The Claimant was awarded Child Insurance Benefits (CIB) beginning March 2012 based on a filing date of August 23, 2011. The field office determined that the Claimant was the NH’s daughter based on the clear and convincing evidence standard but denied retroactivity of benefits under the policy conferring that inheritance rights generally has effect only from the date of such act/event. For retroactivity of benefits, the Kentucky Supreme Court has held that it is beyond dispute that a child born out of wedlock has exactly the same rights to inherit as does a legitimate child. The DNA evidence and statement from the deceased number holder’s daughter provide clear and convincing evidence that the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record and Claimant would be eligible for benefits from six months before her application.

QUESTION

You asked whether DNA testing results showing a 97.8% probability of half-siblingship between the claimant and the deceased number holder’s daughter along with a statement from the deceased number holder’s daughter that the deceased number holder told her the claimant was his baby, suffices to establish the claimant is the number holder’s child for determining the claimant’s eligibility for child’s insurance benefits (CIB) on the number holder’s earnings record.   You also asked, if the claimant is determined to be the number holder’s child, when the claimant’s eligibility would begin.   

OPINION

The DNA evidence and statement from the deceased number holder’s daughter provide clear and convincing evidence that the claimant is the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earnings record. Claimant would be eligible for benefits from six months before her application.

BACKGROUND

According to the information provided, Sarah, the mother of Audrie (Claimant), filed an application on Claimant’s behalf for CIB on the earnings record of Ralph, the number holder (NH).  The Social Security Administration (SSA) awarded CIB to Claimant beginning March 2012. Claimant was born on April. Claimant’s birth certificate and a hospital record of birth do not list her father.  A family history page also does not indicate the name of Claimant’s father. NH’s death certificate indicates he was a resident of Kentucky when he died on January 29, 2010. The information provided states Claimant’s mother was not married to NH and nothing indicates she was married to anyone else. 

SSA awarded Claimant CIB on NH’s earnings record based on out-of-state DNA testing and a statement from Debra, who is NH’s daughter (C1). The DNA testing used samples from Claimant, Claimant’s mother, and C1.  The DNA test results, dated October 20, 2011, showed a 97.8% probability of half-siblingship between Claimant and C1, that is, a 97.8% likelihood that they shared a common biological parent. SSA records show that Claimant and C1 do not share a mother. Claimant’s mother reported that NH had admitted to C1 that he was Claimant’s father, and Claimant’s mother indicated that NH had written letters where he referred to Claimant as his child, but she did not have any other evidence of NH’s paternity and the information provided did not include any such letters. C1 provided a statement dated March 5, 2012, in which she stated NH told her in or around August 2009 that Claimant’s mother was pregnant and he believed he was the father. NH purportedly told C1 that she was going to have a sibling and said, “it’s my baby.”  C1 also stated that her husband was present when NH made this statement, but the information provided does not included a statement from C1’s husband. 

Claimant was awarded Child Insurance Benefits (CIB) beginning March 2012 based on a filing date of August 23, 2011. The field office determined that Claimant was NH’s daughter pursuant to Program Operations Manual System (POMS) GN 00306.500(A)(1) under a clear and convincing evidence standard and denied retroactivity of benefits under POMS GN 00306.055(A)(3).  The Great Lakes Program Service Center received the case on reconsideration request appealing the decision on retroactivity of benefits. We have been asked if there is sufficient evidence to prove the purported relationship between Claimant and NH and if so, when Claimant’s eligibility for benefits would begin.

DISCUSSION

To be eligible for CIB on the earnings record of a fully or currently insured deceased individual, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (West 2013). Unless otherwise noted, all subsequent references to the C.F.R. are to the 2013 edition.

 “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. When a claimant’s parents have not gone through a marriage ceremony, the claimant may show she is “the child” of a deceased individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) Nothing in the information provided suggests that the provisions of section 216(h)(3)(C) of the Act would apply here.  The evidence does not indicate that NH acknowledged his paternity of Claimant in writing, include a court decree or order related to NH’s paternity of Claimant, or indicate NH was living with or contributing to Claimant’s support at the time of his death. As such, we do not analyze section 216(h)(3)(C) further.

Of the Act. Under section 216(h)(2)(A), a claimant must show she would be entitled to a child’s share of the insured’s intestate personal property under the law of the state in which the insured was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) GN 00306.055(A)(1). According to NH’s death certificate, NH was domiciled in Kentucky when he died.  Therefore, we look to Kentucky intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). 

Under Kentucky law, if NH died with kindred, his intestate estate would pass to his kindred beginning with his surviving children. See Ky. Rev. Stat. Ann. §§ 391.010, 391.030 (West 2013); Unless otherwise noted, all subsequent references to the Ky. Rev. Stat. Ann. are to the 2013 West edition.

see also Fykes v. Clark, 635 S.W.2d 316, 317 (Ky. 1982) (“When a person dies intestate, both real and personal property shall descend in common to his children or their descendants.”).

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

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

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

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

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

Ky. Rev. Stat. Ann. § 391.105(1). The F~ court stated that clear and convincing does not mean uncontradicted proof, but requires proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people. See F~, 635 S.W.2d at 318; see also Chester for Chester v. Sec’y of Health & Human Servs., 808 F.2d 473, 479 (6th Cir. 1987)(applying F~ in a CIB case).  Given the information provided, Claimant could not qualify as NH’s child under subsection (a) of Ky. Rev. Stat. Ann. § 391.105(1) because NH and Claimant’s mother did not participate in a marriage ceremony. The evidence also does not include an adjudication of paternity as required by subsection (b) of Ky. Rev. Stat. Ann.       § 391.105.  However, SSA does not require that a claimant obtain such a determination by a state court but will use the standard of proof that the state court would use as the basis for a determination of paternity.  See 20 C.F.R. § 404.355(b)(2).

