PR 01010.040 Oklahoma

A. PR 03-018 Using Results of DNA Test After the Number Holder's Death to Rebut Presumption of Legitimacy and Establish Inheritance Rights for a Child in Oklahoma -- Richard L. K~, SSN ~ -- REPLY

DATE: October 31, 2002

1. SYLLABUS

The following evidence is sufficient to rebut the presumption that the child claimant was the natural child of the mother's husband: a DNA report indicating a 99.4 percent probability that the child claimant has the same biological father as a child already entitled on the NH's record under section 216(h)(2)(A) of the Act (State intestacy law); the husband's lack of access during the conception period; and statements from the child's mother and her husband denying paternity. Further, the DNA test, together with other evidence presented, would be sufficient for an Oklahoma court to conclude that the claimant can inherit from the NH. The child is legitimated from birth. Federal accreditation requirements do not apply to laboratories that perform DNA tests for paternity purposes, and Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified.

2. OPINION

You have inquired as to whether the presumption of legitimacy in Oklahoma that Jimmy D. H~ is the father of Joseph B. H~, the child claimant, has been rebutted. You have also asked whether the evidence is sufficient to establish a relationship of the child to the purported father, Richard L. K~, the deceased number holder. Further, you asked about the probative effect of a DNA laboratory report prepared by H.A. Chapman Institute of Medical Genetics, a genetic testing laboratory (the DNA lab) in Tulsa, Oklahoma. In addition, you asked whether the DNA lab meets the accreditation requirements of State law under Program Operations Manual System (POMS) GN 00306.065 (evidentiary standards under state intestacy laws). You also asked whether Oklahoma law imposes any additional requirements other than those found under POMS for rebutting the presumption of legitimacy by demonstrating a lack of “access” by the husband to the spouse during the time of conception. See POMS GN 00306.021. If we determine that the DNA lab report is sufficient to establish paternity under State law, then you have asked for our opinion as to what date Joseph would be recognized as Mr. K~'s child for Social Security benefit purposes. Specifically, you asked whether it would be from birth or from the date of the DNA lab report.

We conclude that the DNA lab report, the husband's lack of access during the period of conception, statements from the child's mother and her husband denying paternity, and a prior (Agency) ruling are sufficient to rebut the presumption that Joseph was Mr. H~'s natural (biological) son. Further, the DNA test, together with other evidence presented, would be sufficient for an Oklahoma court to conclude that Joseph is Mr. K~'s natural son. We believe that Joseph would be able to inherit from the purported father, Mr. K~. Oklahoma law does not generally impose additional requirements for rebutting the presumption of legitimacy than those found under the POMS. Federal accreditation requirements do not apply to laboratories that perform DNA tests for paternity purposes. Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified. Oklahoma by statute legitimizes all children born within the state from birth. Accordingly, Joseph can be paid child's insurance benefits retroactively as permitted by Agency regulations. 20 C.F.R. § 404.621 (2002).

Angela M. H~ and Jimmy H~ were married on October 4, 1985, and separated in August 1986. According to both individuals, they have not lived together since the separation. It is not clear whether they ever divorced. Together they have a biological daughter, Carey B. H~, who is not the subject of this legal opinion. Abbey L. H~ was born on October 13, 1987, and Joseph B. H~ was born on July 12, 1989. Jimmy H~ was listed as the father on both birth certificates. However, Mr. H~ has denied that he is the biological father of Abbey and Joseph. Angela H~ has stated that she met and became intimate with Richard L. K~ soon after her separation from Mr. H~. Mr. K~ died on September 7, 1989, in an automobile accident in Arizona.

Angela H~ filed child's insurance benefit claims on behalf of Abbey and Joseph H~ on August 31, 1992. The claims were denied at the initial and reconsideration levels for lack of credible evidence demonstrating acknowledgment by Mr. K~. The claims were appealed to an administrative law judge (ALJ) who on March 22, 1994, denied them as well. However, on March 21, 1995, the Appeals Council vacated the decision, and remanded the claims for further development and a new hearing. On October 23, 1996, ALJ Stephen C. C~ issued a fully favorable decision on Abbey H~'s claim, finding that she was the “child” of the deceased wage earner, Mr. K~, and entitled to child's insurance benefits on his earnings record. ALJ C~ determined that Mr. K~ had publicly acknowledged Abbey as his daughter, and “otherwise treated her as if she were a child born in wedlock.” Okla. Stat. tit. 84, § 215(d) (2000). On October 23, 1996, Angela H~, through her attorney, withdrew Joseph H~'s appeal before ALJ C~ for child's insurance benefits.

