The number holder (NH) lives in Oregon; therefore, we look to the Oregon intestacy law to determine the parent-child relationship. Oregon law presumes a parent–child relationship if the purported parents were married to each other at the time of the child’s birth. However, for the presumption of parentage to apply, it must be at least possible that the person is the biological parent of the child. This presumption cannot apply to a same-sex couple. Though the presumption of biological parentage is not available to same-sex couples, parentage may be established if the child was conceived through artificial insemination. Under the Oregon Family Fairness Act, same-sex couples may register as domestic partners and enjoy the same rights, benefits, and privileges extended to married couples under Oregon law. Those privileges presumably include legal parenthood for the domestic partner of a woman who conceives a child by artificial insemination.

In this case, the NH and the claimant’s biological mother were married at the time of the claimant’s birth, and the NH is identified as a parent on the claimant’s birth certificate. There is no evidence of a second legal, biological parent. Absent evidence to the contrary, it appears possible that the claimant was conceived by artificial insemination. If the claimant was conceived through artificial insemination and the NH consented to the insemination, then a parent–child relationship would be found that would support inheritance rights. The evidence presented does not preclude a finding of a parent-child relationship between the claimant and the NH for purposes of determining entitlement to child’s benefits under Title II of the Act. However, further development of the evidence is required.

QUESTION PRESENTED

Does the evidence establish that the claimant was the child of the insured number holder for the purposes of child’s benefits under Title II of the Social Security Act (the Act)?

BRIEF ANSWER

The evidence does not preclude a finding of a parent–child relationship for purposes of determining entitlement to child’s benefits under Title II of the Act. However, further development of the evidence is required.

SUMMARY OF FACTS

On June XX, 2013, number holder S~ (NH) married S1~ in Washington state. On July XX, 2013, S1~ gave birth to H~ (claimant). The claimant’s birth certificate lists both S1~ and the NH as his parents.

The NH filed for child’s benefits for the claimant, relying on the NH’s marriage to S1~. It is our understanding that the NH has not alleged that the claimant is her stepchild.

ANALYSIS

Federal Law on Child’s Benefits Under Title II

Under the Act, an individual may be eligible for child survivor’s insurance benefits if: (1) the individual is the “child” of the insured, as defined in the Act; and (2) the individual was “dependent upon” the insured at the time of application. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. For the purposes of child’s insurance benefits, “child” is defined as the natural child, legally adopted child, stepchild, or grandchild or stepgrandchild of the insured individual. See 42 U.S.C. §§ 402(d)(1), 416(e); see also 20 C.F.R. §§ 404.350, 404.354-59.

Under one method for determining whether the claimant qualifies as the “child” of an insured worker, the agency applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files” the application. 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.355(a)(1), (b) (if the insured is living, apply state law where insured had permanent home at the time of the application); Program Operations Manual System (POMS) GN 00306.001(C) (determining what state law applies). “The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (citations omitted). Here, the NH’s wedding license shows that the NH lives in Portland, Oregon. In the absence of any evidence to the contrary, this opinion will assume that Oregon is the NH’s domicile.

State Law

Oregon law provides that, if a decedent dies intestate, her surviving spouse and any issue shall receive a share of the intestate estate. Or. Rev. Stat. § 112.025 (2013). “Issue” includes all lineal descendants, except those who are the lineal descendants of living lineal descendants. Or. Rev. Stat. § 111.005(22). Thus, if the claimant is the child of the NH, he would be able to inherit and would therefore be a “child” under 42 U.S.C. § 416(h)(2)(A).

In establishing a parent–child relationship, a man is presumed to be the father of a child born to a woman if he and the woman were married to each other at the time of the child’s birth. Or. Rev. Stat. § 109.070. However, “for the presumption of parentage to apply, it must be at least possible that the person is the biological parent of the child.” Shineovich v. Shineovich, 214 P.3d 29, 36 (Or. App. 2009) (noting that statutory provisions refer to establishing paternity). Thus, this presumption cannot apply to a same-sex couple.

Though the presumption of biological parentage is not available to same-sex couples, parentage may be established if the child was conceived through artificial insemination.

The relationship, rights and obligation between a child born as a result of artificial insemination and the mother’s husband shall be the same to all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mother’s husband if the husband consented to the performance of artificial insemination.

Or. Rev. Stat. § 109.243. In 2009, prior to Oregon’s permission for and recognition of same-sex marriage, the Oregon Court of Appeals held that this provision must be available to same-sex couples in a domestic partnership. Shineovich, 214 P.3d at 40. The only other method to establish parentage when the purported parent is not biologically related to a child is through adoption. Or. Rev. Stat. § 109.050; see Or. Rev. Stat. § 111.005(22) (including adopted children in definition of issue).

Application of Law to Facts

On June XX, 2013, the NH married the claimant’s mother, S1~, in Washington state. On July XX, 2013, S1~ gave birth to the claimant. These facts do not preclude the conclusion that the claimant is the child of the NH for the purposes of the Social Security Act. However, further factual development is warranted before making a determination in this case.

We first consider whether the claimant could inherit as the NH’s child under Oregon intestacy law. Here, there is no allegation that the NH is the claimant’s biological parent. However, evidence indicates that the NH and the claimant’s biological mother were married at the time of the claimant’s birth and the NH is identified as a parent on the claimant’s birth certificate. There is no evidence of a second legal, biological parent. Absent evidence to the contrary, it appears possible that the claimant was conceived by artificial insemination. If the claimant was conceived by artificial insemination and the NH consented to the insemination, the decision in Shineovich and Or. Rev. Stat. § 109.243 would apply.

In making the decision in Shineovich, the court noted that “[t]he purpose of ORS 109.243 is to protect children conceived by artificial insemination from being denied the right to support by the mother’s husband or to inherit from the husband . . . [and] extending the statute’s coverage to include the children of mothers in same-sex relationships advances the legislative objective by providing the same protection for a greater number of children.” 214 P.3d at 40. The court also stated that, “in 2007, the legislature passed the Oregon Family Fairness Act (OFFA), under which same-sex couples may register as domestic partners and enjoy the same rights, benefits, and privileges extended to married couples under Oregon law [and] those privileges presumably include legal parenthood by operation of law for the domestic partner of a woman who conceives a child by artificial insemination.” Id.

While the holding in Shineovich pertained to domestic partnerships and was prior to the state’s recognition of same-sex marriages, the court’s extension of Or. Rev. Stat. § 109.243 to same-sex domestic partnerships also extends to same-sex married couples. Following Shineovich, the Oregon Court of Appeals clarified that the touchstone for determining whether Or. Rev. Stat. § 109.243 applied to a same-sex couple was “whether the same-sex partners would have chosen to marry before the child’s birth had they been permitted to.” In re Madrone, 350 P.3d 495, 501 (Or. App. 2015) (emphasis in original). Here, despite the marriage ban in Oregon until 2014, the NH and the claimant’s biological mother did, in fact, choose to marry in Washington in 2013, shortly before the claimant was born. As Madrone confirms, Section 109.243 may apply in this case.

Therefore, if (a) the claimant was conceived through artificial insemination, and (b) the NH consented to the insemination, then a parent–child relationship would be found that would support inheritance rights. Accordingly, we recommend recontacting the NH to determine if this is the case.

Finally, if a direct parent-child relationship cannot be established, the claimant might still be eligible for stepchild benefits, assuming that the requirements for such benefits are satisfied. See POMS GN 00210.505 (providing instructions for determining stepchild benefits). However, we were requested to focus our legal opinion on whether the claimant was the natural child of the NH because the NH did not allege that the claimant was her stepchild. See POMS GN 00210.505(B)(1) (if the claimant is not “alleging he or she is a stepchild of the NH . . . do not apply these instructions” for determining stepchild benefits). As a result, we do not address the claimant’s eligibility for stepchild benefits in this opinion.

CONCLUSION

For the above reasons, the evidence does not preclude a finding of a parent-child relationship for purposes of determining entitlement to child’s benefits under Title II of the Social Security Act. However, further development of the evidence is required.

Under Oregon law, DNA testing performed by an accredited laboratory showing a 99.9996% probability that the deceased number holder's parents are grandparents of the claimant would be considered of probative value in establishing the parent-child relationship.

In this case the testing, along with corroborating statements, will establish the relationship by Oregon's preponderance of the evidence standard.

QUESTION

You asked whether C.B. is entitled to surviving child’s insurance benefits on the earnings record of Mr. B., who died after C.B. was conceived but before she was born. In posing this question, you also asked whether the state of Oregon would use grandparent DNA test results to determine paternity.

ANSWER

We believe that C.B. is entitled to surviving child’s insurance benefits on Mr. B.’s earnings record. Because C.B. would be able to inherit from Mr. B. under Oregon’s laws of intestate succession, she is the “child” of Mr. B. and was considered “dependent” upon him at the time of his death. We further believe that Oregon probate courts would consider grandparent DNA test results in determining paternity.