Kentucky paternity law provides that genetic test results are admissible in an adjudication of paternity and must be weighed with other evidence of the alleged father’s paternity. See Ky. Rev. Stat. Ann. § 406.091(3).  A rebuttable presumption of paternity exists if a court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%) based on genetic testing. See Ky. Rev. Stat. Ann. § 406.111. Here, the DNA testing does not create a rebuttable presumption that NH was Claimant’s father as it showed only a 97.8% probability that Claimant and C1 are half-sisters. We note there is no evidence to suggest that Kentucky courts would treat genetic test results from an out-of-state testing facility any differently from those of an in-state facility. See POMS PR 01115.020(A) (PR 10-112).   However, SSA must weigh the DNA test results with the other evidence available to determine whether clear and convincing evidence exists to show that Claimant is NH’s child. See id.; F~, 635 S.W.2d at 318 (establishing clear and convincing evidence standard); see also Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *1 (Ky. Ct. App. 2006) (considering DNA testing showing 99.945% probability of paternity but noting that paternity was not established until the widow stipulated to that fact and that DNA was merely proof in support of an allegation, but did not conclusively prove paternity); Social Security Ruling 06-02p, 2006 WL 1609671, at *2-3 (SSA will determine whether the evidence relating to a claimant’s relationship to a known child of a number holder, including DNA testing showing a high probability of siblingship and any other evidence of such relationship, establishes that the claimant is the number holder’s child under applicable state law). 

We believe a Kentucky court would find the evidence presented sufficient to establish NH’s paternity of Claimant given the facts of previous cases. In F~, the Kentucky Supreme Court found that a purported child had produced sufficient evidence to establish paternity through testimony from the natural mother, the sister of the decedent, and the administratrix of the estate without any DNA or blood testing. See F~ 635 S.W.2d at 318.  The witnesses in that case provided uncontradicted testimony of a relationship between the child’s mother and decedent consistent with paternity, that the mother and decedent expected that the mother was pregnant, the decedent informed witnesses that he was the expectant father, and that the couple planned to be married before decedent died unexpectedly. See id. Here, although there is no evidence that NH and Claimant’s mother intended to wed, Claimant’s mother alleges NH’s paternity of Claimant and the information indicates NH informed C1 that she was going to have a brother or sister and said “it’s my baby,” referring to Claimant.  There is no available information contradicting these statements. The F~ court stated that clear and convincing does not mean uncontradicted proof, but requires proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people. See id. Given the evidence provided, including NH’s apparent admission to paternity as well as the DNA evidence showing a 97.8% probability of half-siblingship between Claimant and C1, we believe a Kentucky court would find that Claimant had established NH’s paternity by clear and convincing evidence. The evidence provided here is similar to that in the F~ case and the DNA evidence lends further credibility to Claimant’s claim because the F~ court did not have DNA evidence and still found paternity. 

We realize that previous opinions from this office have found that other claimants had not provided sufficient evidence to establish paternity by clear and convincing evidence, even in light of more compelling DNA evidence than exists here. See e.g., POMS PR 01115.020(A) (PR 10-112); PR 01115.020(B) (PR 09-048); PR 01010.020(B) (PR 12-060); PR 01010.020(C) (PR 11-016).  However, we believe these opinions are distinguishable. These opinions all involved factual circumstances in which the only uncontradicted evidence of paternity were DNA test results. See POMS PR 01115.020(A) (PR 10-112); PR 01115.020(B) (PR 09-048); PR 01010.020(B) (PR 12-060); PR 01010.020(C) (PR 11-016). Thus, consistent with the reasoning from the C~ case above, we concluded in those opinions that the DNA test results alone were not sufficient to establish paternity. In Claimant’s case, however, other uncontradicted evidence supports the DNA test results and the evidence considered together provides clear and convincing evidence that Claimant is NH’s child for purposes of Kentucky intestacy law. Cf. POMS PR 01010.020 (PR 12-100)(finding DNA test evidence along with uncontradicted statements from multiple sources sufficient to rebut the presumption of husband’s paternity that exists when a child is conceived during a marriage). 

As to retroactivity of benefits, the Kentucky Supreme Court has held that “[i]t is beyond dispute that an illegitimate child has exactly the same rights to inherit as does a legitimate child.” Wood v. Wingfield, 816 S.W.2d 899, 900 (Ky. 1991).  Therefore, it appears that Claimant is entitled to receive benefits for up to 6 months prior to her application, rather than from the date that the DNA testing and NH’s daughter’s statement were provided to SSA. See 20 C.F.R. § 404.621(a)(2); POMS PR 01115.020 (PR 07-006), PR 01115.020 (PR 06-290). 

CONCLUSION

For the foregoing reasons, the evidence provides clear and convincing proof that Claimant is NH’s child for purposes of intestate succession in Kentucky. Therefore, Claimant is NH’s child for determining her eligibility for CIB on NH’s earnings record.  

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By___________

Christopher Yarbrough

Assistant Regional Counsel

There is no evidence to suggest a Kentucky court would treat genetic test results obtained from an out-of-state testing facility differently from those from an in-state testing facility. Still, such results are not sufficient under Kentucky intestacy law to establish a parent child relationship without additional supporting evidence.

Question

You asked whether the claimant is the child of the deceased number holder for purposes of child’s insurance benefits based on an out-of-state paternity determination and genetic testing of the claimant and his purported half-sister.

OPINION

We believe the evidence submitted, standing alone, is insufficient to establish the claimant is the

Background

On May 28, 1993, Logan (Claimant) was born out-of-wedlock to Shannon in Shelbyville, Indiana. Shannon alleges Claimant was the result of a sexual relationship she had with Gary (the NH). The NH and Shannon never married or co-habitated and there is no evidence the NH ever paid child support for Claimant. The NH did not list Claimant as his child on his application for disability benefits. The NH died a resident of Kentucky on December 15, 2003. Shannon claims she was not aware the NH was receiving disability benefits at the time of his death. Shannon also alleges she could not afford paternity and DNA testing at the time of the NH’s death.