On April 10, 2000, Angela H~ again filed for child insurance benefits on behalf of Joseph H~. She submitted a letter from the DNA lab. In a letter dated April 17, 2000, the DNA lab stated that they had tested blood samples from Angela H~, as well as Abbey and Joseph H~. The test results indicated a 99.4 percent probability that Abbey and Joseph have the same biological father because they share the same paternally inherited genetic markers.

This opinion will address primarily section 216(h)(2) of the Social Security Act (the Act), which directs us to apply State law to determine the relationship of a child to an insured individual. Because we believe that Joseph can qualify for benefits under State law, we will not address the alternative Federal provisions under section 216(h)(3) of the Act./ Section 216(h)(2)(A) of the Act provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which such insured individual was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A).

The term domicile is defined as a person's true, fixed, and permanent home, to which he intends to return and remain even though he may reside elsewhere. See Black's Law Dictionary at 501 (7th ed.1999). Under Oklahoma probate law, the terms domicile and residence are used interchangeably. See Groseclose v. Rice, 366 P.2d 465, 467 (Okla. 1961). The determination of residence or domicile is a question of fact. Id. at 469. Mr. K~ died in an automobile accident in Arizona. The record revealed that his job as a photographer required him to travel extensively, often living out of motels. However, according to the evidence provided with your request for legal opinion, Mr. K~ had lived in Oklahoma for an extended period of time in 1986 and had rented an apartment there. In Abbey L. H~'s claim, ALJ C~ found that the number holder was domiciled in Oklahoma because he had maintained an Oklahoma driver's license. In addition, the record revealed that Mr. K~ would often return to Oklahoma for extended periods of time to visit the claimant's mother and his daughter Abbey. We believe that these facts establish Oklahoma as Mr. K~'s domicile. There is no evidence that the number holder intended to abandon Oklahoma as his domicile and establish his permanent home in another state. Id. Therefore, we will apply Oklahoma law.

Jimmy and Angela H~ were still married at the time of Joseph's birth. Oklahoma State law provides that all children born in wedlock are presumed to be legitimate, and the husband is presumed to be the natural father of the child for all intents and purposes if the child is born during the marriage. Okla. Stat. tit. 10, §§ 1, 2 (2000). However, this presumption of paternity may be disputed by the husband, the wife, the putative father, or their descendants. Okla. Stat. tit. 10, §§ 2B, 3 (2000)./ Oklahoma law views a paternity determination as a question of fact to be determined by a preponderance of the evidence standard. See In the Matter of C.G., 637 P.2d 66, 69 n. 8 (Okla. 1981)(citing to Greenback v. State, 36 P.2d 882, 883 (Okla. 1934)). Under Oklahoma law, the process for disputing paternity is patterned after the same requirements to establish paternity. Okla. Stat. tit. 10, § 70B(2)-(3) (2000). Paternity may be established or disputed in part by a district or administrative court order, or scientifically reliable genetic tests including, but not limited to, blood tests. Id. If genetic testing is used to dispute the presumption of legitimacy of a child born during wedlock (as in this case), the presumption is overcome if a court would find, after considering the DNA test(s) and expert testimony, that the husband is not the father of the child. Okla. Stat. tit. 10, § 505 (2000). See also State ex. rel. Dept. of Human Services on Behalf of Snellings v. Strohmeyer, 925 P.2d 77, 78 (Okla. Ct. App. 1995). The DNA tests indicating that Abbey and Joseph have the same biological father significantly undermines the presumption that Mr. H~ was the natural father of Joseph given the Agency's previous ruling that Mr. K~ was Abbey's father.