FACTUAL BACKGROUND

Mr. B. was domiciled in Oregon when he died in July 2008. In October 2008, Ms. P. gave birth to C.B. in Oregon. C.B.’s Certificate of Live Birth does not show the name of her father. In December 2008, on behalf of C.B., Ms. P. applied for surviving child’s insurance benefits on Mr. B.’s Social Security earnings record. Mr. B. and Ms. P. were never married and never lived together. According to Ms. P., Mr. B. never acknowledged C.B. in writing.

In April 2009, a DNA diagnostics center (Diagnostics Center) issued a DNA Test Report, which showed a 99.9996% probability that Mr. B.’s parents were C.B.’s biological grandparents. In reaching its results, Diagnostics Center tested DNA samples from Mr. B.’s parents, Ms. P., and C.B. Diagnostics Center concluded that Mr. B.’s parents could not be excluded as biological grandparents of C.B. Because Mr. B.’s parents are Native American, Diagnostics Center explained that the probability of grandparentage was “calculated by comparing to an untested, unrelated, random individual of the Native American population,” assuming a prior probability of 0.50. Diagnostics Center is accredited or certified by multiple organizations, including the American Association of Blood Banks.

In addition to this DNA testing, Ms. P. submitted 11 statements from family members and friends that Mr. B. had repeatedly acknowledged (verbally) that Ms. P. was pregnant with his child (C.B.).

ANALYSIS

A. Requirements for Entitlement to Surviving Child’s Insurance Benefits

Under the Social Security Act (Act), an individual may be entitled to surviving child’s insurance benefits if she is the “child” of an insured individual and was “dependent” on the insured at the time of the insured’s death. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2009). The other requirements for entitlement are not at issue in this case. As detailed below, C.B.’s status as a “child” and a “dependent” of Mr. B. must both be evaluated under the intestacy laws of Oregon, the state in which Mr. B. was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), 404.361(a).

1. “Child”

In relevant part, the Act defines “child” as “the child or legally adopted child of an individual.” 42 U.S.C. § 416(e)(1). The Act’s definition of “child” is met if the applicant is able to inherit from the insured under state law if the insured were to die without leaving a will. 42 U.S.C. § 416(h)(2)(A). See 20 C.F.R. §§ 404.355(a)(1), (b). Thus, C.B. is a “child” of Mr. B. if she can inherit Mr. B.’s personal property under Oregon’s laws of intestate succession.

2. “Dependent”

A child must also show that she was dependent upon the insured at the time of the insured’s death. 42 U.S.C. § 402(d)(1)(C)(ii). Except in circumstances that do not apply here, a child is considered dependent on a deceased insured if he or she is the “natural child” of the insured. 20 C.F.R. § 404.361(a). As discussed above, a “natural child” includes one that “could inherit the insured’s personal property as [the insured’s] natural child under State inheritance laws,” were the insured “to die without leaving a will.” 20 C.F.R. §§ 404.355(a)(1), (b). Thus, as mentioned above, whether C.B. is a “child” of Mr. B. and whether she was “dependent” on Mr. B. must both be resolved by looking at Oregon’s laws of intestate succession.

B. Oregon Laws on Intestacy and Paternity

1. Legal Framework for Intestacy and Paternity

Under Oregon intestacy law, a child may inherit if she is the issue of the decedent. See Or. Rev. Stat. § 112.045(1). For a child to establish that she is the issue of her father, the child must establish the paternity of the father. See Or. Rev. Stat. § 112.105(2). Where, as here, the father did not acknowledge paternity in writing, paternity must be established under Or. Rev. Stat. § 109.070. Id.

Individuals who are born after the decedent’s death can inherit under state intestacy laws if they are covered by the afterborn heirs statute. Under that statute, “relationships existing at the time of death of the decedent govern the passing of the net intestate estate.” Or. Rev. Stat. § 112.075. Persons who are “conceived before the death of decedent and born alive thereafter inherit as though they were alive at the time of the death of the decedent.” Id. Thus, assuming that Mr. B.’s paternity can be established, C.B. would be able to inherit under the afterborn heirs statute because she was conceived before Mr. B.’s death and was born after Mr. B.’s death. Thus, we must determine whether Oregon courts would recognize Mr. B. as C.B.’s father under Or. Rev. Stat. § 109.070.

Section 109.070 sets forth seven methods for establishing paternity in Oregon. Or. Rev. Stat. § 109.070. See also POMS GN 00306.605. Three provisions involve marriage between the mother and the father, which are not applicable because Mr. B. and Ms. P. were never married. Or. Rev. Stat. §§ 109.070(a), (b), (c). Two other provisions involve a voluntary acknowledgement of paternity signed by the parents, which are also not applicable because there is no evidence of such an acknowledgement. Or. Rev. Stat. §§ 109.070(e), (f). Accordingly, the only two remaining provisions to establish paternity are by filiation proceedings or by having paternity established or declared by “any other provision of law.” Or. Rev. Stat. §§ 109.070(d), (g).

A filiation proceeding to establish paternity may be initiated by the mother, by a man claiming to be the father, by the minor child through a guardian ad litem, or by certain other specified parties. Or. Rev. Stat. § 109.125(a). However, for filiation proceedings initiated by someone other than the alleged father, the petition must state that “a respondent is the father.” Or. Rev. Stat. § 109.125(2)(a)(D). Because Mr. B. is deceased, he could not be a respondent in a filiation proceeding, and he could not initiate such a proceeding. Thus, paternity in this case could not be established through a filiation proceeding, and could only be established—if at all—by some “other provision of law.”

A declaration of heirship is one “other provision of law” that may be used to establish parentage. Thom v. Bailey, 481 P.2d 355, 367-68 (Or. 1971) (en banc). The probate courts have “full, legal and equitable powers” to make declaratory judgments on all matters that affect the probate of an estate, including the power to determine heirship. Or. Rev. Stat. § 111.095. See also Or. Rev. Stat. §§ 111.085(3) (probate court jurisdiction), 28.040 (declaratory judgments). “[I]n the context of an heirship proceeding, paternity may be established at any time during the lifetime of the child.” State ex rel. Adult & Family Servs. Div. v. Bradley, 666 P.2d 249, 252 (Or. 1983). See Or. Rev. Stat. § 112.105. If the putative father has died, a declaratory judgment seeking to establish paternity through an heirship proceeding must be brought within 10 years after the date of death. State ex rel. Adult & Family Servs. Div. v. Keusink, 684 P.2d 1239, 1239 n.1 (Or. Ct. App. 1984). See Or. Rev. Stat. § 12.140. Here, because C.B. is alive, and because Mr. B. died in July 2008, an heirship proceeding would not be time-barred.

Although Oregon law would permit C.B. to bring an heirship proceeding, Or. Rev. Stat. § 28.040, the agency does not require her to actually do so in order to establish her entitlement to surviving child’s insurance benefits. 20 C.F.R. § 404.355(b)(2). Instead, the agency “will decide … paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” Id. Thus, we must next determine the standard of proof that Oregon probate courts employ in heirship proceedings.

2. Standard of Proof to Establish Paternity

Oregon courts apply a preponderance of the evidence standard in determining paternity in heirship proceedings. Hunter v. Craft, 588 P.2d 617, 622-23 (Or. Ct. App. 1978), rev’d on other grounds, 600 P.2d 415 (Or. 1979). See Thom v. Bailey, 481 P.2d 355, 358 (Or. 1971) (en banc) (holding that the plaintiff’s evidence had met the preponderance of the evidence standard, and had even met the clear and convincing standard); State ex rel. Dickerson v. Tokstad, 8 P.2d 86, 88 (Or. 1932). See also Or. Rev. Stat. § 109.155(2).

A preponderance of the evidence means such evidence as would show that an allegation is “more likely than not” to be true. See State v. Carlson, 808 P.2d 1002, 1009 (Or. 1991) (en banc). There is little guidance as to how Oregon probate courts apply the preponderance of the evidence standard in heirship proceedings, but we believe that probate courts would require the same or similar evidence as would be required to establish paternity in filiation proceedings. See Keusink, 684 P.2d at 1239 & n.1 (implying that determinations of paternity for heirship and intestate succession are kinds of filiation proceedings). In filiation proceedings, a mother’s testimony that a man is the father of her child must be supported by “corroborating evidence” if the man denies paternity. Or. Rev. Stat. § 109.155(1). Where paternity is denied, corroborating evidence is required no matter how “credible [the mother’s] testimony may be.” Tokstad, 8 P.2d at 88. Here, because Mr. B. is deceased and therefore cannot admit paternity, we believe that Oregon probate courts would require corroborating evidence of paternity.

