TN 16 (05-12)

PR 01010.020 Kentucky

A. PR 12-100 DNA Testing, Kentucky Number Holder – Alvin Claimant – Corey

DATE: May 9, 2012

1. SYLLABUS

We believe the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity of a child born during a marriage and establish the deceased number holder as the child’s father under Kentucky intestacy law. Although Claimant was born during the marriage of NH1 and Claimant’s mother, the DNA testing and other evidence are sufficient to rebut the presumption of paternity regarding a child born during wedlock. For a person alleging paternity by someone outside the marriage to overcome the presumption, he or she must present evidence of the strongest character, and so convincing as to remove the question of a reasonable doubt. The DNA testing results revealed a 99.99% probability NH2 was Claimant’s biological father.

Considering the DNA test evidence and the statements of NH1, Claimant’s mother, and the mother of NH1’s first child, we believe a Kentucky court would conclude clear and convincing evidence exists to establish that Claimant is NH2’s child for the purposes of Kentucky intestacy law. . Therefore, we conclude that the Claimant is NH2’s child for the purposes of determining Claimant’s eligibility for CIB on NH2’s earnings record.

2. OPINION

QUESTION

You asked whether the claimant, who was born during a marriage between his mother and his mother’s disabled husband and who is presently receiving child’s insurance benefits (CIB) on the disabled husband’s earnings record, can receive CIB on the earnings record of another number holder, now deceased, where DNA results indicate the deceased number holder is the child’s biological father. The original request asked for an opinion regarding whether the claimant’s mother committed fraud by filing a claim for benefits on her disabled husband’s earnings record when she knew he was not the biological father of the claimant.  Subsequently, the Louisville, Kentucky Field Office advised us we did not need to develop the fraud inquiry as the Social Security Administration (SSA) was on notice in 1999 that the disabled husband did not believe the claimant was his child.  

OPINION

For the reasons stated below, we believe the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity of a child born during a marriage and establish the deceased number holder as the child’s father under Kentucky intestacy law.  Consequently, an SSA adjudicator could find the claimant is the child of the deceased number holder for CIB purposes.

BACKGROUND

According to the information provided, Dewey, a number holder entitled to disability insurance benefits (NH1), and Lisa (Claimant’s mother) married on August 28, 1995. Corey (Claimant) was born on February. Claimant’s birth certificate lists NH1 as his father. Claimant became entitled to CIB on NH1’s earnings record in March 1999. In December 1999, Debra, the mother of NH1’s first child, contacted SSA to protest the reduction in CIB for her child due to Claimant’s entitlement to CIB on NH1’s earnings record. She alleged Claimant was not NH1’s child, per report of NH1 and several other people. 

When contacted by SSA, NH1 provided a statement in February 2000 in which he indicated he and Claimant’s mother separated several times during their marriage, including the period between March 1998 and June 1998, the likely period of Claimant’s conception, and said he and Claimant’s mother had no marital relations during that period.  NH1 indicated Claimant’s mother had an affair earlier in their marriage that resulted in a pregnancy that ended in miscarriage. According to NH1, the man with whom Claimant’s mother had the affair was Alvin, now deceased (NH2).  NH1 stated Claimant’s mother lived with her mother and NH2 between March and June 1998. NH1 stated Claimant’s mother told him NH2 “forced himself” on her between March and June 1998.  NH1 stated he did not believe Claimant was his child. NH1 and Claimant’s mother indicated they contacted the Jefferson County, Kentucky, County Attorney’s office to establish NH2 was Claimant’s father, but because NH1 and Claimant’s mother were legally married, the County Attorney’s office advised them they would have to hire their own attorney to file a civil action to establish NH2 was Claimant’s father. They did not file a paternity action against NH2.  Despite NH1’s statements, SSA awarded Claimant CIB on NH1’s earnings record based on Kentucky’s presumption that a child born in wedlock is the legitimate child of his mother’s husband.

NH2 died on January 26, 2012, while domiciled in Kentucky. In February 2012, Claimant’s mother filed a CIB claim for Claimant on NH2’s earnings record. Claimant’s mother arranged for DNA testing of genetic samples from Claimant and NH2 the day following NH2’s death. The DNA testing results revealed a 99.99% probability NH2 was Claimant’s biological father. Claimant’s mother submitted these results to SSA in support of Claimant’s claim. Claimant’s mother stated she knew NH2 was Claimant’s biological father when she filed the application on Claimant’s behalf for CIB on NH1’s earnings record. Claimant’s mother admitted she had contacted the County Attorney’s office who advised she would have to hire her own attorney to file a paternity action against NH2. Claimant’s mother also completed a child relationship statement (SSA 2519) indicating NH2 filed an application with a government agency stating Claimant was his child, he referred to himself as Claimant’s father in writing, listed Claimant as his child in a family tree or other family record, took Claimant to a medical appointment and listed himself as the parent, paid for Claimant’s hospital expenses at birth, admitted orally he was Claimant’s father, and made regular and substantial contributions to Claimant’s support. Claimant’s mother did not provide any of the written documentation referred to in the SSA 2519.

  

DISCUSSION

To be eligible for CIB on the earnings record of a fully or currently insured deceased individual, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2011). Unless otherwise noted, all subsequent references to the C.F.R. are to the 2011 edition. “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. A claimant may show he is “the child” of a deceased individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) Because we conclude that Claimant can qualify as NH2’s child under § 216(h)(2)(A) of the Act, we do not address § 216(h)(3) here. of the Act. Under section 216(h)(2)(A), a claimant must show he or she would be entitled to a child’s share of the insured’s intestate personal property under the law of the state in which the insured was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). According to the information provided, NH2 died while domiciled in Kentucky. Therefore, we look to Kentucky intestacy law to determine whether Claimant is NH2’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). 

Under Kentucky law, if NH2 died with kindred, his intestate estate would pass to his kindred beginning with his surviving children. See Ky. Rev. Stat. Ann. §§ 391.010, 391.030 (West 2012); see also Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (“When a person dies intestate, both real and personal property shall descend in common to his children or their descendants.”).

Although Claimant’s mother presented evidence suggesting Claimant is NH2’s biological child, Claimant was born during the marriage of Claimant’s mother and NH1.  Kentucky law presumes a child born during lawful wedlock, or within ten months thereafter, to be the child of the husband and wife. See Ky. Rev. Stat. Ann. § 406.011 (West 2012).  This presumption is one of the strongest presumptions known to law, but the presumption is not conclusive and may be rebutted by factual evidence. See Bartlett v. Comm. ex rel. Calloway, 705 S.W.2d 470, 472 (Ky. 1986).  For a person alleging paternity by someone outside the marriage to overcome the presumption, he or she must present “evidence of the strongest character, and so convincing as to remove the question of a reasonable doubt.” J.A.S. v. Bushelman, 342 S.W.3d 850, 859 (Ky. 2011) (quoting Ratliff v. Ratliff, 183 S.W.2d 949, 952 (Ky. 1944)) (internal quotations marks and emphasis omitted). 

Genetic testing that shows a probability of paternity equal to or exceeding 99% also creates a rebuttable presumption of paternity under Kentucky domestic relations law that can be rebutted only be a preponderance of the evidence. See Ky. Rev. Stat. Ann. § 406.111 (2012). Further, Kentucky domestic relations law states: “[g]enetic test results are admissible and shall be weighed along with other evidence of the alleged father’s paternity.”  Ky. Rev. Stat. Ann. § 406.091(3) (West 2012). In B~, the Kentucky Supreme Court endorsed the use of DNA testing to establish paternity, stating: “We see no justification for keeping the traditional presumption of paternity locked in the science of centuries past. . . . DNA testing now serves as an appropriate form of evidence, not to avoid the traditional presumption of paternity, but to rebut it.” B~, 342 S.W. 3d at 861. 

B~ arose when a putative father sued to establish paternity based on DNA testing that showed a 99.9429% probability he was the biological father. Id. at 853. The B~ court held, even if a woman is married, a putative father has standing to maintain a paternity suit if there is sufficient evidence to overcome the presumption of the husband’s paternity. Id. at 864-65. The court relied on the DNA test results as well as the mother’s admission she had a relationship with the putative father that included sexual intercourse during the likely time of conception to rebut the presumption of paternity. Id. Kentucky courts have considered genetic test results in determining the husband’s nonpaternity, along with other evidence, to rebut the presumption of paternity in other cases. See, e.g., B~, 705 S.W.2d at 471 (genetic testing showing a 99.93% probability of the third party’s paternity, wife’s testimony she had separated from her husband more than three years before the child’s birth and she and the third party lived together on and off for five years, the third party’s financial contribution to the child’s support, and a physical genetic characteristic between the third party and the child (six fingers) rebutted presumption); Spears v. Spears, 784 S.W.2d 605, 608 (Ky. Ct. App. 1990) (following divorce and order requiring husband to pay child support, blood test showed the husband was not the father of the child, and appeals court declined to apply the doctrine of res judicata, because prohibiting the husband from challenging paternity would “work an injustice” and the record did not show the husband ever held out the child as his or the wife had ever sought child support). 