In addition, Oklahoma courts have held that the presumption of legitimacy can be overcome by “clear, satisfying and conclusive evidence” that the husband did not have “access” to his spouse when the child was conceived. See In Re Davis' Estate 36 P.2d 471, 473 (Okla. 1934); Wilkerson v. State, 364 P.2d 709, 711-12 (Okla. Crim. App. 1961). The Oklahoma Supreme Court has referred to the term “access” as meaning sexual intercourse. See Jackson v. Jackson, 76 P.2d 1062, 1064 (Okla. 1938). The lack of access has been defined to cover (1) impotency, (2) husband was entirely absent from his wife during the period where the child was conceived, or (3) husband was present with his wife during such period, but only under circumstances which afford clear and satisfactory proof that there was no sexual intercourse between them./ Id. Both Jimmy and Angela H~ have indicated that they never lived together after their separation in August 1986. Jimmy H~ never indicated that he had access to his spouse during the period when the child claimant was conceived. It is our opinion that, under Oklahoma law, these facts, together with the DNA test and the Agency's previous ruling concerning the paternity of Abbey, provided sufficient evidence to rebut the presumption of paternity of Mr. H~, and establish paternity of Mr. K~.

Even though Oklahoma law reveals no express limitation upon the timing of a determination of paternity, both an Oklahoma Appeals Court and the Oklahoma Supreme Court have stated that an adjudication of paternity after the death of the father does not give rise to inheritance rights. See Estate of King, 837 P.2d 463, 467 (Okla. 1990) (citing Okla. Stat. tit. 84, § 215); see also Estate of Geller, 980 P. 2d 665, 669-670 (Okla. Ct. App. 1999). Thus, even if Joseph were to now obtain a court determination of paternity, such a determination might not suffice to establish his inheritance rights under Oklahoma law./ Id. We need not resolve this question here in order to determine Joseph's eligibility to receive child's insurance benefits because the Agency will not apply any state inheritance law requirement that an action to establish paternity must have been started or completed before the worker's death. 20 C.F.R. § 404.355(b)(2) (2002). Accordingly, for Social Security purposes, Joseph may still establish his relationship to the deceased number holder.

It appears that Oklahoma's genetic testing paternity scheme contemplates the testing of the putative father directly. Section 501 of title 10 states that, “In a civil action in which paternity is a relevant fact and at issue, the court shall order the mother, the child and putative father to submit to genetic testing. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require unless such individual is found to have good cause for refusing to cooperate” Okla. Stat. tit. 10, § 501 (2000)(emphasis added).

While there is no standard definition for the term “good cause” in the context of a Oklahoma paternity proceeding, one Oklahoma case defined the term good cause, in the context of a child support case, as requiring some level of hardship. See Department of Human Services v. Glasby, 858 P.2d 1291, 1295 (Okla. Ct. App. 1993). The hardship of a child orphaned by the untimely death of the father is obvious. Likewise obvious, the genetic testing of Mr. K~ directly is impossible since he died in 1989. Under the facts of this case, the father has not “refused” to be tested because he is deceased, and no adverse inference would follow. Therefore, the interests of justice can require a finding of paternity in favor of Joseph.

As to the issue of Mr. K~'s paternity of Joseph, if genetic testing establishes a statistical probability of paternity by 95 percent or greater, this creates a presumption of paternity that can only be rebutted by clear and convincing evidence. Okla. Stat. tit.10, § 504C (2000). If genetic testing establishes a statistical probability of paternity at 98 percent or greater, this creates a conclusive presumption of paternity that cannot be disputed. Okla. Stat. tit. 10, § 504D (2000). Applying the facts to the law, the DNA lab report concluded that the probability Abbey and Joseph have the same biological father was 99.4 percent. Robert W. A~, Ph.D., the DNA lab director, stated that the results of DNA testing indicated that Abbey and Joseph H~ have the same father inasmuch as they share the same paternally inherited genetic markers.

The Agency is also obligated to follow the 1996 administrative adjudication from ALJ C~ that concluded Abbey was the child of the deceased wage earner, Mr. K~. See 20 C.F.R. § 404.955 (2002) (decision of an ALJ is binding on all parties); 20 C.F.R. § 404.355(b)(2) (agency given discretion in applying state inheritance law standards). See also Blair v. Apfel, 229 F.3d 1294, 1295 (10th Cir. 2000) (absent a colorable constitutional claim, courts generally lack jurisdiction to reopen a prior Agency adjudication). Under the facts of this case, the Agency cannot rationally conclude that Mr. K~ was the father of Abbey, but not the father of Joseph, when genetic testing has demonstrated that both siblings have the same biological father. Id. This is also supported by consideration of Okla. Stat. tit. 10, §§ 70B, 504D, as previously discussed above. Therefore, SSA should consider Joseph to be Mr. K~'s child for benefit purposes under section 216(h)(2) of the Act.