Corroborating evidence means independent evidence that is not from the mother, and “tends to connect” the alleged father to being the father of the child. Tokstad, 8 P.2d 86 at 88. This evidence may be direct or circumstantial. Id. In this case, Ms. P. has alleged that Mr. B. is C.B.’s father by filing an application for surviving child’s insurance benefits on Mr. B.’s earnings record. Thus, the final issue is whether Ms. P. has submitted sufficient corroborating evidence that “tends to connect” Mr. B. to being C.B.’s father, such that it is “more likely than not” that Mr. B. is C.B.’s father.

3. The Evidence

Ms. P. submitted 11 statements from family members and friends to support her allegation that Mr. B. is C.B.’s father. Ms. P. also submitted a DNA Test Report, which showed a 99.9996% probability—as compared “to an untested, unrelated, random individual of the Native American population”—that Mr. B.’s parents were C.B.’s biological grandparents. For the following reasons, we believe that Oregon probate courts would conclude that Ms. P. has met her burden of showing—by a preponderance of the evidence—that Mr. B. is C.B.’s father.

The 11 witness statements “tend to connect” Mr. B. to being C.B.’s father. According to the statements, Mr. B. told both of his parents that Ms. P. was pregnant with his child. Mr. B.’s father reported that Mr. B. was with Ms. P. “all the time.” Mr. B.’s cousin stated that Mr. B. and Ms. P. “were always around each other,” and that Mr. B. “would walk up to [Ms. P.] and touch her stomach and ask, ‘How’s my baby doing[?]’” Mr. B. told a friend that Ms. P. was pregnant and that he was “finally having another baby.” Mr. B. also told a family friend that “his girlfriend was pregnant with his child,” and that Mr. B. “was proud knowing he was going to be a father.” Another friend reported that Mr. B., on several occasions, told his friends that Ms. P. “was going to have his baby,” and that Mr. B. “was actively participating in things, such as the choosing of her name.” Mr. B. told two other friends, two other cousins, and his brother that Ms. P. was pregnant with his child.

It is likely that the 11 statements alone would suffice to corroborate Ms. P.’s allegation and establish paternity by a preponderance of the evidence. Oregon courts have repeatedly found paternity based, either entirely or substantially, on corroborating testimony. See Thom, 481 P.2d at 358; Tokstad, 8 P.2d at 89; Fox v. Olsen, 741 P.2d 924, 926 (Or. Ct. App. 1987); Moore v. Gruetter, 544 P.2d 1047, 1048 (Or. Ct. App. 1976); State ex rel. Farrer v. McGuire, 513 P.2d 816, 817 (Or. Ct. App. 1973). We recognize that these cases largely pre-date the era when it became routine to establish paternity by blood or DNA testing. However, where the alleged father’s blood and/or DNA is not available, we are not aware of any reason that corroborating testimony cannot still be used to determine paternity in Oregon.

In addition to the 11 witness statements, Ms. P. submitted a DNA Test Report that also “tends to connect” Mr. B. to being C.B.’s father. This report showed a 99.9996% probability—as compared “to an untested, unrelated, random individual of the Native American population”—that Mr. B.’s parents were C.B.’s biological grandparents. Although it has not directly addressed the status of grandparent DNA testing, Oregon has long recognized the probative value of blood test results, including DNA test results, in establishing paternity. Or. Rev. Stat. § 109.250 et seq. (Uniform Act on Blood Tests to Determine Paternity); Plemel v. Walter, 735 P.2d 1209, 1217 (Or. 1987) (en banc). Thus, we believe Oregon probate courts would conclude that grandparent DNA testing is probative evidence in determining paternity.

The likelihood that grandparent DNA testing would be probative, however, does not end our inquiry. In order to be considered by a court, the specific grandparent DNA testing at issue must be admissible evidence (i.e., reliable). See Walter, 735 P.2d at 1216 (holding that the admissibility of a paternity index “is a matter to be determined by generally applicable laws of evidence”); Fox v. Olsen, 741 P.2d 924, 925 n.1 (Or. Ct. App. 1987) (upholding the exclusion of blood test results due to “a monumental gap in the chain of custody”). Here, the only apparent issue regarding admissibility is whether the DNA testing was performed by an accredited laboratory. Although not directly applicable—because this case involves grandparent DNA testing (not parent DNA testing)—Oregon’s Uniform Act on Blood Tests to Determine Paternity requires testing to be performed by a laboratory accredited by “bodies designated by the Oregon Health Authority in compliance with the United States Secretary of Health and Human Services.” Or. Rev. Stat. § 109.251. We believe it is likely that Oregon probate courts would impose an analogous requirement that grandparent DNA be tested by an accredited laboratory.

Here, the DNA testing of Mr. B.’s parents was performed by Diagnostics Center, a laboratory accredited by multiple organizations, including the American Association of Blood Banks (AABB). Accreditation by the AABB establishes that the genetic testing of record is reliable under the regulations of the Centers for Medicare and Medicaid Services (CMS) and the Clinical Laboratory Improvement Amendments (CLIA). See 73 Fed. Reg. 30109 (May 23, 2008). Oregon follows the accreditation regimens used by CMS and CLIA. See Or. Admin. R. 333-024-0010(2) (2009) (referring to HCFA, a predecessor of CMS). See also POMS PR 01115.041. We are not aware of any reason that an Oregon probate court would rule that the DNA Test Report was unreliable, and therefore inadmissible.

Having concluded that the DNA Test Report would likely be probative and admissible in Oregon probate courts, the final step is to understand what the DNA Test Report means. See Walter, 735 P.2d at 1216-20 (discussing the importance of understanding the meaning of blood test evidence). Most importantly, the DNA Test Report does not mean that there is a 99.9996% probability that Mr. B.’s parents are actually C.B.’s biological grandparents. Rather, the DNA Test Report means that there is a 99.9996% probability that Mr. B.’s parents are C.B.’s biological grandparents as compared to “an untested, unrelated, random individual of the Native American population.” Furthermore, the DNA Test Report does not mean that Mr. B. is C.B.’s father, even if Mr. B.’s parents are actually C.B.’s biological grandparents. As we know from the witness statements, Mr. B. has at least one brother. Thus, even if Mr. B.’s parents were actually C.B.’s biological grandparents, the DNA Test Report does not identify which of their sons is C.B.’s father. In sum, the DNA Test Report means that Mr. B.’s parents could not be excluded as C.B.’s biological grandparents.

Although the DNA Test Report does not conclusively establish that Mr. B.’s parents are C.B.’s biological grandparents, and although the report does not conclusively establish that Mr. B. is C.B.’s father, we believe that Oregon probate courts would conclude that the DNA Test Report is probative and admissible evidence that “tends to connect” Mr. B. to being C.B.’s father. We further believe that Oregon probate courts would conclude that the DNA Test Report and the 11 witness statements are sufficient evidence to corroborate Ms. P.’s allegation that Mr. B. is C.B.’s father. Accordingly, we believe that Ms. P. has shown, by a preponderance of the evidence, that C.B. is Mr. B.’s “issue” for purposes of intestate succession.

CONCLUSION

As discussed above, we believe Oregon probate courts would conclude that Ms. P. has submitted sufficient corroborating evidence to show that Mr. B. is C.B.’s father for purposes of intestate succession. Accordingly, C.B. is the “child” of Mr. B. and was considered “dependent” upon him at the time of his death. We believe that C.B. is entitled to surviving child’s insurance benefits on Mr. B.’s Social Security earnings record.

Under Oregon law, a child may inherit under State law if he is the issue of the decedent. DNA test concluding that there is a 99.99% probability that the number holder is the father of both children legitimate the children under Oregon law. A child in Oregon who is legitimated after birth is considered to be legitimate from birth.

QUESTION PRESENTED

This memorandum is in response to your request for our legal opinion on the following question: When does the parent-child relationship begin in the State of Oregon where paternity was established by a DNA test?

SHORT ANSWER

After consideration of the relevant facts and law, we conclude that the parent-child relationship existed at the date of birth.

FACTUAL BACKGROUND

Wesley J. M~ died on July XX, 2004. On August XX, 2004, Sonya K. L~ filed for survivor benefits for her children, Landon M. L~ and Wesleigh J. M~. DNA testing conducted on September XX, 2004, showed that there is a 99.99% probability that Mr. M~ is the father of both children.

DISCUSSION

A. Statutory and Regulatory Background

A "child" of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he or she:

(1) is the insured's child, based upon a relationship described in 20 C.F.R. sections 404.355 through 404.359;

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and

(5) was dependent upon the insured individual at the time of the insured's death.

See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. Here, Landon and Wesleigh are under the age of 18, are not married, and have applied for benefits. Thus, the only issues are whether they meet the first and fifth requirements above. If they meet the first requirement, they are considered dependent upon Mr. M~, satisfying the fifth requirement. See 20 C.F.R. § 404.361.