Based on the above legal authority, we believe the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity of a child born during a marriage. Although Claimant was born during the marriage of NH1 and Claimant’s mother, the DNA testing and other evidence are sufficient to rebut the presumption of paternity regarding a child born during wedlock. See B~, 342 S.W. 3d at 861. In addition to the DNA evidence, NH1 stated he and Claimant’s mother were not living together and did not have sexual relations at the time of Claimant’s possible conception, whereas NH2 reportedly lived with Claimant’s mother and had sexual relations at that time. Both NH1 and Claimant’s mother expressed doubts about NH1’s paternity of Claimant. Thus, we believe the evidence rebuts the presumption that NH1 is Claimant’s father.

Kentucky law provides that “a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.” Ky. Rev. Stat. Ann. § 406.011 (West 2012). The evidence rebutting the presumption that NH1 was Claimant’s father also indicates the marital relationship between Claimant’s mother and NH1 had ceased ten months before Claimant’s birth. Although we have not found any Kentucky statute or case law discussing the determination of inheritance rights of a child fathered by someone not a party to the marriage, we believe a Kentucky court would treat Claimant as a child born out of wedlock and apply Kentucky intestacy law for determining whether a child born out of wedlock is the child of the putative father. See Program Operations Manual System (POMS) GN 00306.055 (illegitimate child has status of “child” under the Act if has inheritance rights under applicable state intestacy law).

Under Kentucky intestate law, a person born out of wedlock is the child of his father if:

(a) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(b) In determining the right of the child or its descendants to inherit from or through the father:

1. There has been an adjudication of paternity before the death of the father; or

2. There has been an adjudication of paternity after the death of the father based upon clear and convincing proof;

Ky. Rev. Stat. Ann. § 391.105(1) (West 2012). Claimant could not qualify as NH2’s child under subsection (a) of Ky. Rev. Stat. Ann. § 391.105 because NH2 and Claimant’s mother did not marry or attempt to marry. The evidence also does not include an adjudication of paternity as required by subsection (b) of Ky. Rev. Stat. Ann. § 391.105.  However, SSA does not require that a claimant obtain such a determination by a state court but will use the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2).

We believe a Kentucky court would conclude the evidence provides clear and convincing proof that NH2 is Claimant’s father.  Kentucky domestic relations law provides that if a court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%) based on DNA testing, there is a rebuttable presumption of paternity. Ky. Rev. Stat. § 406.111 (West 2012). This presumption shall only be rebutted by a preponderance of the evidence. Id.  Kentucky intestacy law provides that courts will consider DNA testing as one piece of evidence to establish paternity posthumously. In Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *1 (Ky. Ct. App. 2006), the plaintiff attempted to establish paternity to collect a share of the proceeds from a wrongful death claim. The Kentucky Court of Appeals considered test results comparing the DNA of the putative father and the alleged daughter born out-of-wedlock (and prior to a later marriage) that showed a 99.945% probability of paternity. See id. at *2-3. The court stated paternity was not established until the widow, and personal representative of the father’s estate, “stipulated [to] that fact. Even after DNA testing, the matter of paternity had not been established. The DNA test results were merely proof in support of the allegation.” The court also said “the DNA testing appeared to conclusively prove paternity,” but only after noting the widow who originally contested paternity stipulated to such paternity. See id. at *3.  The court concluded paternity was not established and the widow did not owe a fiduciary duty to the daughter until the widow entered the stipulation. See id. Thus, the court required more than just DNA test results in making a determination of paternity. See id. Another Kentucky intestacy case in which genetic tests were considered is Hibbs v. Chandler, 684 S.W. 2d 310, 313 (Ky. Ct. App. 1985). In H~, the plaintiff attempted to establish paternity to qualify her child for CIB on the earnings record of the deceased number holder.  The trial court ordered blood tests on the mother, child and putative grandparents, the results of which showed the putative father fell within the 64% to 99% probability range. Id. at 311-12. The Kentucky Court of Appeals found the blood test evidence, in conjunction with the mother’s deposition testimony that she had intercourse with the putative father around the probable date of conception, sufficient to withstand summary judgment. The H~ court stated that “clear and convincing evidence” was not required at the summary judgment stage. Id. at 312. Thus, H~ does not establish that DNA testing constitutes clear and convincing evidence, but it shows the Kentucky courts do consider DNA testing in the intestacy context.        

Although we have not found any Kentucky statute or case law directly on point, we believe a Kentucky court would consider the DNA test results as evidence that Claimant is NH2’s child for the purposes of Kentucky intestacy law although the results alone would not presumptively establish paternity. Considering the DNA test evidence and the statements of NH1, Claimant’s mother, and the mother of NH1’s first child, we believe a Kentucky court would conclude clear and convincing evidence exists to establish that Claimant is NH2’s child for the purposes of Kentucky intestacy law.

CONCLUSION

The evidence presented rebuts the presumption that Claimant is NH1’s child. The evidence also provides clear and convincing proof that Claimant is NH2’s child under Kentucky intestacy law.  Therefore, an SSA adjudicator could conclude Claimant is NH2’s child for the purposes of determining Claimant’s eligibility for CIB on NH2’s earnings record.  

Mary Ann Sloan
Regional Chief Counsel

By___________
Megan E. Gideon
Assistant Regional Counsel

B. PR 12-060 Grandparent DNA Testing, Kentucky Deceased Number Holder - James; Claimant - Casey

DATE: February 23, 2012

1. SYLLABUS

Under the Kentucky intestacy law, DNA test results here do not establish the claimant as the number holder’s child for CIB purposes.  The statutes and case law suggest that genetic testing, although admissible evidence of paternity, cannot alone establish paternity in cases where the putative father had died, even when the testing used genetic material from the putative father.  Additionally, we do not believe the other evidence available in this case, when considered with the DNA test results, provides clear and convincing proof that NH is Claimant’s father.   Thus, the evidence in this case does not establish clear and convincing evidence of NH’s paternity for the purposes of Kentucky intestacy law.

We do not believe the evidence in this case satisfies the clear and convincing proof standard required to establish Claimant is NH’s child under Kentucky intestacy law for purposes of section 216(h)(2)(A) of the Act.  The evidence also does not show Claimant is NH’s child under section 216(h)(3)(C) of the Act.

2. OPINION

QUESTION

You asked whether DNA test results showing a relationship between a child claimant and the parents of a number holder who died domiciled in Kentucky establish the claimant as the number holder’s child for Child’s Insurance Benefits (CIB) purposes. You also asked what the entitlement date would be if the child claimant was entitled to benefits.

OPINION

The DNA test results here do not, under Kentucky intestacy law, establish the claimant as the number holder’s child for CIB purposes. We do not address the date of entitlement issue, because the evidence presented does not establish the claimant is entitled to benefits in this case.

BACKGROUND

According to the information provided, Casey (Claimant) was born in July. In March 2011, Sheila (Claimant’s mother) filed an application on Claimant’s behalf for CIB on the earnings record for James, the number holder (NH), claiming NH was Claimant’s father. Claimant’s birth certificate lists Douglas as Claimant’s father. Social Security Administration (SSA) records indicate Claimant’s mother changed her last name to in 1992. SSA asked Claimant’s mother to provide a marriage certificate between her and Douglas , but Claimant did not provide a marriage certificate. NH’s mother provided a statement in which she indicated NH and Claimant’s mother dated during the time surrounding Claimant’s probable conception date, but the statement is not included in the materials we received. None of the information provided indicates NH and Claimant’s mother were ever married. 

Claimant’s mother submitted DNA test results showing a 99.99% probability that NH’s parents were Claimant’s grandparents. NH’s parents each submitted a statement stating they believed Claimant was NH’s child based on the DNA evidence.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies fully or currently insured if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2011). “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2011). All future references to 20 C.F.R. are to the 2011 version unless otherwise noted. A claimant may show she is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under either section 216(h)(2)(A) or section 216(h)(3)(C) of the Act.

216(h)(2)(A) Analysis

Under section 216(h)(2)(A), a claimant is “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Baker o/b/o Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989). According to the information provided, NH was domiciled in Kentucky when he died. Therefore, we look to Kentucky intestacy law to determine if Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. Under Kentucky intestacy law, the personal property of an individual who dies intestate generally passes to his or her children. See Ky. Rev. Stat. Ann. §§ 391.010, 390.030 (West 2011); see also Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (“When a person dies intestate, both real and personal property shall descend in common to his children or their descendants.”).