POMS section GN 00306.065 generally provides guidance regarding evidentiary standards under state intestacy laws and genetic testing accreditation. Our research reveals that the Federal statutes addressing laboratory accreditation and certification do not apply to laboratories that perform DNA tests to establish paternity. Federal accreditation requirements governing the certification of laboratories pertain only to facilities that conduct “examination[s] of materials derived from the human body for the purpose of providing information for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings.” 42 U.S.C. § 263a(a). Federal regulations further state that the rules for certification of laboratories do not apply to components or functions of “any facility or component of a facility that only performs testing for forensic purposes.” 20 C.F.R. § 493.3(b)(1) (2002).

The purpose of DNA testing in this case was to help ascertain whether Joseph was Mr. K~'s son, and thus could be entitled to child's insurance benefits based on Mr. K~'s earnings record. The DNA test used to establish paternity and the benefit entitlement was not performed for medical diagnosis, prevention, treatment, or health assessment. Accordingly, the Federal accreditation requirements do not apply to the laboratory that performed the DNA test. In addition, our research also reveals no certification or accreditation requirements under the statutes of Oklahoma for laboratories that perform paternity DNA tests. There was no evidence presented in your request for legal opinion that would lead us to conclude that the genetic testing results from the DNA laboratory was suspect or fraudulent.

You have also asked what would be the first month that Joseph could be awarded child's benefits. Applicants for child's insurance benefits can be paid retroactive benefits prior to the month of application. 20 C.F.R. § 404.621. Agency policy 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 85-17.

Oklahoma law provides that all children born within the State “shall be” deemed legitimate. Okla. Stat. tit. 10, § 1.2 (2000). It was the intent of Oklahoma law to abolish the stigma of defining children by terms of illegitimate and legitimate, but rather refer to them as children born out of wedlock. Okla. Stat. tit. 10, § 1.1 (2000). However, this change in the law was more than mere semantics. The Oklahoma Supreme Court has ruled that the State may not erect impenetrable barriers to discriminate against illegitimate children by denying them substantial benefits generally accorded to all children. See Callison v. Callison, 687 P.2d 106, 109 (Okla. 1984) (equal protection analysis striking down 3-year statute of limitations to bring support action illegitimate children, when same restriction not imposed upon legitimated children). Under Oklahoma intestacy law, once an individual has been judicially determined to be the father of a child born out of wedlock, the child stands in identical relation to his father and his kindred, and his kindred to the child. Okla. Stat. tit. 84, § 215(d). Based upon the foregoing, Oklahoma has not maintained a substantive distinction between legitimate and illegitimate children, and has legitimated all children born within the State from birth. Therefore, we believe that Joseph, as Mr. K~'s biological son, should be treated as if he were legitimate from birth.

In summary, we conclude that the DNA lab report, the husband's lack of access during the period of conception, statements from the child's mother and her husband denying paternity, and the prior administrative ruling are sufficient to rebut the presumption that Joseph was the natural son of Mr. H~. Further, the DNA test, together with other evidence presented, would be sufficient for an Oklahoma court to conclude that Joseph is Mr. K~'s biological son. Joseph would be able to inherit from his purported father, Mr. K~. Oklahoma law does not generally impose additional requirements to rebut the presumption of legitimacy than those found under the POMS. Federal accreditation requirements do not apply to laboratories that perform DNA tests. Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified. Oklahoma law legitimizes all children born within the state from birth. Accordingly, Joseph can be paid child's insurance benefits retroactively as permitted by Agency regulations. 20 C.F.R. § 404.621.

Tina M. W~
Regional Chief Counsel

By: __________________________
Thomas C. S~
Assistant Regional Counsel


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PR 01010.040 - Oklahoma - 03/31/2011
Batch run: 03/31/2011
Rev:03/31/2011