TN 51 (09-16)

PR 01105.040 Oklahoma

A. PR 16-144 Oklahoma DNA half-sibs legal opinion

Date June 7, 2016

1. Syllabus

The number holder (NH) was domiciled in Oklahoma at the time of his death; therefore, the Oklahoma law controls the issue of intestate succession. Oklahoma law establishes four methods for a child born out of wedlock to establish inheritance rights from his purported biological father. These four methods are:

  1. 1. 

    the father, in writing, acknowledges himself to be the child’s father; or

  2. 2. 

    the father and mother marry after the child’s birth, and the father, after such marriage, acknowledges the child as his own or adopts the child into his family; or

  3. 3. 

    the father publicly acknowledges such child as his own, receiving the child as such, with the consent of his wife if he is married, and into his family and otherwise treating the child as if the child were born in wedlock; or

  4. 4. 

    the father is judicially determined to be such in a paternity proceeding before a court of competent jurisdiction.

The first three methods for establishing inheritance rights under Oklahoma law are not applicable here because each method requires that the purported father acknowledge paternity, which the evidence does not show. The claimant must establish inheritance rights under the fourth method concerning a judicial determination of paternity, which occurred in this case. The UPA governs every determination of parentage in Oklahoma. We conclude that the genetic testing supports a finding that the claimant is the NH’s child. The DNA test report revealed the probability of half-siblingship, meaning the sibling and claimant likely shared a common biological parent. Accordingly, we find the percentage requirement of Oklahoma law is met in this case. In our opinion, the totality of the evidence establishes that the claimant is the NH’s natural child. SSA may award the claimant surviving child’s insurance benefits retroactively six months immediately before the month the claimant filed the application.

2. Opinion

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether B~ (the claimant) is entitled to surviving child’s insurance benefits on D~’s (deceased’s or number holder’s) earnings record (account). Specifically, you have asked whether half-siblingship deoxyribonucleic acid (DNA) testing results showing that the claimant and B2~ (B2~) (the number holder’s deemed child per section 216(h)(3)) are half-siblings, establishes that the claimant is also the number holder’s natural child. Additionally, for purposes of determining entitlement to retroactive benefits, if the DNA report is sufficient to establish the claimant as the number holder’s child, you asked whether the DNA report grants inheritance rights only and establishes the parent-child relationship prospectively only from the date of the report (August 2015), or if instead, it establishes the parent-child relationship retroactively.

SHORT ANSWER

In our opinion, based on Oklahoma intestacy law, and consistent with Social Security Ruling (SSR) 06-02p, 2006 WL 1609671, we find that the totality of the evidence, including the Social Security Administration’s (SSA’s) determination that B2~ was the number holder’s deemed child under section 216(h)(3), as well as the half-siblingship DNA evidence showing a 99.6 percent probability that the claimant and B2~ are half siblings, establishes that the claimant is the number holder’s child under section 216(h)(2)(A) of the Social Security Act (Act). In addition, under Oklahoma law, the parent-child relationship is established retroactively, not prospectively, from the DNA report, entitling the claimant to surviving child’s benefits on the number holder’s account beginning March XX, 2015, six months immediately before the month the claimant filed his September XX, 2015 application.

BACKGROUND

As we understand the facts, the number holder died on March XX, 2011, while domiciled in Oklahoma. A funeral program lists B2~ as his only surviving child. B2~ was born in Oklahoma on August XX, 2001. Her Oklahoma birth certificate, certified as valid on January XX, 2002, lists the number holder as her father. On April XX, 2011, T~ (T~), B2~’s mother, filed a surviving child’s benefit claim on B2~’s behalf , asserting she was the number holder’s natural child. SSA awarded surviving child’s benefits to B2~ effective March 2011. SSA originally determined B2~ was the number holder’s natural legitimate child born during a marriage, but later changed the relationship status in February 2016 to establish B2~ as a 216(h)(3) deemed child based on a M~ County, Oklahoma District Court “Order for Support and Payment” (Order for Support and Payment) because the number holder and B2~’s mother, T~, were never legally married.

On September XX, 2015, D2~ (D2~), the claimant’s mother, filed an application for surviving child’s benefits on the claimant’s behalf. The claimant was born in Oklahoma on November XX, 2003. D2~ and the number holder never married. The claimant’s original Oklahoma birth certificate, certified as valid on December XX, 2003, has no named father. A subsequent birth certificate, dated November XX, 2015, lists the number holder as his father. In support of establishing a biological parent-child relationship, D2~ submitted an August XX, 2015 certified DNA test report, showing a 99.6 percent probability that the claimant and B2~ are half siblings and a likelihood of 267 to 1 that they share a common biological parent. On November XX, 2015, the District Court for M~ County, Oklahoma entered an “Order Establishing Paternity” (Order Establishing Paternity) finding that the number holder was “the legal and biological father” of the claimant based on certified DNA results.

ANALYSIS

Requirements for Surviving Child’s Insurance Benefits under the Act

The Act provides the child of an individual who dies as a fully or currently insured individual is entitled to surviving child’s insurance benefits, beginning with the first month that the child meets the criteria for child’s insurance benefits. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(1). To be entitled to child’s insurance benefits on the insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). The term “child” includes a natural child. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354.

Here, it is undisputed that on September XX, 2015, D2~ filed, on the claimant’s behalf, an application for surviving child’s insurance benefits on the number holder’s account. The claimant, born in 2003, is unmarried and under the age of 18. SSA will consider the claimant to be the number holder’s dependent child if the claimant is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion the claimant must establish is that he is the number holder’s natural child.

An applicant proves that he is a number holder’s natural child if:

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

(2) 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; or

(3) before his death, the number holder has acknowledged that the child is his natural child 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 the number holder is the claimant’s natural parent, as well as evidence to show the number holder was either living with the claimant or contributing to his support at the time the claimant applied for benefits, or at the time of the number holder’s death in cases in which the number holder is not alive at the time of the claimant’s application.

See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4). Thus, state inheritance law establishes a child’s status under 216(h)(2)(A) of the Act, and three alternative federal standards establish a child status under 216(h)(2)(B) and (h)(3) of the Act.

According to the information we received, the claimant does not qualify as the number holder’s natural child under tests two, three, or four. 42 U.S.C. §§ 416(h)(2)(B) and (h)(3). D2~ and the number holder were never married and did not participate in a ceremony that would have resulted in a valid marriage. See 42 U.S.C. § 416(e)(1), (h)(2)(B). Thus, the claimant is not the number holder’s child under section 416(h)(2)(B).

The number holder never acknowledged the claimant as his child in writing before his death. See 42 U.S.C. § 416(h)(3)(C)(i)(I). The record contains two birth certificates for the claimant. The copy of the birth certificate, certified as valid on December XX, 2003, does not list the father and is signed only by D2~ as the parent. A noncertified copy dated November XX, 2015, after the number holder’s death, lists both the number holder and D2~ as the parents but is not signed by either. Thus, the record does not contain any evidence that the number holder provided a written acknowledgment of the claimant as his child before his death in March 2011 for purposes of section 416 (h)(3)(C)(i)(I).

During the number holder’s life, no court decreed the claimant to be the number holder’s child or ordered the number holder to contribute to the claimant’s support. See 42 U.S.C. § 416(h)(3)(C)(i)(II), (III). The number holder died on March XX, 2011. More than four years later, on November XX, 2015, the M~ County Court entered an Order Establishing Paternity, declaring the number holder to be the claimant’s legal and biological father based on the certified DNA results submitted to the court. The Court issued the Order after the number holder’s death, which it does not acknowledge. Therefore, the claimant also cannot establish himself as the number holder’s child under 42 U.S.C. § 416 (h)(3)(C)(i)(II) or (III).

Finally, the number holder was not living with or contributing to the claimant’s support at the time the number holder died. Therefore, the claimant cannot establish himself as the number holder’s child under 42 U.S.C. § 416 (h)(3)(C)(ii).

Thus, we conclude the claimant does not qualify as the number holder’s natural child under tests two, three, or four and we next address whether the claimant is entitled to inherit from the number holder upon application of state intestacy laws under the first test of section 216(h)(2)(A) of the Act.

Section 216(h)(2)(A) Analysis: Oklahoma Intestacy Law

Oklahoma law controls on the issue of intestate succession because the number holder had his permanent home in Oklahoma when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Oklahoma law establishes four methods for a child born out of wedlock to establish inheritance rights from his purported biological father. See Okla. Stat. Ann. tit. 84,

§ 215. These four methods are:

  1. (1) 

    the father, in writing, acknowledges himself to be the child’s father; or

  2. (2) 

    the father and mother marry after the child’s birth, and the father, after such marriage, acknowledges the child as his own or adopts the child into his family; or

  3. (3) 

    the father publicly acknowledges such child as his own, receiving the child as such, with the consent of his wife if he is married, and into his family and otherwise treating the child as if the child were born in wedlock; or

  4. (4) 

    the father is judicially determined to be such in a paternity proceeding before a court of competent jurisdiction.

Id.; see also In re Estate of Dicksion, 286 P.3d 283, 288-291 (Okla. 2012) ( the Court held that DNA testing was permissible for a paternity determination under section 215 and that the Oklahoma Uniform Parentage Act (UPA) applies to all parentage determinations, including parentage determinations made in intestate and probate proceedings).

The first three methods for establishing inheritance rights under Oklahoma law are not applicable here because each method requires that the purported father acknowledge paternity, which the evidence does not show. See Okla. Stat. Ann. tit. 84, § 215. The claimant, therefore, must establish inheritance right under the fourth method concerning a judicial determination of paternity, which occurred in this case. Id.

On November XX, 2015, the M~ County Court entered an Order Establishing Paternity finding that the number holder was “the legal and biological father” of the claimant based on “certified DNA results.” We are not told what evidence the Court relied on, including whether it was the same half-sibling DNA test that the claimant provided to SSA with this claim for surviving child’s benefits. SSA need not always accept a state court order in a proceeding in which SSA was not a party. See SSR 83-37c, 1983 WL 31272. Pursuant to SSR 83-37c, which adopts the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), state court decisions bind the agency where (1) a state court of competent jurisdiction has previously adjudicated an issue in a claim for Social Security benefits; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state.

We find that the Order Establishing Paternity does not bind SSA because it does not meet SSR 83-37c’s second prong – that parties with opposing interests genuinely contested the issue before the state court. Instead, this is an ex parte order entered after the number holder’s death and the Order acknowledges that the number holder was not present or represented in the matter. Ex parte judgments do not generally satisfy the generally contested criteria. See Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989) (noting the ex parte nature of the judgment); Dennis v. R.R. Ret. Bd., 585 F.2d 151, 155 n.2 (6th Cir. 1978) (noting that ex parte proceedings do not bind the federal government). Because we find that the Order does not meet the second prong, we need not address the other prongs. Therefore, the Order Establishing Paternity does not bind SSA.

However, our analysis does not end here. Even in the absence of a state court determination of parentage, SSA will decide parentage using the standard of proof that the state court would use. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (the agency will apply the intestacy laws of the state in which the number holder had her permanent home at time the applicant applied for benefits to determine whether an applicant is a number holder’s natural child), (2) (if applicable state inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the state court would use as the basis for a determination of paternity); see also POMS GN 00306.001(D) (the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met”). Thus, we look to the totality of the evidence provided to determine if the claimant has a right to inherit from the number holder under Oklahoma law using the standard of proof that the state court would employ.

Under Oklahoma law, the standard of proof to prove paternity is “clear and convincing evidence.” See In re Estate of King, 837 P.2d 463, 464 (Okla. 1990) (overruled on other grounds). Oklahoma courts define “clear and convincing evidence” as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re A.L.F., 237 P.3d 217, 219 (Okla. 2010). Thus, in this case, an Oklahoma court would look to whether the claimant has established by clear and convincing evidence that the number holder is his father.

The Oklahoma UPA applies to parental determinations in intestate and probate proceedings. In re Estate of Dicksion, 286 P.3d 283, 290 (Okla. 2012). The UPA governs every determination of parentage in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A). One of the means of establishing paternity under the Oklahoma UPA is through genetic testing. Okla. Stat. Ann. tit. 10, §§ 7700-501–7700-511. A genetic testing expert’s report is generally admissible as evidence of the truth of the facts asserted in the report. Okla. Stat. Ann. tit. 10, § 7700-621. In Oklahoma, “a man is rebuttably identified as the father of a child if the genetic testing” reveals a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. Okla. Stat. Ann. tit. 10, § 7700-505(A). When a specimen from an alleged father is not available, a court may order testing of the alleged father’s other children and their mothers. Okla. Stat. Ann. tit. 10, § 7700-508(A)(3)

To be admissible evidence to establish paternity, genetic testing must satisfy certain other requirements. Okla. Stat. Ann. tit. 10, § 7700-503. First, the DNA testing must take place in a laboratory accredited by the American Association of Blood Banks (AABB), or the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services. Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, a laboratory designee must sign the DNA test report under penalty of perjury. Okla. Stat. Ann. tit. 10, § 7700-504(A). Third, testimony or documentation must establish a reliable chain of custody. Okla. Stat. Ann. tit. 10, § 7700-504(B).

Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes: (1) the name and photograph of each individual giving a specimen; (2) the name of each individual who collected the specimens; (3) the places where the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the laboratory received the specimens. Okla. Stat. Ann. tit. 10, § 7700-504 (A), (B).