The evidence does not establish, but raises a suspicion, that Claimant’s mother may have been married to Douglas when Claimant was born. Although Claimant’s mother did not provide a marriage certificate, Claimant’s birth certificate lists Douglas as the father and Claimant’s mother changed her last name to several years before Claimant’s birth. If Claimant’s mother was married to Douglas at the time of Claimant’s birth, Claimant must first overcome the presumption that she is Casey ’s child. A strong presumption exists in Kentucky law that a child born in wedlock is legitimate, i.e., the husband is the father of the child. See Ky. Rev. Stat. Ann. § 406.011 (West 2011); J.A.S. v. C.H.E., 342 S.W.3d 850, 859 (Ky. 2011). This presumption is one of the strongest presumptions known to law, but the presumption is not conclusive and may be rebutted by factual evidence. See Baker v. Comm. ex rel. Calloway, 705 S.W.2d 470, 472 (Ky. 1986); Gross v. Gross, 260 S.W.2d 655 (Ky. 1953). For a person alleging paternity by someone outside the marriage to overcome the presumption, he or she must present “evidence of the strongest character, and so convincing as to remove the question of a reasonable doubt.” J.A.S., 342 S.W.3d at 859 (quoting Ratliff v. Ratliff, 183 S.W.2d 949, 952 (Ky. 1944)) (internal quotations marks and emphasis omitted).

We do not need further development to determine whether Claimant’s mother actually married Douglas, because, regardless of whether the presumption of paternity applies or whether Claimant provided evidence to overcome any such presumption, Claimant did not provide evidence sufficient to establish that she is NH’s child under Kentucky intestacy law regarding children born out of wedlock. “An ‘illegitimate child,’ a ‘bastard child’ or a ‘child born out of wedlock’ all refer to a child that is born to an unmarried mother or born to a married woman but fathered by a man other than the mother’s husband.” J.A.S., 342 S.W.3d at 864; see Ky. Rev. Stat. Ann. § 406.011. For purposes of intestate succession, a person born out of wedlock is a child of the natural father if, in relevant part, “[t]here has been an adjudication of paternity after the death of the father based upon clear and convincing proof.” Ky. Rev. Stat. Ann. § 391.105(1)(b)2 (West 2011). The burden of proof rests upon the one claiming the right to inherit from the putative father’s estate. See F~ 635 S.W.2d at 317 (Ky. 1982) (citing Ky. R. of Civ. P. 43.01(2)).

Although the evidence presented in this case does not include an adjudication of paternity by a Kentucky court, SSA does not require that a claimant obtain such a determination. Instead, SSA will use the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2). Thus, we must determine whether the evidence presented by Claimant’s mother establishes by clear and convincing proof that Claimant was NH’s child. See Ky. Rev. Stat. Ann. § 391.105(1)(b)2; F~, 635 S.W.2d at 317-18. “[C]lear and convincing does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent- minded people.” Harris v. Stewart, 981 S.W.2d 122, 127 n.5 (Ky. Ct. App. 1998) (citing F~, 635 S.W. 2d at 318, for the origins of the clear and convincing standard of proof when upholding the constitutionality of the Kentucky Legislature’s statutory classifications in Ky. Rev. Stat. Ann. § 391.105(1) for proof of intestacy). In F~, the court found testimony regarding the nature of the relationship between the child’s mother and putative father, coupled with uncontradicted testimony from several witnesses, including the child’s mother, the decedent’s sister, and long-time friend, that the child’s mother and putative father planned to marry before the father unexpectedly died, to be sufficient to show clear and convincing evidence of paternity. F~, 635 S.W.2d at 318. In H~ is, however, the court found that the jury had not erred in determining the appellant was not the defendant’s child where numerous witnesses gave conflicting testimony regarding his paternity. H~, 981 S.W.2d at 127.

In the present claim, the evidence provided by Claimant’s mother suggesting Claimant may be NH’s child is DNA test results that revealed a 99.99% probability that NH’s parents are Claimant’s grandparents, statements from both of NH’s parents that they each believed Claimant was the child of NH because of the DNA test results, and a statement by NH’s mother that NH and Claimant’s mother dated around the time of Claimant’s probable conception. Kentucky’s domestic relations law addresses the applicability and use of genetic testing in the context of determining paternity for purposes of child support, stating:

If the court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%), as calculated by the experts qualified as examiners of genetic markers, and that the paternity index, as calculated by the experts qualified as examiners of genetic markers, is one hundred (100) to one (1) or greater, there is a rebuttable presumption, affecting the burden of proof, of paternity. This presumption shall only be rebutted by a preponderance of the evidence.

Ky. Rev. Stat. Ann. § 406.111 (West 2011). Further, Kentucky domestic relations law states “[g]enetic test results are admissible and shall be weighed along with other evidence of the alleged father’s paternity.” Ky. Rev. Stat. Ann. § 406.091(3) (West 2011). However, Kentucky’s intestacy statutes do not appear to address genetic testing. We have found no Kentucky statute or case law indicating a Kentucky court would find that genetic testing established a presumption of paternity in an intestacy case. Rather, the statutes and case law suggest that genetic testing, although admissible evidence of paternity, cannot alone establish paternity in cases where the putative father had died, even when the testing used genetic material from the putative father.

In Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *1 (Ky. Ct. App. 2006), the plaintiff attempted to establish paternity to collect a share of the proceeds from a wrongful death claim. The Kentucky Court of Appeals considered test results comparing the DNA of the putative father and the alleged daughter born out-of-wedlock (and prior to a later marriage) that showed a 99.945% probability of paternity. See id. at *2-3. The court stated paternity was not established until the widow, and personal representative of the father’s estate, “stipulated [to] that fact. Even after DNA testing, the matter of paternity had not been established. The DNA test results were merely proof in support of the allegation.” The court also said “the DNA testing appeared to conclusively prove paternity,” but only after noting the widow who originally contested paternity stipulated to such paternity. See id. at *3. The court concluded paternity was not established and the widow did not owe a fiduciary duty to the daughter until the widow entered the stipulation. See id. Thus, the court required more than just DNA test results in making a determination of paternity. See id. Id. at *3. In 1986, the Kentucky Supreme Court considered the results of Human Leukocyte Antigen (HLA) testing of the putative father when adjudicating paternity to prove a child was fathered by someone other than the mother’s husband. See B~, 705 S.W.2d at 472-73. The trial court had relied “principally, but not exclusively,” on the HLA testing in concluding the presumption of legitimacy had been overcome, and the Kentucky Supreme Court noted it “need not decide whether the HLA testing standing alone would be sufficient to overcome the presumption of legitimacy and establish the appellant’s paternity.” Id. at 472. Instead, the court concluded the genetic test results along with other corroborative evidence (evidence of separation between mother and husband, evidence of access between putative father and mother, contributions by putative father toward support, and a rare genetic trait (six fingers)) was so overwhelming as to overcome the longstanding rebuttable presumption of paternity when a child is born during a marriage was fathered by another man. See id.

Although the situation in the present claim is very different from that in B~, reading B~ with language from C~ that “DNA tests results were merely proof in support of the allegation” of paternity, we believe that the DNA testing in this case, even if it were performed on NH, would not, taken alone, provide clear and convincing evidence that NH is Claimant’s father.

Kentucky’s intestacy statutes, domestic relations statutes, and case law do not appear to address the issue of genetic testing of a putative father’s relatives. A review of court decisions in other states reveals that genetic testing of the putative father’s relative is, at minimum, admissible evidence in inheritance proceedings on the issue of paternity. See Program Operations Manual System PR 01115.011 (PR 07-201 Genetic Testing, Florida Deceased Number Holder- Earl Claimant- Taylon ). Based on case law from other jurisdictions, we believe a Kentucky court would find the genetic testing of NH’s relatives probative of the issue of paternity, but not clear and convincing evidence. See, e.g., Chisolm v. Eakes, 573 So.2d 764, 766 (Miss. 1990) (“[t]he general rule appears to be that (genetic) results, properly authenticated and supported by other evidence, are admissible as evidence of paternity, but are not necessarily conclusive”); Estate of G~, 753 So.3d 1043, 1052 (Miss. 2000) (same); LeBlanc v. LeBlanc, 497 So.2d 1361, 1363-1364 (La. 1986) (Louisiana courts have found that DNA blood test results, plus other corroborating evidence, are sufficient to establish paternity by a preponderance of the evidence).

