TN 60 (09-16)

PR 01115.040 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. the father, in writing, acknowledges himself to be the child’s father; or

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

  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. 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. 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 Tamara Lynn 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 15-049 Oklahoma State Law – Status of Child Based on Grandparent DNA Test (NH E~; SSN ~) – REPLY

DATE: December 10, 2014

1. Syllabus

Under Oklahoma law, a DNA test result from a single relative of an alleged father can establish the parent-child relationship between a deceased father and child. If genetic testing neither identifies nor excludes a man as the father of a child, as in this case where he was deceased, other evidence is admissible to adjudicate the issue of paternity. In this case, the grandparent DNA test results showing a 99 percent probability of grandmaternity combined with the Oklahoma divorce decree and obituary that established the deceased number holder was his parents’ only son would be admissible to induce an Oklahoma court to reach a firm belief that the children are the deceased number holder’s children. The parent-child relationship is established retroactively to birth, not prospectively only from the date of the DNA evidence provided.  

2. Opinion

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether E~ III (C6) and A~ (C7) (collectively referred to as the children) are entitled to Social Security child’s insurance benefits on E~’s (the deceased number holder’s) account. Specifically, you asked whether deoxyribonucleic acid (DNA) testing results of only one paternal grandparent (the deceased number holder’s mother and the children’s purported maternal grandmother), B~ (B~) with a 99.99% probability of grandmaternity for C7 and a 99.17% probability of grandmaternity for C6 constitutes proof of paternity under Oklahoma state law to entitle the children to child’s benefits on the deceased number holder’s account. Additionally, if the DNA report is sufficient to establish paternity, you asked whether the date of entitlement is from the date of the DNA test report (December XX, 2013) or whether it is retroactive to the childrens’ birth.

ANSWER

In our opinion, we find that the totality of evidence, including one paternal grandparent’s DNA and the additional evidence submitted, establishes a parent-child relationship between the deceased number holder and the children. Oklahoma law does not contain an express requirement that both purported paternal grandparents must participate in DNA testing for a court to determine paternity. Rather, under Oklahoma law, a DNA test report from a purported father’s relative, such as the grandmother in this case, can establish the parent-child relationship between a deceased father and a child. In addition, under Oklahoma law, the parent-child relationship is established retroactively, not prospectively, from the DNA report. As such, the claimants are entitled to surviving child’s benefits on the deceased number holder’s account retroactively, beginning June XX, 2013, six months immediately before December XX, 2013, the date of the childrens’ applications.

BACKGROUND

As we understand the facts, the deceased number holder died on April XX, 2009, while domiciled in Oklahoma. In January 2010, S~ (S~), the children’s mother, filed on their behalf a claim for Title II child’s benefits on the deceased number holder’s record. We do not know what evidence S~ provided to support the claims under this first application. In March 2010, SSA denied these claims. On December XX, 2013, S~ filed new claims for child’s benefits on the deceased number holder’s account and provided additional evidence, including the December XX, 2013, paternal grandmother DNA testing results.

There is no information as to the relationship between S~ and the deceased number holder, including no allegation of a marriage and no information as to their living arrangement at the time of the children’s birth and prior to the deceased number holder’s death. SSA’s numident record for C7 shows that he was born May, lists S~ as his mother, and does not list a father. SSA’s numident record for C6 shows that he was born on April, shortly after the deceased number holder’s death, lists S~ as his mother, and states that the father is unknown.

The information provided shows that the deceased number holder was the son of B~. 15 and E~Sr.. In particular, a copy of a Decree of Divorce the District Court of Comanche County, Oklahoma entered on September XX, 1997 (divorce decree) stated that B~ and E~ Sr. were legally married in Oklahoma on November XX, 1986. The divorce decree explained that prior to their marriage, B~ and E~ Sr. had two children: a son, E~ (the deceased number holder), who was born on June and a daughter, Eb~, who was born on October. The divorce decree established that B~ and E~ Sr. divorced on September XX, 1997, while living in Oklahoma. The divorce decree included a paternity determination showing that E~ Sr. was the deceased number holder’s natural father and ordering that the deceased number holder’s name be changed from E1~ to E2~. The divorce decree granted B~ custody of the deceased number holder and his sister, and granted visitation rights to and ordered child support from E~Sr.