Here, consistent with the UPA, because the deceased number holder’s specimen was not available for genetic testing, the claimant submitted his genetic testing along with that of B2~, T~, and D2~ to establish a biological relationship between the claimant, B2~, and the number holder. See Okla. Stat. Ann. tit. 10, § 7700-508(A)(3). For the reasons discussed below, we conclude that the genetic testing supports a finding that the claimant is the number holder’s child.

Specifically, the claimant presented a DNA test report dated August XX, 2015, from DNA Diagnostics Center (Center), which the AABB accredited. John W. Peterson, Ph.D., the Laboratory Director, signed and dated the DNA test report before a notary public, attesting that he verified the interpretation of the test results. Further, the DNA test records met all the chain of custody requirements under Okla. Stat. Ann. tit. 10, § 7700-504 (A), (B). Named laboratory representatives took specimens at specified locations and dates to test for a biological relationship between D2, the claimant, B2~, and T~, and the test report included D2~’s, the claimant’s, B2~’s, and T~’s photographs. See Okla. Stat. Ann. tit. 10, § 7700-504(A), (B). The Center’s report included the dated signature of the Center employee who received the specimens for testing and the date of testing. See id.

The DNA test report revealed the probability of half-siblingship as 99.6 percent, with a combined siblingship index of 267 with respect to B2~ and the claimant, which the report explained meant the likelihood that they shared a common biological parent was 267 to 1. See Okla. Stat. Ann. tit. 10, § 7700-505(A) (“a man is rebuttably identified as the father of the child if the genetic testing” reveals a 99 percent probability of paternity and a combined paternity index of at least 100 to 1); § 7700-508(A) (if a genetic testing specimen is not available from a man who may be the child’s father, the court may order the following individuals to submit specimens for genetic testing: the man’s parents, the man’s siblings, the man’s other children and their mothers, and other relatives of the man).

As noted, the Oklahoma UPA allows genetic testing of the alleged father’s relatives, but state law does not specify a particular percentage that the DNA test results of the alleged father’s relatives must meet to establish that the alleged father is the child’s father. Our research revealed no Oklahoma law or case indicating that the DNA test results of an alleged father’s relative are to be evaluated against a lower probability than the 99 percent probability required when testing the father under section 7700-505(A). Cf. In Re Estate of Dicksion, 286 P.3d at 291-292 ( “[c]ourts have embraced DNA testing to determine heirship” and finding the deceased father’s paternity was established using DNA from his father’s brother). Therefore, in the absence of legal authority to the contrary, we find that the half-siblingship DNA test showing 99.6 percent probability of the claimant’s half-siblingship with B2~ is consistent with the Oklahoma UPA. This is also consistent with legal opinions our office has issued. Accordingly, we find the percentage requirement of Oklahoma law is met in this case.

Thus, even though the Order Establishing Paternity does not bind SSA, we find the DNA evidence submitted constitutes clear and convincing evidence that the claimant is the number holder’s child. See id.; Okla. Stat. Ann tit. 10, § 7700-621(A) (genetic testing expert’s report is generally admissible as evidence of the truth of the facts asserted in the report), § 7700-505(A) (a man is rebuttably identified as the child’s father if appropriate genetic testing complies with the UPA and reveals a 99 percent probability of paternity). Therefore, under Oklahoma law the totality of the evidence is “clear and convincing evidence” showing that the claimant is the number holder’s child.

Finally, we analyze the facts under SSR 06-02p, which explains that a claimant may qualify as a number holder’s child under section 216(h)(2)(A) of the Act if the claimant shows through DNA testing a high probability of a sibling relationship with another child (as section 216(h)(3) of the Act defines) of the number holder that satisfies state law, and there is no reason to question the parent-child relationship between the other child and the number holder. See SSR 06-02p. From the information you provided us, SSA awarded B2~ surviving child’s insurance benefits effective March 2011 on the number holder’s account after determining B2~ was the number holder’s child under 216(h)(3). The original determination showed B2~ was the number holder’s natural legitimate child; however, the relationship status was changed in February 2016 to establish B2~ as a 216(h)(3) deemed child based on the Order for Support and Payment because the number holder and T~ were never legally married.

SSR 06-02p is on point in this situation because: (1) SSA has determined B2~ to be the number holder’s child under section 216(h)(3), (2) SSA must determine whether another child (the claimant) is the number holder’s child under section 216(h)(2)(A) of the Act, and (3) the results of sibling DNA testing show a high probability of a sibling relationship between the claimant and B2~. See 42 U.S.C. § 416(h)(3). SSR 06-02p instructs that SSA will not re-examine the relationship between the known child and the number holder. SSA will determine whether the sibling DNA test between the claimant and the known child (B2~) establishes that the claimant is the number holder’s child under standards of the applicable state law. SSR 06-02p explains this “policy avoids the redundancy and unnecessary administrative burden that would occur if we reviewed [the known child’s] relationship to the worker under state law when we have already determined that [the known child] is the worker’s child under one of the federal definitions in section 216(h)(3) of the Act.” Because DNA testing results show a high probability of a sibling relationship between the claimant and B2~ (a known child) that satisfies Oklahoma law, as detailed above, SSR 06-02p instructs that a parent-child relationship exists between the claimant and the number holder. Using SSR 06-02p’s terminology, B2~ is a “known child” to SSA and we are unaware of any reason to question SSA’s determination of this relationship between B2~ and the number holder. As a result, the claimant has established he is the deceased number holder’s natural child under Oklahoma law and, therefore, for purposes of section 216(h)(2)(A) of the Act. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.354, 404.355(a)(1).

The Parent-Child Relationship Is Established Retroactively Under Oklahoma Law

Having found that the claimant is the number holder’s natural child under Oklahoma law, we next examine whether the claimant is entitled to retroactive benefits on the number holder’s account. If the insured is deceased, a child becomes entitled to benefits the first month covered by the application for benefits in which the child meets all the requirements for entitlement, one of which is the establishment of the parent-child relationship. See 20 C.F.R. § 404.352(a)(1); see also 20 C.F.R. § 404.350(a) (to be entitled to child’s insurance benefits, you must apply, be the child, be dependent on the insured, be unmarried, and be under age 18). Under the regulations, an applicant for child’s insurance benefits based on the earnings record of a number holder not entitled to disability benefits may be paid retroactive benefits for up to six months immediately before the month of application. See 20 C.F.R. § 404.621(a)(2); POMS GN 00204.030(B)(1).

The POMS distinguishes between three types of natural children: legitimate children; illegitimate children; and illegitimate children legitimated after birth. See POMS GN 00306.001, 00306.010, 00306.050, 00306.055. The effective date is the date of the establishment of the parent-child relationship among these children. Id. These general POMS provisions recognize that “[u]under current State laws, a child legitimated after birth is considered to be legitimate from birth.” POMS GN 00306.050(A)(3); see also POMS GN 00306.085(A) (“A child is legitimate from the date of birth in these States,” which includes Oklahoma). In addition, the general POMS provisions state “[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event,” and if the state law digest in the POMS “shows that a State law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant’s status as the NH’s child is established effective” as of the date of the evidence satisfying the applicable standard of proof. POMS GN 00306.055(A)(3).

Oklahoma intestacy law makes no substantive distinction between legitimate and illegitimate children, and no longer provides a mechanism for legitimating children. See Okla. Stat. Ann. tit. 10, § 6.5 (effective July 1, 1974, the designations of “illegitimate” or “bastard” shall not be used to designate a child born out of wedlock). Section 7700-202 of the UPA explains “[a] child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.” Okla. Stat. Ann. tit. 10, § 7700-202. As noted above, the UPA applies to all parental determinations in Oklahoma, including intestate and probate proceedings. See In re Estate of Dicksion, 286 P.3d at 290. Furthermore, Oklahoma intestate succession laws explain that once a child establishes he is a child of a father, a child born out of wedlock stands in same relation as a child born in wedlock. See Okla. Stat. Ann. tit. 84, § 215. Therefore, having established that the claimant is a child of the number holder under Oklahoma intestacy law, the claimant is the number holder’s child from his birth for purposes of determining the claimant’s entitlement to retroactive benefits.

If a claimant files an application after the first month the claimant could have been entitled to benefits, the claimant may receive benefits for up to six months immediately before the month in which he filed his application. 20 C.F.R. § 404.621(a)(2). The claimant filed his qualifying application on September XX, 2015. Thus, the claimant is entitled to retroactive benefits beginning March XX, 2015, six months immediately before the month the claimant filed his application.

CONCLUSION

In our opinion, the totality of the evidence establishes that the claimant is the number holder’s natural child. Therefore, in our opinion, SSA may award the claimant surviving child’s insurance benefits effective March XX, 2015, six months immediately before the month the claimant filed his September XX, 2015, application.

Michael McGaughran

Regional Chief Counsel

By: Linda H. Green

Assistant Regional Counsel

B. PR 16-106 Oklahoma State Law – Use of Half-Siblingship DNA Report to Establish Child Relationship

Date: March 21, 2016

1. Syllabus

The number holder (NH) died while domiciled in Oklahoma. Based on the Oklahoma intestacy law and consistent with Social Security Ruling (SSR) 06-02p, we find that the totality of the evidence establishes that the claimant is the NH’s natural child. The DNA evidence also establishes that the claimant is the NH’s natural child. The half-siblingship DNA evidence shows a 99.7 percent probability that the claimant and sibling are half siblings. In addition, under the Oklahoma law, the parent-child relationship is established retroactively from the DNA report, not prospectively. The claimant is entitled to surviving child’s benefits on the NH’s account, retroactively, six months immediately before the month the claimant filed his application.

2. Opinion

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether J~ (J~) is entitled to surviving child’s insurance benefits on D~’s (deceased or number holder) earnings record (account). Specifically, you have asked whether half-siblingship deoxyribonucleic acid (DNA) testing results showing that J~ and D2~ (D2~) (the number holder’s natural/legitimate child born during his marriage to K~ (K~) are half-siblings, establishes that J~ is also the number holder’s natural child. Additionally, for purposes of determining entitlement to any retroactive benefits, if the DNA report is sufficient to establish J~ as the number holder’s child, you asked whether the DNA report grants inheritance rights only and establishes the parent-child relationship prospectively only from the date of the report (September 2015), or if instead, it establishes the parent-child relationship retroactively.

ANSWER

In our opinion, based on Oklahoma intestacy law, and consistent with Social Security Ruling (SSR) 06-02p, we find that the totality of the evidence, including the Social Security Administration’s (agency) determination that D2~ was the number holder’s natural child, as well as the half-siblingship DNA evidence showing a 99.7 percent probability that J~ and D2~ are half siblings, establishes that J~ is also the number holder’s natural child. In addition, under Oklahoma law, the parent-child relationship is established retroactively, not prospectively from the DNA report. As such, J~ is entitled to surviving child’s benefits on the number holder’s account, retroactively, beginning February XX, 2015, six months immediately before the month J~ filed his August XX, 2015, application.

BACKGROUND

As we understand the facts, the number holder died on July XX, 2015, while domiciled in Oklahoma. On July XX, 2015, K~, D2~’s mother, filed surviving child’s benefit claims on behalf of her sons, D2~ and S~, asserting that they were the number holder’s natural children. The NH and K~ were married at the time of their births. D2~’s 2006 birth certificate lists the number holder as D2~’s father. The agency awarded surviving child’s benefits to both D2~ and S~ effective July 2015, finding them to be the number holder’s natural born children.

On August XX, 2015, C~ (C~), J~’s mother, filed an application for surviving child’s benefits on J~’s behalf. The NH did not acknowledge paternity of J~ prior to his death. In support of establishing a biological parent-child relationship, C~ submitted a certified DNA test report dated September 2015, showing a 99.77 percent probability that J~ and D2~ are half siblings.

ANALYSIS

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

The Social Security Act (Act) provides that the child of an individual who dies as a fully or currently insured individual (insured) is entitled to surviving child’s insurance benefits, beginning with the first month in which the child meets the criteria for child’s insurance benefits. 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.352(a)(1). To be entitled to child’s insurance benefits on the insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. §402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). The term “child” includes a natural child. 42 U.S.C. §416(e)(1); 20 C.F.R. §404.354.[1]

Here, it is undisputed that on August XX, 2015, C~ filed, on J~’s behalf, an application for surviving child’s insurance benefits. J~ is unmarried and under the age of 18. The agency will consider J~ to be the number holder’s dependent child if J~ is the number holder’s natural child. See 20 C.F.R. §404.361(a). Thus, the only remaining criterion J~ must establish is that he is the number holder’s natural child.

An applicant proves that he is a number holder’s natural child if:

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

(2) 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) the number holder has acknowledged that the child is his natural child 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, as well as evidence to show that the number holder was either living with the claimant or contributing to his support at the time the claimant applied for benefits, or at the time of the number holder’s death in cases in which the number holder is not alive at the time of the claimant’s application.

See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4). Thus, there is the state inheritance law method for establishing child status under 216(h)(2)(A) of the Act, and there are three alternative federal standards for establishing child status under 216(h)(2)(B) and (h)(3) of the Act.