A review of Kentucky caselaw reveals only one decision in which the issue of blood testing (as distinguished from genetic testing) of the putative father’s parents, the putative grandparents, was at issue. See Harris v. Chandler, 684 S.W.2d 310 (Ky. Ct. App. 1985). In H~, the trial court had granted summary judgment to the defendant, the parents of the deceased putative father, against the plaintiff, the mother of the minor child. Id. at 311. The Kentucky Court of Appeals noted the clear and convincing evidence standard, at issue in proving paternity of a child born out-of-wedlock, was one usually reserved for trial-type settings. Id. at 312. The court went on to hold that the standard for granting summary judgment is more exact in that the moving party must persuade the court that there is “no genuine issue as to any material fact . . . .” Id. Thus, the trial court’s granting of summary judgment was improper given that the blood testing of the putative paternal grandparents showed a probability of parentage by their son at between 64% and 99%. In H~, an expert had recommended a HLA test, but the lower court refused to order additional blood tests. See 684 S.W.2d. at 312. The Kentucky Supreme Court has noted, “HLA blood testing may be ordered by the court in a paternity action, and its reliability and its admissibility as evidence, are all recognized” since 1983. B~, 705 S.W.2d at 472 (citing Perry v. Com. ex. rel. Kessinger, 652 S.W. 2d 655 (Ky. 1983)). See id. at 311-13. However, the court in H~ did not conclude the blood testing established paternity; the court concluded only that the blood testing and other evidence raised a genuine issue of fact that precluded summary judgment. See id. at 312-13. Thus, although the testing in H~ was blood testing and not DNA testing, the court’s decision indicates a Kentucky court would require more than genetic testing of a putative father’s parents to establish paternity in an intestacy case. We note that proof of grandpaternity would not even establish a presumption under the state’s domestic relations statute, discussed above.

We do not believe the other evidence available in this case, when considered with the DNA test results, provides clear and convincing proof that NH is Claimant’s father. The statements from NH’s parents are insufficient evidence because, according to the information provided, the grandparent’s belief that NH is the father is based only on the DNA evidence. The statement from NH’s mother that NH and Claimant’s mother dated during the time Claimant was conceived suggests access between the putative father and mother but does not allege exclusive access. The statement by NH’s mother, even when coupled with the DNA evidence, would not seem to establish paternity, because Kentucky courts have required more. In B~, the DNA evidence and evidence of access was accompanied with additional evidence including contributions by the putative father in support of the child and a shared rare genetic trait. 705 S.W.2d at 472. On the other hand, in C~, the court held that paternity was not demonstrated by clear and convincing evidence by DNA evidence until the party on the other side stipulated to the paternity of the child in conjunction with the DNA evidence. The case here is distinguishable from both C~ and B~ because the additional evidence provided in the form of statements from NH’s parents does not add anything beyond the information provided by the DNA evidence and do not rise to a stipulation of paternity. Thus, the evidence in this case does not establish clear and convincing evidence of NH’s paternity for the purposes of Kentucky intestacy law. Our conclusion is consistent with our prior opinion found in SSA’s Program Operations Manual System (POMS). See SSA POMS PR 01010.020 (PR 11-016 Grandparent DNA Testing, Kentucky Deceased Number Holder- Paul Claimant-Rebecca ). In that opinion, we concluded DNA testing of the number holder’s grandparents was admissible in an inheritance proceeding and was probative on the issue of paternity, but it did not conclusively prove paternity. See id. In that claim, the DNA test results were the only evidence. See id. As noted above, the additional evidence presented in this claim is not sufficient to establish clear and convincing evidence of NH’s paternity. See Ky. Rev. Stat. Ann. § 391.105(1)(b)2. Therefore, Clamant is not NH’s child under section 216(h)(2)(A) of the Act.

216(h)(3)(C) Analysis

The evidence also does not establish Claimant as NH’s child under section 216(h)(3)(C) of the Act. To qualify as “the child” of a deceased insured individual under section 216(h)(3)(C), a claimant must be the son or daughter of the insured individual and meet one of several other requirements. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.A, B. To show he or she is the son or daughter of an insured individual, the claimant must show he or she is the biological child of the insured individual. See Program Operations Manual System (POMS) GN 00306.100.D.1. The record does not indicate Claimant met the threshold requirement of section 216(h)(3)(C) of being NH’s biological child. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100.D.1. Moreover, Claimant did not provide evidence to satisfy the other requirements of section 216(h)(3)(C)—the record does not include a written acknowledgement of paternity by NH, a court order issued before NH’s death, or evidence that NH lived with or contributed to Claimant’s support. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). Therefore, Claimant could not qualify as NH’s child under section 216(h)(3)(C) of the Act.

CONCLUSION

For the foregoing reasons, we do not believe the evidence in this case satisfies the clear and convincing proof standard required to establish Claimant is NH’s child under Kentucky intestacy law for purposes of section 216(h)(2)(A) of the Act. The evidence also does not show Claimant is NH’s child under section 216(h)(3)(C) of the Act.  Therefore, we do not believe an adjudicator could conclude Claimant is NH’s child for purposes of CIB.  

Mary Ann. Sloan
Regional Chief Counsel

By:______________
Kristin M. Timm
Assistant Regional Counsel

C. PR 11-016 Grandparent DNA Testing, Kentucky Deceased Number Holder – Paul Claimant – Rebecca

DATE: November 16, 2010

1. SYLLABUS

We do not believe the evidence in this case satisfies the clear and convincing proof standard required to establish paternity under Kentucky intestacy law. Even though the submitted DNA test results showing a 99.96% probability that NH’s parents are claimant’s grandparents, in the State of Kentucky, DNA testing alone cannot be used the claimant as the NH’s child for CIB purposes. Additionally, neither, Kentucky’s intestacy statutes, its domestic relations statutes, nor its case law appear to address the issue of genetic testing of a putative father’s relatives. After a review of court decisions in other states, genetic testing of the putative father’s relative is, at minimum, admissible evidence in inheritance proceedings on the issue of paternity. Further, case law suggests that even DNA testing performed using the putative father’s DNA, cannot alone establish paternity in cases where the putative father had died. 

Kentucky’s domestic relations statutes state that “[g]enetic test results are admissible and shall be weighed along with other evidence of the alleged father’s paternity.”  Based on case law from other jurisdictions, we believe a Kentucky court would find the genetic testing of NH’s relatives probative of the issue of paternity, but not clear and convincing evidence.  Therefore, we do not believe an adjudicator could conclude Claimant is NH’s child for purposes of CIB

2. OPINION

QUESTION

You asked whether DNA test results showing a relationship between a child claimant and the parents of a number holder who died domiciled in Kentucky establish the claimant as the number holder’s child for Child’s Insurance Benefits (CIB) purposes.

Opinion

The DNA test results here do not, under Kentucky intestacy law, establish the claimant as the number holder’s child for CIB purposes. 

BACKGROUND

Paul , the number holder (NH), died on November 6, 2008, while domiciled in Kentucky. Melissa (Claimant’s mother) gave birth to Rebecca (Claimant) on January 12, 2009. Claimant’s mother never married NH. We received no information suggesting Claimant’s mother was married to any other man on or before Claimant’s birth in January 2009.

On August 31, 2009, Claimant’s mother filed an application on Claimant’s behalf for CIB on the earnings record of NH, claiming NH was Claimant’s father.  Because Claimant did not prove a relationship between NH and Claimant, the Social Security Administration (SSA) denied Claimant’s application on October 1, 2009. Claimant’s mother filed for reconsideration on November 5, 2009 and submitted DNA test results showing a 99.96% probability that NH’s parents were Claimant’s grandparents.  SSA requested additional evidence from Claimant’s representative, but she presented none.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2010). “Child” includes, among others, the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2010). Where, as here, a claimant’s mother and putative father never married, the child claimant’s status as the surviving child of a number holder is governed by either section 216(h)(2)(A) of the Act or section 216(h)(3)(C) of the Act.

To establish her status as the surviving child of NH under section 216(h)(2)(A), Claimant must show she would be entitled to a child’s share of NH’s intestate personal property under the law of the state in which NH was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4) (2010). According to the information provided, NH was domiciled in Kentucky when he died. Therefore, Kentucky’s intestacy law applies in determining Claimant is NH’s child for purposes of section 216(h)(2)(A). To establish child status under section 216(h)(3)(C), Claimant must show she is the natural child of the NH and one of the following: (1) NH acknowledged in writing that she is his child; (2) a court decreed NH to be Claimant’s father; (3) a court ordered NH to contribute to Claimant’s support; or (4) NH is the father and was living with Claimant or contributing to her support at the time of his death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4) (2010). The acknowledgment, court decree, or court order must have been made or issued before NH’s death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). The information provided does not indicate Claimant could satisfy any of the criteria set forth in section 216(h)(3)(C).