The evidence submitted also includes a copy of grandparent DNA tests results. S~ submitted certified DNA tests dated December XX, 2013 of B~ and the children, showing the likelihood of grandmaternity of 119 to 1 and a 99.17 percent probability of grandmaternity between C6 and B~, and a likelihood of grandmaternity of 91,126 to 1 and a 99.99 percent probability of a biological relationship between C7 and B~.

Finally, S~ also submitted the deceased number holder’s obituary, which stated that the deceased number holder was survived by his parents, B~ and E~Sr., and that he was their only son. The obituary also stated that the deceased number holder was survived by four sons and three daughters, including C6 (who was not yet born on April , the date the number holder died, but was due on April XX, 2009) and C7 (though the obituary lists C7’s last name as F~ rather than S~, which is listed on the DNA test report). In addition to his parents and seven children, the deceased number holder was survived by one sister.

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. 16 Here, the children applied for benefits, are unmarried, and are under age 18. The agency will consider the children to be the deceased number holder’s dependent children if they are the deceased number holder’s natural children. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion that the children must establish is that they are the deceased number holder’s natural children.

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 child’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 child’s parent; or a court has ordered the number holder to contribute to the child’s support because the child is the number holder’s child; or

(4) the number holder and the child’s other parent have not married, but the child has evidence, other than the evidence described in (3) above, to show that the number holder is the child’s natural parent, as well as evidence to show that the number holder was either living with the child or contributing to his support at the time the child 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 child’s application.

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, S~ and the number holder were never married and did not participate in a ceremony that would have resulted in a valid marriage. It does not indicate that the number holder personally acknowledged the children as his own, though his obituary lists them both as his children. In addition, no court decreed the children to be the deceased number holder’s children or ordered him to contribute to their support. Further, there is no evidence that the deceased number holder was living with the children or contributing to their support at the time of his death (indeed, C6 was not born until after his death). Thus, we conclude that the children do not qualify as the deceased number holder’s natural children 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 they are eligible for child’s insurance benefits on the deceased number holder’s account, the children must show under the first test that they could inherit property through intestate succession as the deceased number holder’s natural children. 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.

See 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 (a)-(c). The children, therefore, must establish inheritance rights under the fourth method. See Okla. Stat. Ann. tit. 84, § 215(d). Although no court has determined through paternity proceedings that the deceased number holder was the children’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 analyze whether S~ has established by clear and convincing evidence that the deceased number holder is the children’s father. The Oklahoma Uniform Parentage Act 17 applies to parental determinations in intestate and probate proceedings and governs every determination of parentage in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A); In re Estate of Dicksion, 286 P.3d 283, 290 (Okla. 2012). Genetic testing is one means of establishing paternity under the Oklahoma Uniform Parentage Act. 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). In Oklahoma, a man is rebuttably identified as the child’s father if genetic testing reveals at least 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 accredited by 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. 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). 18

When a genetic testing specimen is not available from an alleged father, as in this case, a court may order genetic testing of the man’s other relatives, including parents, siblings, other children of the man and their mothers, and other relatives. Okla. Stat. Ann. tit. 10, § 7700-508(A). Here, because a DNA specimen was not available from the deceased number holder, S~ submitted evidence, including genetic testing of herself, the children, and B~, to establish a biological relationship between B~ and the children, and as a result, between the deceased number holder and the children. The deceased number holder’s father (E~) was not tested, as the evidence shows he was in jail at the time of the deceased number holder’s death and that his current whereabouts are unknown.

As stated, under Oklahoma law, a DNA test result from a single relative of an alleged father can establish the parent-child relationship between a deceased father and a child. See 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); Okla. Stat. Ann. tit. 10, § 7700-508(A) (listing the father’s relatives appropriate for genetic testing).