Landon and Wesleigh can show that they are the children of the deceased wage earner (the first requirement) in one of the following four ways:

they could inherit as Mr. M~'s natural child under state intestacy law. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1);

they are Mr. M~'s natural children and their mother, Sonya L~, and Mr. M~ went through a ceremony, which would have resulted in a valid marriage between them except for a "legal impediment." See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2);

before his death, Mr. M~ acknowledged in writing that Landon and Wesleigh are his children; Mr. M~ was decreed by a court to be the father; or he was ordered by a court to contribute to Landon and Wesleigh's support because they are his children. See Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3);

Mr. M~ is shown by evidence satisfactory to the Commissioner of Social Security to have been the children's father, and he was living with or contributing to Landon and Wesleigh's support at the time of his death. See Social Security Act § 216(h)(3)(c)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4).

Number one requires application of state intestacy law; numbers two through four require the application of alternative federal standards. Here, there is no evidence relating to number two, three and four. Therefore, Landon and Wesleigh must show they could inherit as Mr. M~'s natural children.

B. Oregon Paternity and Inheritance Laws

Because Mr. M~ died domiciled in Oregon, the laws of the State of Oregon must be applied to determine whether Landon and Wesleigh would be entitled to Mr. M~'s personal property if he had died without a will (intestate).

Under Oregon law, a child may inherit under State intestacy law if he is the issue of the decedent. See OR. REV. STAT. § 112.045. To inherit from his father, a child must establish the paternity. See OR. REV. STAT. § 112.105. Paternity must be established either by the means identified in OR. REV. STAT. § 109.070, or by written acknowledgement of the father during the child's lifetime. See OR REV. STAT. § 112.105. One such method of establishment of paternity is found in OR. REV. STAT. § 109.258, which creates a disputable presumption of paternity if results of a blood test show a cumulative paternity index of 99 or greater. See generally Plemel v. Walter, 735 P.2d 1209 (Or. 1987) (explaining the meaning of the paternity index and its relationship to the probability of paternity of any one man). We have been presented with no evidence rebutting this presumption of paternity. Therefore, by establishing their paternity through the DNA test, Landon and Wesleigh may inherit from their father, Mr. M~.

Program Operations Manual System (POMS) GN 00306.085 states that a child in Oregon is legitimate from the date of birth. See also POMS GN 00306.050A, which states that a child legitimated after birth is considered to be legitimate from birth. Thus, Landon and Wesleigh are legitimate as of the date of their birth.

Lucille G. M~

Regional Chief Counsel

By: /s/ Joanne E. D~

Assistant Regional Counsel

While SSA is not precluded from considering a DNA test report indicating that the child claimant has the same biological father as the NH's legitimated child, the totality of the evidence does not appear to constitute a preponderance of the evidence.

You asked whether a child is entitled to child's insurance benefits based on DNA tests using genetic material from a sibling and acknowledged child of a deceased number holder who died while domiciled in the State of Oregon.

FACTUAL BACKGROUND

In approximately late June 1992, Serina S~ (Serina) conceived a child. On March XX, 1993, she gave birth to Cameron C. R~ (Cameron). Serina was unmarried at the time of Cameron's birth, but Felipe R~ Jr. (Felipe) was listed as the father on the birth certificate. Nine months later, on December XX, 1993, Serina and Felipe married. After three years of marriage, on April XX, 1997, the parties separated and Serina moved in with her mother. Shortly thereafter, Serina filed for dissolution of the marriage.

On July XX, 1997, Serina and Felipe participated in mediation to reach an agreement on the terms of a parenting plan for Cameron. In late October 1997 or early November 1997, about seven months after Serina and Felipe separated, Serina conceived another child, Cassady G~ (Cassady).

Within days of Serina's conception of Cassady, on November XX, 1997, Serina and Felipe signed a Marital Settlement Agreement. They remained husband and wife until the final Dissolution Decree was entered, but were bound by the terms of the Marital Settlement Agreement upon signing it. The agreement enforced the parenting plan the parties agreed to in mediation and required Felipe to begin paying child support for Cameron and alimony for Serina. On February XX, 1998, a decree of dissolution was entered, dissolving Serina and Felipe's marriage effective March XX, 1998, thirty days from the date of the decree.

Serina gave birth to Cassady on August XX, 1998, five months after the decree of dissolution was entered. Felipe was not listed as the father on the birth certificate and Cassady's last name was listed as “G~,” Serina's maiden name. Serina remarried on January XX, 2001.

Almost four years after Cassady's birth, Felipe died on March XX, 2002, while domiciled in Oregon. His mother's life partner, who is currently incarcerated for the crime, murdered Felipe and his mother.

Shortly after Felipe's death, on April XX, 2002, Serina filed an application for child's insurance benefits on behalf of Cameron. During her personal interview she did not mention that she and Felipe had any other children. The claim was processed the same day and Cameron was deemed entitled to benefits as of March 2002. For purposes of child's insurance benefits, Cameron was considered Felipe's child because before Felipe's death, he acknowledged in writing that Cameron was his son, was decreed by a court to be Cameron's father, and was ordered to contribute to Cameron's support. See Social Security Act § 216(h)(3)(c)(i), 42 U.S.C. § 416(h)(3)(c)(i).

One month later, on May XX, 2002, Serina, Cameron, and Cassady underwent genetic (DNA) testing. A DNA siblingship test report indicated that the probability of full-siblingship between Cameron and Cassady is 99.5% and the likelihood that Cameron and Cassady share the same biological father is 207 to 1.

On June XX, 2002, Serina filed an unopposed Petition to Establish Paternity and Amend Birth Certificate in the Oregon Circuit Court alleging the following: she and Felipe were married at the time of Cassady's conception, but legally divorced at the time of her birth; she and Felipe had another child, Cameron, during their marriage; the DNA siblingship test report established that Cassady and Cameron are full siblings; and Felipe is Cassady's natural father. The Oregon Circuit Court issued a Decree Establishing Paternity and Amending Birth Certificate on June XX, 2002, and ordered the Health Division of the Oregon Department of Human Resources to amend Cassady's birth certificate to show that Felipe is her natural father.

Shortly thereafter, on August XX, 2002, Serina filed an application for child's insurance benefits on Cassady's behalf. She has submitted the DNA siblingship test report, the Oregon Circuit Court decree, and statements from friends and family members. She alleges that Cassady is Felipe's child. Because Cameron has already been deemed entitled to child's insurance benefits, the only issue presented is whether Cassady is eligible for benefits.

DISCUSSION

A surviving child is entitled to child's insurance benefits if:

1. a. 

   the wage earner died either fully or currently insured; and

2. b. 

   the child is the “child,” as defined in the Social Security Act, of the deceased wage earner; and

3. c. 

   the child is under the age of 18 (there are other tests for this not applicable here); and

4. d. 

   the child was dependent upon the deceased wage earner; and

5. e. 

   the child is not married; and

6. f. 

   an application for child's insurance benefits is filed.

See Social Security Act § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2002). Here, the wage earner, Felipe, was fully insured at the time of his death. The child, Cassady, is under the age of 18, is not married, and has applied for benefits. Thus, the only issues are whether Cassady meets the second and fourth requirements above. If Cassady meets the second requirement, she is also considered dependent, which would satisfy the fourth requirement. See 20 C.F.R. § 404.361.

Cassady may prove that she is Felipe's “child” (the second requirement) in any of the following four ways:

1. a. 

   She could inherit Felipe's property under Oregon intestacy law. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

2. b. 

   She is Felipe's natural child and Felipe and Serina went through a ceremony that would have resulted in a valid marriage between them except for a “legal impediment.” See Social Security Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).

3. c. 

   Before his death, Felipe acknowledged in writing that Cassady was his daughter; was decreed by a court to be Cassady's father; or was ordered by a court to contribute to Cassady's support because she was his daughter. See Social Security Act § 216(h)(3)(C)(i), 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3).

4. d. 

   Felipe is shown by evidence satisfactory to the Commissioner of Social Security to have been Cassady's father, and he was living with Cassady or contributing to her support at the time of his death. See Social Security Act § 216(h)(3)(C)(ii), 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4).

Number 1 requires application of state intestacy law; numbers 2 through 4 require the application of alternative federal standards.

Cassady cannot meet number 2 because Felipe and Serina did not go through a ceremony that would have resulted in a valid marriage except for a legal impediment after Cassady's birth. Cassady cannot meet number 3 because there is no evidence that, before his death, Felipe acknowledged in writing that Cassady was his child. Furthermore, prior to Felipe's death no court order stated that Cassady was his child or required Felipe to pay support for Cassady. Cassady cannot meet number 4 because Felipe did not reside with Cassady and Serina admits that Felipe never paid any of the bills associated with pregnancy, went to any doctor appointments, or supported her or Cassady.

The other way Cassady may prove that she is Felipe's “child” is under the first requirement, by showing that she could inherit Felipe's property under state intestacy law. Because Felipe died while domiciled in the State of Oregon, the laws of the State of Oregon must be applied to determine whether Cassady would be entitled to Felipe's personal property if Felipe had died without a will (intestate).

