TN 27 (09-14)

PR 01105.005 Arkansas

A. PR 14-152 Arkansas State Law—Child Relationship and Dependency, NH Larry, SSN ~ — REPLY

DATE: August 19, 2014

1. SYLLABUS

Under the Act, a claimant is a number holder’s natural child if: (1) he or she could inherit property through intestate succession as the number holder’s natural child; (2) he or she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he or she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4)the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died. In this case, the claimant does not qualify as the DNH’s natural child under tests two, three, or four, listed above. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, the claimant must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where the NH had his permanent home when he died.

Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, the child must prove paternity by clear and convincing evidence. The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Claimant and the claimant’s brother were half-biological siblings was a “home kit” DNA test. The DNA report does not comply with Arkansas law and there is no corroborating evidence concerning the claimants mother’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, the claimant has not presented clear and convincing evidence to establish paternity. Based on the evidence submitted, the claimant is not entitled to child’s insurance benefits on the DNH’s record.

2. OPINION

QUESTION PRESENTED

You have asked us to provide a legal opinion regarding whether the evidence in the claims file, including a home kit half-siblingship deoxyribonucleic acid (DNA) test report, is sufficient to establish a parent-child relationship between Larry, the deceased number holder (DNH), and Keirstyn 1 (Keirstyn), the child claimant.

ANSWER

In our opinion, the evidence submitted does not establish that Keirstyn is entitled to child’s benefits on the DNH’s account. If Keirstyn submits additional relevant evidence, our office will evaluate the new evidence.

BACKGROUND

As we understand the facts, Keirstyn was born on January, to Anita (Anita). Keirstyn’s birth certificate does not identify a father. Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy was her father. Keirstyn’s Numident record lists Stacy as her father. The DNH died in Arkansas on August 7, 2009.

On October 11, 2013, Kristina (Kristina), Keirstyn’s guardian, filed a surviving child’s benefit claim on Keirstyn’s behalf on the DNH’s record claiming that she is the DNH’s biological child. At the time of the application, Keirstyn was 14 years old. In support of establishing a biological parent-child relationship, Kristina submitted a certified half-siblingship DNA test report dated September 12, 2013, showing a 99.84 percent probability that Carl (Carl) and Keirstyn were half-biological siblings. A Certificate of Live Birth from the State of Illinois shows that Carl was born on January, and lists the DNH as his father. Carl stated that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young. Thus, Kristina’s claim is that Carl and Keirstyn are half-siblings and that the DNH is their father.

The agency developed the case to determine whether Keirstyn might be the DNH’s child. In reviewing the case, the agency was concerned, among other things, because the DNA testing was the result of a home kit, the results of the DNA analysis stated that they were “non-legally binding,” and the “photo IDs for the persons submitting these samples were not verified by the witness.”

ANALYSIS

A. Requirements for Child’s Insurance Benefits under the Social Security Act

The Social Security Act (Act) provides that the child of an individual number holder who is entitled to old-age or disability benefits or who dies a fully or currently insured individual is entitled to surviving child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350(a)(1), 404.352(a). To be entitled to survivor’s benefits on an insured individual’s account, a child must show she: (1) is that individual’s child, (2) applies for benefits, (3) is unmarried, (4) is under the age of eighteen, and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Here, it is undisputed that Keirstyn applied for benefits, is unmarried, and is under the age of 18. Thus, our focus is only upon whether Keirstyn is the DNH’s child. 2 The term “child” includes a natural child. See 42 U.S.C. §§ 402(d)(1), 416(e)(1); 20 C.F.R. § 404.354.3 A claimant proves that she is a number holder’s natural child if:

(1) she could inherit property through intestate succession as the number holder’s natural child;

(2) she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment;

(3) she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or

(4) the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died.