The DNA testing in this case complies with sections 7700-503 and 7700-504 of the Oklahoma Uniform Parentage Act. First, the DNA test took place at LabCorp, an AABB-accredited facility. See Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, M~, Ph.D, the laboratory’s designee, signed the DNA test reports before a notary public and verified the interpretation of the results. See Okla. Stat. Ann. tit. 10, § 7700-504. Third, the DNA test records satisfy Oklahoma’s chain of custody requirements. See Okla. Stat. Ann. tit 10, 7700-504(B).

The DNA test results also satisfy section 7700-505(A) of the Oklahoma law, which provides that a man is rebuttably identified as the child’s father if the genetic testing reveals at least a 99 percent probability of paternity and a combined paternity index of at least 100 to 1. See 10 Okla. St. Ann. § 7700-505(A)(1)-(2). Specifically, S~ presented a certified DNA test report dated December XX, 2013 that revealed a likelihood of grandmaternity of 119 to 1 and a 99.17 percent probability of grandmaternity with respect to C6 and B~. A second DNA test report revealed a likelihood of grandmaternity of 91,126 to 1 and a 99.99 percent probability of grandmaternity with respect to C7 and B~. Both DNA test reports state that B~ “could not be excluded as a biological grandparent” of the children. The DNA test reports further state that the results “support the allegation that a son of the grandmother is the biological father” of the children. Thus, in our opinion, the grandparent DNA test reports support the parent-child relationship between the children and the deceased number holder.

Under Oklahoma law, if genetic testing neither identifies nor excludes a man as the father of a child, as in this case where he was deceased, other evidence is admissible to adjudicate the issue of paternity. Okla. Stat. Ann. tit. 10, § 7700-631(3). Here, S~ presented additional evidence that supports her claim that the children are the deceased number holder’s natural children, including: (1) the deceased number holder’s obituary, which stated that C6 and C7 were his sons, and that the deceased number holder was the only son of B~ and E~Sr. and, (2) the September 1997 Oklahoma divorce decree, which stated that B~ and E~Sr., had only one son (the deceased number holder) and included a paternity determination showing E~ Sr. as the deceased number holder’s father, and identified B~ as the custodial parent for the deceased number holder and his sister. Because both the Oklahoma divorce decree and the obituary establish the deceased number holder’s relationship with B~ and show that the deceased number holder was the only son of B~ and E~Sr., this evidence excludes the possibility of the deceased number holder having another brother who could potentially be the children’s father.

In sum, the grandparent DNA test results showing a 99 percent probability of grandmaternity combined with the additional evidence of the deceased number holder’s obituary and the Oklahoma divorce decree would be admissible to induce an Oklahoma court to reach a firm belief that the children are the deceased number holder’s children. See In re A.L.F., 237 P.3d at 219 (explaining that the clear and convincing evidence standard is defined as “that measure of 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.”). Thus, we believe the totality of the evidence submitted constitutes clear and convincing evidence that the children are the deceased number holder’s children, and that they could inherit property as the deceased number holder’s natural children under Oklahoma law. 19 As a result, the children have established that they are the deceased number holder’s natural children under 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 children are the deceased number holder’s natural children under Oklahoma law, we next examine whether they are entitled to retroactive benefits and the date used to determine the allowance of retroactive benefits. You asked if the children can be awarded benefits only from the date of the DNA testing, which was completed on December XX, 2013.

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).20 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 children’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. 21 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). 22 As noted above, the Uniform Parentage Act 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 the 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 children are the deceased number holder’s children under Oklahoma intestacy law, they are considered the deceased number holder’s children from birth under Oklahoma law for purposes of determining their entitlement to retroactive benefits, and not prospectively from the date of the DNA evidence. 23 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). S~ filed a qualifying application on behalf of the children on December XX, 2013. Thus, the children are entitled to retroactive benefits beginning June XX, 2013, six months immediately before the month S~ filed their December XX, 2013, applications.

CONCLUSION

In our opinion, the totality of the evidence establishes that the children are the deceased number holder’s natural children. Further, such parent-child relationship is established retroactively, not prospectively only from the date of the DNA evidence provided. Therefore, in our opinion, the agency may award child’s insurance benefits effective June XX, 2013, six months immediately before the month S~ filed the December XX, 2013, application.