The applicable Kentucky statutes are those found in title XXXIV, Chapter 391 of the Kentucky Revised Statutes, which establish the general rules for descent and distribution of property in the absence of a will (intestacy statutes).  These statutes state, for the purpose of intestate succession, that a person is the child of the natural father and can inherit from or through the father if “[t]here has been an adjudication of paternity after the death of the father based upon clear and convincing proof.” Ky. Rev. Stat. Ann. § 391.105(1)(b)(2) (West 2010). The burden of proof rests upon the one claiming the right to inherit from the putative father’s estate. See Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (citing Ky. Rules of Civ. P. 43.01(2)).

Although the evidence presented in this case does not include an adjudication of paternity by a Kentucky court, SSA does not require that a claimant obtain such a determination.  Instead, SSA will use the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2). Thus, the controlling question is whether the evidence presented by Claimant establishes paternity by clear and convincing proof. See Ky. Rev. Stat. Ann. § 391.105(1)(b)(2) (West 2010); F~, 635 S.W.2d at 317-18.

Under Kentucky caselaw, “clear and convincing does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent- minded people.” Harris v. Stewart, 981 S.W.2d 122, 127 n.5 (Ky. Ct. App 1998) (citing F~, 635 S.W. 2d at 318, for the origins of the clear and convincing standard of proof when upholding the constitutionality of the Kentucky Legislature’s statutory classifications in Ky. Rev. Stat. Ann. § 391.105(1) for proof of intestacy). In F~, the court found testimony regarding the nature of the relationship between the child’s mother and putative father, coupled with uncontradicted testimony from several witnesses, including the child’s mother, the decedent’s sister, and another long-time friend, that the child’s mother and putative father planned to marry before the father unexpectedly died, to be sufficient to show clear and convincing evidence of paternity. F~, 635 S.W.2d at 318. In H~, however, the court found that the jury had not erred in determining the appellant was not the defendant’s child where numerous witnesses gave conflicting testimony regarding his paternity. H~, 981 S.W.2d at 127.

In the present claim, the only evidence provided by Claimant’s mother suggesting Claimant may be NH’s child is the DNA test results that revealed a 99.96% probability that NH’s parents are Claimant’s grandparents. Kentucky’s domestic relations statutes, which generally address paternity for purposes of child support, see title XXXV, Chapters 405 and 406 of the Kentucky Revised Statutes, do address genetic testing. The Kentucky domestic relations statutes provide:

If the court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%), as calculated by the experts qualified as examiners of genetic markers, and that the paternity index, as calculated by the experts qualified as examiners of genetic markers, is one hundred (100) to one (1) or greater, there is a rebuttable presumption, affecting the burden of proof, of paternity. This presumption shall only be rebutted by a preponderance of the evidence.

Ky. Rev. Stat. Ann. § 406.111 (West 2010). Further, the domestic relations statutes state that “[g]enetic test results are admissible and shall be weighed along with other evidence of the alleged father’s paternity.” Ky. Rev. Stat. Ann. § 406.091(3) (West 2010). However, Kentucky’s intestacy statutes do not address genetic testing.  There is no indication that a Kentucky court would use genetic testing results to establish a presumption of paternity in an intestacy case. Rather the case law suggests that DNA testing, even testing performed using the putative father’s DNA, cannot alone establish paternity is cases where the putative father had died. 

In Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *1 (Ky. Ct. App. 2006), the plaintiff attempted to establish paternity to collect a share of the proceeds from a wrongful death claim.  The Kentucky Court of Appeals considered test results comparing the DNA of the putative father and the alleged daughter born out-of-wedlock (and prior to a later marriage) that showed a 99.945% probability of paternity. See id. at *2-3.  The court stated paternity was not established until the widow, and personal representative of the father’s estate, “stipulated [to] that fact. Even after DNA testing, the matter of paternity had not been established.  DNA test results were merely proof in support of the allegation.” The court also said “the DNA testing appeared to conclusively prove paternity,” but only after noting the widow who originally contested paternity stipulated to such paternity. See id. at *3.  The court concluded paternity was not established and the widow did not owe a fiduciary duty to the daughter until the widow entered the stipulation. See id. Thus, the court required more than just DNA test results in make a determination of paternity. See id.  Id. at *3. In 1986, the Kentucky Supreme Court considered the results of HLA testing of the putative father when adjudicating paternity to prove a child was fathered by someone other than the mother’s husband. See Bartlett v. Comm.ex rel. Calloway, 705 S.W.2d 470, 472-73 (Ky. 1986). The trial court had relied “principally, but not exclusively,” on the HLA testing in concluding the presumption of legitimacy had been overcome, and the Kentucky Supreme Court noted it “need not decide whether the HLA testing standing alone would be sufficient to overcome the presumption of legitimacy and establish the appellant's paternity.” Id. at 472. Instead, the court concluded the genetic test results along with other corroborative evidence (evidence of separation between mother and husband, evidence of access between putative father and mother, contributions by putative father toward support, and a rare genetic trait (six fingers)) was so overwhelming as to overcome the longstanding rebuttable presumption of paternity when a child is born during a marriage was fathered by another man. See id.

Although the situation in the present claim is very different from that in B~, reading B~ with language from C~ that “DNA tests results were merely proof in support of the allegation” of paternity, we believe that the DNA testing in this case, even if it were performed on NH, would not, taken alone, provide clear and convincing evidence that NH is Claimant’s father. As indicated by the Kentucky Supreme Court in B~, such a conclusion needs more evidence. 

Neither, Kentucky’s intestacy statutes, its domestic relations statutes, nor its case law appear to address the issue of genetic testing of a putative father’s relatives. A review of court decisions in other states reveals that genetic testing of the putative father’s relative is, at minimum, admissible evidence in inheritance proceedings on the issue of paternity. See Program Operations Manual System PR 01115.011C. Based on case law from other jurisdictions, we believe a Kentucky court would find the genetic testing of NH’s relatives probative of the issue of paternity, but not clear and convincing evidence. See Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *3 (DNA testing results showing a 99.945% probability of paternity were “merely proof in support of the allegation” of paternity and did not conclusively prove paternity.).       

A review of Kentucky caselaw reveals only one decision in which the issue of blood testing of the putative father’s parents, the putative grandparents, was at issue. See Hibbs v. Chandler, 684 S.W.2d 310 (Ky. Ct. App. 1985). In H~, the trial court had granted summary judgment to the defendant, the parents of the deceased putative father, against the plaintiff, the mother of the minor child. Id. at 311.  The Kentucky Court of Appeals noted that the clear and convincing evidence standard, at issue in proving paternity of a child born out-of-wedlock, was one usually reserved for trial-type settings. Id. at 312. The court went on to hold that the standard for granting summary judgment is more exact in that the moving party must persuade the court that there is “no genuine issue as to any material fact . . . .” Id. Thus, the court’s granting of summary judgment was improper when the only evidence of paternity was blood testing of the putative paternal grandparents, which showed a probability of parentage by their son at between 64% and 99%. In H~, an expert had recommended a Human Leukocyte Antigen (HLA) test, but the lower court refused to order additional blood tests. See 684 S.W.2d. at 312. The Kentucky Supreme Court has noted, “HLA blood testing may be ordered by the court in a paternity action, and its reliability and its admissibility as evidence, are all recognized” since 1983. Bartlett v. Com. ex rel. Calloway, 705 S.W.2d 470, 472 (Ky. 1986) (citing Perry v. Com. ex. rel. Kessinger, 652 S.W. 2d 655 (Ky. 1983)). See id. at 311-13. However, the court in H~ did not conclude the blood testing established paternity, only that the blood testing and other evidence raised a genuine issue of fact that precluded summary judgment. See id. at 312-13.  Thus, since a Kentucky court considering paternity in an intestacy case needed more evidence than the paternity test results performed on the putative father, we believe a Kentucky court would need even more evidence to prove paternity based on grandparentage test results. See H~, 684 S.W.2d. at 311-13 (indicating that blood testing did not conclusively establish paternity). We note that proof of grandpaternity would not even establish a presumption under the state’s domestic relations statute, discussed above. The evidence in this case does not establish clear and convincing evidence of NH’s paternity for the purposes of Kentucky intestacy law. Our conclusion is consistent with our prior opinion found in SSA’s Program Operations Manual System (POMS). See SSA POMS PR 01115.020.B. (PR 09-048 Relative DNA Testing, Kentucky Deceased Number Holder - Gary Claimant - McKenzie . In that opinion, we concluded DNA testing of the number holder’s two sisters was admissible in an inheritance proceeding and was probative on the issue of paternity, but it did not conclusively prove paternity. See id. In that claim, we evaluated other evidence to determine the ultimate issue. See id.  Unlike in that opinion, no additional evidence was presented in this claim. See Ky. Rev. Stat. Ann. § 391.105(1)(b)(2) (West 2010).