According to the information that we received, C~ and the number holder were never married and did not participate in a ceremony that would have resulted in a valid marriage. The number holder never acknowledged J~ as his child, no court decreed J~ to be the number holder’s child or ordered the number holder to contribute to J~’s support, and the number holder was not residing with J~ at the time of his death. Thus, we conclude that J~ does not qualify as the number holder’s natural child under tests two, three, or four. Therefore, we address whether J~ is a child entitled to inherit from the number holder upon application of state intestacy laws under the first test of section 216(h)(2)(A) of the Act.

Section 216(h)(2)(A) Analysis: Oklahoma Intestacy Law

Oklahoma law controls on this issue of intestate succession because the number holder had his permanent home in Oklahoma when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Oklahoma law establishes four methods for a child born out of wedlock to establish inheritance rights from his purported biological father. See Okla. Stat. Ann. tit. 84, § 215. These four methods are: (1) the father, in writing, acknowledges himself to be the child’s father, (2) the father and mother intermarry after the child’s birth, and the father, after such marriage, acknowledges the child as his own or adopts it into his family, (3) the father publicly acknowledges such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (4) the father is judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. Id.

The first three methods for establishing inheritance rights under Oklahoma law are not applicable here because each method requires that the purported father acknowledge paternity, which the evidence does not show. See Okla. Stat. Ann. tit. 84, § 215. J~, therefore, must establish inheritance right under the fourth method. Id. Although no court has determined through paternity proceedings that the number holder was J~’s father, the agency does not apply a state inheritance-law requirement that an individual must obtain a court determination of paternity. See 20 C.F.R. § 404.355(b)(2) (use of state law standards). Instead, the agency decides paternity using the standard of proof that the state court would use. Id.

Under Oklahoma law, the standard of proof to prove paternity is “clear and convincing evidence.” See In the Matter of the Estate of King, 837 P.2d 463, 464 (Okla. 1990) (overruled on other grounds). Oklahoma courts define “clear and convincing evidence” as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re A.L.F., 237 P.3d 217, 219 (Okla. 2010). Thus, in this case, an Oklahoma court would look to whether C~ has established by clear and convincing evidence that the number holder is J~’s father.

The Oklahoma Uniform Parentage Act (UPA)In re Estate of Dicksion, 286 P.3d 283, 290 (Okla. 2012). The UPA governs every determination of parentage in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A). One of the means of establishing paternity under the Oklahoma UPA is through genetic testing. Okla. Stat. Ann. tit. 10, §§ 7700-501 – 7700-511. A genetic testing expert’s report is generally admissible as evidence of the truth of the facts asserted in the report. Okla. Stat. Ann. tit. 10, § 7700-621. In Oklahoma, “a man is rebuttably identified as the father of a child if the genetic testing” reveals a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. Okla. Stat. Ann. tit. 10, § 7700-505(A).

In 2006, Oklahoma adopted the UPA. Okla. Stat. Ann. tit. 10, § 7700-101.[2] applies to parental determinations in intestate and probate proceedings. In re Estate of Dicksion, 286 P.3d 283, 290 (Okla. 2012). The UPA governs every determination of parentage in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A). One of the means of establishing paternity under the Oklahoma UPA is through genetic testing. Okla. Stat. Ann. tit. 10, §§ 7700-501 – 7700-511. A genetic testing expert’s report is generally admissible as evidence of the truth of the facts asserted in the report. Okla. Stat. Ann. tit. 10, § 7700-621. In Oklahoma, “a man is rebuttably identified as the father of a child if the genetic testing” reveals a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. Okla. Stat. Ann. tit. 10, § 7700-505(A).

Additionally, to be admissible evidence to establish paternity, genetic testing must satisfy certain other requirements. Okla. Stat. Ann. tit. 10, § 7700-503. First, the DNA testing must take place in a laboratory the American Association of Blood Banks (AABB), the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services accredited. Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, a laboratory designee must sign the DNA test report under penalty of perjury. Okla. Stat. Ann. tit. 10, § 7700-504(A). Third, testimony or documentation must establish a reliable chain of custody. Okla. Stat. Ann. tit. 10, § 7700-504(B).[3] When a specimen from an alleged father is not available, a court may order testing of the alleged father’s other children and their mothers. Okla. Stat. Ann. tit. 10, §7700-508(A)(3). Here, because the deceased number holder’s specimen was not available for genetic testing, J~ [4] submitted evidence, including genetic testing of himself, C~, and D2~ to establish a biological relationship between himself, C~, and the number holder’s natural child, D2~. For the reasons discussed below, we conclude that the genetic testing supports a finding that J~ is the number holder’s child.

Specifically, C~ presented a DNA test report dated September XX, 2015, showing that a laboratory representative took specimen to test for a biological relationship between C~, J~, and D2~. The DNA test report revealed the probability of half-siblingship as 99.77 percent, with a combined half-siblingship index of 442.7, with respect to D2~ and J~. See Okla. Stat. Ann. tit. 10, § 7700-505(A) (“a man is rebuttably identified as the father of the child if the genetic testing” reveals a 99 percent probability of paternity and a combined paternity index of at least 100 to 1); § 7700-508(A) (if a genetic testing specimen is not available from a man who may be the child’s father, the court may order the following individuals to submit specimens for genetic testing: the man’s parents, the man’s siblings, the man’s other children and their mothers, other relatives of the man).

As noted, the Oklahoma UPA allows for genetic testing of the alleged father’s relatives, but state law does not specify a particular percentage that the DNA test results of the alleged father’s relatives must meet to establish a high probability that the alleged father is the child’s father. Our research revealed no Oklahoma law or case indicating that the DNA test results of an alleged father’s relative are to be evaluated against a lower probability than the 99 percent probability required when testing the father in section 7700-505(A). Therefore, in the absence of legal authority to the contrary, we find that the half-siblingship DNA test showing 99.7 percent probability of half-siblingship is consistent with the Oklahoma UPA. This is also consistent with the legal opinion issued from our office as to full-siblingship DNA tests and grandparent DNA tests. See POMS PR 01105.040(A), PR 15-144 Oklahoma State Law – Use of the NH’s Brother’s DNA Report to Establish Child Relationship (NH: S~; SSN~) (June 9, 2015) (finding that DNA testing of an alleged father’s brother showing only a 56.52 probability of a biological relationship did not satisfy Oklahoma law); POMS PR 01105.040(C), PR 14-044 Oklahoma State Law – Use of Siblingship DNA Report to Establish Child Relationship (NH T~; SSN~) (jan. 10, 2014) (finding that a DNA test showing a 99.999996 percent probability of full siblingship to satisfy Oklahoma law); POMS PR 01115.040(B) (PR 15-049 Oklahoma State Law – Status of Child Based on Grandparent DNA Test (NH E~; SSN~) (Dec. 10, 2014) (finding that a grandparent DNA test showing a 99 percent probability of grandmaternity combined with additional evidence satisfied the clear and convincing evidence standard). Accordingly, we find that the percentage requirement of Oklahoma law is met in this case.

Additionally, the testing complies with Oklahoma law chain of custody requirements. The DNA testing took place at the DNA Solutions, an AABB-accredited facility. See Okla. Stat. Ann. tit. 10, § 7700-503(A). Brandt Cassidy, Ph.D., the Laboratory Director, signed the DNA test report before a notary public and verified the interpretation of the results, and the test report included C~’s, J~’s, and D2~’s photographs. See Okla. Stat. Ann. tit. 10, § 7700-504(A), (B). Further, the DNA test records met all of the chain of custody requirements under Okla. Stat. Ann. tit. 10, § 7700-504 (A),(B), and would be admissible to induce an Oklahoma court to reach a firm belief that J~ is D2~’s half-sibling. Thus, the DNA evidence submitted constitutes clear and convincing evidence that J~ is the number holder’s child. See In Re Estate of Dicksion, 286 P.3d at 291-292 (noting that “[c]ourts have embraced DNA testing to determine heirship” and finding that the deceased father’s paternity was established using DNA from his father’s brother); Okla. Stat. Ann tit. 10, § 7700-621(A) (genetic testing expert’s report is generally admissible as evidence of the truth of the facts asserted in the report), § 7700-505(A) (a man is rebuttably identified as the child’s father if appropriate genetic testing complies with the UPA and reveals a 99 percent probability of paternity).

Because the evidence shows that J~ is the number holder’s child, J~ satisfies the first test for establishing a child relationship under section 216(h)(2)(A) of the Act that he can inherit the number holder’s property through intestate succession under Oklahoma law.[5] See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured number holder. See 20 C.F.R. § 404.361(a). Thus, J~ is considered to be the number holder’s natural child.

Finally, we analyze the facts under SSR 06-02p, which explains that a claimant may qualify as a number holder’s child under section 216(h)(2)(A) of the Act if the claimant shows through DNA testing a high probability of a sibling relationship with another child (as section 216(h)(3) of the Act defines) of the number holder, and there is no reason to question the parent-child relationship between the other child and the number holder. See SSR 06-02p (S.S.A. 2006). From the information you provided us, the agency awarded D2~ surviving child’s insurance benefits on the number holder’s account after determining that D2~ was the number holder’s natural child born during the number holder’s marriage to K~, D2~’s mother. The information provided includes D2~’s birth certificate showing K~ and the number holder as D2~’s parents. Thus, it is our understanding that the agency found a parent-child relationship between D2~ and the number holder. D2~ is a natural legitimate child who was born of a valid marriage per section 216(h)(2)(A), not 216(h)(3). Therefore, SSA has already determined that D2~ would be the number holder’s natural child for purposes of Oklahoma intestacy law, and we need not examine this determination. [6] Using the terminology from SSR 06-02p, he is a “known child” to the agency.

SSR 06-02p is not directly on point in this situation because D2~ was determined to be the number holder’s natural and legitimate child under section 216(h)(2)(A), and not section 216(h)(3). However we believe that SSR 06-02p still provides useful guidance to the current situation, which involves siblingship DNA testing results of a natural and legitimate child of the number holder (D2~), who is entitled to and receiving surviving child’s benefits. See 42 U.S.C. § 416(h)(2)(A); POMS GN 00306.010(B), (D)(2)(a) (a natural legitimate child has inheritance rights in the parent’s estate under the laws of all states; if a birth certificate of a child with the father’s surname contains spaces for entry of the parents’ names and the names of the alleged parents appear there, you may accept this as proof that a natural legitimate parent-child relationship exists, unless there is other evidence to the contrary or the claims file shows that the child was born before the parents’ marriage). As noted, SSR 06-02p explains that a claimant may qualify as a number holder’s child under section 216(h)(2)(A) of the Act if the claimant shows through DNA testing a “high probability of a sibling relationship” with another child of the number holder that the agency has already determined to be a “known child” of the number holder. Although D2~ was determined to be the number holder’s natural and legitimate child under section 216(h)(2)(A) and not section 216(h)(3), we are unaware of any reason to question the determination that D2~ is the natural and legitimate child of the number holder. Therefore, since DNA testing results show a high probability of a sibling relationship between J~ and D2~, an entitled child of the number holder, SSR 06-02p, although not controlling, provides persuasive guidance to find a parent-child relationship between J~ and the number holder.

As a result, J~ has established that he is the deceased number holder’s natural child under Oklahoma law and for purposes of section 216(h)(2)(A) of the Act. See 42 U.S.C.

§ 416(h)(2)(A); 20 C.F.R. §§ 404.354, 404.355(a)(1).

The Parent-Child Relationship is Established Retroactively Under Oklahoma Law

Having found that J~ is the number holder’s natural child under Oklahoma law, we next examine whether J~ is entitled to retroactive benefits on the number holder’s account. If the insured is deceased, a child becomes entitled to benefits the first month covered by the application for benefits in which the child meets all the requirements for entitlement, one of which is the establishment of the parent-child relationship. See 20 C.F.R. § 404.352(a)(1); see also 20 C.F.R. § 404.350(a) (to be entitled to child’s insurance benefits, you must apply, be the child, be dependent on the insured, be unmarried, and be under age 18). Under the regulations, an applicant for child’s insurance benefits based on the earnings record of a number holder not entitled to disability benefits may be paid retroactive benefits for up to six months immediately before the month of application. See 20 C.F.R. § 404.621(a)(2); POMS GN 00204.030(B)(1).

The POMS distinguishes between three types of natural children, legitimate children; illegitimate children; and illegitimate children legitimated after birth, and the effective date of the establishment of the parent-child relationship among these children. See POMS GN 00306.001, 00306.010, 00306.050, 00306.055. These general POMS provisions recognize that “[u]under current State laws, a child legitimated after birth is considered to be legitimate from birth.” POMS GN 00306.050(A)(3); see also POMS GN 00306.085(A) (“A child is legitimate from the date of birth in these States,” which includes Oklahoma). In addition, the general POMS provisions state that “[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event,” and if the state law digest in the POMS “shows that a State law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant’s status as the NH’s child is established effective” as of the date of the evidence satisfying the applicable standard of proof. POMS GN 00306.055(A)(3).