Sincerely,

Michael McGaughran
Regional Chief Counsel

By: Una McGeehan
Assistant Regional Counsel

E. PR 14-110 Oklahoma State Law – Use of Half-Siblingship DNA Report to Establish Child Relationship (NH A~; SSN ~) – REPLY

DATE: May 30, 2014

1. SYLLABUS

In this case, because a DNA specimen was not available from the deceased number holder, the claimant’s mother submitted a half-sibling DNA report to establish a biological relationship between the claimant and the number holder’s biological child. The report revealed a 96.3% probability of half-siblingship and a combined siblingship index of 26 to 1, which is less than the 99% probability of paternity and a combined paternity index of at least 100 to 1 required to establish paternity in Oklahoma. The claimant’s mother did not provide any further evidence to support her allegation that the number holder was the claimant’s father. The evidence is not sufficient to establish that the claimant is the number holder’s child under Oklahoma law. Because the evidence does not establish that the claimant would be entitled to inherit from the number holder under Oklahoma’s intestate succession laws, the claimant has not established entitlement to child’s benefits under the Act as the number holder’s natural child.

2. OPINION

QUESTION

This memorandum is in response to your request for a legal opinion on whether a January 2014 half-siblingship deoxyribonucleic acid (DNA) test report showing the relationship between A~ (A~) and A~ (A~), the number holder’s biological child and A~’s alleged half-sibling, establishes that A~ is A~’s (number holder) child for purposes of determining A~’s entitlement to Social Security surviving child’s insurance benefits on his earning record (account). If A~ is the number holder’s child, for purposes of determining entitlement to any retroactive benefits, you asked whether she is entitled to surviving child’s benefits beginning from the date of the DNA testing or retroactive to the date of the number holder’s death.

ANSWER

In our opinion, the half-siblingship DNA test report does not establish that A~ is the number holder’s child. Consequently, she is not entitled to surviving child’s benefits on the number holder’s account.

BACKGROUND

 As we understand the facts, an Oklahoma marriage certificate establishes that the number holder married S~ (S~) in August 1983. In August 1984, during the marriage, S~ gave birth to A~. A~’s birth certificate identifies the number holder as her father. In addition, when the number holder and Shelly divorced almost 14 years later in January 1997, an Oklahoma district court’s divorce decree shows that the court decreed the number holder to be A~’s father and ordered him to contribute to her support.

G~ (G~) married M~ (M~) in 1994, and she gave birth to A~ in December, during their marriage. A~’s birth certificate identifies M~ as her father. G~ contends, however, that the number holder is A~’s biological father. DNA testing performed in November 2006 to establish the relationship between A~ and M~ showed a 0.00% probability of paternity, indicating that M~ is not A~’s biological father. When M~ and G~ divorced in May 2007, an Oklahoma district court’s divorce decree recognized that the DNA testing determined that M~ is not A~’s father and provided that “he has no rights or obligations” toward her.

In July 2013, the number holder died while domiciled in Oklahoma. He never acknowledged A~ as his child. In February 2014, G~ filed a claim for surviving child’s insurance benefits for A~ on the number holder’s account. In support of her claim, G~ provided a DNA test report from January 2014 showing a 96.3% likelihood that A~ and A~ were half siblings. 24 Likewise, the report showed a 26 to 1 likelihood that A~ and A~ shared a common biological parent. 

ANALYSIS

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

The Social Security Act (Act) provides that the child of an individual number holder who dies as a fully or currently insured individual is entitled to surviving child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a). To be entitled to child’s benefits on an 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. See 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. 25 Here, it is undisputed that G~ applied for benefits on A~’s behalf. A~ is unmarried and under the age of 18. The agency will consider A~ to be dependent upon the number holder if she is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion that A~ must satisfy is that she is the number holder’s natural child.

A claimant proves that she is a number holder’s natural child if:

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

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

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

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

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

According to the information that we received, G~ 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 A~ as his child, no court decreed him to be her parent or ordered him to contribute to her support, and he never lived with A~ nor contributed to her support. Thus, we conclude that A~ does not qualify as the number holder’s natural child under tests two, three, or four. To prove that she is eligible for child’s benefits on the number holder’s account, A~ must show under test one that she could inherit property through intestate succession as the number holder’s child under Oklahoma law, 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).