See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Keirstyn does not qualify as the DNH’s natural child under tests two, three, or four, listed above. According to the information that we received, Anita, Keirstyn’s mother, and the DNH were never married and did not participate in a ceremony that would have resulted in a valid marriage. Before his death, the DNH never acknowledged Keirstyn as his child in writing, no court decreed him to be her parent or ordered him to contribute to her support, and he never lived with Keirstyn or contributed to her support. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, Keirstyn must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where he had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).

  1. Requirements for Inheritance as a Child Under Arkansas Intestate Succession Laws

Arkansas law states that a child is illegitimate when she is born to parents who are not married to each other. Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). Because the evidence does not show that Anita was married to the DNH when Keirstyn was born, Arkansas law considers Keirstyn an illegitimate child. See Ark. Code Ann. § 28-9-209(a)-(c) (identifying circumstances under which child should be considered legitimate).

Under section 28-9-209(d) of the Arkansas Inheritance Code, an illegitimate child may inherit property from her father through intestate succession under Arkansas intestacy law when the child has commenced an action or a claim against her father’s estate within 180 days of her father’s death and the illegitimate child meets at least one of certain conditions:

(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section; 4

(2) The man acknowledged in writing that he is the child’s father;

(3) The man’s name appears with his written consent on the birth certificate as the child’s father;

(4) The mother and father intermarry prior to the child’s birth;

(5) The mother and putative father attempted to marry each other prior to the child’s birth by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid;

(6) The putative father is obligated to support the child under a written voluntary promise or by court order. See Ark. Code Ann. § 28-9-209(d)(1)-(6). 5 Here, Keirstyn did not commence any action or file a claim against the DNH’s estate within 180 days of his death. Furthermore, the evidence does not suggest that any of the conditions listed in section 28-9-209(d)(1) through (6) apply to this case. As stated above, no court properly found that the DNH was Keirstyn’s father, there is no evidence that the DNH ever acknowledged Keirstyn in writing, and his name does not appear on her birth certificate. The evidence does not show that the DNH and Anita ever married, attempted to marry or that the DNH promised or was ordered to support Keirstyn.

SSA will not apply a state inheritance law requirement, such as section 28-9-209,6 that an action to establish paternity must be taken with a specified period of time required from a number holder’s death or a child’s birth, or that an action must have been started or completed before the number holder’s death, if doing so would impose an absolute bar to the child’s ability to prove paternity. 7 See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.075. In addition, agency regulations provide that if a state inheritance law requires a court determination of paternity, SSA will not require that the claimant obtain such a determination. See 20 C.F.R. § 404.355(b)(2). Instead, SSA will apply the same standard of proof that the state court would apply in making its own determination of paternity. See id. Consequently, for purposes of this analysis, SSA will not require an Arkansas court determination of paternity. Rather SSA will apply the standard of proof that an Arkansas court would apply in making a paternity determination, which is clear and convincing evidence. See id.; see also McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983) (implementing clear and convincing standard in paternity cases). Therefore, in order to inherit from the DNH, Keirstyn must prove her paternity by clear and convincing evidence.

C. The Evidence Does Not Satisfy the Clear and Convincing Evidence Standard

Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, she must prove paternity by clear and convincing evidence. McFadden, 647 S.W.2d at 432; see Ark. Stat. Ann. § 9-10-103(f) (permitting courts to issue a temporary child support order in cases involving paternity disputes if there is clear and convincing genetic evidence of paternity). Clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted.” Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988).

Arkansas courts consider DNA test reports in determining whether a child has provided clear and convincing evidence of paternity. See Ark. Code Ann. § 9-10-108; R~, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey v. Cox, No. 05-1415, 2006 WL 2687046, at *4, 6 (Ark. Ct. App. Sept. 20, 2006) (unpublished) (applying DNA evidence to satisfy clear and convincing standard). Section 9-10-108(a(6)(A) specifically provides that “[i]f the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony of the mother in regard to access during the probable period of conception, it shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut that proof.” Ark. Code Ann. § 9-10-108(a)(6)(A). In order for the DNA evidence to constitute prima facie proof of paternity, however, the test report must satisfy Arkansas statutory requirements for genetic testing. See Ark. Code Ann. § 9-10-108(a)(4),(5),(6) (setting out qualified expert, chain of custody, and percentage of probability requirements).