After the NH died, Shannon filed an application for Title IV-D Child Support Services with the Indiana Department of Child Services. The State of Indiana obtained DNA testing of Claimant, Shannon, Claimant’s alleged half-sister, Vanessa, and Vanessa’s mother, Alice . On December 29, 2008, this testing revealed a 99.98 percent probability that Claimant and Vanessa share the same biological father. Alice reported that she married the NH on March 4, 1977. Vanessa was born on December in Jefferson County, Kentucky. Vanessa’s birth certificate lists the NH as her father.

On April 1, 2009, the State of Indiana, on behalf of Claimant and Shannon, filed a Petition to Establish Paternity, alleging Claimant is the NH’s child. The Petition cited the DNA test results, as well as Shannon’s allegation that Claimant was born during a time when Shannon and the NH were having a sexual relationship. On May 21, 2009, the Superior Court of Shelby County, Indiana found the NH “is the natural, biological, and legal father” of Claimant and ordered that “all records shall be changed accordingly.”

On June 4, 2009, Shannon filed an application for child’s insurance benefits on behalf of Claimant on the NH’s account. On June 9, 2009, the Social Security Administration (SSA) issued a Notice of Award determining Claimant was entitled to child’s insurance benefits as of April 2009. The program service center subsequently reviewed this claim, questioned the accuracy of this determination, and suspended Claimant’s eligibility for benefits.

Discussion

Entitlement to Child’s Insurance Benefits – In General

To qualify for child’s insurance benefits on the earnings record of an insured individual who has died, a claimant must be the insured individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1). In this case, Claimant’s status as the surviving child of the NH is governed by section 216(h)(2)(A) of the Act. ^[1] To establish his status as the surviving child of the NH under section 216(h)(2)(A) of the Act, Claimant must show he could inherit the NH’s personal property as his child under the intestacy laws of the state where the NH had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2009). Because the NH was domiciled in Kentucky when he died, the question is whether Claimant would be considered the NH’s child for purposes of intestate succession under Kentucky law.

Claimant cannot be deemed the child of the NH under section 216(h)(2)(B) of the Act because the NH and Shannon did not participate in a purported marriage ceremony. Section 216(h)(3)(C)(i) of the Act is inapplicable in the absence of evidence that, prior to his death, the NH (1) acknowledged Claimant as his son in writing, (2) was decreed by a court to be Claimant’s father, or (3) was ordered by a court to contribute to Claimant’s support. Section 216(h)(3)(C)(ii) of the Act also is inapplicable because the NH was not living with or contributing to Claimant’s support when the NH died.

Kentucky Law

A child born out-of-wedlock may inherit from his father through intestate succession if there has been an adjudication of paternity after the death of the father based on clear and convincing evidence. See Ky. Rev. Stat. Ann § 391.105(b)(2) (West 2010). The Indiana state court issued an order declaring Claimant to be the child of the NH more than five years after the NH’s death. A Kentucky court will ordinarily give full faith and credit to paternity determinations issued by another state unless the judgment is void under the laws of the state in which it was issued. See Waddell v. Commonwealth of Ky., 893 S.W.2d 376, 379 (Ky. Ct. App. 1995)(finding full faith and credit should be accorded to an Indiana paternity order in a criminal action for failure to pay child support).

With respect to the validity of the Indiana paternity order, we consulted with the Office of the Regional Chief Counsel, Region V (Region V). Region V opined that the paternity action filed by the State of Indiana should have been time barred because it was filed more than five months after the death of the alleged father, citing Ind. Code § 31-14-5-5 (2010). We recognize that SSA will not “apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker’s death or the child’s birth. . . .” 20 C.F.R. § 404.355(b)(2). However, we read this provision as applicable to any state inheritance law controlling a determination of child-status, in this case, Kentucky inheritance law. The Preamble to the Federal Register entry that explains the purpose of section 404.355(b)(2) states that time limits of this type, are intended to provide for an orderly and expeditious settlement of estates. Since this is not the purpose of Social Security benefits for children, we will not apply a State’s time limits within which a child’s relationship must be established when we determine a child’s status under section 216(h)(2)(A) of the Act. 63 Fed. Reg. 57590, 57591 (Oct. 28, 1998). Section 404.355(b)(2) also states that “[i]f 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 using the standard of proof that the State court would use as the basis for a determination of paternity.” The Preamble to the Federal Register entry explains that “[w]e believe that the requirement of section 216(h)(2)(A) of the Act to apply State law will be satisfied if we apply the same substantive standard as a State court would apply to determine paternity.” 63 Fed. Reg. at 57592. Reading these provisions together, we believe section 404.355(b)(2) requires SSA to apply the substantive standards that a Kentucky court would apply to determine paternity for purposes of intestate succession in a case that was properly before the trial court. That is, SSA would not apply any time limitation set forth in Kentucky inheritance law that might bar consideration of the child’s claim, but would apply the substantive standards a Kentucky court would use to determine paternity. These substantive standards include the standards a Kentucky court would use to determine whether to give full faith and credit to the Indiana paternity order. Since Kentucky would not give full faith and credit to an invalid Indiana paternity order, neither would SSA, notwithstanding the basis for that invalidity—Indiana’s time limits on paternity decisions.