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 her 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 her into his family;

(3) the father publicly acknowledges such child as his own, receiving her as such, with the consent of his wife, if he is married, into his family and otherwise treating the child as if she 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.

See 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(a)-(c). We have no evidence that the number holder acknowledged A~ as his child. Consequently, A~ must establish inheritance rights under the fourth method. See Okla. Stat. Ann. tit. 84, § 215(d). Although no court has determined that the number holder is A~’s father, the agency does not apply a state law that requires a court determination of paternity. See 20 C.F.R. § 404.355(b)(2). 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 establish paternity is “clear and convincing evidence.” See In re Estate of K~, 837 P.2d 463, 464 (Okla. 1990) (overruled on other grounds). Oklahoma courts define “clear and convincing evidence” as “that measure of 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). In this case, an Oklahoma court would analyze whether G~ has established by clear and convincing evidence that the number holder is A~’s father with the half-sibling DNA report as to the relationship between A~, the number holder’s biological child, and A~.

The Oklahoma Uniform Parentage Act governs determinations of parentage in Oklahoma, including paternal determinations in intestacy and probate proceedings. See Okla. Stat. Ann. tit. 10, § 7700-103(A); In re Estate of D~, 286 P.3d 283, 290 (Okla. 2012). Genetic testing is one means of establishing paternity under the Uniform Parentage Act. See 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(A). In Oklahoma, a man is rebuttably identified as a child’s father if the genetic testing reveals at least a 99% 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 genetic testing must take place in a laboratory accredited by 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. Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, a laboratory designee must sign the genetic 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). 26 When a genetic-testing specimen is not available from an alleged father, a court may order genetic testing of the man’s other children. See Okla. Stat. Ann. tit. 10, § 7700-508(A). Here, because a DNA specimen was not available from the deceased number holder, G~ submitted DNA testing to establish a biological relationship between A~, the number holder’s biological child (as established by her birth during her mother’s marriage to the number holder, her birth certificate, and the court’s divorce decree), and A~.

The DNA testing complies with sections 7700-503 and 7700-504 of Oklahoma law. First, the testing took place at the DNA Diagnostics Center, an AABB-accredited facility. Okla. Stat. Ann. tit. 10, § 7700-503(A). Second, Debra, Ph.D., the laboratory’s designee, signed the DNA test report before a notary public and verified the interpretation of the results. Okla. Stat. Ann. tit. 10, § 7700-504(A). Third, the DNA test records satisfy Oklahoma law’s chain of custody requirements. Okla. Stat. Ann. tit. 10, § 7700-504(B).

The DNA test results, however, do not satisfy section 7700.505(A). The testing demonstrates a 96.3% probability of half-siblingship, and a combined siblingship index of 26 to 1, which is less than the 99% probability that section 7700.508(A) requires to establish paternity in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-505(A). Because the DNA test results do not satisfy the express requirements of Oklahoma law, G~ has not established a prima facie case of paternity. Moreover, aside from her own unsupported allegation that the number holder is A~’s biological father, G~ has provided no further evidence to substantiate this claim, such as witness statements, admissions, declarations against interest, photographs, or similar physical evidence. Given the totality of the evidence submitted, an Oklahoma court would not find that G~ has clearly and convincingly shown that the number holder is A~’s father.

CONCLUSION

We conclude that the evidence is not sufficient to establish that A~ is the number holder’s child under Oklahoma law. Because the evidence does not establish that A~ would be entitled to inherit from the number holder under Oklahoma’s intestate succession laws, A~ has not established entitlement to child’s benefits under the Act as the number holder’s natural child.

