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.
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.
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
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.
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
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
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.
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
Joseph P. Palermo, III
Assistant Regional Counsel