Oklahoma intestacy law has not maintained a substantive distinction between legitimate and illegitimate children, and no longer provides a mechanism for legitimating children.[7] See Okla. Stat. Ann. tit. 10, § 6.5 (effective July 1, 1974, the designations of “illegitimate” or “bastard” shall not be used to designate a child born out of wedlock). Section 7700-202 of the UPA, which Oklahoma adopted in 2006, explains that “[a] child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.” Okla. Stat. Ann. tit. 10, § 7700-202 (equal rights of marital and nonmarital children).[8] As noted above, the UPA applies to all parental determinations in Oklahoma, including intestate and probate proceedings. See In re Estate of Dicksion, 286 P.3d at 290. Furthermore, Oklahoma intestate succession laws explain that once a child establishes that he is a child of a father, a child born out of wedlock stands in same relation as a child born in wedlock. See Okla. Stat. Ann. tit. 84, § 215. Therefore, having established that J~ is a child of the number holder under Oklahoma intestacy law, J~ is a child from his birth under Oklahoma law for purposes of determining J~’s entitlement to retroactive benefits.

If a claimant files an application after the first month the claimant could have been entitled to benefits, the claimant may receive benefits for up to six months immediately before the month in which he filed his application. 20 C.F.R. § 404.621(a)(2). J~ filed his qualifying application on August XX, 2015. Thus, J~ is entitled to retroactive benefits beginning February XX, 2015, six months immediately before the month J~ filed his application.

CONCLUSION

In our opinion, the totality of the evidence establishes that J~ is the number holder’s natural child. Therefore, in our opinion, the agency may award J~ surviving child’s insurance benefits effective February XX, 2015, six months immediately before the month J~ filed his August XX, 2015, application.

Michael McGaughran

Regional Chief Counsel

By: Martin W. Long

Assistant Regional Counsel

C. PR 15-144 Oklahoma State Law – Use of NH’s Brother’s DNA Report to Establish Child Relationship (NH: S~; SSN ~) – REPLY

Date June 9, 2015

1. Syllabus

The NH was domiciled in the state of Oklahoma at the time of his death. We look to the Oklahoma State law to determine if the child is eligible for child benefits on the deceased NH’s record. Under the Oklahoma law, if a child is born out of wedlock, the child must establish inheritance rights from the father. In this case, although the mother provided a paternity decree and a DNA test, the totality of the evidence does not constitute clear and convincing evidence under the Oklahoma law to establish the NH’s paternity. Therefore, the evidence does not establish that the Claimant is the NH’s child under the Act for purposes of entitlement to surviving child’s benefits on the NH’s account.

2. Opinion

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether C1~ is entitled to Social Security surviving child’s benefits on S~’s, the deceased number holder’s (NH), earnings record (account). Specifically, you have asked whether the evidence, including an Oklahoma state court order of paternity, deoxyribonucleic acid (DNA or genetic) testing results of the NH’s brother, and an amended Oklahoma birth certificate, establishes that C1~ is the NH’s natural child under the Social Security Act (Act).

ANSWER

In our opinion, the evidence does not establish that C1~ is the NH’s child under the Act for purposes of entitlement to surviving child’s benefits on the NH’s account.

BACKGROUND

As we understand the facts, C1~ was born in Oklahoma on February 2007. C2~, C1~’s mother, and the NH never married. The NH filed a claim for disability insurance benefits with the Social Security Administration (agency) on June XX, 2013, and his claim was approved on August XX, 2013. No children were listed on his application. The NH died on October XX, 2013, while domiciled in Oklahoma. In February 2014, C2~ filed a surviving child’s benefit claim on C1~’s behalf on the NH’s record, and the agency denied the claim in May 2014 for failure to submit evidence establishing a relationship between C1~ and the NH.

Subsequent to the NH’s death and the agency’s denial of her application for surviving child’s benefits on C1~’s behalf, C2~ sought DNA testing, which she then provided to a court in support of a court order of paternity. In August 2014, DNA testing was performed using samples from C2~, C1~, and C3~ , the NH’s brother and C1~’s alleged paternal uncle. A DNA test report dated September XX, 2014, revealed a 56.52 percent probability of a first-order relationship between C3~ and C1~. On October XX, 2014, C2~ filed a petition to establish the NH’s paternity with the District Court of Oklahoma County, Oklahoma with C2~ as the petitioner and C3~ as the respondent. On December XX, 2014, the court issued a Decree Establishing Paternity (Paternity Decree) finding that “pursuant to postmortem DNA testing by a relationship screening, [the NH] is hereby adjudicated the biological father of C1~ , born February XX, 2007, and that “[a]ll such rights, privileges, duties and other legal consequences of the parent-child relationship between [the NH] and the minor child, exist.” Further, the Paternity Decree determined that C3~ acknowledged that the NH “held the minor child out as his child and treated him accordingly” and that the NH had no other known minor heirs. Finally, the Paternity Decree directed the Oklahoma State Department of Health, Division of Vital Records, to amend C1~’s birth record to show the NH as C1~’s biological father.

After an amended Certificate of Live Birth for C1~ was issued on December XX, 2014, listing the NH as his father, C2~ filed a second claim for surviving child’s benefits on C1~’s behalf. She submitted the DNA test results, the Oklahoma Paternity Decree, and the amended birth certificate as proof of the parent-child relationship.

ANALYSIS

Entitlement to Title II Child’s Insurance Benefits Under the Act

The Act provides that the child of an individual entitled to old-age or disability benefits, or of an individual who dies as a fully or currently insured individual (insured), is entitled to child’s insurance benefits, beginning with the first month in which the child meets the criteria for child’s insurance benefits. 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350(a), 404.352(a)(1) . To be entitled to child’s insurance benefits on the insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350(a)(1)-(5). Under the Act and regulations, the term “child” includes a natural child.[9] 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354.

 

Here, C1~ applied for benefits, is unmarried, and is under age 18. The agency will consider C1~ to be the NH’s dependent child if he is the NH’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion that C1~ must establish is that he is the NH’s natural child.

An applicant may prove that he is a number holder’s natural child if:

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

(2) he 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 is the number holder’s natural child, and in the case of a deceased number holder, before his death, the number holder has acknowledged this in writing; a court has decreed the number holder to be the claimant’s parent; or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or

(4) the number holder is the claimant’s natural parent and in the case of a deceased number holder, the number holder was either living with the claimant or contributing to her support at the time the time the number holder died.

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

According to the information that we received, C2~ and the NH were never married and did not participate in a ceremony that would have resulted in a valid marriage. 20 C.F.R. § 404.355(a)(2). There is no evidence, apart from C3~ ’s statement as recorded in the Paternity Decree, that the NH personally acknowledged C1~ as his own before his death, and he did not include C1~ in his application for disability insurance benefits. 20 C.F.R. § 404.355(a)(3). The agency’s numident record for C1~ listed C2~ as the mother, but no father. Although a court decreed that C1~ was the NH’s child, that order came after the NH’s death, and test three requires that if the NH is deceased that the acknowledgment, court decree, or court order have been made or issued before death. 20 C.F.R. § 404.355(a)(3).

Further, there is no evidence that the NH was living with C1~ or contributing to his support at the time of his death; in fact, C2~ stated that the NH did not pay child support. Thus, we conclude that C1~ does not qualify as the deceased NH’s natural child under tests two, three, or four of the Act’s provisions described above. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(2)-(4).

 

Consequently, to prove that he is eligible for child’s insurance benefits on the deceased NH’s account, C1~ must show under the first test that he could inherit property through intestate succession as the deceased NH’s natural child. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Oklahoma law controls on this issue of intestate succession because the deceased number holder had his permanent home in Oklahoma when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b).

Requirements for Inheritance as a Child under Oklahoma’s Intestate Succession Laws

Oklahoma law establishes four methods for a child born out of wedlock to establish inheritance rights from his purported biological father. See Okla. Stat. Ann. tit. 84, 215. These four methods are:

(1) the father, in writing, acknowledges himself to be the child’s father,

(2) the father and mother marry after the child’s birth, and the father, after such marriage, acknowledges the child as his own or adopts it into his family,

(3) the father publicly acknowledges such child as his own, receiving him as such, with the consent of his wife, if he is married, into his family and otherwise treating the child as if he were born in wedlock, or

(4) a court of competent jurisdiction judicially determines the father to be the child’s father in a paternity proceeding.

Id.

The first three methods for establishing inheritance rights under Oklahoma law are not applicable because each method requires that the purported father acknowledge paternity, which the evidence does not show. See Okla. Stat. Ann. tit. 84, § 215 (a)-(c). C1~, therefore, must establish inheritance rights under the fourth method -- a court of competent jurisdiction judicially determined the NH to be C1~’s father in a paternity proceeding. See Okla. Stat. Ann. tit. 84, § 215(d).

Although the District Court of Oklahoma County decreed that the NH is C1~’s father, generally, a state court judgment does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also Programs Operation Manual Systems (POMS) GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray). Pursuant to SSR 83-37c, state court determinations bind the agency only where the following four specific factors are satisfied: (1) when a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) when parties with opposing interests genuinely contested the issue before the state court; (3) when the issue falls within the general category of domestic relations law; and (4) when the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3.

First and Third Prongs of SSR 83-37c

We find that the Paternity Decree meets Gray’s first and third prongs. As to the first prong, the District Court of Oklahoma County had jurisdiction over the paternity matter. See Okla. Stat. Ann. tit. 10, § 7700-103(A) (the Uniform Parentage Act applies to determinations of parentage in this state), (D) (district or administrative courts are authorized to adjudicate parentage under the Uniform Parentage Act); see also In re Estate of Dicksion, 286 P.3d 283, 290 (Okla. 2012) (the UPA applies to all parental determinations, include intestate and probate proceedings). In addition, the Paternity Decree determined that the NH was C1~’s biological father, which is precisely the issue in the present claim for Social Security benefits. As to the third prong, the issue of paternity is a core category of domestic relations, satisfying the third Gray criteria. See e.g. Ankenbrandt v. Richards, 504 U.S. 689, 716 (1992) (Blackmun concurring) (“‘first’ or ‘core,’ category [of domestic relations] involves declarations of status, e.g., marriage, annulment, divorce, custody, and paternity”).

Second Prong of SSR 83-37c

The Paternity Decree does not satisfy the second Gray criteria because parties with opposing interests did not genuinely contest the issue before a state court. In Gray, the court “reemphasize[d] that the divorce decree which adjudicated [the child] to be the lawful issue on the marriage of her mother and Freddie M. Gray, was rendered in a contested proceeding.” 474 F.2d at 1373. The Tenth Circuit has not provided guidance on SSR 83-37c, but the Sixth Circuit has found that an issue was not genuinely contested where no evidence was presented, no material controversy was resolved, attorneys did not represent the parties, and the claimant admitted that the opposing side did not object to the petition. See George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990). Here, the court resolved the issue of paternity on the basis of an agreement between C1~’s mother and the NH’s brother. The Paternity Decree states that “the parties have agreed to the terms of this Decree, as evidenced by their signatures below. The agreement is voluntary, equitable, and is hereby approved and adopted by the court as its judgment.” The Paternity Decree shows that only C2~ had legal representation; the NH’s brother C3~ represented himself. Further, the Paternity Decree states that the NH’s brother, C3~ , acknowledged that the NH held C1~ out as his child and treated him accordingly. The court’s docket does not show that the parties filed any briefs or pursued any appeal rights after the court’s decision. See POMS PR 01115.047.H. Thus, this case is similar to George, and the second Gray element is not satisfied.

Similarly, other courts have explained that the agency is not necessarily bound by a state court order determining paternity where there the order “is not the product of truly adversarial proceedings.” Tomasello v. Apfel, 165 F.3d 33 (7th Cir. 1998) (unpublished) (“as Ruling 83-37c implicitly recognizes, when such an order is not the product of truly adversarial proceedings, there is good reason to question its reliability.”). The Tomasello court specifically took note of the fact that there were no assets in the NH’s estate and that the paternity determination was “sought solely to obtain the social security benefit.” Id. at n.1. Likewise, the evidence here does not show the existence of an estate that C1~ and C3~ were contesting. Thus, there is no evidence that the NH’s brother and C1~ had any adverse interests, much less genuinely contested them, and the second Gray element is therefore not met.

Fourth Prong of SSR 83-37c

Finally, the Paternity Decree does not meet the fourth Gray element because it appears inconsistent with the Oklahoma Supreme Court’s statement of the law regarding proving paternity for children born out of wedlock. The Fifth Circuit explained that it is “the law of the state as declared by the supreme court of the state, or as it would have been decided by that court had the point been considered” Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989); see Gray, 474 F.2d at 1373 (“We are convinced that the Supreme Court of Ohio would hold, under the facts of the present case, that the right of Gray under the Ohio law of intestate succession would be controlled by the decision of the Common Pleas Court in the contested divorce proceeding.”).

Under Oklahoma law, the standard of proof to prove paternity is “clear and convincing evidence.” In the Matter of the Estate of King, 837 P.2d 463, 464 (Okla. 1990) (overruled on other grounds). The Paternity Decree does not appear to be based on clear and convincing evidence. Oklahoma courts define “clear and convincing evidence” as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re A.L.F., 237 P.3d 217, 219 (Okla. 2010). The Tenth Circuit has explained that distinguishing between the various standards of proof is more than a “semantic exercise.” U.S. v. Schell, 692 F.2d 672, 676 (10th Cir. 1982).