Sincerely,

Michael McGaughran
Regional Chief Counsel

By: Eric D. Poole
Assistant Regional Counsel

F. PR 14-050 Updated - 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 I~ (I~) is entitled to surviving child’s insurance benefits on Tyler (deceased number holder) earnings record (account).  Specifically, you have asked whether siblingship deoxyribonucleic acid (DNA) testing results showing that I~ and I~ (I~) (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 I~ is also the number holder’s natural child.  Additionlly, for purposes of determining entitlement to any retroactive benefits, if the DNA report is sufficient to establish I~ 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 I~ is entitled to benefits, whether the agency can reopen a September 2011 application that I~’s mother filed on his behalf and that the agency denied. On January XX, 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 I~ was the number holder’s natural child, and the siblingship DNA evidence, establishes that I~ 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, I~ is entitled to surviving child’s benefits on the number holder’s account, retroactively, beginning April XX, 2013, six months immediately before the month I~ filed his October XX, 2013, application. Because I~ 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~), I~’s and I~’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.  I~, female, was born on November, and I~, male, was born on. Shortly after I~’s birth, the number holder signed a document acknowledging paternity of I~. Additionlly, her birth certificate lists the number holder as I~’s father. The agency granted I~’s claim for surviving child’s benefits on the number holder’s account. In contrast, the number holder’s name does not appear on I~’s birth certificate (and no other father is named), and the number holder did not sign a document acknowledging paternity of I~ prior to his death. The agency granted I~’s claim for surviving child benefits, but denied I~’s claim for surviving child’s benefits due to a lack of evidence of the relationship between I~ and the number holder. 

On October XX, 2013, A~ filed another surviving child’s benefit claim on I~’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 I~ and I~ are full siblings.  A~ also submitted a November XX, 2011 statement from Timothy in which he stated that he was the number holder’s cousin, that the number holder, A~, I~, and I~ lived with him from July XX, 2011 until the number holder’s death, and that A~, I~, and I~ 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 I~ 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 I~ is the number holder’s natural child. 

Here, it is undisputed that on October XX, 2013, A~ filed, on I~’s behalf, an application for child’s insurance benefits.  I~ is unmarried and under the age of 18.  The agency will consider I~ to be the number holder’s dependent child if I~ is the number holder’s natural child. See 20 C.F.R. § 404.361(a). Thus, the only remaining criterion I~ 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 I~ as his child, and no court decreed I~ to be the number holder’s child or ordered the number holder to contribute to I~’s support. Thus, we conclude that I~ 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 I~ 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 I~ 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 XX, 2011, statement from Timothy in which he stated that he was the number holder’s cousin and that the number holder, A~, I~, and I~ lived with him from July XX, 2011, until the number holder’s death in August 2011. Similarly, in the October 2011 application for benefits on I~’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 I~’s behalf, A~ indicated that I~ was not living with the number holder at the time of death. However, we first address whether I~ 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 I~ as his child. I~, therefore, must establish inheritance right under the fourth method. Id.  Although no court has determined through paternity proceedings that the number holder was I~’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 I~’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, I~ Although A~ submitted all the evidence on I~’s behalf, for purposes of our discussion, we will hereafter state that I~ submitted the evidence.

submitted evidence, including genetic testing of himself, A~, and I~ to establish a biological relationship between himself, A~, and the number holder’s natural child, I~.  For the reasons discussed below, we conclude that the genetic testing supports a finding that I~ 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 XX, 2011, Notice of Award letter regarding I~’s application for surviving child’s benefits does not specify the agency’s basis for determining that I~ was the number holder’s child. However, the agency determined that I~ was the number holder’s natural child under section 216(h)(3) based upon evidence submitted, including I~’s birth certificate and the number holder’s acknowledgment of paternity as to I~. As such, for the purposes of SSR 06-02p, I~ is the known child of the number holder.  We are unaware of any reason to question this relationship between I~ 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 I~ and I~. 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).  J~, 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, I1~’s, and I2~’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 I~ is the number holder’s child.  

Because the evidence shows that I~ is the number holder’s child, I~ 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 I~ as the number holder’s deemed child under this alternate federal standard because we conclude that I~ 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 I~’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, I~ presented additional evidence that supports his claim that he is the number holder’s natural child, including Timothy’s, the number holder’s cousin, statement that the number holder, A~, I~, and I~ lived with him from July XX, 2011, until the number holder’s death, and that A~, I~, and I~ were still living with him as of the date of the letter. This statement further supports the parent-child relationship between I~ and the number holder. 