CONCLUSION

For the foregoing reasons, we do not believe the evidence in this case, comprising only the DNA test results performed on the putative grandparents of the claimant, satisfies the clear and convincing proof standard required to establish paternity under Kentucky intestacy law.  Therefore, we do not believe an adjudicator could conclude Claimant is NH’s child for purposes of CIB.  

Mary Ann Sloan
Regional Chief Counsel

By:______________
Jennifer L. Patel
Assistant Regional Counsel

D. PR 09-133 DNA Testing, Kentucky Deceased Number Holder - Sam Claimant - Jamie

DATE: July 10, 2009

1. SYLLABUS

Kentucky law provides that if the court finds the conclusions of all the experts, as disclosed by the evidence based upon genetic tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. Since DNA testing shows a 0% probability that the NH was the father of our claimant, the mother does not object to the results of the tests, and both the mother and the NH had publicly expressed doubts about parentage, a court would determine that the evidence was sufficient to overcome the presumption of paternity. You asked whether the claimant, who was born during a marriage, is the child of the deceased number holder for purposes of child's insurance benefits where DNA results indicate the deceased number holder is not the child's father.

2. OPINION

QUESTION

You have asked whether DNA testing performed by DNA Diagnostics Inc. meets accreditation requirements of Kentucky law and can be used to reopen an award of child's benefits to Stephanie (Claimant) on the account of Troy (NH). It is our opinion that the DNA testing meets the requirements of Kentucky law and that the January 2004 award of benefits can be reopened and denied.

ANSWER

For the reasons stated below, we believe that the evidence submitted in this case is sufficient under Kentucky law to rebut the presumption of paternity and, therefore, a Social Security Administration (SSA) adjudicator could find, the child is not the child of the deceased number holder for purposes of child's insurance benefits.

BACKGROUND

Sam , the deceased number holder (NH), and Teresa (Claimant's mother) married on September 20, 1990. Jamie (Claimant) was born in February . NH and Claimant's mother lived together intermittently during the twelve months prior to Claimant's birth with no breaks lasting more than thirty days. When Claimant's mother learned she was pregnant, she and NH separated for about three months but then reconciled. NH was present at the hospital for Claimant's birth and is listed as her father on her birth certificate. The couple separated again when Claimant was six months old and obtained a divorce through the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida (the Florida court) on January 26, 1993. Under the terms of the divorce decree, NH and Claimant's mother shared parental responsibility for Claimant and NH agreed to pay weekly child support. According to Claimant's mother, NH spent time with Claimant intermittently and bought her gifts after the divorce up until the time of his death.

According to Joanie, NH's wife, NH said Claimant's mother told him that Claimant's mother was not sure if Claimant was his child, and during the time of NH's marriage to Claimant's mother, he too was not sure. At the request of the Ohio Child Support Enforcement Agency (CSEA), NH, Claimant, and Claimant's mother underwent DNA testing in August 2004, over eleven years after the couple's divorce and child support award. The DNA testing results, which revealed a 0.00% probability that NH was Claimant's biological father, were filed with the Juvenile Division of the Common Pleas Court of Hancock County, Ohio, on September 12, 2004, in a case styled Joyce Victory et. al, v. Teresa White, et. al. According to Scott , a claims representative in the Kalamazoo, MI field office, Ms. V~ is Claimant's maternal grandmother. We do not know whether NH was a party to this action, whether the Ohio CSEA requested DNA test because NH disputed paternity, or if DNA testing is routine in all child support matters. No one disputes the accuracy or reliability of the test results.

According to NH's wife, NH was relieved of paying child support for Claimant based on these DNA tests. However, our research does not demonstrate that anyone filed the DNA test results with the Florida court nor does it appear that the Florida court has issued an order relieving NH of his child support obligations. Furthermore, the Florida court's docket sheet indicates that the court found NH in contempt for failing to pay his child support in January 1994 and May 1994, that the IRS intercepted his tax refund in 1999 and 2001, and that the court issued two notices of delinquency to NH in May 2000 and July 2001. Scott contacted the Florida court clerk and discovered that except for the initial child support payment, NH has not voluntarily paid child support and that the case is still open. Our research further revealed that the Juvenile Division of the Common Pleas Court of Hancock, OH has not issued an order specifically relieving NH of his child support obligations and in fact it does not appear that child support was ever ordered in that State. Carmen of the Hancock County CSEA of Ohio explained that Ohio administers an "administrative" blood/genetic test before it initiates a court action. If CSEA cannot establish a parental relationship, then CSEA files a statement with the court stating no relationship exists and no actual case is opened before a judge. Therefore, CSEA found NH was not Claimant's father, and the State of Ohio (from the administrative side) did not pursue a decision for child support under any court actions. CSEA does not have any documentation other than the test results. The evidence provided also does not include a decision by a court of competent jurisdiction finding NH was not Claimant's biological father. NH was domiciled in Kentucky when he died on May 15, 2006.

STATUTORY AND LEGAL AUTHORITY

To be eligible for child's insurance benefits on the earnings record of a fully-insured, deceased individual, a claimant must be the individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2008). A "child" includes the natural child, adopted child or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2008). One method for establishing a claimant's status as the child of a deceased insured individual is under section 216(h)(2)(A) of the Act, wherein a claimant must show that he or she would be entitled to a child's share of the insured's intestate personal property under the law of the state in which the insured was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2008). Because NH was a resident of Kentucky at the time of his death, Kentucky's law of intestate succession applies in determining Claimant's status as the child of NH for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4).

Under Kentucky law, if NH died with kindred, his intestate estate would pass to this kindred beginning with his surviving children. See KY. REV. STAT. ANN. §§ 391.010, 391.030 (West 2009). Kentucky law provides that a child born during lawful wedlock, or within ten months thereafter, is presumed to be the child of the husband and wife. See KY. REV. STAT. ANN. § 406.011 (West 2009). Although this presumption is one of the strongest known to law, it is not conclusive but is rebuttable and can be overcome by factual evidence. See Bartlett v. Commonwealth, Ky., ex rel. Calloway, 705 S.W.2d 470, 472 (Ky. 1986). The proof required to rebut this presumption must be "so clear, distinct and convincing as to remove the question from the realm of reasonable doubt." Id. (citations omitted). That proof "must be of the strongest character and so convincing as to remove a reasonable doubt. To bastardize a child, the evidence must be of a higher degree than that required to convict a person of even a minor criminal offense." Bradshaw v. Bradshaw, 295 S.W.2d 571, 552 (Ky. Ct. App. 1956) (citing Moore v. Moore, 190 S.W. 689, 690 (Ky. Ct. App. 1945)). Once there is a marriage and a child is born at a time when the child could have been conceived in wedlock, the burden shifts to the one disputing legitimacy to disprove it. See Wilson v. Wilson, 193 S.W. 7, 10 (Ky. Ct. App. 1917).

With these principles in mind, we looked to Kentucky case law to determine the type and amount of evidence Kentucky courts have found sufficient to rebut the presumption of paternity that arises when a child is born in wedlock. Kentucky law provides that if the court finds the conclusions of all the experts, as disclosed by the evidence based upon genetic tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. KY. REV. STAT. ANN. § 406.111 (West 2009). Yet, we have not found case law where Kentucky courts addressed the issue of whether genetic testing alone could rebut the presumption that a child born during wedlock is the child of the mother's husband. In Simmons v. Simmons, 479 S.W.2d 585, 587 (Ky. Ct. App. 1972), the trial court concluded the husband was not the father of the disputed child where a blood-grouping test excluded him as the father. The mother did not object to the admissibility of the test, but appealed the trial court's decision. The Kentucky Court of Appeals found that the trial court was entitled to rely upon the uncontested results of a blood-grouping test showing the nonpaternity of the husband. Id. Specifically, the court held that when a blood-grouping test is not objected to upon grounds of accuracy, reliability, or admissibility and it shows nonpaternity of an alleged male parent, a trial court may rely upon the test and if persuaded by that test, the court's judgment cannot be said to have been clearly erroneous. Id. Consequently, the Simmons court concluded that the trial court's determination of nonpaternity was supported by evidence of probative value because the blood-grouping test was undisputed. However, the court did not address whether such tests would be conclusive of nonpaternity: "Whether the tests can be said as a matter of law to be conclusive of nonpaternity, we do not now decide. We leave that question until it is squarely presented as an issue." Id. at 587-88.

