

CONCLUSION

In our opinion, the totality of the evidence establishes that Emily is the number holder’s natural child. Therefore, in our opinion, the agency may award Emily child’s insurance benefits effective July 25, 2011, twelve months immediately before the month Emily filed her January 25, 2012 application.

Michael McGaughran

Regional Chief Counsel



By: ____________________

Ruben Montemayor

Assistant Regional Counsel