When a father, such as the DNH in this case, is deceased or unavailable, the trial court may order the mother and child to submit to scientific testing to determine whether paternity testing excludes the putative father as being the child’s biological father, and if the testing does not exclude the putative father, to establish the probability of paternity. See Ark. Code Ann. § 9-10-108(a)(3)(A). If the putative father is unavailable, an Arkansas court may consider DNA test reports from other paternal relatives, including the putative father’s other children’s. See Ark. Code Ann. § 9-10-108(a)(3)(B).

In this case, while the DNA evidence establishes a 99.84 percent probability that Keirstyn and Carl are half biological siblings, it does not comply with other Arkansas law requirements. Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). In addition, a written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him or her before a notary public may be introduced in evidence in paternity actions without calling an expert witness. Ark. Code Ann. § 9-10-108(a)(5)(A). If contested,8 documentation of the chain of custody samples taken from test subjects in paternity testing shall be verified by affidavit of one person witnessing the procedure or extraction, packaging, and mailing of the samples and by one person signing for the samples at the place where the samples are subject to the testing procedure. Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Submission of the affidavits along with the submission of the test results shall be competent evidence to establish the chain of custody of these specimens. Ark. Code Ann. § 9-10-108(a)(5)(B)(ii). Arkansas courts have held that in light of the fact that genetic testing can, with a high degree of certainty, identify the father of a child, and, thus, be viewed as conclusive by the fact-finder in paternity suits, the courts have held that strict adherence to the statutory prerequisites is not unreasonable. R~, 785 S.W.2d at 245 (where the laboratory director signed the DNA report, but did not indicate that he performed the test or was a qualified expert, thus, court would not allow DNA report into evidence for lack of statutory foundation). Id. at 246.

The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Carl and Keirstyn were half-biological siblings was a “home kit” DNA test. Carl’s mother-in-law witnessed the extraction, packing, and mailing of the samples to the laboratory. The DNA report states that it is “Non-Legally Binding” and that “Photo ID’s for the persons submitting these samples were not verified by witness.” Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). A written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him. Here, like in R~, the laboratory director and laboratory manager signed the document, but neither of them indicated on the report that they performed the test or that they were qualified experts. Furthermore, the report does not contain the chain of custody affidavits from the testing laboratory as required by Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Thus, the DNA report does not constitute prima facie evidence of paternity under Arkansas law. Ark. Code Ann. § 9-10-108(a)(6)(a).

Moreover, the totality of the other evidence does not constitute clear and convincing evidence of the DNH’s paternity. See R~, 758 S.W.2d at 424 (clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted). The only other evidence submitted to support the paternity claim were: (1) Carl’s statement that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young; and, (2) that Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy Hodges was her father. This evidence does not establish proof “so clear, direct, weighty and convincing to come to a clear conviction, without hesitation” that the DNH is Keirstyn’s father. Id. As such, we find, under the evidence submitted, that Keirstyn is not entitled to child’s benefits on the DNH’s account.

While the record arguably contains some supplemental testimony supporting the claim that the DNH is Keirstyn’s father, 9 Keirstyn’s statement may be insufficient. Section 9-10-108(a)(6)(A) clearly contemplates that the child’s biological mother will provide evidence regarding “access” during the period of conception. Ark. Code Ann. § 9-10-108(a)(6)(A). Anita has not provided evidence of access to the DNH during the probable period of Keirstyn’s conception. Therefore, the evidence provided does not satisfy the clear and convincing standard under Arkansas law.