In other cases where Kentucky courts have considered genetic test results in determining the husband's nonpaternity, other evidence was presented along with the genetic test results to rebut the presumption of paternity. In B~, a third party filed an action to establish the paternity of a child born during the marriage of a husband and wife. 705 S.W.2d at 471. The evidence presented to show the third party was the child's father included genetic testing showing a 99.93% probability of the third party's paternity, a statement that paternity was practically proven, a clinical pathologist's testimony as to the reliability and accuracy of the test, the wife's testimony that she had separated from her husband more than three years prior to the child's birth, the wife's testimony that she and the third party lived together on and off for five years, the third party's financial contribution to the child's support, and a common physical genetic characteristic between the third party and the child (six fingers). See id. at 471. Yet, the Kentucky Supreme Court noted that both the third party and the lower court relied primarily, but not exclusively, on the genetic test results to prove paternity. 705 S.W.2d at 472. The court concluded that because the genetic test results confirmed the third party's paternity within a 99.93% degree of accuracy, the lower court's judgment establishing paternity was not "clearly erroneous." Id. However, the court also noted that it "need not decide whether the [genetic] testing standing alone would be sufficient to overcome the presumption of legitimacy" because the testing was corroborated by evidence of access, contribution toward support, and a similar genetic characteristic. See id. The court held that the totality of the evidence was "so overwhelming as to constitute proof beyond a reasonable doubt." Id.

Similarly, in Spears v. Spears, 784 S.W.2d 605 (Ky. Ct. App. 1990), a husband filed a petition for divorce, alleging that he had been separated from his wife for ten years and that he had no knowledge of any children born of the marriage. The wife objected, claiming a child had been born of the marriage; however, she acknowledged she had never sought child support from the husband. See id. at 606, 608. The trial court dissolved the marriage but ordered the husband to pay child support. Later, blood testing showed the husband was not the father of the child. The husband then sought to reopen the divorce action to challenge the finding of paternity. The appeals court declined to apply the doctrine of res judicata, because prohibiting the husband from challenge paternity would "work an injustice" when blood testing had shown he was not the biological father. Id. at 607. The court also considered that the record did not show the husband ever held out the child as his or that the wife had ever sought child support. See id. at 608. Given these factors together with the blood test results, the court held that the husband should not be barred from challenging paternity. See id.

A small part of the decision in Boone v. Bellinger, 228 S.W.3d 1 (Ky. Ct. App. 2007), discussed the paternity of two of the children who were born in wedlock. Though the wife and the alleged biological father claimed that they had entered into an agreed judgment of paternity in district court, they did not supplement the record with any documents from the alleged paternity action. Id. at 5. Consequently, it was unclear whether the husband or the biological father was the legal father of two of the children. Id. The Kentucky Court of Appeals indicated that because all parties appeared to accept the certified DNA testing performed in the case, which indicated that the alleged biological father was the biological father, the DNA test made the result of any paternity action a "foregone conclusion." Id. at 5. The court reasoned that Kentucky has a genetic testing presumption as well as a marital presumption but that case law reflects that paternity determinations are a "function of biological connection to the child." Id. at 6, n. 5 (citing 16 L. Graham & J. Keller, Kentucky Practice-Domestic Relations Law § 23.4 (2d ed. 1997) and B~). Because the wife and the biological father had not supplemented the record with the alleged paternity action, the court later indicated that under Kentucky law, the husband is the legal father of the child until such time as a judgment of paternity in the biological father's favor is entered by an appropriate court. Id. at 12.

Based on all of the above-mentioned cases, it appears that under Kentucky law, DNA tests which are not contested and which conclusively exclude the husband as the father of the child might rebut the presumption of a husband's paternity when a child is born in wedlock. However, as will be seen, our conclusion here that Claimant would not be the husband's child, is bolstered by evidence that supplements the genetic testing results.

DISCUSSION

Based on the above legal authority, we believe an SSA adjudicator could conclude Claimant is not NH's child for purposes of Kentucky intestacy law. Although Claimant was born during the marriage of NH and Claimant's mother, we believe the DNA testing and other evidence are sufficient to rebut the presumption of paternity regarding a child born during wedlock. The DNA evidence showed a 0% probability that NH was Claimant's father. Claimant's mother does not dispute the accuracy and reliability of the DNA testing and concedes that NH is not Claimant's biological father.

Additionally, NH left Claimant's mother for three months upon discovering she was pregnant. While the parties were reconciled before the child's birth, NH divorced Claimant's mother shortly after Claimant was born. According to NH's second wife, both NH and Claimant's mother had expressed doubts about NH's paternity of Claimant. Claimant's reluctance to pay child support, too, could indicate his doubts about his paternity. Similar to the trial court in Simmons, which relied on uncontested genetic testing of nonpaternity to conclude a husband was not the father of a child born during wedlock, an SSA adjudicator could find the DNA evidence in this case rebuts the presumption of paternity and shows that Claimant is not NH's child. Our conclusion here that Claimant would not be the husband's child, however, is not solely based on the DNA test results but is also based on the additional evidence tending to prove Claimant was not NH's child.

Finally, although NH was relieved of paying child support for Claimant by the Ohio CSEA based on genetic test results, it does not appear that there was a decision by a court of competent jurisdiction finding NH was not required to pay child support which was based on the DNA test that he was not Claimant's father. As a result, the administrative finding by the Ohio CSEA would not be entitled to deference under Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) or Social Security Ruling (SSR) 83-37c.

Consequently, because Claimant would not be considered a surviving "child" for inheritance purposes, and would not be entitled to a child's share of NH's intestate personal property, Claimant would not be considered NH's child for purposes of Social Security benefits.

CONCLUSION

The genetic test results appear valid and would provide a basis for reopening the determination finding Stephanie entitled to child's insurance benefits based on the NH's record.

Mary Ann Sloan
Regional Chief Counsel

By:
Arthurice Brundidge
Assistant Regional Counsel

E. PR 06-089 DNA Testing to Terminate Child's Entitlement, Kentucky

DATE: March 8, 2006

1. SYLLABUS

Under Kentucky law, DNA tests are not conclusive evidence of paternity. The tests are admissible and weighed along with other evidence of the alleged father's paternity.

In this case, DNA testing showing that the child beneficiary is not a child of the number holder would be sufficient to overcome the presumption of the number holder's paternity barring the existence of contradictory evidence.

The child's award may be reopened in this case since the DNA evidence was submitted within one year of the initial award.

2. OPINION

QUESTION

You have asked whether DNA testing performed by DNA Diagnostics Inc. meets accreditation requirements of Kentucky law and can be used to reopen an award of child's benefits to Stephanie (Claimant) on the account of Troy (NH). It is our opinion that the DNA testing meets the requirements of Kentucky law and that the January 2004 award of benefits can be reopened and denied.

FACTS

According to the information made available to us, the NH was married to Tammy, Claimant's mother, in May 1984 and Claimant was born in December. The NH was listed as the father on Claimant's birth certificate. Claimant was awarded disabled adult child benefits on the NH's record on January 13, 2004. As part of child support proceedings in state court, the state court judge apparently ordered DNA testing. Claimant's mother submitted the March 11, 2005, test results from DNA Diagnostics Inc. to SSA around July 2005. The test results excluded the NH as Claimant's biological father. DNA Diagnostics Inc. is a Texas laboratory specializing in DNA testing for individuals and organizations, including law enforcement and state regulatory agencies (see attached information). It is unclear whether the laboratory is certified by the American Association of Blood Banks or other association. The state court apparently has not entered an order in the child support case.

DISCUSSION

Kentucky apparently does not have a law regarding accreditation of out of state laboratories. The blood test at issue here apparently was ordered by the court in connection with a child support case. The court can order such testing when paternity is disputed. KRS Sec. 406.091 (2005). The statute states that if genetic testing is required, the court "shall direct that inherited characteristics be determined by appropriate testing procedures, and shall appoint an expert qualified as an examiner of genetic markers to analyze and interpret results and report to the court." KRS Sec. 406.091(1) (2005). A verified report from the expert may be used unless the expert is called as a witness. KRS Sec. 406.091(6). This statute apparently gives the trial court judge discretion to determine whether an expert is qualified. Further investigation is needed to determine whether the court designated DNA Diagnostics Inc. as the qualified expert here. If so, the laboratory would clearly meet accreditation requirements in Kentucky.

Even without the court's designation, the DNA testing could be considered. The laboratory director's credentials seem to meet the credentials required for a licensed laboratory director in Kentucky (see attachment), and the laboratory has significant experience. Thus, the laboratory appears to be a "qualified" expert. Further, the DNA tests are not conclusive evidence of paternity in Kentucky. The tests are admissible and weighed along with other evidence of the alleged father's paternity. KRS Sec. 406.901(3) (2005). Kentucky courts have allowed DNA test results to rebut the presumption that a husband, not a third party, was the father of a child. See Bartlett v. Commonwealth ex. Rel. Gloria M. Calloway, 705 S.W.2d 470 (Ky. Sup. Ct. 1986); Crowder v. Commonwealth, Ky., 745 S.W.2d 149 (Ky. App. 1988). Accordingly, we believe that the DNA testing would be valid and would overcome the presumption that the NH was Claimant's father.