 

The Paternity Decree specified that “pursuant to postmortem DNA testing by a relationship screening, [the NH] is hereby adjudicated the biological father of C1~.”[10] Thus, the court appeared to rely exclusively upon the DNA testing to support its paternity finding. As explained below, we find that the DNA testing does not comport with Oklahoma law and thus, does not does not provide clear and convincing evidence to support this Paternity Decree.

 

Genetic testing is one means of establishing paternity under the Oklahoma Uniform Parentage Act (UPA).[11] Okla. Stat. Ann. tit. §§ 7700-501 – 7700-511; Okla. Stat. Ann. tit. 10, § 7700-621 (genetic testing expert’s report is generally admissible as evidence of the truth of the facts asserted in the report). Under the UPA, a man is rebuttably identified as a child’s father if appropriate genetic testing complies with the UPA and reveals that the man has at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1.[12] Okla. Stat. Ann. tit. 10, § 7700-505. If genetic-testing specimen is not available from a purported father, the UPA permits genetic testing from the following other individuals: the parents of the man; brothers and sisters of the man; other children of the man and their mothers; other relatives of the man necessary to complete genetic testing; and any other custodians of genetic material. Okla. Stat. Ann. tit. 10, § 7700-508; see also In re Estate of Dicksion, 286 P.3d at 290-291 (finding DNA test results from a father’s brother can establish the parent-child relationship between a deceased father and child). Thus, genetic testing is permissible evidence to establish paternity and DNA specimen from a purported father’s relative can be used to establish paternity.

 

Here, the DNA test revealed a 56.52 percent probability of a “biological relationship” between the NH’s brother, C3~ , and C1~.[13] By itself, this test is insufficient to firmly establish the fact of the NH’s paternity, which is necessary to meet “clear and convincing” standard applicable in Oklahoma. C1~ has not submitted any evidence or authority supporting the proposition that Oklahoma law has a lower threshold for determining paternity when considering DNA test results from relatives other than the purported father. The UPA allows for a father’s relative’s DNA test results to be presented as evidence for paternity, but it does not provide that it would be evaluated against a lower probability from the 99 percent requirement specified in section 7700-505. Okla. Stat. Ann. tit. 10, §§ 7700-505, 7700-508. We have also addressed the issue of using the DNA test results of a deceased number holder’s brother to establish paternity posthumously and found that the DNA test result of a deceased number holder’s brother showing a 99.99 percent probability of biological relationship combined with additional evidence was sufficient under Oklahoma law to establish a parent-child relationship between a child and the number holder. See POMS PR 01005.040A Oklahoma, PR 12-106 Oklahoma State Law Status of Child Relationship (NH Mark ~: SSN~) – REPLY (May 30, 2012). In contrast, the DNA test result in this case, which showed only a 56 percent probability, does not produce a firm conviction or belief as to the truth of the NH’s alleged paternity of C1~. In re A.L.F., 237 P.3d at 219. As noted, the court appeared to rely solely upon the DNA test results to adjudicate the NH’s paternity of C1~. As a result, the Paternity Decree does not comply with Oklahoma law, does not satisfy the fourth prong of SSR 83-37c, and consequently, does not bind the agency. See e.g., Cairns v. Richardson, 457 F.2d 1145, 1149 (10th Cir. 1972) (finding that the agency did not have to accept a lower court order “as the law of Kansas” where it determined “that the Supreme Court of Kansas would not” agree with the lower court’s decision).

 

While the Paternity Decree does not bind the agency under the Gray analysis of SSR 83-37c, we examine the totality of the evidence provided to determine if a parent-child relationship exists between C1~ and the NH for inheritance purposes under Oklahoma law. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(2) (if applicable state inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the state court would use as the basis for a determination of paternity); see also POMS GN 00306.001(D) (the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met”).

Under Oklahoma law, if genetic testing neither identifies nor excludes a man as the father of a child, as in this case, other evidence is admissible to adjudicate the issue of paternity. Okla. Stat. Ann. tit. 10, § 7700-631(3). Here, not only is the DNA test result insufficient to establish paternity (which results in the Paternity Decree being unreliable), but the following other evidence undermines C1~’s claim: (1) the NH was not listed on C1~’s original birth certificate and the material provided includes no explanation for this omission; (2) the agency’s numident record for C1~ did not identify the NH as a father; (3) the NH did not list C1~ on his application for disability insurance benefits, nor did he ever pay child support; and, (4) the Paternity Decree, which was not consistent with Oklahoma law, directed the Oklahoma State Department of Health, Division of Vital Records to amend C1~’s birth certificate to name the NH as his father. The evidence does not exclude the possibility, for example, of a third brother that is C1~’s father. Accordingly, the totality of the evidence does not constitute “clear and convincing” evidence under Oklahoma law to establish the NH’s paternity.[14]

CONCLUSION

In our opinion, the Paternity Decree does not bind the agency. Moreover, even if the genetic testing established a relationship more conclusively, the statements in the file would not preclude the existence, for example, of a third brother who could be C1~’s father. Thus, we find that C1~ has not established a parent-child relationship under Oklahoma inheritance law. As a result, C1~ has failed to establish that he is the NH’s child for purposes of surviving child’s benefits under the Act.

Michael McGaughran

Regional Chief Counsel

By: M. Hasan Aijaz

Assistant Regional Counsel

D. PR 14-050 Oklahoma State Law – Use of Siblingship DNA Report to Establish Child Relationship (NH T~; SSN ~)

DATE: May 30, 2012

1. Syllabus:

For this case, we must establish that is the number holder’s natural child based on the Oklahoma Intestacy Law of intestate succession because the number holder had his permanent home in Oklahoma when he died. Oklahoma law establishes four methods for a child born out of wedlock to establish inheritance rights from his purported biological father. These four methods are: (1) the father, in writing, acknowledges himself to be the child’s father, (2) the father and mother intermarry after the child’s birth, and the father, after such marriage, acknowledges the child as his own or adopts it into his family, (3) the father publicly acknowledges such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (4) the father is judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. The first three methods for establishing inheritance rights under Oklahoma law are not applicable here because each method requires that the purported father acknowledge paternity.

In this case, an Oklahoma court would look to whether the claimant's mother has established by clear and convincing evidence that the number holder is the father of the child. The Claimant's mother presented a DNA test report showing that a laboratory representative took specimen to test for a biological relationship between herself, claimant and claimant's sibling. The DNA test report revealed the probability of full-siblingship as 99.999996 percent with respect to claimant and NH. Based on the totality of the evidence the claimant is the number holder’s natural child. We also find that the requirements of SSR 06-02p and Oklahoma law are met in this case and the testing complies with Oklahoma law. Therefore, in our opinion, the agency may award the claimant child’s insurance benefits effective April XX, 2013, six months immediately before the month to his October XX, 2013 application.

The sibling DNA evidence appears to meet the criteria for a reopening based on new and material evidence. The DNA evidence was not part of the claims file when the prior determination was made in 2011 which means the Agency may reopen its determination in September 2011 determination that the claimant was not entitled to benefits.

2. Opinion

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether I1~ (I1~) is entitled to surviving child’s insurance benefits on T~ (deceased number holder) earnings record (account). Specifically, you have asked whether siblingship deoxyribonucleic acid (DNA) testing results showing that I1~ and I2~ (I2~) (the deceased number holder’s acknowledged daughter, which the Social Security Administration found to be the number holder’s natural child) are siblings establishes that I1~ is also the number holder’s natural child. Additionally, for purposes of determining entitlement to any retroactive benefits, if the DNA report is sufficient to establish I1~ as the number holder’s child, you asked whether the DNA report grants inheritance rights only and establishes the parent-child relationship prospectively only from the date of the report (September 2013), or if instead, it establishes the parent-child relationship retroactively. Finally you asked, if I1~ is entitled to benefits, whether the agency can reopen a September 2011 application that I1~’s mother filed on his behalf and that the agency denied. On January 10, 2014, our office released an opinion stating on page 9, footnote 10, that a claimant’s application for benefits remains in effect until the agency makes a final determination. 20 C.F.R. § 404.620(a). On the same date, you requested a revised opinion addressing whether reopening applies in this case, which we address herein.

ANSWER

In our opinion, based on Social Security Ruling (SSR) 06-02p and Oklahoma intestacy law, we find that the totality of the evidence, including the Social Security Administration’s (agency) determination that I2~ was the number holder’s natural child, and the siblingship DNA evidence, establishes that I1~ is also the number holder’s natural child. In addition, under Oklahoma law, the parent-child relationship is established retroactively, not prospectively from the DNA report. As such, I1~ is entitled to surviving child’s benefits on the number holder’s account, retroactively, beginning April XX, 2013, six months immediately before the month I1~ filed his October XX, 2013, application. Because I1~ presented new and material evidence to support his October XX, 2013 application, the Agency may reopen the Agency’s denial of his September 2011 application.

BACKGROUND

As we understand the facts, the number holder died on August XX, 2011, while domiciled in Oklahoma. On September XX, 2011, A~ (A~), I2~’s and I1~’s mother, filed survivor benefit claims on their behalf asserting that they were the number holder’s natural children. The number holder and A~ cohabitated in Tulsa, Oklahoma prior to his passing on August XX, 2011, but they were not married. I2~, female, was born on November, and I1~, male, was born on. Shortly after I2~’s birth, the number holder signed a document acknowledging paternity of I2~. Additionally, her birth certificate lists the number holder as I2~’s father. The agency granted I2~’s claim for surviving child’s benefits on the number holder’s account. In contrast, the number holder’s name does not appear on I1~’s birth certificate (and no other father is named), and the number holder did not sign a document acknowledging paternity of I1~ prior to his death. The agency granted I2~’s claim for surviving child benefits, but denied I1~’s claim for surviving child’s benefits due to a lack of evidence of the relationship between I1~ and the number holder.

On October XX, 2013, A~ filed another surviving child’s benefit claim on I1~’s behalf. In support of establishing a biological parent-child relationship, A~ submitted a certified DNA test report dated September XX, 2013, showing a 99.999996 percent probability that I2~ and I1~ are full siblings. A~ also submitted a November 1, 2011 statement from T~ in which he stated that he was the number holder’s cousin, that the number holder, A~, I2~, and I1~ lived with him from July 15, 2011 until the number holder’s death, and that A~, I2~, and I1~ were still living with him as of the date of the letter.

ANALYSIS

The Social Security Act (Act) provides that the child of an individual who dies as a fully or currently insured individual (insured) is entitled to child’s insurance benefits, beginning with the first month in which the child meets the criteria for child’s insurance benefits. 42 U.S.C. § 402(d)(1) ; 20 C.F.R. § 404.352(a)(1). To be entitled to child’s insurance benefits on the insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). The term “child” includes a natural child. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. 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. A~ has asserted that I1~ is the number holder’s natural child, and there is no evidence or claim of adoption or status as a stepchild. Thus, our focus is only upon whether I1~ is the number holder’s natural child.

Here, it is undisputed that on October XX, 2013, A~ filed, on I1~’s behalf, an application for child’s insurance benefits. I1~ is unmarried and under the age of 18. The agency will consider I1~ to be the number holder’s dependent child if I1~ is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion I1~ must establish is that he is the number holder’s natural child.

An applicant proves that he is a number holder’s natural child if:

he could inherit property through intestate succession as the number holder’s natural child;

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;

the number holder has acknowledged that the child is his natural child 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

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, as well as evidence to show that the number holder was either living with the claimant or contributing to his support at the time the claimant applied for benefits, or at the time of the number holder’s death in cases in which the number holder is not alive at the time of the claimant’s application.

See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4). Thus, there is the state inheritance law method for establishing child status under 216(h)(2)(A) of the Act, and there are three alternative federal standards for establishing child status under 216(h)(2)(B) and (h)(3) of the Act.

According to the information that we received, A~ and the number holder were never married and did not participate in a ceremony that would have resulted in a valid marriage. The number holder never acknowledged I1~ as his child, and no court decreed I1~ to be the number holder’s child or ordered the number holder to contribute to I1~’s support. Thus, we conclude that I1~ does not qualify as the number holder’s natural child under tests two or three. There is some information indicating that the number holder was living with I1~ at the time of his death, which is relevant to the fourth test. We note that there is some inconsistency with regard to whether the number holder was living with I1~ at the time of the number holder’s death. The information provided indicates that the number holder and A~ cohabitated in Tulsa, Oklahoma, prior to his passing in August 2011, but that they were not married. As noted above, A~ submitted a November 1, 2011, statement from T~ in which he stated that he was the number holder’s cousin and that the number holder, A~, I2~, and I1~ lived with him from July 15, 2011, until the number holder’s death in August 2011. Similarly, in the October 2011 application for benefits on I2~’s behalf, A~ reported that the children were living with the number holder at the time of his death. However, in the 2013 application for benefits on I1~’s behalf, A~ indicated that I1~ was not living with the number holder at the time of death. However, we first address whether I1~ is a child entitled to inherit from the number holder upon application of state intestacy laws under the first test under section 216(h)(2)(A) of the Act.

Section 216(h)(2)(A) Analysis: Oklahoma Intestacy Law

Oklahoma law controls on this issue of intestate succession because the number holder had his permanent home in Oklahoma when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Oklahoma law establishes four methods for a child born out of wedlock to establish inheritance rights from his purported biological father. See Okla. Stat. Ann. tit. 84,§ 215. These four methods are: (1) the father, in writing, acknowledges himself to be the child’s father, (2) the father and mother intermarry after the child’s birth, and the father, after such marriage, acknowledges the child as his own or adopts it into his family, (3) the father publicly acknowledges such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (4) the father is judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. Id.

