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
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
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
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
Thomas C. S~
Assistant Regional Counsel