Even if the Indiana paternity order was valid and entitled to full faith and credit by a Kentucky court, SSA is not obligated to defer to the findings of the Indiana state court. SSA must accept the determination of a state court as proper where: (1) the issue in a claim for Social Security benefits has been previously determined by a state trial court of competent jurisdiction; (2) such issue was genuinely contested before a state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations; and (4) resolution by the state trial court was consistent with the law as enunciated by the highest court in the state. See Social Security Ruling (SSR) 83-37c; see also the Preamble language at 63 Fed. Reg. at 57592, which confirms the application of SSR 83-37c to 20 C.F.R. § 404.355(b)(2) determinations. SSA is under no obligation to defer to the findings of the Indiana state court because there is no evidence the issue of paternity was genuinely litigated by parties with opposing interests. The paternity petition was filed more than five years after the NH’s death. The record contains no evidence that any party filed a response in opposition to the paternity petition.

We have been unable to locate any authority to suggest a Kentucky court would treat genetic test results obtained from an out-of-state testing facility differently from those from an in-state testing facility. Genetic testing is admissible in a paternity action and is weighed along with other evidence to determine paternity. Ky. Rev. Stat. Ann § 406.091(3) (West 2010). Therefore, a Kentucky court would have the discretion to evaluate the qualifications of the testing facility or the accuracy of the test results. However, this issue would not be dispositive in this case. While genetic testing of a number holder’s relatives would be admissible before a Kentucky court and probative of the issue of paternity, such testing results would not alone constitute clear and convincing evidence. See Program Operations Manual System (POMS) PR 01115.020A. Therefore, the genetic test results showing a 99.98 percent probability that Claimant and Vanessa ^[2] were half-siblings are, alone, insufficient to establish paternity by clear and convincing evidence for purposes of intestate succession.

The record contains no other evidence suggesting the NH was Claimant’s father. The NH and Shannon never married or cohabitated, and there is no evidence the NH ever acknowledged, verbally or in writing, that Claimant was his child. Nor is there evidence the NH paid child support or otherwise contributed to Claimant’s support. The NH did not list Claimant as his child on his application for disability benefits.

Conclusion

For the foregoing reasons, it is our opinion that Claimant is not the NH’s child for purposes of intestate succession in Kentucky. Therefore, Claimant is not eligible to receive child’s insurance benefits on the account of the NH.

Mary Ann Sloan

Regional Chief Counsel

By: _________

Christopher G. Harris,

Assistant Regional Counsel

In a case where two DNA tests of the claimant and the NH's sister show, respectively, a 94.07% and 99.58% probability that they are related a Kentucky court would find such tests probative of the issue of paternity, but not clear and convincing without additional supporting evidence.

Question Presented

You asked whether DNA test results showing a relationship between the child claimant and the number holder's sister constitute clear and convincing proof to establish the child claimant is the child of the number holder under Kentucky intestacy laws.

Answer

Having considered applicable federal and state laws and the evidence presented, we believe the DNA test results do not satisfy the clear and convincing proof standard of paternity for inheritance purposes under Kentucky law. Therefore, we believe the evidence does not establish that the child claimant is the child of the number holder for the purposes of child's insurance benefits. Although you also asked us to address whether the claim could be allowed retroactively to the initial filing date of October 24, 2004, we do not address this issue given that the evidence presented does not establish entitlement to benefits in this case.

Background

Gary , the number holder (NH), and Sara (Claimant's mother) had an intermittent relationship that ended in June 2002. Claimant's mother had previously married Arnold in February 2001, and the couple never divorced. In November 2002, Claimant's mother told NH she was pregnant with Arnold' s child. Arnold was present at the hospital when McKenzie (Claimant) was born on February, and he is listed as the father on her birth certificate. NH died on March 30, 2003, while domiciled in Kentucky, and never acknowledged Claimant as his.

Claimant's mother protectively filed an application on Claimant's behalf for child's benefits on NH's earnings record on October 26, 2004. At that time, NH's sister, Shelly , provided a sworn statement indicating she did not know if Claimant was NH's child. Shelly also reported that Claimant's mother wanted to give Claimant NH's last name, but NH had refused this request. The Agency denied the application based on the birth certificate listing Arnold as Claimant's father, the fact that Arnold and Claimant's mother were married when Claimant was born, and Shelly's statement.

On April 20, 2006, Claimant's mother filed a second application for child's benefits on NH's record. In support of this application, Claimant's mother submitted results of a March 2006 DNA test showing a 94.07% probability that NH's sister, Shelly, had an avuncular relationship to Claimant. The Agency requested that Claimant's mother provide copies of the birth certificates of NH, Shelly, and Claimant, and evidence of Claimant's mother's marriage to Arnold. After Claimant's mother failed to provide the requested documentation, the Agency denied the application.

Claimant's mother filed a third application on August 3, 2007. In addition to the previously submitted documents, Claimant's mother provided a June 2007 DNA test showing a 0.00% probability that Arnold is Claimant's father. Shelly also revised her earlier 2004 statement and claimed that Claimant was NH's child based on a family resemblance. Shelly also claimed that NH was not sure whether Claimant was his child and wrote a letter indicating he wanted his family to take care of Claimant if it was later determined he was her father. Neither Claimant's mother nor Shelly provided a copy of this purported letter.

NH's ex-wife and his two legitimate children also provided sworn statements indicating their belief that NH was not Claimant's father. These statements portray Claimant's mother as a drug addict who slept with several other men, including NH's brother and nephew, and left for weeks at a time during her relationship with NH. According to these statements, NH denied being Claimant's father, and Claimant's mother claimed that Arnold was the father. NH's ex-wife and children also describe Shelly as "sneaky" and "Conniving." The Agency denied the application finding that the evidence was insufficient to establish clear and convincing proof of paternity.