The first three methods for establishing inheritance rights under Oklahoma law are not applicable here because each method requires that the purported father acknowledge paternity. See Okla. Stat. Ann. tit. 84, § 215. There is no evidence that the number holder ever acknowledged I1~ as his child. I1~, therefore, must establish inheritance right under the fourth method. Id. Although no court has determined through paternity proceedings that the number holder was I1~’s father, the agency does not apply a state inheritance-law requirement that an individual must obtain a court determination of paternity. See 20 C.F.R. § 404.355(b)(2) (use of state law standards). Instead, the agency decides paternity using the standard of proof that the state court would use. Id.

Under Oklahoma law, the standard of proof to prove paternity is “clear and convincing evidence.” See In the Matter of the Estate of K~, 837 P.2d 463, 464 (Okla. 1990) (overruled in other grounds). Oklahoma courts define “clear and convincing evidence” as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re A.L.F., 237 P.3d 217, 219 (Okla. 2010). Thus, in this case, an Oklahoma court would look to whether A~ has established by clear and convincing evidence that the number holder is I1~’s father.

The Oklahoma Uniform Parentage Act In 2006, Oklahoma adopted the Uniform Parentage Act. Okla. Stat. Ann. tit. 10, § 7700-101 (Uniform Parentage Act). applies to parental determinations in intestate and probate proceedings. In re Estate of D~, 286 P.3d 283, 290 (Okla. 2012). The Uniform Parentage Act governs every determination of parentage in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A). One of the means of establishing paternity under the Oklahoma Uniform Parentage Act is through genetic testing. Okla. Stat. Ann. tit. §§ 7700-501 – 7700-511. A genetic testing expert’s report is generally admissible as evidence of the truth of the facts asserted in the report. Okla. Stat. Ann. tit. 10, § 7700-621. In Oklahoma, “a man is rebuttably identified as the father of a child if the genetic testing” reveals a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. Okla. Stat. Ann. tit. 10, § 7700-505(A).

Additionally, to be admissible evidence to establish paternity, genetic testing must satisfy certain other requirements. Okla. Stat. Ann. tit. 10, § 7700-503. First, the DNA testing must take place in a laboratory the American Association of Blood Banks (AABB), the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services accredited. Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, a laboratory designee must sign the DNA test report under penalty of perjury. Okla. Stat. Ann. tit. 10, § 7700-504(A). Third, testimony or documentation must establish a reliable chain of custody. Okla. Stat. Ann. tit. 10, § 7700-504(B). Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes: (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Okla. Stat. Ann. tit. 10, § 7700-504 (A), B).

When a specimen from an alleged father is not available, a court may order testing of the man’s other children of the man and their mothers. Okla. Stat. Ann. tit. 10, § 7700-508(A)(3). Here, because the deceased number holder’s specimen was not available for genetic testing, I1~ Although A~ submitted all the evidence on I1~’s behalf, for purposes of our discussion, we will hereafter state that I1~ submitted the evidence.

submitted evidence, including genetic testing of himself, A~, and I2~ to establish a biological relationship between himself, A~, and the number holder’s natural child, I2~. For the reasons discussed below, we conclude that the genetic testing supports a finding that I1~ is the number holder’s child.

Social Security Ruling (SSR) 06-02p explains that a claimant may qualify as a number holder’s child under section 216(h)(2)(A) of the Act if the claimant shows through DNA testing a high probability of a sibling relationship with another child (as section 216(h)(3) of the Act defines) of the number holder, and there is no reason to question the parent-child relationship between the other child and the number holder. The December 13, 2011, Notice of Award letter regarding I2~’s application for surviving child’s benefits does not specify the agency’s basis for determining that I2~ was the number holder’s child. However, the agency determined that I2~ was the number holder’s natural child under section 216(h)(3) based upon evidence submitted, including I2~’s birth certificate and the number holder’s acknowledgment of paternity as to I2~. As such, for the purposes of SSR 06-02p, I2~ is the known child of the number holder. We are unaware of any reason to question this relationship between I2~ and the number holder, and we now turn to the DNA report to determine whether under SSR 06-02p the results show a high probability of siblingship, and whether it complies with Oklahoma law.

Specifically, A~ presented a DNA test report dated September XX, 2013, showing that a laboratory representative took specimen to test for a biological relationship between A~, I1~, and I2~. The DNA test report revealed the probability of full-siblingship as 99.999996 percent, with a combined siblingship index of 32,063,282, with respect to I2~ and I1~. Accordingly, we find that the requirements of SSR 06-02p and Oklahoma law are met in this case. Moreover, the testing complies with Oklahoma law. The DNA testing took place at the DNA Diagnostics Center, an AABB-accredited facility. Okla. Stat. Ann. tit. 10, § 7700-503(A). John W. Peterson, Ph.D., the laboratory’s designee, signed the DNA test report before a notary public and verified the interpretation of the results, and the test report included A~’s, I2~’s, and I1~’s photographs. Okla. Stat. Ann. tit. 10, § 7700-504(A), (B). Further, the DNA test records met all of the chain of custody requirements under Okla. Stat. Ann. tit. 10, § 7700-504 (A),(B), and would be admissible to induce an Oklahoma court to reach a firm belief that I1~ is I2~’s full sibling. Thus, the evidence submitted constitutes clear and convincing evidence that I1~ is the number holder’s child.

Because the evidence shows that I1~ is the number holder’s child, I1~ satisfies the first test for establishing a child relationship under section 216(h)(2)(A) of the Act that he can inherit the number holder’s property through intestate succession under Oklahoma law. As noted earlier at page 5, if an applicant does not qualify as a child under section 216(h)(2)(A) of the Act, he or she may still be deemed by the agency to be the child of the insured individual under three alternative federal standards set forth in section 216(h)(3). However, we need not further examine whether the evidence is sufficient to establish I1~ as the number holder’s deemed child under this alternate federal standard because we conclude that I1~ is the number holder’s natural child under Oklahoma’s intestate succession laws per section 216(h)(2)(A) of the Act.

 See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured number holder. See 20 C.F.R. § 404.361(a).

However, even if the genetic testing was not enough alone to identify the number holder as I1~’s father, the additional evidence submitted supports his claim that he is the number holder’s natural child. Oklahoma law provides that if genetic testing neither identifies nor excludes a man as a child’s father, other evidence is admissible to adjudicate the issue of paternity. Okla. Stat. Ann. tit. 10, § 7700-631(3). Here, I1~ presented additional evidence that supports his claim that he is the number holder’s natural child, including T~’s, the number holder’s cousin, statement that the number holder, A~, I2~, and I1~ lived with him from July 15, 2011, until the number holder’s death, and that A~, I2~, and I1~ were still living with him as of the date of the letter. This statement further supports the parent-child relationship between I1~ and the number holder.

The Parent-Child Relationship is Established Retroactively Under Oklahoma Law

Having found that I1~ is the number holder’s natural child under Oklahoma law, we next examine whether I1~ is entitled to retroactive benefits on the number holder’s account. If the insured is deceased, a child becomes entitled to benefits the first month covered by the application for benefits in which the child meets all the requirements for entitlement, one of which is the establishment of the parent-child relationship. See 20 C.F.R. § 404.352(a)(1); see also 20 C.F.R. § 404.350(a) (to be entitled to child’s insurance benefits, you must apply, be the child, be dependent on the insured, be unmarried, and be under age 18). Under the regulations, an applicant for child’s insurance benefits may be paid retroactive benefits for up to six months immediately before the month of application. See 20 C.F.R. § 404.621(a)(2) (filing for dependents’ benefits). Agency policy is that applicants for child’s insurance benefits not based on disability can be paid retroactive benefits for up to six months immediately before the month of application. Program Operations Manual System (POMS) GN 00204.030(B)(1) (policy for retirement and survivor benefits).

The POMS distinguishes between three types of natural children, legitimate children; illegitimate children; and illegitimate children legitimated after birth, and the effective date of the establishment of the parent-child relationship among these children. See POMS GN 00306.001, 00306.010, 00306.050, 00306.055. These general POMS provisions recognize that “[u]under current State laws, a child legitimated after birth is considered to be legitimate from birth.” POMS GN 00306.050(A)(3); see also POMS GN 00306.085(A) (“A child is legitimate from the date of birth in these States,” which includes Oklahoma). In addition, the general POMS provisions state that “[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event,” and if the state law digest in the POMS “shows that a State law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant’s status as the NH’s child is established effective” as of the date of the evidence satisfying the applicable standard of proof. POMS GN 00306.055(A)(3).

Oklahoma intestacy law has not maintained a substantive distinction between legitimate and illegitimate children, and no longer provides a mechanism for legitimating children. Social Security Ruling 85-17, examining a particular Wisconsin inheritance statute and this issue of legitimacy, states generally that “courts have consistently distinguished between statutes that legitimate children and those which merely confer inheritance rights. While acts of legitimation tend to be given effective retroactive to the birth of the child, acts which confer inheritance rights without legitimating the child operate prospectively only.” SSR 85-17, 1985 WL 56848 (S.S.A. 1985) (noting that the particular Wisconsin inheritance statute, which distinguished between legitimate children and illegitimate children, did not confer legitimacy, but conferred only inheritance rights, and as such, because there was no case law or legislative history to the contrary, operated prospectively from the act conferring inheritance rights). See Okla. Stat. Ann. tit. 10, § 6.5 (effective July 1, 1974, the designations of “illegitimate” or “bastard” shall not be used to designate a child born out of wedlock). Section 7700-202 of the Uniform Parentage Act, which Oklahoma adopted in 2006, explains that “[a] child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.” Okla. Stat. Ann. tit. 10, § 7700-202 (equal rights of marital and nonmarital children). Even prior to adopting the Uniform Parentage Act, Oklahoma law sought to equalize the rights of illegitimate and legitimate child. In 1974, the Oklahoma Legislature declared that all children born within the State “shall be” deemed legitimate. See Okla. Stat. Ann. tit. 10, § 1.2 (repealed by Laws 2006, c. 116, § 62, effective Nov. 1, 2006). 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. See Okla. Stat. Ann. tit. 10, § 1.1 (repealed by Laws 2006, c. 116, § 62, effective Nov. 1, 2006); see also State ex rel. Dept. of Human Service on Behalf of Snellings v. Strohmeyer, 925 P.2d 77, 78 (Okla. Civ. App. 1995) (giving effect to “the obvious intent underlying §1.1 to remove the socially stigmatizing terms of ‘illegitimacy’ and ‘bastard’ from the legal lexison”).

 As noted above, the Uniform Parentage Act applies to all parental determinations in Oklahoma, including intestate and probate proceedings. See In re Estate of D~, 286 P.3d at 290. Furthermore, Oklahoma intestate succession laws explain that once a child establishes that he is a child of a father, a child born out of wedlock stands in same relation as a child born in wedlock. See Okla. Stat. Ann. tit. 84, § 215. Therefore, having established that I1~ is a child of the number holder under Oklahoma intestacy law, I1~ is a child from his birth under Oklahoma law for purposes of determining I1~’s entitlement to retroactive benefits.

If a claimant files an application after the first month the claimant could have been entitled to benefits, the claimant may receive benefits for up to six months immediately before the month in which he filed his application. 20 C.F.R. § 404.621(a)(2). I1~ filed his qualifying application on October XX, 2013. Thus, I1~ is entitled to retroactive benefits beginning April 9, 2013, six months immediately before the month I1~ filed his October 9, 2013, application.

The Agency Can Reopen I1~’s Prior Application

In addition, the agency can reopen I1~’s September 27, 2011 application. The sibling DNA evidence that I1~ presented, coupled with the agency’s determination on December 13, 2011 that I2~ is the number holder’s natural child under section 216(h)(3), is new and material evidence, which provides the agency with good cause to repen his September 27, 2011 application. See 20 C.F.R. § 404.988(a),(b) (agency can reopen a prior claim within 4 years for good cause); 20 C.F.R. § 404.989(a)(1) (agency will find that there is “good cause” to reopen a determination or decision if the claimant provides “new and material” evidence); POMS GN 04010.030(B) (a final determination made be reopened within four years on the basis of new and material evidence even though the determination, when made, was reasonable based on the evidence in the file at that time).

Agency policy defines “new and material” as evidence that:

  • Was not a part of the claims ... file when the final determination or decision was made; but

  • Relates back to the date of the original determination or decision; and

  • Shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination.

POMS GN 04010.030(A). Thus, the agency can reopen a decision based on new and material evidence where the evidence relates back to the date of the prior determination. See POMS GN 04010.030(A).

Here, the sibling DNA evidence appears to meet the criteria for new and material evidence because it was not part of the claims file when the prior determination was made in 2011; it relates back to the 2011 decision since the parties’ DNA presumably has not changed; and it presents facts that would result in a different conclusion than that originally reached had the new evidence been introduced at the time of the original determination. Therefore, the DNA evidence provides good cause for reopening and the agency may reopen its prior 2011 determination.