Oregon Law

Under Oregon intestacy law, a child may inherit if she is the issue of the decedent. See OR. REV. STAT. § 112.045. For a child to establish that she is the issue of her father, the child must establish the paternity of the father. See OR. REV. STAT. § 112.105. If the father did not acknowledge himself to be the father in writing signed by him during the lifetime of the child, paternity must be established under OR. REV. STAT. § 109.070. See OR. REV. STAT. § 112.105.

Cassady may establish Felipe's paternity in any of the following seven ways:

1. a. 

   Serina was married to, and cohabited with, Felipe, who was not impotent or sterile, at the time of Cassady's conception.

2. b. 

   Cassady was born while Serina and Felipe were married and there was no decree of separation from bed or board.

3. c. 

   Serina and Felipe were married after Cassady's birth.

4. d. 

   Felipe's paternity was established in filiation proceedings.

5. e. 

   Felipe completed a voluntary acknowledgement of paternity form and filed it with the State Registrar of the Center of Health Statistics.

6. f. 

   Felipe completed a voluntary acknowledgement of paternity process in another state.

7. g. 

   Felipe's paternity is established or declared by other provision of law.

See OR. REV. STAT. § 109.070. Cassady cannot meet the first test because Serina and Felipe were legally separated in April 1997, seven months before Serina conceived Cassady. Cassady cannot meet the second through sixth tests because Serina and Felipe were not married when Cassady was born or after she was born, there were no filiation proceedings conducted, and Felipe did not voluntarily acknowledge his paternity. Therefore, Cassady can only establish paternity by the seventh test, under another provision of law. See OR. REV. STAT. § 109.070(g).

One such provision of law is the Uniform Act on Blood Tests to Determine Paternity (UABT), which was enacted in Oregon in 1953. See 1953 Or. Laws Ch. 628 § 4. The Oregon statute that mirrors the UABT creates a “disputable presumption” of paternity if results of a blood test show a cumulative paternity index of 99 or greater. See OR. REV. STAT. § 109.258; see also State v. Lyons, 924 P.2d 802, 804-06 (Or. 1996) (citing OR. REV. STAT. § 109.250). Oregon law does not specifically allow for blood tests from alleged siblings, but it does not expressly limit test results to those using the blood or tissue sample of the putative father. See OR. REV. STAT. § 109.251.

We were unable to find any reported cases in Oregon where genetic testing of siblings or other relatives has been at issue. Other states that have adopted the UABT, however, have allowed the fact finder to consider DNA testing, of legitimate siblings of the putative father, as probative of the question of paternity. See Sudwischer v. Estate of Hoffpauir, 589 So. 2d 474, 474 (La. 1991), cert. denied, 112 S. Ct. 1937 (1992). Although UABT states have refused to compel siblings to submit to blood tests, we were unable to find any cases where a UABT state refused to admit voluntary blood tests from alleged siblings as evidence to establish paternity.

We further found that, where the genetic testing uses DNA samples from the putative father's legitimate children, it may be sufficient to reconstruct the man's DNA fingerprint. See Charles Nelson LeRay, Implications of DNA Technology on Posthumous Paternity Determination: Deciding the Facts When Daddy Can't Give His Opinion, 35 Boston College Law Review 747, 765 (May 1994). DNA fingerprinting is capable of determining the possibility that two alleged siblings shared a common relative. See J.E. Cullens, Jr., Should the Legitimate Child be Forced to Pay for the Sins of Her Father?: Sudwishcer v. Estate of Hoffpauir, 53 Louisiana Law Review 1675, 1681 (May 1993).

Therefore, we conclude that genetic testing which includes blood or tissue samples from a legitimate sibling and child of the father is probative and useful to determine paternity. For these reasons, we find that DNA evidence from siblings is likely admissible to establish paternity under Oregon Law.

In the case at hand, genetic material from Serina, Cameron, and Cassady was tested. The DNA test report shows the following interpretation:

Combined Sibship Index 206.5675

Probability of Sibship 99.5%

DNA testing was done to determine siblingship of alleged siblings, Cameron C. R~ and Cassady S. G~. Based on testing results obtained from analyses of 6 different DNA probes, the probability of full-siblingship is 99.5%. The likelihood that they share the same biological father is 207 to 1. This probability of siblingship is calculated by comparing to an untested, random individual of the North American Caucasian population (assumes prior probability equals .50).

The DNA siblingship test report explains the siblingship analysis as follows:

DNA testing can also be used to determine the likelihood of individuals being related as brother and/or sister. The DNA of two possible siblings is compared to determine if there are any common alleles between the two. At each DNA locus it is possible that 0, 1, or 2 alleles will be shared whether two people are siblings or not. Any matching alleles are analyzed to determine the statistical chance that the people in question would share that DNA if they are siblings, compared to the chance if they are unrelated. Based on this statistical analysis, the relative chance that two people are full-siblings or half-siblings can be calculated. It is important to note that it is not possible to determine with 100% certainty whether or not two people are definitely siblings: only whether they are likely to be or not. In some cases there is not enough information from the DNA analysis to determine siblingship or non-siblingship. When this occurs the results are said to be inconclusive.

The DNA testing was performed by the DNA Diagnostics Center (Fairfield, Ohio), a facility accredited by the American Association of Blood Banks (AABB). Accreditation by the AABB establishes that the genetic testing of record is reliable and authentic under all regulations of the Centers for Medicare and Medicaid Services (CMS) and the Clinical Laboratory Improvement Amendments (CLIA). See 63 Fed. Reg. 17,429 (1998). Oregon follows the accreditation regimens used by CMS and CLIA. See OR. ADMIN. R. 333-024-0010 (2002).

Thus, following Oregon regulatory law, we can accept the genetic testing evidence from the DNA Diagnostics Center as authoritative. Thus, we can also accept the probability that Cassady and Cameron had the same biological father is 207 to 1. The DNA test report, however, does not demonstrate that Felipe is the biological father of Cassady, only that Cameron and Cassady share a common biological father.

In Oregon, paternity may be established in a proceeding for Social Security benefits after the father's death. See Thom v. Bailey, 481 P.2d 355, 358 (Or. 1970); Zahradnik v. Sullivan, 966 F.2d 355, 356-58 (8th Cir. 1992) (applying Oregon law). The burden of proof to establish paternity in such a proceeding is a preponderance of the evidence. See Thom, 481 P.2d at 358.

In Zahradnik, the Eighth Circuit Court of Appeals, applying Oregon law, outlined the need for corroborating evidence of paternity independent of the mother's testimony to meet the preponderance of the evidence test. See Zahradnik, 966 F.2d at 359-60. Corroborating evidence is “some substantial fact or circumstance, which independent of the mother's testimony, tends to connect the [putative father] with fatherhood of the child. ” Id. at 359 (citing Moore v. Gruetter, 544 P.2d 1047, 1047 (Or. Ct. App. 1975)). In Zahradnik corroborating evidence existed in the form of statements from other individuals who claimed that the mother told them during her pregnancy that the alleged father was the actual father of her child. See Zahradnik, 966 F.2d at 360-61. In addition, the court noted the evidence indicating that the mother was exclusively linked romantically with the alleged father at the time of conception. See id.

Thus, the issue is whether other evidence corroborates Serina's allegation that Felipe is Cassady's father and whether this evidence as a whole establishes paternity by a preponderance of the evidence. A preponderance means that the fact sought to be proved is more probable than not. See Black's Law Dictionary 819 (6th ed. Abridged 1991).

The DNA test report establishes that Cameron and Cassady share the same biological father. The question remains, however, whether Felipe is that person. At first blush, it appears that the Oregon Circuit Court Decree Establishing Paternity and Amending Birth Certificate corroborates Serina's allegation that Felipe is Cassady's father. SSA, however, is not necessarily bound by the Oregon Circuit Court's determination of paternity. See Haas v. Chater, 79 F.3d 559, 562 (7th Cir. 1996). The Commissioner is bound by a State court determination where all of the following prerequisites are met:

1. (a) 

   an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction;

2. (b) 

   this issue was genuinely contested before the state court by parties with opposing interest;

3. (c) 

   the issue falls within the general category of domestic relations law; and

4. (d) 

   the resolution by the state trial court is consistent with the law enunciated by the highest court in the state.

See Social Security Ruling (SSR) 83-37c, adopting Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973); see also George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1990); Rogers v. Sullivan, 795 F. Supp. 761 (E.D.N.C. 1992). If any of the above criteria are not met, the Commissioner is not bound, but may accept or reject a state court determination.

The first, third, and fourth prerequisites are met. The issue of Felipe's paternity of Cassady was previously determined by the Oregon Circuit Court, Felipe's paternity falls within the general category of domestic relations law, and the resolution by the state court is consistent with Oregon law.