Shelly obtained custody of Claimant and filed a fourth application for child's benefits on Claimant's behalf on August 18, 2008. Shelly also submitted results of a second DNA test conducted in July 2007 showing a 99.58% probability that she is Claimant's aunt. Shelly also provided handwritten notes purportedly from NH's brother and nephew. NH's brother claimed he had a vasectomy in 1981 and had never had a relationship with Claimant's mother. NH's nephew stated that he "did not have a relationship or anything to do with" Claimant's mother. Shelly also submitted a Name Change Order dated August 4, 2008, indicating Claimant's last name was changed from McKenzie to Gary. She also submitted an amended birth certificate reflecting Claimant's name change, but the amended birth certificate still lists Arnold as Claimant's father.

Discussion

For purposes of child's insurance benefits under section 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d), "child" is defined as the child, adopted child, or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2008). Where, as here, a claimant's mother and putative father never married, the child claimant's status as the surviving child of a number holder is governed by either 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A), or section 216(h)(3)(C) of the Act, 42 U.S.C.§ 416(h)(3)(C).

To establish child status under section 216(h)(3)(C), Claimant must show she is the natural child of the NH and one of the following: (1) NH acknowledged in writing that she is his child; (2) a court decreed NH to be Claimant's father; (3) a court ordered NH to contribute to Claimant's support; or (4) NH is the father and was living with Claimant or contributing to her support at the time of his death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (4). The acknowledgment, court decree, or court order must have been made or issued before NH's death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). Claimant has not satisfied any of the criteria set forth in section 216(h)(3)(C).

To establish her status as the surviving child of NH under section 216(h)(2)(A), Claimant must show she would be entitled to a child's share of NH's intestate personal property under the law of the state in which NH was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). According to the record, NH was domiciled in Kentucky when he died. Therefore, Kentucky's law of intestate succession applies in determining Claimant's status as the lineal descendant of NH for purposes of section 216(h)(2)(A).

Because Claimant's mother was married to Arnold at the time of Claimant's birth and he is listed as the father on the birth certificate, we first examined the potential impact of Claimant's mother's marriage to Arnold on Claimant's ability to inherit from NH. A child born during lawful wedlock is presumed to be the child of the husband and wife. See KY. REV. STAT. ANN. § 406.011 (West 2008). Although this presumption is one of the strongest known to law, it is rebuttable and may be overcome "by evidence so clear, distinct and convincing as to remove the question from the realm of reasonable doubt." Bartlett v. Commonwealth ex rel. Calloway, 705 S.W. 2d 470, 472 (Ky. 1986). In its August 2007 Order granting Claimant's mother sole custody of Claimant, the Magoffin Circuit Court found sufficient evidence based on DNA testing to conclude Arnold was not Claimant's biological father. The Commissioner must accept the determination of a state court as proper where, as here: (1) the issue in a claim for Social Security benefits has been previously determined by a state trial court of competent jurisdiction; (2) such issue was genuinely contested before a state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations; and (4) resolution by the state trial court was consistent with the law as enunciated by the highest court in the state. See Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); Social Security Ruling (SSR) 83-37c. The circuit court had jurisdiction to consider Claimant's custody and paternity given that the affected parties were domiciled in Kentucky, and these issues fall within the category of domestic relations. Additionally, the issue of whether Arnold should have custody of Claimant was contested by Claimant's mother. Finally, as discussed more fully below, the Kentucky Supreme Court has found that genetic testing can be used to establish that someone other than the mother's husband is the father of a child. Thus, the presumption of the paternity of the husband (Arnold ) has been rebutted in this case and would not preclude a finding that Claimant may be entitled to a child's share of NH's intestate personal property under Kentucky law.

The applicable Kentucky statute regarding the inheritance rights of a child born out of wedlock states, in pertinent part:

For the purpose on intestate succession, if a relationship of parent and child must be established to determine succession by, through, or from a person, a person born out of wedlock is a child of the natural mother. That person is also a child of the natural father if . . . [t]here has been an adjudication of paternity after the death of the father based upon clear and convincing proof.

KY. REV. STAT. ANN. § 391.105(1)(b)(2) (2008). The burden of proof rests with the individual claiming the right to inherit from the putative father's estate. See Croucher v. Clark, No. 2005-CA-000736-MR, 2006 WL 1867909, at *2 (Ky. App. 2006) (unpublished disposition). Consequently, Claimant can inherit from the NH only if there is an adjudication of paternity based upon clear and convincing evidence. Although there has not been an adjudication of paternity by a Kentucky court in this case, the Agency does not require that a claimant obtain such a determination but will use the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2).

Under Kentucky caselaw, "clear and convincing does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Harris v. Stewart, 981 S.W.2d 122, 127 n.5 (Ky. App 1998) (citing Fykes v. Clark, 635 S.W.2d 316, 318 (Ky. 1982)). In F~, the court found testimony regarding the nature of the relationship between the child's mother and putative father coupled with uncontradicted testimony that the child's mother and putative father planned to marry before the father unexpectedly died to be sufficient to show clear and convincing evidence of paternity. F~, 635 S.W.2d at 318. In H~, however, the court found that the jury had not erred in determining the appellant was not the defendant's child where numerous witnesses gave conflicting testimony regarding his paternity. H~, 981 S.W.2d at 127.

In this case, NH's ex-wife and other children provided the only statements regarding the relationship between NH and Claimant's mother; and they portrayed Claimant's mother as a drug addict who slept with several other men, including NH's brother and nephew, and left for weeks at a time during her relationship with NH. Additionally, NH's ex-wife and children stated that both NH and Claimant's mother denied NH was Claimant's father. Shelly, NH's sister, originally stated that she did not know if Claimant was NH's child and that NH had refused to allow Claimant's mother's request to allow Claimant to have his last name. Even in her more recent statement, Shelly merely suggested that NH thought he might be Claimant's father and that Claimant resembled members of the Gary family.