CONCLUSION

In our opinion, the totality of the evidence establishes that I1~ is the number holder’s natural child. Therefore, in our opinion, the agency may award I1~ child’s insurance benefits effective April XX, 2013, six months immediately before the month I1~ filed his October XX, 2013 application and may reopen its determination in September 2011 that I1~ was not entitled to benefits.

Michael McGaughran
Regional Chief Counsel
By: Brock C. Cima

Assistant Regional Counsel

E. PR 14-044 Oklahoma State Law – Use of Siblingship DNA Report to Establish Child Relationship (NH T~ ; SSN ~

DATE: January 10, 2014

1. SYLLABUS

The evidence establishes that the claimant is the NH's child. Social Security Ruling 06-02p provides that a claimant may qualify as the NH's child if DNA testing shows a high probability of a sibling relationship with another child of the NH. Oklahoma intestacy law allows a clear and convincing standard of proof to establish paternity, and genetic testing is one means to establish paternity under Oklahoma law. The testing in this case, as well as additional evidence from the NH's cousin, shows that the claimant is the NH's child. The claimant can inherit the NH's intestate property under Oklahoma law. Further, a child legitimated after birth is considered legitimate from birth; therefore, the claimant may receive surviving child benefits retroactively, beginning six months before filing the application.

2. OPINION

QUESTIONS PRESENTED

This memorandum is in response to your request for a legal opinion on whether I1~ (I1~) is entitled to surviving child’s insurance benefits on T~’s (deceased number holder) earnings record (account). Specifically, you have asked whether siblingship deoxyribonucleic acid (DNA) testing results showing that I1~ and I2~ (I2~) (the deceased number holder’s acknowledged daughter, which the Social Security Administration found to be the number holder’s natural child) are siblings establishes that I1~ is also the number holder’s natural child. Additionally, for purposes of determining entitlement to any retroactive benefits, if the DNA report is sufficient to establish I1~ as the number holder’s child, you asked whether the DNA report grants inheritance rights only and establishes the parent-child relationship prospectively only from the date of the report (September 2013), or if instead, it establishes the parent-child relationship retroactively.

ANSWER

In our opinion, based on Social Security Ruling (SSR) 06-02p and Oklahoma intestacy law, we find that the totality of the evidence, including the Social Security Administration’s (agency) determination that I2~ was the number holder’s natural child, and the siblingship DNA evidence, establishes that I1~ is also the number holder’s natural child. In addition, under Oklahoma law, the parent-child relationship is established retroactively, not prospectively from the DNA report. As such, I1~ is entitled to surviving child’s benefits on the number holder’s account, retroactively, beginning April 9, 2013, six months immediately before the month I1~ filed his October XX, 2013, application.

BACKGROUND

As we understand the facts, the number holder died on August XX, 2011, while domiciled in Oklahoma. On September XX, 2011, A~ (A~), I2~’s and I1~’s mother, filed survivor benefit claims on their behalf asserting that they were the number holder’s natural children. The number holder and A~ cohabitated in Tulsa, Oklahoma prior to his passing on August XX, 2011, but they were not married. I2~, female, was born on November, and I1~, male, was born on May. Shortly after I2~’s birth, the number holder signed a document acknowledging paternity of I2~. Additionally, her birth certificate lists the number holder as I2~’s father. The agency granted I2~’s claim for surviving child’s benefits on the number holder’s account. In contrast, the number holder’s name does not appear on I1~’s birth certificate (and no other father is named), and the number holder did not sign a document acknowledging paternity of I1~ prior to his death. The agency granted I2~’s claim for surviving child benefits, but denied I1~’s claim for surviving child’s benefits due to a lack of evidence of the relationship between I1~ and the number holder.

On October XX, 2013, A~ filed another surviving child’s benefit claim on I1~’s behalf. In support of establishing a biological parent-child relationship, A~ submitted a certified DNA test report dated September XX, 2013, showing a 99.999996 percent probability that I2~ and I1~ are full siblings. A~ also submitted a November 1, 2011 statement from T~ in which he stated that he was the number holder’s cousin, that the number holder, A~, I2~, and I1~ lived with him from July 15, 2011 until the number holder’s death, and that A~, I2~, and I1~ were still living with him as of the date of the letter.

ANALYSIS

The Social Security Act (Act) provides that the child of an individual who dies as a fully or currently insured individual (insured) is entitled to child’s insurance benefits, beginning with the first month in which the child meets the criteria for child’s insurance benefits. 42 U.S.C. § 402(d)(1) ; 20 C.F.R. § 404.352(a)(1). To be entitled to child’s insurance benefits on the insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). The term “child” includes a natural child. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. 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. A~ has asserted that I1~ is the number holder’s natural child, and there is no evidence or claim of adoption or status as a stepchild. Thus, our focus is only upon whether I1~ is the number holder’s natural child.

Here, it is undisputed that on October XX, 2013, A~ filed, on I1~’s behalf, an application for child’s insurance benefits. I1~ is unmarried and under the age of 18. The agency will consider I1~ to be the number holder’s dependent child if I1~ is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion I1~ must establish is that he is the number holder’s natural child.

An applicant proves that he is a number holder’s natural child if:

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

(2) 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) the number holder has acknowledged that the child is his natural child 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, as well as evidence to show that the number holder was either living with the claimant or contributing to his support at the time the claimant applied for benefits, or at the time of the number holder’s death in cases in which the number holder is not alive at the time of the claimant’s application.

See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4). Thus, there is the state inheritance law method for establishing child status under 216(h)(2)(A) of the Act, and there are three alternative federal standards for establishing child status under 216(h)(2)(B) and (h)(3) of the Act.

According to the information that we received, A~ and the number holder were never married and did not participate in a ceremony that would have resulted in a valid marriage. The number holder never acknowledged I1~ as his child, and no court decreed I1~ to be the number holder’s child or ordered the number holder to contribute to I1~’s support. Thus, we conclude that I1~ does not qualify as the number holder’s natural child under tests two or three. There is some information indicating that the number holder was living with I1~ at the time of his death, which is relevant to the fourth test. We note that there is some inconsistency with regard to whether the number holder was living with I1~ at the time of the number holder’s death. The information provided indicates that the number holder and A~ cohabitated in Tulsa, Oklahoma, prior to his passing in August 2011, but that they were not married. As noted above, A~ submitted a November 1, 2011, statement from T~ Barnes in which he stated that he was the number holder’s cousin and that the number holder, A~, I2~, and I1~ lived with him from July 15, 2011, until the number holder’s death in August 2011. Similarly, in the October 2011 application for benefits on I2~’s behalf, A~ reported that the children were living with the number holder at the time of his death. However, in the 2013 application for benefits on I1~’s behalf, A~ indicated that I1~ was not living with the number holder at the time of death. However, we first address whether I1~ is a child entitled to inherit from the number holder upon application of state intestacy laws under the first test under section 216(h)(2)(A) of the Act.

Section 216(h)(2)(A) Analysis: Oklahoma Intestacy Law

Oklahoma law controls on this issue of intestate succession because the number holder had his permanent home in Oklahoma when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Oklahoma law establishes four methods for a child born out of wedlock to establish inheritance rights from his purported biological father. See Okla. Stat. Ann.tit.84,§ 215. These four methods are: (1) the father, in writing, acknowledges himself to be the child’s father, (2) the father and mother intermarry after the child’s birth, and the father, after such marriage, acknowledges the child as his own or adopts it into his family, (3) the father publicly acknowledges such child as his own, receiving it as such, with the consent of his wife, if he is married, into his family and otherwise treating it as if it were a child born in wedlock, or (4) the father is judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. Id.

The first three methods for establishing inheritance rights under Oklahoma law are not applicable here because each method requires that the purported father acknowledge paternity. See Okla. Stat. Ann. tit. 84, § 215. There is no evidence that the number holder ever acknowledged I1~ as his child. I1~, therefore, must establish inheritance right under the fourth method. Id. Although no court has determined through paternity proceedings that the number holder was I1~’s father, the agency does not apply a state inheritance-law requirement that an individual must obtain a court determination of paternity. See 20 C.F.R. § 404.355(b)(2) (use of state law standards). Instead, the agency decides paternity using the standard of proof that the state court would use. Id.

Under Oklahoma law, the standard of proof to prove paternity is “clear and convincing evidence.” See In the Matter of the Estate of K~, 837 P.2d 463, 464 (Okla. 1990) (overruled in other grounds). Oklahoma courts define “clear and convincing evidence” as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re A.L.F., 237 P.3d 217, 219 (Okla. 2010). Thus, in this case, an Oklahoma court would look to whether A~ has established by clear and convincing evidence that the number holder is I1~’s father.

The Oklahoma Uniform Parentage Act In 2006, Oklahoma adopted the Uniform Parentage Act. Okla. Stat. Ann. tit. 10, § 7700-101 (Uniform Parentage Act). applies to parental determinations in intestate and probate proceedings. In re Estate of D~, 286 P.3d 283, 290 (Okla. 2012). The Uniform Parentage Act governs every determination of parentage in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A). One of the means of establishing paternity under the Oklahoma Uniform Parentage Act is through genetic testing. Okla. Stat. Ann. tit. §§ 7700-501 – 7700-511. A genetic testing expert’s report is generally admissible as evidence of the truth of the facts asserted in the report. Okla. Stat. Ann. tit. 10, § 7700-621. In Oklahoma, “a man is rebuttably identified as the father of a child if the genetic testing” reveals a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. Okla. Stat. Ann. tit. 10, § 7700-505(A).

Additionally, to be admissible evidence to establish paternity, genetic testing must satisfy certain other requirements. Okla. Stat. Ann. tit. 10, § 7700-503. First, the DNA testing must take place in a laboratory the American Association of Blood Banks (AABB), the American Society for Histocompatibility and Immunogenetics, or another accrediting body designated by the Secretary of the United States Department of Health and Human Services accredited. Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, a laboratory designee must sign the DNA test report under penalty of perjury. Okla. Stat. Ann. tit. 10, § 7700-504(A). Third, testimony or documentation must establish a reliable chain of custody. Okla. Stat. Ann. tit. 10, § 7700-504(B). Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes: (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Okla. Stat. Ann. tit. 10, § 7700-504 (A), B).

When a specimen from an alleged father is not available, a court may order testing of the man’s other children of the man and their mothers. Okla. Stat. Ann. tit. 10, § 7700-508(A)(3). Here, because the deceased number holder’s specimen was not available for genetic testing, I1~ Although A~ submitted all the evidence on I1~’s behalf, for purposes of our discussion, we will hereafter state that I1~ submitted the evidence.

submitted evidence, including genetic testing of himself, A~, and I2~ to establish a biological relationship between himself, A~, and the number holder’s natural child, I2~. For the reasons discussed below, we conclude that the genetic testing supports a finding that I1~ is the number holder’s child.

Social Security Ruling (SSR) 06-02p explains that a claimant may qualify as a number holder’s child under section 216(h)(2)(A) of the Act if the claimant shows through DNA testing a high probability of a sibling relationship with another child (as section 216(h)(3) of the Act defines) of the number holder, and there is no reason to question the parent-child relationship between the other child and the number holder. The December 13, 2011, Notice of Award letter regarding I2~’s application for surviving child’s benefits does not specify the agency’s basis for determining that I2~ was the number holder’s child. However, the agency determined that I2~ was the number holder’s natural child under section 216(h)(3) based upon evidence submitted, including I2~’s birth certificate and the number holder’s acknowledgment of paternity as to I2~. As such, for the purposes of SSR 06-02p, I2~ is the known child of the number holder. We are unaware of any reason to question this relationship between I2~ and the number holder, and we now turn to the DNA report to determine whether under SSR 06-02p the results show a high probability of siblingship, and whether it complies with Oklahoma law.

Specifically, A~ presented a DNA test report dated September 23, 2013, showing that a laboratory representative took specimen to test for a biological relationship between A~, I1~, and I2~. The DNA test report revealed the probability of full-siblingship as 99.999996 percent, with a combined siblingship index of 32,063,282, with respect to I2~ and I1~. Accordingly, we find that the requirements of SSR 06-02p and Oklahoma law are met in this case. Moreover, the testing complies with Oklahoma law. The DNA testing took place at the DNA Diagnostics Center, an AABB-accredited facility. Okla. Stat. Ann. tit. 10, § 7700-503(A). John, Ph.D., the laboratory’s designee, signed the DNA test report before a notary public and verified the interpretation of the results, and the test report included A~’s, I2~’s, and I1~’s photographs. Okla. Stat. Ann. tit. 10, § 7700-504(A), (B). Further, the DNA test records met all of the chain of custody requirements under Okla. Stat. Ann. tit. 10, § 7700-504 (A),(B), and would be admissible to induce an Oklahoma court to reach a firm belief that I1~ is I2~’s full sibling. Thus, the evidence submitted constitutes clear and convincing evidence that I1~ is the number holder’s child.

Because the evidence shows that I1~ is the number holder’s child, I1~ satisfies the first test for establishing a child relationship under section 216(h)(2)(A) of the Act that he can inherit the number holder’s property through intestate succession under Oklahoma law. As noted earlier at page 5, if an applicant does not qualify as a child under section 216(h)(2)(A) of the Act, he or she may still be deemed by the agency to be the child of the insured individual under three alternative federal standards set forth in section 216(h)(3). However, we need not further examine whether the evidence is sufficient to establish I1~ as the number holder’s deemed child under this alternate federal standard because we conclude that I1~ is the number holder’s natural child under Oklahoma’s intestate succession laws per section 216(h)(2)(A) of the Act.