The second prerequisite is not met. Parties with opposing interests did not genuinely contest Felipe's paternity. The evidence we received indicates that the Oregon Circuit Court based its findings solely on Serina's allegations and the DNA test report. Furthermore, Serina's allegations in the Petition were materially false. She alleged, “Felipe R~, Jr. and I had another child, Cameron Carl R~, during our marriage.” This is false. Cameron was born nine months before Serina and Felipe were married. This misrepresentation is significant because Oregon law treats children born during a marriage different than children born before a marriage. A child born during a marriage is entitled to a presumption of paternity, whereas a child born before the marriage is not. See OR. REV. STAT. § 109.070(1)(3). Therefore, the Oregon Circuit Court order was based on false representations. Because the second prerequisite of SSR 83-37c was not met, the Commissioner is not bound, but may accept or reject the Oregon Circuit Court's determination of paternity. See Gray, 474 F.2d at 1373.

Serina submitted statements from her friends and family to corroborate her allegation that Felipe is Cassady's father. Lisa L~, a friend of Serina and Felipe, observed Felipe bring Cassady gifts and play with her when he visited Serina's home. Serina's sister, Cynthia N~, confirms that Serina continued to have an intimate relationship with Felipe after they separated. Ms. N~ also states that when Cassady was born, Felipe went to see her and gave her a gift. She states that Felipe gave Cassady gifts for her birthday and Christmas. Ms. N~ also confirms Serina's statement that Felipe indicated that he wanted Cassady to participate in his visitations with Cameron when she was older. Katrina T~, also Serina's sister, states that she was present at Cassady's birth and witnessed Felipe visit Cassady and bring her a gift. Ms. T~ confirms Serina's statements that Felipe gave Cassady gifts at Christmas and wanted to participate in visitation with her when she was older. Serina's current husband, Matthew S~, also verified that Felipe indicated a desire to include Cassady in visitation, gave her gifts at Christmas, and displayed affection for her when visiting the home. These statements corroborated Serina's statements.

On the other hand, there is ample evidence that disputes Serina's allegation that Felipe is Cassady's father. The dissolution decree, which was finalized approximately five months after Serina conceived Cassady, only referenced one child born of the marriage, Cameron. The parenting plan the parties agreed to also only contemplated custody and child support for only once child, Cameron. Although the dissolution decree was finalized March XX, 1998, five months after Cassady was born, Serina never requested that the dissolution decree or parenting plan include Cassady and never petitioned the court for child support for Cassady. Serina alleges that she did not discover she was pregnant until after the dissolution decree was finalized, on April XX, 1998. She states that she could not afford to have the decree amended to reflect that another child was born of the marriage. The attorney who represented Serina in the dissolution, Max M~, however, states that Serina became pregnant during the time of the dissolution and the unborn child was not included in the decree because the parties had an oral agreement that Felipe would not request custody and Serina would not require support. Mr. M~'s statement contradicts Serina's allegation that she did not know about the pregnancy until the dissolution decree was finalized.

Felipe's actions during the four years after Cassady's birth also contradict Serina's allegation of paternity. Serina admits that Felipe never paid any of the bills associated with pregnancy, never attended any doctor appointments, and although he participated in regular visitation with Cameron, he never took Cassady. Serina also admits that Cassady did not refer to Felipe as “daddy,” and Felipe never referred to himself as Cassady's “daddy.”

Statements from Felipe's family and friends do not support Serina's allegation that Felipe is Cassady's father. Rigoberto M~, Felipe's friend and co-worker, stated that Felipe had asked Serina about the paternity of her second child, but Serina never told Felipe who Cassady's father was. Another friend of Felipe's, Dorothy V~, stated that Felipe and his family believed that he had only one child, Cameron. Felipe's sister, Bernidet R~, stated that Felipe never indicated that Cassady was his child and only had a relationship with Cameron. Felipe's father, Felipe R~, Sr., stated that Felipe told him that Serina had become pregnant with another man's child during the dissolution proceedings and that Felipe never considered Cassady as his child. Stephanie M~, Felipe's aunt, stated that Felipe believed that Cameron was his son, but never stated or acted as if Cassady was his daughter. A memorial pamphlet, prepared by Felipe's family, remembered that he was survived by one son, Cameron, and did not mention Cassady or that Felipe had any other children.

Other evidence does not lend credibility to Serina's allegations of paternity. Information received from the State of Oregon with respect to a prior claim for medical assistance revealed that Serina had a felony conviction for drug manufacturing and was on probation for two years. The State's records indicate that Cassady was born positive to methamphetamine. There is also information that Serina told a social worker that Cassady's father was a man named “Jay” who lived in Lebanon, Oregon. Other case notes reveal that Serina told her obstetrician that Cassady's father was a man named “Nick N~” who lived in Lebanon, Oregon.

Therefore, it is our legal opinion that you are not precluded from considering the DNA test report, the Oregon Circuit Court decree, and the witness' statements to determine whether Felipe is Cassady's father under Oregon law. It is our opinion that the totality of the evidence does not appear to constitute a preponderance of the evidence.

Lucille G. M~

Regional Chief Counsel

Under Oregon law, paternity may be established after the alleged father's death by a preponderance of the evidence, meaning that the fact sought to be proved is more probable than not. The mother's allegation of paternity must be corroborated by some substantial fact or circumstance, which, independent of her testimony, tends to connect the putative father with fatherhood of the child. In this case, the mother's allegation of paternity is corroborated by DNA test results showing a probability of paternity greater than 99%, and the statements of the NH's sister and wife. Thus, the preponderance standard is met.

This memorandum is in response to your request for our legal opinion as to whether DNA tests using genetic material collected from a wage earner after his death may be used to establish paternity in Oregon.

FACTUAL BACKGROUND

According to his Certificate of Death, Stephen E. N~ (Stephen) died on November XX, 2000, while domiciled in Oregon. The Certificate of Death indicates that he died of a drug overdose. At the time of his death, he was married to Amanda N~.

On December XX, 2000, Tiffany H~ (Tiffany) filed an application for child's survivor's benefits on Stephen's account, on behalf of her child, Avery B. H~ (Avery). A birth certificate indicates that Avery was born October XX, 2000, approximately two weeks before Stephen died. The space for a father's name on the birth certificate is blank.

In connection with her application, Tiffany submitted a Parentage Testing Report from OHSU Clinical Genetic Laboratories. This report indicates that on November XX, 2000, eleven days after Stephen's death, Tiffany came to the DNA Diagnostic Laboratory seeking clarification of the alleged biological relationship between Avery and Stephen. This report further indicates that at the same time, Amanda consented to use DNA from Stephen's blood sample in parentage testing. The report further clarifies that the blood sample was released to OHSU from the Multnomah County Medical Examiner's office, and was brought to OHSU by courier. The test results indicated that the probability of Stephen being the biological father of Avery was greater than 99%.

When we asked you to perform further development, to determine whether Stephen had ever taken any action indicating paternity of Avery, you recontacted Tiffany, and you also called Cherie N~, Stephen's sister, and Amanda N~, Stephen's wife. Tiffany provided a picture of Stephen with Avery.

Amanda reported that a week after she and Stephen were married, Tiffany called Stephen to advise him that she was pregnant. Initially, their marriage was strained because of this. As time wore on, Stephen (and Amanda) were okay with the pregnancy and actually got excited about the baby about a month before the birth. Amanda reported that Stephen talked to Tiffany two or three times during the pregnancy, but she did not know whether he ever went with her to any prenatal appointments. Stephen did not make any formal arrangements for child support, but Amanda and Stephen discussed this at length and agreed that it was warranted. Stephen saw Avery once after the birth, and made a photo album for Avery. Amanda reported that she felt strongly that Avery should get benefits based on Stephen's account. She encouraged Tiffany to apply for benefits and agreed to have blood and other samples taken from Stephen before he was cremated so that paternity could be established.

Cherie reported that Stephen talked to Tiffany every seven to ten days during the pregnancy, and that she knew that he went with Tiffany to one ultrasound test. She also reported that she knew of the relationship between Stephen and Tiffany. He was seeing Tiffany and Amanda at the same time. At one point (before he married Amanda) he told Cherie that he was going to marry Tiffany.

DISCUSSION

A “child” of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he: (1) is the insured's child, based upon a relationship described in sections 404.355 through 404.359, (2) has applied for such benefits, (3) is unmarried, (4) is under the age of 18, and (5) was dependent upon the insured individual at the time of the insured's death. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350.

The only issues are whether Avery meets the first and fifth requirements above. If Avery is Stephen's natural child under section 404.355, then he is also considered a dependent. See 20 C.F.R. § 404.361. Therefore, Avery must meet the requirements of section 404.355.

Avery is Stephen's natural child under section 404.355 only if: (1) he can inherit his personal property as his natural child under State inheritance laws; (2) Avery is Stephen's child and Stephen and Tiffany went though a ceremony that would have resulted in a valid marriage for them but for a legal impediment; or (3) Avery is Stephen's natural child and Tiffany did not marry Stephen, but before his death, he acknowledged in writing that Avery was his child, was decreed by a court to be her father, or was ordered by a court to contribute to his support because Avery was his child. See 20 C.F.R. § 404.355.