If a child has been entitled to benefits under the record of an insured individual, the determination that another man is the biological father is not a terminating event under the Act. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b) (2005). As a result, SSA may only stop the claimants' benefits based on NH's earnings record if SSA reopens the original child-status determination. See 20 C.F.R. § 404.988 (2005). Under the relevant Social Security regulations, 20 C.F.R. § 404.987 (2005), a decision may be reopened under certain circumstances. A decision may be reopened within 12 months of the date of the notice of the initial determination for any reason. See 20 C.F.R. § 404.988(a). A decision may be reopened within four years of the initial determination, if SSA finds good cause for reopening. See 20 C.F.R. § 404.988(b). Here, the initial determination was in January 2003 and the evidence was presented to SSA in July 2005, which is within four years of the initial determination. Good cause for reopening includes receipt of "new and material evidence." 20 C.F.R. § 404.989(a)(1). Evidence is "new" if it is "not duplicative or cumulative" and is "material" if there is a "reasonable possibility that the new evidence would have changed the outcome." Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 711 (6th Cir. 1988). This court standard, applicable to sentence 6 remands, is similar to the regulatory standard at 20 C.F.R. Sec. 404.989, POMS GN 04010.030 (new and material evidence is evidence that was not part of the file when the final determination was made, relates back to the time of the original determination, and shows facts that would result in a conclusion different from the conclusion originally reached). The DNA test results are "new" given that they did not exist at the time of the initial determination. The test results would also meet the "materiality" test because they show that the NH could not be Claimant's father. As a result, the DNA testing results would provide good cause for reopening the initial determination.

CONCLUSION

The genetic test results appear valid and would provide a basis for reopening the determination finding Stephanie entitled to child's insurance benefits based on the NH's record.

Mary Ann Slaon
Regional Chief Counsel

By:
Laurie G. Remter
Assistant Regional Counsel

F. PR 05-107 DNA Testing to Terminate Child’s Entitlement, Kentucky

DATE: March 21, 2005

1. SYLLABUS

Without evidence showing that the original decision was procured through fraud or similar fault, DNA evidence which precludes the beneficiary from being the number holder's child is not sufficient to reopen that decision when the more than four years have passed since the initial determination.

2. OPINION

QUESTION

Whether a child, Morton (Leon), who was found entitled to Social Security benefits on the account of Morton, (Morton), is still entitled to child’s benefits following the submission of DNA test results excluding Morton as the biological father of Leon.

ANSWER

For the reasons stated below, it is our opinion that Social Security Administration’s regulations do not allow reopening the 1999 decision that allowed child’s benefits in this claim.

BACKGROUND

According to the information made available to us, Leona (Leona) and Morton were married in Breckinridge County, Kentucky on July 9, 1983. Leon was born in July . Leon was entitled to child’s benefits as Morton’s child in August 1999. Leona and Morton divorced in August 2004. Subsequently, DNA testing performed in September 2004 excluded Morton as the biological father of Leon.

DISCUSSION

Under the relevant Social Security regulations, 20 C.F.R. § 404.987, a decision may be reopened under certain circumstances. A decision may be reopened within 12 months of the date of the notice of the initial determination for any reason. See 20 C.F.R. § 404.988(a). A decision may be reopened within four years of the initial determination, if SSA finds good cause for reopening. See 20 C.F.R. § 404.988(b). A decision may be reopened at any time if it was obtained by fraud or similar fault or if certain other circumstances identified in 20 C.F.R. § 404.988(c)(1)-(11) are present.

Here, more than four years have passed since the initial determination. Although 20 C.F.R. § 404.988(c) allows reopening if a determination is obtained by fraud or similar fault, it appears Leon’s entitlement to benefits was based on erroneous information identifying Morton as his father. While DNA test results have now excluded Morton as Leon’s biological father, there is no indication benefits were obtained on Leon’s behalf by fraud or similar fault.* None of the other enumerated reasons for reopening appear applicable.

CONCLUSION

Thus, the regulations provide no basis for reopening the determination finding Leon entitled to child’s insurance benefits based on Morton’s earnings record.

Mary Ann Sloan
Regional Chief Counsel

By:
Jennifer Patel
Assistant Regional Counsel

G. PR 00-216 Continuing Entitlement of Children on Alex

DATE: January 20, 2000

1. SYLLABUS

Under Kentucky law, the presumption of paternity and legitimacy with respect to the two children entitled on the NH's record has been overcome by factual evidence, genetic test results. Based on this evidence, the children's entitlement may be reopened and reversed under the regulations for administrative finality.

2. OPINION

You have requested our opinion as to whether, under Kentucky law, we should terminate Ellen and Alex's entitlement to child's benefits based on the results of genetic testing, and, if so, what is the termination date. It is our conclusion that we should terminate Ellen and Alex's entitlement to child's benefits, and that the regulations providing for reopening and revising determinations and decisions should be applied. 20 C.F.R. § 404.987 et seq.

The facts are that Raymond , the number holder (NH), applied for disability benefits on December 10, 1996. He was awarded benefits effective June 1997. The NH lives in Kentucky. On his application, the NH indicated he had two children, Ellen , born in May , and Alex , born in September . The NH stated he married the children's mother, Patty , on June 15, 1989, and they divorced on June 4, 1993. At a consultative examination, the NH stated he did not think the children were his, but he did not have the money for a blood test.

On November 24, 1997, Patty filed for benefits on behalf of her children, Ellen and Alex . The children were entitled effective June 1997, and Patty was made their payee because the children live with her in Kentucky. On September 23, 1999, the NH provided the Richmond, Kentucky, Social Security office with the results of genetic testing. Test results indicate zero probability that Raymond is the father of Ellen or Alex .

For centuries, because it was so difficult to determine paternity, the courts always opted for the husband as the father of the child where that possibility existed. Bartlett v. Commonwealth, Ky., ex. rel. Calloway, 705 S.W.2d 470, 472 (Ky. 1986). This "presumption of paternity" is codified in Ky. Rev. Stat. § 406.011, which states in pertinent part:

A child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife.

The presumption of paternity is rebuttable. In Tackett v. Tackett, 508 S.W.2d 790, 792 (Ky. App. 1974), the court noted:

Though the presumption of paternity and legitimacy is one of the strongest known to law, it is not conclusive but is rebuttable and may be overcome by factual evidence.

In Simmons v. Simmons, 479 S.W.2d 585, 587 (Ky. 1972), the court cautioned that:

Though rebuttable, it (the presumption of legitimacy) can be overcome only by evidence so clear, distinct and convincing as to remove the question from the realm of reasonable doubt.

The admission of blood test results was judicially approved in Kentucky on June 15, 1983. Perry v. Commonwealth, Ky. 652 S.W.2d 655 (1983). With respect to the effect of blood test results, Ky. Rev. Stat. § 406.111 provides that:

If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly.

In Crowder v. Commonwealth, Ky., 745 S.W.2d 149 (Ky. App. 1988), the court upheld a lower court decision setting aside a judgment of paternity after blood test results unequivocally excluded the putative father as the biological father. The court observed that justice is not arrived at where a court in a paternity action adjudicates a man to be the father of a child while knowing full well that the biological relationship has been clearly disestablished. Similarly, in Spears v. Spears, 784 S.W.2d 605 (Ky. App. 1990), the court declined to apply the doctrine of res judicata to bar subsequent proceedings where there were paternity findings or implications made in a prior divorce decree or support. Kentucky courts have noted that the potential for harm where one is adjudicated the father of a child when overwhelming evidence discloses that he is not the father includes allowing the child to draw benefits from the putative father's Social Security account equally with the putative father's true children. Spears v. Spears, 784 S.W.2d at 605; Crowder v. Commonwealth, Ky., 745 S.W.2d at 151; Fykes v. Clark, 635 S.W.2d 316 (Ky. 1982).

It is our opinion that, under Kentucky law, the presumption of paternity and legitimacy has been overcome by factual evidence, genetic test results. Based on this evidence, the entitlement of Ellen and Alex should be terminated. The regulations relating to administration finality provide instruction as to implementing the termination. Title 20 C.F.R. § 404.988(b) states that within four years of the date of the notice of the initial determination, a decision may be reopened for good cause. Good cause is defined at 20 C.F.R. § 404.989 as including new and material evidence.