 See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured number holder. See 20 C.F.R. § 404.361(a).

However, even if the genetic testing was not enough alone to identify the number holder as I1~’s father, the additional evidence submitted supports his claim that he is the number holder’s natural child. Oklahoma law provides that if genetic testing neither identifies nor excludes a man as a child’s father, other evidence is admissible to adjudicate the issue of paternity. Okla. Stat. Ann. tit. 10, § 7700-631(3). Here, I1~ presented additional evidence that supports his claim that he is the number holder’s natural child, including T~ Barnes’s, the number holder’s cousin, statement that the number holder, A~, I2~, and I1~ lived with him from July 15, 2011, until the number holder’s death, and that A~, I2~, and I1~ were still living with him as of the date of the letter. This statement further supports the parent-child relationship between I1~ and the number holder.

The Parent-Child Relationship is Established Retroactively Under Oklahoma Law

Having found that I1~ is the number holder’s natural child under Oklahoma law, we next examine whether I1~ is entitled to retroactive benefits on the number holder’s account. If the insured is deceased, a child becomes entitled to benefits the first month covered by the application for benefits in which the child meets all the requirements for entitlement, one of which is the establishment of the parent-child relationship. See 20 C.F.R. § 404.352(a)(1); see also 20 C.F.R. § 404.350(a) (to be entitled to child’s insurance benefits, you must apply, be the child, be dependent on the insured, be unmarried, and be under age 18). Under the regulations, an applicant for child’s insurance benefits may be paid retroactive benefits for up to six months immediately before the month of application. See 20 C.F.R. § 404.621(a)(2) (filing for dependents’ benefits). Agency policy is that applicants for child’s insurance benefits not based on disability can be paid retroactive benefits for up to six months immediately before the month of application. Program Operations Manual System (POMS) GN 00204.030(B)(1) (policy for retirement and survivor benefits).

The POMS distinguishes between three types of natural children, legitimate children; illegitimate children; and illegitimate children legitimated after birth, and the effective date of the establishment of the parent-child relationship among these children. See POMS GN 00306.001, 00306.010, 00306.050, 00306.055. These general POMS provisions recognize that “[u]under current State laws, a child legitimated after birth is considered to be legitimate from birth.” POMS GN 00306.050(A)(3); see also POMS GN 00306.085(A) (“A child is legitimate from the date of birth in these States,” which includes Oklahoma). In addition, the general POMS provisions state that “[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event,” and if the state law digest in the POMS “shows that a State law confers inheritance rights based on an adjudication of paternity (but does not legitimate the child), and the provision is effective prospectively only, the claimant’s status as the NH’s child is established effective” as of the date of the evidence satisfying the applicable standard of proof. POMS GN 00306.055(A)(3).

Oklahoma intestacy law has not maintained a substantive distinction between legitimate and illegitimate children, and no longer provides a mechanism for legitimating children. Social Security Ruling 85-17, examining a particular Wisconsin inheritance statute and this issue of legitimacy, states generally that “courts have consistently distinguished between statutes that legitimate children and those which merely confer inheritance rights. While acts of legitimation tend to be given effective retroactive to the birth of the child, acts which confer inheritance rights without legitimating the child operate prospectively only.” SSR 85-17, 1985 WL 56848 (S.S.A. 1985) (noting that the particular Wisconsin inheritance statute, which distinguished between legitimate children and illegitimate children, did not confer legitimacy, but conferred only inheritance rights, and as such, because there was no case law or legislative history to the contrary, operated prospectively from the act conferring inheritance rights). See Okla. Stat. Ann. tit. 10, § 6.5 (effective July 1, 1974, the designations of “illegitimate” or “bastard” shall not be used to designate a child born out of wedlock). Section 7700-202 of the Uniform Parentage Act, which Oklahoma adopted in 2006, explains that “[a] child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.” Okla. Stat. Ann. tit. 10, § 7700-202 (equal rights of marital and nonmarital children). Even prior to adopting the Uniform Parentage Act, Oklahoma law sought to equalize the rights of illegitimate and legitimate child. In 1974, the Oklahoma Legislature declared that all children born within the State “shall be” deemed legitimate. See Okla. Stat. Ann. tit. 10, § 1.2 (repealed by Laws 2006, c. 116, § 62, effective Nov. 1, 2006). 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. See Okla. Stat. Ann. tit. 10, § 1.1 (repealed by Laws 2006, c. 116, § 62, effective Nov. 1, 2006); see also State ex rel. Dept. of Human Service on Behalf of Snellings v. Strohmeyer, 925 P.2d 77, 78 (Okla. Civ. App. 1995) (giving effect to “the obvious intent underlying §1.1 to remove the socially stigmatizing terms of ‘illegitimacy’ and ‘bastard’ from the legal lexison”).

As noted above, the Uniform Parentage Act applies to all parental determinations in Oklahoma, including intestate and probate proceedings. See In re Estate of D~, 286 P.3d at 290. Furthermore, Oklahoma intestate succession laws explain that once a child establishes that he is a child of a father, a child born out of wedlock stands in same relation as a child born in wedlock. See Okla. Stat. Ann. tit. 84, § 215. Therefore, having established that I1~ is a child of the number holder under Oklahoma intestacy law, I1~ is a child from his birth under Oklahoma law for purposes of determining I1~’s entitlement to retroactive benefits.

If a claimant files an application after the first month the claimant could have been entitled to benefits, the claimant may receive benefits for up to six months immediately before the month in which he filed his application. 20 C.F.R. § 404.621(a)(2). I1~ filed his qualifying application on October XX, 2013. Thus, I1~ is entitled to retroactive benefits beginning April XX, 2013, six months immediately before the month I1~ filed his October XX, 2013, application. Herein, we do not address the issue of whether reopening applies in this case. See 20 C.F.R. §§ 404.988(b), 989(a)(1). We note that although I1~ filed an application in September 2011, the agency made a final determination and denied the application on December 13, 2011. Under the regulations, a claimant’s application for benefits remains in effect until the agency makes a final determination. 20 C.F.R. § 404.620(a). If a claimant first meets all the requirements for entitlement after the period for which the claimant’s application was in effect, the claimant must file a new application for benefits. Id. 404.620(a)(2). In this case, the agency may pay benefits only from the first month that the claimant meets all the requirements based on the new application. Id. Thus, the agency must base I1~’s entitlement to child’s insurance benefits based on the date I1~ filed his new 2013 application (October XX, 2013).

CONCLUSION

In our opinion, the totality of the evidence establishes that I1~ is the number holder’s natural child. Therefore, in our opinion, the agency may award I1~ child’s insurance benefits effective April XX, 2013, six months immediately before the month I1~ filed his October XX, 2013 application.

Michael McGaughran
Regional Chief Counsel

By: Brock C. Cima

Assistant Regional Counsel


Footnotes:

[1]

. 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. C~ has asserted that J~ is the number holder’s natural child, and there is no evidence or claim of adoption or status as a stepchild. Thus, our focus is only upon whether J~ is the number holder’s natural child

[2]

. In 2006, Oklahoma adopted the UPA. Okla. Stat. Ann. tit. 10, § 7700-101.

[3]

. Documentation from the testing laboratory is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony if the documentation includes: (1) the name and photograph of each individual whose specimens have been taken; (2) the name of each individual who collected the specimens; (3) the places in which the specimens were collected and the date of each collection; (4) the name of each individual who received the specimens in the testing laboratory; and (5) the dates the specimens were received. Okla. Stat. Ann. tit. 10, § 7700-504 (A), B).

[4]

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

[5]

. As noted earlier at page 5, if an applicant does not qualify as a child under section 216(h)(2)(A) of the Act, he or she may still be deemed by the agency to be the child of the insured individual under three alternative federal standards set forth in section 216(h)(3). However, we need not further examine whether the evidence is sufficient to establish J~ as the number holder’s deemed child under this alternate federal standard because we conclude that J~ is the number holder’s natural child under Oklahoma’s intestate succession laws per section 216(h)(2)(A) of the Act.

[6]

. SSR 06-02p explains that this policy avoids the redundancy and unnecessary administrative burden that would occur if the agency had to review the known child’s relationship to the number holder under state law when the agency already determined that the known child was the number holder’s child under a federal definition of section 216(h)(3) of the Act.

[7]

. Social Security Ruling 85-17, examining a particular Wisconsin inheritance statute and this issue of legitimacy, states generally that “courts have consistently distinguished between statutes that legitimate children and those which merely confer inheritance rights. While acts of legitimation tend to be given effective retroactive to the birth of the child, acts which confer inheritance rights without legitimating the child operate prospectively only.” SSR 85-17, 1985 WL 56848 (S.S.A. 1985) (noting that the particular Wisconsin inheritance statute, which distinguished between legitimate children and illegitimate children, did not confer legitimacy, but conferred only inheritance rights, and as such, because there was no case law or legislative history to the contrary, operated prospectively from the act conferring inheritance rights).

[8]

. Even prior to adopting the UPA, Oklahoma law sought to equalize the rights of illegitimate and legitimate child. In 1974, the Oklahoma Legislature declared that all children born within the State “shall be” deemed legitimate. See Okla. Stat. Ann. tit. 10, § 1.2 (repealed by Laws 2006, c. 116, §62, effective Nov. 1, 2006). 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. See Okla. Stat. Ann. tit. 10, § 1.1 (repealed by Laws 2006, c. 116, §62, effective Nov. 1, 2006); see also State ex rel. Dept. of Human Service on Behalf of Snellings v. Strohmeyer, 925 P.2d 77, 78 (Okla. Civ. App. 1995) (giving effect to “the obvious intent underlying §1.1 to remove the socially stigmatizing terms of ‘illegitimacy’ and ‘bastard’ from the legal lexison”).

[9]

. 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. C2~ has asserted that C1~ is the NH’s natural child. There is no evidence or claim of adoption, stepchild status, or grandchild status. Thus, our focus is only upon whether C1~ is the NH’s natural child.

[10]

. Although the court also stated that “Respondent acknowledges that Decedent, [the NH], held the minor child out as his child, and treated him accordingly,” it did so under the heading “Acknowledgement.” The court did not reference this statement in the section of the decision related to its paternity finding. Thus, the only evidence that the court cited when making its paternity finding was the DNA test report. Moreover, we have no additional evidence supporting this statement of acknowledgment. Indeed, the agency’s numident records and C1~’s original birth certificate did not identify the NH as his father while the NH was alive and no other evidence was presented to support this proposition.

[11]

. In 2006, Oklahoma adopted the Uniform Parentage Act. Okla. Stat. Ann. tit. 10, § 7700-101. The Oklahoma Supreme Court has recognized that the UPA applies to all parental determinations, including intestate and probate proceedings. In re Estate of Dicksion, 286 P.3d at 290.

[12]

. We do not further examine in this opinion whether or not the DNA test report in this case complied with Oklahoma law and would be admissible evidence to establish paternity because the DNA test did not disclose a 99 percent probability of paternity. See Okla. Stat. Ann. tit.10, §§ 7700-503, 7700-504 (UPA provisions regarding admissibility of genetic testing evidence). Therefore, whether the test conformed to Oklahoma law is irrelevant given that the results do not support the probability of paternity.

[13]

. The copy of the DNA test report is illegible in parts and the “Probability” in the “Statistical Results” box is difficult to clearly read, but it appears to state either 56.52 or 66.52 percent. Therefore, we rely on the agency’s district office report dated February XX, 2015, and the Dallas Regional Office’s reading of the report as showing 56.52 percent probability of a biological relationship. Regardless of which of the two possible values is correct, the analysis remains the same because both are below the statutory threshold that would establish a paternal relationship under Oklahoma law. The report indicates that the probability relates to the probability of whether “the individuals tested are biologically related,” and is not a specific –nephew-uncle determination. The report also appears to find a combined first order index of 1.3. The report explains the combined first order index as follows: “If the number listed is less than 1, it is unlikely (<50 percent probability) that a biological relationship exists between the individuals tested. If the number listed is equal to 1, then a 50 percent probability exists that the individuals tested are biologically related. As the number increases, so does the percentage probability of relationship. When the number reaches 100, the tested relationship is highly probable, practically proven.”

[14]

. As discussed above, we have previously held that the DNA test results of a deceased number holder’s brother could support, with other evidence, a parent-child relationship between a child and the number holder. See POMS PR 01005.040.A Oklahoma, PR 12-106 Oklahoma State Law Status of Child Relationship (NH Mark ~: SSN ~) – REPLY (May 30, 2012). In that claim, the evidence also included statements from the purported uncle that he was the NH’s biological brother, never had sexual relations with the child’s mother, was the child’s uncle, and that the child was not his daughter. See id. The claimant also provided statements claiming that the NH had only one brother, that the claimant’s mother had never had sexual relationships with the purported uncle, and that she was only sexually active with the NH. See id. Unlike the facts in that claim, the present matter showed only a 56 percent probability, the evidence does not negate the possible existence of a third brother, and there are fewer statements of record that support the conclusion that the NH, and not his brother, is C1~’s father.


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PR 01105.040 - Oklahoma - 09/20/2016
Batch run: 09/20/2016
Rev:09/20/2016