According to the facts as you reported them, Stephen never acknowledged in writing that Avery was his child; and there is no court order that Avery is Stephen's child or requiring Stephen to pay support for Avery. Under the current facts, the only way that Avery can receive benefits is if he can inherit Stephen's personal property as his natural child under State inheritance laws. Because Stephen died domiciled in Oregon, the laws of the State of Oregon must be applied to determine whether Avery would be entitled to Stephen's personal property if he had died without a will (intestate).

Oregon State law

In Oregon, a child may inherit under the State intestacy law where paternity is established during the child's lifetime. See Or. Rev. Stat. § 112.105 (1999). In Zahradnik v. Sullivan, 966 F.2d 355 (8th Cir. 1992), the United States Court of Appeals for the Eighth Circuit had the opportunity to address Oregon's inheritance and paternity laws in the Social Security context. Under Oregon law, as recognized by Zahradnik, paternity may be established in a proceeding following the father's death, and does not have to be established in a separate formal paternity proceeding, but can be established in other proceedings, such as probate proceedings or proceedings for worker's compensation benefits or Social Security benefits. See id. at 357-58, citing Or. Rev. Stat. §§ 109.060, 109.070, 112.105; Thom v. Bailey, 481 P.2d 355 (Or. 1970); Amos v. SAIF Corp., 694 P.2d 998, 1001 (Or. Ct. App. 1985)).

Under Oregon law, in general, paternity must be established by a preponderance of the evidence. See Thom, 481 P.2d at 358. Specifically, in order to establish paternity, the mother's allegation of paternity must be corroborated by “some substantial fact or circumstance, which independent of mother's testimony, tends to connect the [putative father] with fatherhood of the child.” Zahradnik, 966 F.2d at 359 (citing Moore v. Gruetter, 544 P.2d 1047, 1047 (Or. Ct. App. 1975)). Corroboration is evidence, other than the testimony of the mother, that:

adds to, strengthens, confirms, and corroborates her. It must be of some substantive fact or circumstance which, independent of her testimony, tends to connect [the putative father with fatherhood of the child]. It may be either direct or circumstantial, or be wholly circumstantial, and however slight must tend to identify [the putative father as the father of the child]. It is not necessary that the testimony of the [mother] be corroborated on every particular or upon every material point.

But there must be a sufficient amount of confirmation to satisfy the jury of the truth of her testimony, so that the case shall not rest upon her credibility alone, however credible her testimony may be.

Id. at 359-60 (citing State ex rel. S., 521 P.2d 1319, 1319 (Or. Ct. App. 1974)). The Zahradnik court discussed the facts establishing paternity in Thom. In that case, prior to his death, the alleged father admitted having intercourse with the mother. Other than this admission, much of the evidence refuted a finding of paternity: the alleged father denied paternity; the alleged father and his wife had tried to have children, but did not succeed and later medical tests revealed that he was sterile; when the child was born, the mother did not name the alleged father on the birth certificate; and the mother admitted to having intercourse with two other men three months after conception would have occurred. See Thom, 481 P.2d at 357-58. While recognizing that the standard for establishing paternity was a preponderance of the evidence, the Oregon Supreme Court found that the above evidence was sufficient to establish paternity by clear and convincing evidence. See id.

In Amos, also cited in Zahradnik, the plaintiff sought to establish paternity in the context of a worker's compensation proceeding. See Amos, 694 P.2d 1998. The alleged father died in an accident at work, before paternity was established. The mother was married to a man other than the alleged father at the time of conception. There was a presumption, under Oregon law, that her husband was the child's father. See Or. Rev. Stat. § 109.070. They later divorced. In order to establish paternity, the mother had to overcome the presumption that her ex-husband was the father, and also establish that the deceased worker was the father of the child. The Oregon Court of Appeals found that there was “clear and convincing evidence” to overcome the presumption and to establish the decedent's paternity for purposes of qualifying for worker's compensation benefits. See Amos, 694 P.2d at 1001. In arriving at their conclusion, the court relied on the following facts: the husband was living far away from the mother at the time of conception, and their divorce decree provided for another child who was born during their marriage, but did not provide for the child at issue; the mother and the deceased worker were cohabiting when the child was conceived; the child was given the deceased worker's last name; the deceased worker listed the child on his income tax return in 1979, although not in 1980; the deceased worker tried to have his name placed on the birth certificate, but the hospital would not allow it; and the deceased worker paid hospital and other expenses for the child. See id.

In Zahradnik, the court found that the mother's testimony regarding the child's paternity was “strongly corroborated.” Zahradnik, 966 F.2d 360-61. Specifically, a disinterested individual testified that the alleged father told her that he was the child's father, and he wanted his name placed on the child's birth certificate, so that if something happened to him, the child could receive benefits. Two other individuals testified that the mother told them during her pregnancy that the alleged father was the child's father. They believed this was true, due to the strong resemblance between the alleged father and the child. The alleged father wrote the mother several letters indicating his desire to travel with them in his homeland. The three regularly took vacations together, and the alleged father contributed money and goods for the child. Finally, the court found that the weight of the evidence showed that the mother was exclusively involved with the alleged father at the time of conception. See Zahradnik, 966 F.2d at 360-61.

Paternity may be established by a preponderance of the evidence.

Thus, the question here becomes whether Tiffany's allegation that Stephen is Avery's father is corroborated by other evidence and whether this evidence as a whole establishes paternity by a preponderance of the evidence. A preponderance means that the fact sought to be proved is more probable than not. See Black's Law Dictionary 819 (6th ed. Abridged 1991).

Currently, under Oregon law, a blood test that results in a cumulative paternity index of 99 or greater creates a disputable presumption of paternity. Thus, blood tests may be used to establish a presumption of paternity. See Or. Rev. Stat. § 109.258; Programs Operations Manual System (POMS) GN 00306.080 (Oregon).

Here, the Parentage Testing Report indicates a probability of paternity of greater than 99%. The DNA test result is not the only evidence corroborating Tiffany's statement that Stephen is Avery's father. In addition to this evidence, Stephen's sister confirmed that Stephen and Tiffany had a close relationship, that Stephen discussed the pregnancy with Tiffany and went with her to one prenatal appointment. In addition, Amanda confirmed that Stephen admitted that Avery was his and considered supporting Stephen. After considering all of this evidence, it is our legal opinion that you may consider the DNA testing as evidence that Stephen is Avery's father. It is our opinion that the test results are a substantial fact, which independent of Tiffany's testimony, tends to connect Stephen with fatherhood of Avery and that the remainder of the evidence you gathered also supports this conclusion. See Zahradnik, 966 F.2d at 359, citing Moore v. Gruetter, 544 P.2d 1047, 1047 (Or. Ct. App. 1975).

Under Oregon law, in general, paternity must be established by a preponderance of the evidence. Specifically, the mother's allegation of paternity must be corroborated by “some substantial fact or circumstance, which independent of mother's testimony, tends to connect the [putative father] with fatherhood of the child.”

Currently, under Oregon law, a cumulative paternity index of 99 or greater creates a disputable presumption of paternity.

NOTE: In describing the provisions of section 216(h)(3) of the Social Security Act, the opinion failed to include the “other satisfactory” evidence test which provides that paternity may be established if it is shown by satisfactory evidence that the NH is the child's biological parent and is living with the child or contributing to the child's support.

This memorandum is in response to your request on behalf of the Bend, Oregon Office for our legal opinion as to whether the DNA tests using genetic material from Lynn D~ may be used to establish paternity in the State of Oregon.

FACTUAL BACKGROUND

Lynn D. D~ died in a motor vehicle accident on October XX, 1999, while domiciled in Oregon. He was never married to Diane L~. On August XX, 2000, Diane filed an application for surviving child's benefits and a lump sum death benefit on Lynn's account. She alleges that David L. D~, born November XX, 1999, is Lynn's child. According to Lynn's mother, he had no other children.

Diane is married to Abel L~, but they separated in 1995. Abel reported that David could not be his because he and Diane had not been together since their separation.

You reported that by all accounts of friends and relatives, Lynn and Diane began seeing each other in January or February 1999. They may or may not have lived together during this time. Diane found that she was pregnant in April or May 1999.

A statement from Lynn's mother indicates that when Lynn told her about the baby he was “happier than I have ever seen him.” He took time off work to take Diane to the doctor and went with her to an ultrasound. He bought a car seat for the baby for Diane's birthday. Lynn told his mother that he was going to name the baby. She reported that he would pat Diane's stomach and grin. Lynn's mother perceived that he was “very excited and nervous at the responsibility of becoming a first time dad.”

Diane's neighbor, Teresa W~, reported that Lynn claimed that Diane was carrying his child. Lynn told Teresa that he was excited about the baby, and scared because he was a first time father.