Although Shelly obtained a name change order and amended birth certificate changing Claimant's last name to Gary, these actions would not appear to provide clear and convincing evidence that NH is Claimant's father. Pursuant to KY. REV. STAT. ANN § 410.020 (West 2008), a guardian may have the name of a child changed by the court in which the child resides if the parents are deceased or unavailable to execute the petition. In granting Shelly's petition to change Claimant's last name to Gary, the court made a finding of fact that NH was Claimant's father; however, it does not appear that the petition was uncontested or on what evidence the court made this finding. Moreover, in considering a change in a child's name, the court makes its determination by a preponderance of the evidence rather than by requiring clear and convincing evidence, which is a more stringent standard of proof. See Likins v. Logsdon, 793 S.W.2d 118, 121-22 (Ky. 1990). KY. REV. STAT. ANN. § 213.121 (West 2008) provides that the state registrar shall amend a birth certificate "[u]pon receipt of a certified copy of an order of a court changing the name of a person born in the Commonwealth and upon request of the person or the person's parents, guardian, or legal representative." Additionally, any weight that the name change may have would appear to be rebutted by the fact that Arnold is still listed as Claimant's father on the amended birth certificate.

The only evidence suggesting Claimant may be NH's child are the results of two DNA tests performed in March 2006 and July 2007 showing, respectively, a 94.07% and 99.58% probability that Shelly is related to Claimant. Kentucky law discusses the effect of genetic test results in a paternity context:

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

KY. REV. STAT. ANN. § 406.111 (West 2008). However, Kentucky's intestacy statutes and case law do not appear to address the issue of genetic testing of a putative father's relatives, although it appears that results of genetic testing of the putative father's relatives could be considered by the courts in adjudicating paternity. See Bartlett v. Comm. ex rel. Calloway, 705 S.W.2d 470, 473 (Ky. 1986) (testing allowed to prove child was fathered by someone other than husband. The court stated "When the advances of science serve to assist in the discovery of truth, the law must accommodate them. The law cannot pick and choose when the truth will prevail.").

Our review of court decisions in other states reveals that genetic testing of the putative father's relatives is, at a minimum, admissible evidence in inheritance proceedings on the issue of paternity. See Program Operations Manual System PR 01115.011D. Based on the case law from other jurisdictions, we believe a Kentucky court would find the genetic testing of NH's relatives probative of the issue of paternity, but not clear and convincing. See C~, 2006 WL 1867909, at *3 (DNA testing results showing a 99.945% probability of paternity were "merely proof in support of the allegation" of paternity and did not conclusively prove paternity.).

As previously noted, however, NH's ex-wife and children provided sworn statements that Claimant's mother had multiple sexual partners and may have had sexual relations with both NH's brother and nephew during her relationship with NH. Although Shelly provided handwritten notes purportedly from NH's brother and nephew denying they had relationships with Claimant's mother, these statements were not sworn under penalty of perjury. As a result, these notes appear to be of little probative value when weighed against the sworn statements of NH's ex-wife and children. Therefore, the DNA tests of Shelly, when considered with the other evidence, would not provide clear and convincing evidence that NH is Claimant's natural father.

Conclusion

For the foregoing reasons, we do not believe an Agency adjudicator could conclude the evidence in this case, including the DNA test results of NH's sister, satisfies the clear and convincing proof standard of paternity for inheritance purposes under Kentucky law. Therefore, we do not believe an adjudicator could conclude Claimant is NH's child for purposes of child's insurance benefits.

Mary Ann Sloan

Regional Chief Counsel

By: _________

Joseph P. Palermo, III

Assistant Regional Counsel

Although Kentucky intestacy statutes are silent on the accreditation of out-of-state genetic laboratories, DNA testing performed by such a laboratory whose director is "an expert qualified as an examiner of genetic markers" as outlined in the Kentucky statute can be considered in determining the parent-child relationship.

In this specific case, the DNA testing shows a 99.99 % probability that the deceased number holder is the father of the claimant. Since Kentucky treats all parent-child relationships equally the relationship rights are retroactive.

QUESTION PRESENTED

Whether Michael (Claimant) can receive survivor's benefits on the earnings record of Larry NH)?

ANSWER

We conclude that the DNA testing laboratory meets Kentucky accreditation requirements. We conclude that the DNA testing laboratory used here would meet Kentucky requirements and that Claimant would be eligible for benefits from six months before her application, not from the date of the DNA testing.

FACTS

NH died domiciled in Kentucky on November 12, 2005. Claimant was born on March. Claimant's mother filed an application for benefits on Claimant's behalf on NH's record on August 9, 2006. Claimant's mother submitted a report of DNA testing conducted in September 2005 showing a 99.99 % probability that NH was Claimant's biological father. The DNA testing was voluntary and arranged by a Kenton County child support officer. The blood was drawn from NH, Claimant, and Claimant's mother at a Covington clinic and sent to Orchid Genescreen, a Dayton, Ohio, laboratory accredited by the American Association of Blood Banks, for genetic testing. An affidavit establishes the chain of custody of the blood sample.

ANALYSIS

Kentucky apparently does not have a law regarding accreditation of out of state laboratories. The blood test at issue here apparently was arranged by the county attorney child support unit, but was not court-ordered. A court can order such testing when paternity is disputed. KY. REV. STAT. Sec. 406.091 (2006). The statute states that if genetic testing is required, the court "shall direct that inherited characteristics be determined by appropriate testing procedures, and shall appoint an expert qualified as an examiner of genetic markers to analyze and interpret results and report to the court." KY. REV. STAT. Sec. 406.091(1). A verified report from the expert may be used unless the expert is called as a witness. KY. REV. STAT. Sec. 406.091(6). This statute apparently gives the trial court judge discretion to determine whether an expert is qualified. Although the court did not order the testing here, the county courts may have designated Orchid Genescreen as a qualified expert for use in county child support cases. If so, the laboratory would likely meet accreditation requirements in Kentucky.