CONCLUSION

Based on the evidence submitted, as the record is currently composed, Keirstyn is not entitled to child’s insurance benefits on the DNH’s record. The DNA report does not comply with Arkansas law and there is no corrobating evidence concerning Anita’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, Keirstyn has not presented clear and convincing evidence to establish paternity. If Keirstyn submits additional relevant information, our office will evaluate the additional evidence.

Michael McGaughran

Regional Chief Counsel

By : ___________

Brock C. Cima

Assistant Regional Counsel


Footnotes:

[1]

The original birth certificate identifies the child as Keirstyn. Keirstyn and her permanent guardian, Kristina J~, petitioned for a change of name, which the Circuit Court of Phillips County, Arkansas granted on January 23, 2013, thereby changing her name from Keirstyn to Keirstyn J~.

[2]

The agency will consider Keirstyn to be dependent upon the DNH if she is the DNH’s natural child. See 20 C.F.R. § 404.361(a).

[3]

We recognize that the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” Program Operations Manual System (POMS) GN 00306.001(D). To qualify as a child of an insured individual under section 216(e) of the Act, the applicant must be the natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child of the insured individual. See 42 U.S.C. § 416(e); see also 20 C.F.R. §§ 404.354 – 404.359. Here, the claim is that Keirstyn is the DNH’s natural child. There is no claim or evidence of adoption or status as a stepchild. Thus, our focus is only upon whether Keirstyn is the DNH’s natural child.

[4]

Subsections (a)-(c) apply to a child’s legitimacy due to parents participating in a marriage ceremony, parents subsequently marrying, or a child’s conception following artificial insemination. See Ark. Code Ann. § 28-9-209(d)(1)-(6). However, those circumstances are not applicable to the facts of this case.

[5]

The Arkansas Supreme Court recently construed section 28-9-209(d) and held that an illegitimate child must both commence an action or file a claim against the putative father’s estate and also fully satisfy one of the six conditions establishing paternity within 180 days of the putative father’s death. See Bell v. McDonald, --- S.W.3d ----, 2014 Ark. 75, 2014 WL 662054, at *6-9 (Ark. Feb. 20, 2014). In Bell, the claimant had filed a claim against the estate and commenced a paternity action within 180 days, but she had not completed the paternity action within the 180 days and therefore, did not have order establishing that a court of competent jurisdiction had established the paternity of the child. See id. at *1-3. The Court noted that five of the six statutory conditions could only be satisfied prior to the putative father’s death, and that the remaining condition (a court order that has established paternity of the child) had to have also been commenced and completed within 180 days. See id. at *7.

[6]

Because we conclude herein that Keirstyn has not shown under Arkansas law that she is entitled to benefits on the DNH’s account, we do not further address the applicability of section 28-9-209.

[7]

The preamble to the 1998 amendment to 20 C.F.R. § 404.355 substantiates this interpretation. See 63 Fed. Reg. 57590, 57593 (Oct. 28, 1998) (recognizing that “[m]any State laws impose time limits within which someone must act to establish paternity for purposes of intestate succession. Such time limits are intended to provide for an orderly and expeditious settlement of estates. Since this is not the purpose of Social Security benefits for children . . . we will not apply a State’s time limits within which a child’s relationship must be established when we determine the child’s status under section 216(h)(2)(A). Not applying time limits is consistent with our belief that such a policy on applying State inheritance laws will best service the interests of children Congress sought to protect when it enacted section 216(h)(2)(A).”).

[8]

Agency policy is that all actions to establish paternity are considered contested actions and require affidavits to document the chain of custody from a person witnessing the extraction, packing, and mailing of the samples to the testing laboratory and a person signing for the samples at the testing laboratory. POMS GN 00306.425.

[9]

As noted above, the agency developed the case to determine whether Keirstyn might be the DNH’s child. In response, Keirstyn stated that her mother told her that her father was either the DNH or Stacy .


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501105005
PR 01105.005 - Arkansas - 09/09/2014
Batch run: 09/09/2014
Rev:09/09/2014