TN 22 (07-12)

PR 01005.040 Oklahoma

A. PR 12-106 Oklahoma State Law – Status of Child Relationship (NH Mark: SSN ~) – REPLY

DATE: May 30, 2012

1. SYLLABUS:

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.

2. OPINION

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 [1] 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 [2] 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 [3] 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). [4] 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. [5]

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


Footnotes:

[1]

In 2006, Oklahoma adopted the Uniform Parentage Act. Okla. Stat. tit. 10, § 7700-101 (Uniform Parentage Act).

[2]

Although Sandra submitted all the evidence on Emily’s behalf, for purposes of our discussion, we will hereafter state that Emily submitted the evidence.

[3]

The DNA report explains the combined first-order index as follows: “If the number listed is less than 1, it is unlikely (<50% probability) that a biological relationship exists between the individuals tested. If the number listed is equal to 1, then a 50% probability exists that the individuals tested are biologically related. As the number increases, so does the percentage probability of relationship. When the number reaches 100, the tested relationship is highly probable, practically proven.” See Results of DNA Analysis, Statistical Results. If two (or more) individuals are closely related, DNA analysts expect to see a relatively high combined relationship index (CRI). http://www.dna-worldwide.com/resource-centre/your-results/relationship-results/ (last searched on May 14, 2012). “A high CRI is considered strong evidence of a biological relationship.” Id. Here, the DNA test report lists the combined first-order relationship index (CRI) number as 11,147, and the probability of biological relationship as 99.99 percent. Both numbers support a biological relationship between Emily and William. Agency policy is that applicants for child’s insurance benefits not based on disability can be paid retroactive benefits for up to six months immediately before the month of application. Program Operations Manual System (POMS) GN 00204.030(B)(1) (policy for retirement and survivor benefits).

[4]

Agency policy is that applicants for child’s insurance benefits not based on disability can be paid retroactive benefits for up to six months immediately before the month of application. Program Operations Manual System (POMS) GN 00204.030(B)(1) (policy for retirement and survivor benefits).

[5]

Although Emily filed two applications in 2007, the agency made final determinations and denied both applications. Under the regulations, a claimant’s application for benefits remains in effect until the agency makes a final determination. 20 C.F.R. § 404.620(a). If a claimant first meets all the requirements for entitlement after the period for which the claimant’s application was in effect, the claimant must file a new application for benefits. Id. 404.620(a)(2). In this case, the agency may pay benefits only from the first month that the claimant meets all the requirements based on the new application. Id. Thus, the agency must base Emily’s entitlement to child’s insurance benefits as of the date Emily filed her new 2012 application. ---------------


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http://policy.ssa.gov/poms.nsf/lnx/1501005040
PR 01005.040 - Oklahoma - 07/10/2012
Batch run: 03/07/2016
Rev:07/10/2012