However, even without the court's designation, the DNA testing could be considered. The laboratory director's credentials seem to meet the credentials required for a licensed laboratory director in Kentucky (see website, above), and the laboratory has significant experience. Thus, the laboratory appears to be a "qualified" expert.

With respect to Claimant's month of entitlement, the Kentucky Supreme Court held in Wood v. Wingfield, 816 S.W.2d 899, 900 (1991), that "[i]t is beyond dispute that an illegitimate child has exactly the same rights to inherit as does a legitimate child." Therefore, it appears that Claimant is entitled to receive benefits for up to six months prior to his application rather than from the date of the DNA testing. See 20 C.F.R. § 404.621(a)(1)(ii) (2006).

CONCLUSION

The laboratory used here appears to meet the accreditation requirements of Kentucky law. Because Kentucky treats illegitimate children in the same manner as legitimate children, it appears that Claimant is eligible for benefits for up to six months prior to his application.

Mary Ann Sloan

Regional Chief Counsel

By: _________

Laurie G. Remter

Assistant Regional Counsel

In Kentucky, DNA testing showing a 99.97 percent probability that the claimant is a child of the deceased is clear and convincing proof that the claimant could inherit from the number holder's estate as his child.

Because the Kentucky Supreme Court has stated that "It is beyond dispute that an illegitimate child has exactly the same rights to inherit as does a legitimate child" under Kentucky's statutes, the parent-child relationship is retroactive to the date of birth and the claimant may receive six months retroactive benefits from the date of the application.

In considering this child's claim for survivor's benefits, you asked whether a DNA testing laboratory meets Kentucky accreditation requirements. You also asked whether, considering Kentucky intestacy law, the date of entitlement would be from the date of the DNA test or earlier. We conclude that the DNA testing laboratory used here would meet Kentucky requirements and that the claimant would be entitled to benefits from six months before his application, not from the date of the DNA testing.

FACTS

NH died domiciled in Kentucky on June 2, 2004. Claimant was born on October . Claimant's mother filed an application for benefits on Claimant's behalf on NH's record on March 15, 2006. Claimant's mother submitted a report of DNA testing conducted in February 2006 showing a 99.97 percent probability that NH was Claimant's biological father. NH's blood apparently was obtained during NH's post-mortem examination and sent to the Medical Examiner's Toxicology Laboratory, which then released a specimen to Orchid Cellmark, a Dayton, Ohio, laboratory accredited by the American Association of Blood Banks, for genetic testing. An affidavit establishes the chain of custody of the blood sample.

ANALYSIS

To establish his status as the surviving child of the deceased NH under section 216(h)(2)(A) of the Act, the state law definition of "child," Claimant must show that he would be entitled to a child's share of the NH's intestate personal property under the law of the state in which the NH was domiciled at the time of his death. According to the record, the NH was a resident of Kentucky at the time of his death. Therefore Kentucky's law of intestate succession applies in determining the child claimant's status as the lineal descendant of the NH for purposes of section 216(h)(2)(A) of the Act.

For purposes of intestate succession, a person is a child of the natural father if: "There has been an adjudication of paternity after the death of the father based upon clear and convincing proof." Ky. Rev. Stat. § 391.105(1)(b)(2) (2006). In Harris v. Stewart, 981 S.W.2d 122, 127 (Ky. App. 1998), the court referenced the Kentucky Supreme Court's reasoning in Fykes v. Clark, 635 S.W.2d 316, 318 (1982), noting that "clear and convincing does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people."

Kentucky law discusses the effect of genetic test results in a paternity context:

If the court finds that the statistical probability of paternity equals or exceeds ninety-nine percent (99%), as calculated by the experts qualified as examiners of genetic markers, and that paternity index, as calculated by the experts qualified as examiners of genetic markers, is one hundred (100) to one(1) or greater, there is a rebuttable presumption, affecting the burden of proof, of paternity. This presumption shall only be rebutted by a preponderance of the evidence. Ky. Rev. Stat. § 406.111 (2006).

We believe that this evidence would be admissible to establish a right to inherit under state intestacy law, although there is no case law directly on point. Further, it is our opinion that the genetic testing is clear and convincing evidence that Claimant is NH's son, that he could inherit from the NH under Kentucky intestacy law, and that he is entitled to child's benefits on the NH's account.

Kentucky apparently does not have a law regarding accreditation of out of state laboratories. The blood test at issue here apparently was ordered by the county attorney child support unit. A court can order such testing when paternity is disputed. Ky. Rev. Stat. Sec. 406.091 (2006). The statute states that if genetic testing is required, the court "shall direct that inherited characteristics be determined by appropriate testing procedures, and shall appoint an expert qualified as an examiner of genetic markers to analyze and interpret results and report to the court." Ky. Rev. Stat. Sec. 406.091(1) (2006). A verified report from the expert may be used unless the expert is called as a witness. Ky. Rev. Stat. Sec. 406.091(6). This statute apparently gives the trial court judge discretion to determine whether an expert is qualified. Further investigation may be needed to determine if a court designated Orchid Cellmark as the qualified expert here. If so, the laboratory would clearly meet accreditation requirements in Kentucky.

However, even without the court's designation, the DNA testing could be considered. The laboratory director's credentials seem to meet the credentials required for a licensed laboratory director in Kentucky (see attachment), and the laboratory has significant experience. Thus, the laboratory appears to be a "qualified" expert.

With respect to Claimant's month of entitlement, the Kentucky Supreme Court held in Wood v. Wingfield, 816 S.W.2d 899, 900 (1991), that "It is beyond dispute that an illegitimate child has exactly the same rights to inherit as does a legitimate child." Therefore, it appears that Claimant is entitled to receive benefits for up to six months prior to his application rather than from the date of the DNA testing. 20 C.F.R. § 404.621(a)(1)(ii) (2006).