Lynn's sister-in-law, Tracee D~ talked with Lynn about once a week. She reported that he lived with Diane much of the time, and helped her financially. In May 1999, Lynn asked Tracee to help him shop for a car seat for Diane's birthday. He reported “we need a car seat for my baby that's coming.” Tracee understood that Lynn intended to be a full time father for the baby. He went to doctor's appointments with Diane, was concerned about her taking care of herself during the pregnancy, and often spoke of the baby. Finally, Tracee reported that she had no doubt that the baby was Lynn's and that if he were alive would be supporting David.

Diane's physician, Marlis B~, M.D., has stated:

This 32-year-old woman presented for prenatal care in May of 1999 stating that the father of the baby was Lynn D~ and in her entire medical history and throughout the pregnancy never claimed that there was any question about his paternity.

When Lynn died on October XX, 1999, his mother found a picture of the ultrasound and books about babies and baby names among his personal effects. David was born on November XX, 1999. While he carries Lynn's name, Lynn was not named as David's father on his birth certificate.

On October XX, 1999, a LabCorp pathologist collected blood from Lynn's body. The packaging and sealing certification, the opening certification, and an Affidavit of Parentage Test Expert establish a chain of custody for Lynn's blood. LabCorp test results indicate that Lynn cannot be excluded as the biological father of David, and that the probability of paternity is 99.99%.

DISCUSSION

A “child” of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he: (1) is the insured's child, based upon a relationship described in §§ 404.355 through 404.359; (2) has applied for such benefits, (3) is unmarried, (4) is under the age of 18, and (5) was dependent upon the insured individual at the time of the insured's death. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350.

The only issues are whether David meets the first and fifth requirements above. If David is Lynn's natural child under § 404.355, then he is also considered a dependent. See 20 C.F.R. § 404.361. Therefore, David must meet the requirements of section 404.355.

David is Lynn's natural child under section 404.355 only if: (1) he can inherit his personal property as his natural child under State inheritance laws; (2) David is Lynn's child and Lynn and Diane went though a ceremony that would have resulted in a valid marriage for them but for a legal impediment; or (3) David is Lynn's natural child and Diane did not marry Lynn, but before his death, he acknowledged in writing that David was his child, was decreed by a court to be his father, or was ordered by a court to contribute to his support because David was his child. See 20 C.F.R. § 404.355.

According to the facts as you reported them, Lynn and Diane never attempted to marry; Lynn never acknowledged in writing that David was his child; and there is no court order that David is Lynn's child or requiring Lynn to pay support for David. Therefore, the only way that David can receive benefits is if he can inherit Lynn's personal property as his natural child under State inheritance laws. Because Lynn died domiciled in Oregon, the laws of the State of Oregon must be applied to determine whether David would be entitled to Lynn's personal property if he had died without a will (intestate).

Oregon State law

In Oregon, a child may inherit under the State intestacy law where paternity is established during the child's lifetime. See Or. Rev. Stat. § 112.105 (1999). In Zahradnik v. Sullivan, 966 F.2d 355 (8th Cir. 1992), the United States Court of Appeals for the Eighth Circuit had the opportunity to address Oregon's inheritance and paternity laws in the Social Security context. Under Oregon law, as recognized by Zahradnik, paternity may be established in a proceeding following the father's death, and does not have to be established in a separate formal paternity proceeding, but can be established in other proceedings, such as probate proceedings or proceedings for worker's compensation benefits or Social Security benefits. See id. at 357-58 (citing Or. Rev. Stat. §§ 109.060, 109.070, 112.105; Thom v. Bailey, 481 P.2d 355 (Or. 1970); Amos v. SAIF Corp., 694 P.2d 998, 1001 (Or. Ct. App. 1985)).

Under Oregon law, in general, paternity must be established by a preponderance of the evidence. See Thom, 481 P.2d at 358. Specifically, in order to establish paternity, the mother's allegation of paternity must be corroborated by “some substantial fact or circumstance, which independent of mother's testimony, tends to connect the [putative father] with fatherhood of the child.” Zahradnik, 966 F.2d at 359 (citing Moore v. Gruetter, 544 P.2d 1047, 1047 (Or. Ct. App. 1975)). Corroboration is evidence, other than the testimony of the mother, that:

adds to, strengthens, confirms, and corroborates her. It must be of some substantive fact or circumstance which, independent of her testimony, tends to connect [the putative father with fatherhood of the child]. It may be either direct or circumstantial, or be wholly circumstantial, and however slight must tend to identify [the putative father as the father of the child]. It is not necessary that the testimony of the [mother] be corroborated on every particular or upon every material point. But there must be a sufficient amount of confirmation to satisfy the jury of the truth of her testimony, so that the case shall not rest upon her credibility alone, however credible her testimony may be.

Id. at 359-60 (citing State ex rel. S., 521 P.2d 1319, 1319 (Or. Ct. App. 1974)). The Zahradnik court discussed the facts establishing paternity in Thom. In that case, prior to his death, the alleged father admitted having intercourse with the mother. Other than this admission, much of the evidence refuted a finding of paternity: the alleged father denied paternity; the alleged father and his wife had tried to have children, but did not succeed and later medical tests revealed that he was sterile; when the child was born, the mother did not name the alleged father on the birth certificate; and the mother admitted to having intercourse with two other men three months after conception would have occurred. See Thom, 481 P.2d at 357-58. While recognizing that the standard for establishing paternity was a preponderance of the evidence, the Oregon Supreme Court found that the above evidence was sufficient to establish paternity by clear and convincing evidence. See id.

In Amos, also cited in Zahradnik, the plaintiff sought to establish paternity in the context of a worker's compensation proceeding. See Amos, 694 P.2d 1998. The alleged father died in an accident at work, before paternity was established. The mother was married to a man other than the alleged father at the time of conception. There was a presumption, under Oregon law, that the husband was the child's father. See Or. Rev. Stat. § 109.070. They later divorced. In order to establish paternity, the mother had to overcome the presumption that her ex-husband was the father, and establish that the deceased worker was the father of the child. The Oregon Court of Appeals found that there was “clear and convincing evidence” to overcome the presumption and to establish the decedent's paternity for purposes of qualifying for worker's compensation benefits. See Amos, 694 P.2d at 1001. In arriving at their conclusion, the court relied on the following facts: the husband was living far away from the mother at the time of conception, and their divorce decree provided for another child who was born during their marriage, but did not provide for the child at issue; the mother and the deceased worker were cohabiting when the child was conceived; the child was given the deceased worker's last name; the deceased worker listed the child on his income tax return in 1979, although not in 1980; the deceased worker tried to have his name placed on the birth certificate, but the hospital would not allow it; and the deceased worker paid hospital and other expenses for the child. See id.

In Zahradnik, the court found that the mother's testimony regarding the child's paternity was “strongly corroborated.” Zahradnik, 966 F.2d 360-61. Specifically, a disinterested individual testified that the alleged father told her that he was the child's father, and he wanted his name placed on the child's birth certificate, so that if something happened to him, the child could receive benefits. Two other individuals testified that the mother told them during her pregnancy that the alleged father was the child's father. They believed this was true, due to the strong resemblance between the alleged father and the child. The alleged father wrote the mother several letters indicating his desire to travel with them in his homeland. The three regularly took vacations together, and the alleged father contributed money and goods for the child. Finally, the court found that the weight of the evidence showed that the mother was exclusively involved with the alleged father at the time of conception. See Zahradnik, 966 F.2d at 360-61.

Paternity may be established by a preponderance of the evidence.

Thus, the issue is whether Diane's allegation that Lynn is David's father is corroborated by other evidence. While Lynn's name is not on David's birth certificate, Lynn and Diane's exclusive relationship at the time of conception has been corroborated by at least three other individuals, including members of Lynn's family. During his lifetime, Lynn told at least two other people that he was the father of the child that Diane was carrying. Lynn provided money to support Diane and took her to doctor's appointments related to the pregnancy. He bought a baby car seat. He kept the ultrasound report, and took an interest in naming the child. Diane's physician reports that there was no question regarding David's paternity. Finally, as you point out, DNA test results show that the probability of paternity is 99.99%. Currently, under Oregon law, a cumulative paternity index of 99 or greater creates a disputable presumption of paternity. See Or. Rev. Stat. § 109.258, Programs Operations Manual System (POMS) GN 00306.080 (Oregon). Thus, the DNA test results are admissible. Further, it is our opinion that this cumulative evidence corroborating Diane's testimony, is greater than the evidence the Oregon Supreme Court considered in Thom, and at least equal to that in Zahradnik and Amos.

After considering all of this evidence, it is our legal opinion that you are not precluded from considering the DNA testing and all of the other evidence and concluding that Lynn is David's father under Oregon law. David can inherit Lynn's personal property under Oregon intestacy law and is therefore entitled to Social Security survivor benefits. We note that he may also be eligible for the lump sum disability benefit, if there are no preliminary interests.