CONCLUSION

The laboratory used here appears to meet the accreditation requirements of Kentucky law. Because Kentucky treats illegitimate children in the same manner as legitimate children, it appears that Claimant is entitled to receive benefits for up to six months prior to his application.

Mary Ann Sloan

Regional Chief Counsel

By: _________

Laurie G. Remter

Assistant Regional Counsel

INHERITIANCE RIGHTS - by Illegitimate Child - Kentucky

Relying on the decisions rendered in Rudolph v. Rudolph, 556 S.W.2d 152 (Ky. 1977) and Pendleton v. Pendleton, 560 S.W.2d 539 (Ky. 1978) we found that an illegitimate child, orally acknowledged by his father, had inheritance rights in the father's estate under Kentucky law.

(Oral Acknowledgement of Paternity Under Kentucky Law, RA IV (A~) to Dir. IPB, 9/9/82)

(SAME AS ABOVE) — Kentucky

The Kentucky Attorney General has rendered an opinion holding that an illegitimate child may inherit from either parent and not just the mother under Kentucky law. OA6 77-412 (July 7, 1977).

(Oral Acknowledgement of Paternity Under Kentucky Law, RA IV (A~) to Dir. IPB, 9/9/82)

This case has been referred for our opinion as to whether Brandy can be entitled as the illegitimate child of Willie based on oral acknowledgements of paternity. The number holder died July 2, 1977, domiciled in the State of Kentucky.

Kathy filed an application on October 1, 1981, on behalf of her daughter Brandy. The mother of the child and the number holder were never married. The number holder was never ordered by a court to contribute to the child's sup- port nor determined by a court to be the father of the child. He did orally acknowledge paternity but was not living with or contributing to the support of the child at the time of his death. No record of his ever having acknowledged the child in writing could be located.

The birth certificate for Brandy shows that she was born May in Tennessee and shows Kathy as mother (informant) but a father's name is not shown.

Statements in the file by Ann , the number holder's mother and by Bertha , his fiancé at the time of his death, indicate that he orally acknowledged the child to be his.

Your specific question is whether an oral acknowledgement of paternity confers inheritance rights on an illegitimate child under Kentucky law and therefore allows Branch to be entitled to benefits as the child of the deceased number holder.

We initially note that KRS 391.090 provides in part that:

(2) A bastard shall inherit only from his mother and his mother's kindred.

(3) If a man who has had a child by a woman afterward marries her, the child or its descendants, if recognized by him before or after marriage, shall be deemed legitimate.

However, Kentucky court decisions have rendered the above statutory provisions a nullity. The Court of Appeals granted inheritance rights to an illegitimate child who had been orally acknowledged by his father by finding that section 391.090(2) violated section 2 of the Kentucky constitution. See, Rudolph v. Rudolph, 556 S.W.2d 152 (Ky. 1977). Moreover, the Kentucky Supreme Court has ruled that a statute which allowed an illegitimate to inherit from his father only if he has been legitimated through marriage is invalid as a denial of equal protection and is in violation of the U.S. Constitution. See, Pendleton v. Pendleton, 560 S.W.2d 539 (Ky. 1978).

Likewise, the state Attorney General relying on the R~ decision, rendered an opinion that an illegitimate child may inherit from either parent and not just the mother under Kentucky law. See, OAG 77-412 (July 7, 1977).

We found no later cases which would represent a retreat from this position or a modification of the court's decision in either Rudolph or Pendleton. As a result, it is our opinion that where paternity can be shown, through oral acknowledgements or otherwise, and there is clear and convincing evidence of such paternity, then the child will have inheritance rights in the father's estate under Kentucky law.

LEGITIMATION A/O ACKNOWLEDGMENT A/O RECOGNITION - State Requirements and Evidence

Under Kentucky law, an oral acknowledgement of paternity satisfies the recognition element of the Kentucky Legitimation Statute (Ky. Rev. Stat 391.090(3)).

In your memorandum of October 28, 1980, you asked whether an oral acknowledgement was sufficient to satisfy Ky. Rev. Stat. Section 391.090(3).

Beginning in February 1965, Shirley and the wage earner began living together in the home of the wage earner's father, apparently located in Kentucky. Prior to their marriage but while living with the wage earner, a son was born to Shirley on April , in Louisville, Ky. On November 26, 1966, Shirley and the wage earner were married in Tennessee. In November 1975, the wage earner and Shirley separated due to marital difficulties. The wage earner died on November 4, 1978, in Louisville, Ky. The file does not state where the wage earner was domiciled at the time of his death, but it is assumed he was domiciled in Kentucky.

Shirley alleges the wage earner orally acknowledged the child born out of wedlock to be his son. The school records and birth certificate reflect the wage earner as the father of this child. Shirley also alleges the wage earner paid the hospital expenses incurred as a result of the birth of this child. There is no contention or evidence in the file that anyone other than the wage earner is the father of the child.

Pursuant to Ky. Rev. Stat., Section 391.090(3), an illegitimate child is legitimated if the parents marry subsequent to the child's birth, and the child is recognized as the natural child of the father either before or after the marriage. The recognition requirement is satisfied by an oral acknowledgment of paternity. Warner v. Ward, 401 S.W.2d 62 (1966); Combs v. Combs, 234 S.W.2d 663 (1950). Consistent with these cases and in resolution of the question presented, we are enclosing three prior opinions from this office.

Since an oral acknowledgment by the father of a child born out of wedlock satisfies the recognition requirement of the Kentucky Statute and since Shirley has alleged that the wage earner orally acknowledged the child to be his, Shirley's allegations, if deemed credible, would constitute sufficient evidence to find the child is the son of the wage earner.