The Parent-Child Relationship is Established Retroactively Under Oklahoma Law

Having found that I~ is the number holder’s natural child under Oklahoma law, we next examine whether I~ 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 S~ v. S~, 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 I~ is a child of the number holder under Oklahoma intestacy law, I~ is a child from his birth under Oklahoma law for purposes of determining I~’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).  I~ filed his qualifying application on October XX, 2013. Thus, I~ is entitled to retroactive benefits beginning April XX, 2013, six months immediately before the month I~ filed his October XX, 2013, application.

The Agency Can Reopen I~’s Prior Application

In addition, the agency can reopen I~’s September XX, 2011 application. The sibling DNA evidence that I~ presented, coupled with the agency’s determination on December XX, 2011 that I~ 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 XX, 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 I~ is the number holder’s natural child. Therefore, in our opinion, the agency may award I~ child’s insurance benefits effective April XX, 2013, six months immediately before the month I~ filed his October XX, 2013 application and may reopen its determination in September 2011 that I~ was not entitled to benefits. 

Michael McGaughran
Regional Chief Counsel
By: Brock C. Cima

Assistant Regional Counsel

G. PR 05-112 Using Results of DNA Test After the Number Holder's Death to Establish Inheritance Rights for a Child in Oklahoma -- B~ - REPLY SSN ~

DATE: September 9, 2003

1. SYLLABUS

Under Oklahoma law, while a DNA test of the claimant and his alleged paternal grandparents is sufficient to create a rebuttable presumption that the child is the grandchild of those grandparents, it is not sufficient to establish a parent-child relationship between the number holder and the claimant. Additional development is needed to exclude any brother of the number holder from being the parent and the Oklahoma statute stating that if a child is born during wedlock and is reared by the husband and wife as a member of their family without disputing the child's legitimacy for a period of 2 years, the presumption cannot be disputed by anyone must also be considered.

If the claimant cannot be considered the child of the number holder under Oklahoma law because of the limitations listed above, establishing the relationship under the Federal Deemed Child Provision, Section 216(h)(3) of the Social Security Act should also be considered.

2. OPINION

You have asked about the probative effect of a DNA Grandparentage Test Report (the lab report), dated August XX, 1999. 27 You asked whether the lab report is sufficient for the Social Security Administration (the Agency) to rebut the presumption of paternity of the child, A~, (A~), as to his mother's husband, A~. (A~). You also asked whether it is sufficient to establish A~'s relationship to the deceased number holder, B~(A~), under Oklahoma State law, or under Federal law. In addition, you asked whether the lab report meets the accreditation requirements of State law pursuant to Program Operations Manual System (POMS) GN 00306.065 (evidentiary standards under state intestacy laws). If we determine that the DNA lab report is sufficient to rebut the presumption of legitimacy and to establish paternity under State law, then you have asked for our opinion as to what date A~ would be recognized as A~'s child.

Section 216(h)(2)(A) of the Act provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which such insured individual was domiciled at the time of death. 42 U.S.C. ' 416(h)(2)(A). Since B~ was domiciled in Oklahoma at the time of his death, we must apply Oklahoma law.

Current Social Security regulations provide that a child's relationship to a number holder, under section 216(h)(2) of the Social Security Act (the Act), can be established without the need for a court determination of paternity. 20 C.F.R. ' 404.355(b)(2)(2003). The DNA lab report standing alone is not sufficient to prove conclusively that A~ is A~'s son for Social Security benefit purposes. More development of the record is required to determine whether A~ had any biological brothers (other than K~ and R~), and if so, whether any of his brothers could have fathered A~. Additionally, more development of the record is required, as will be discussed below, to determine if the presumption of paternity can be rebutted as to B~. Oklahoma law legitimates all children born within the State from birth. A~, if determined to be A~'s child under Oklahoma law, would be entitled to appropriate retroactive benefits. 20 C.F.R. ' 404.621 (2003). Finally, if the presumption of paternity as to B~ cannot be rebutted, then additional development needs to be undertaken to determine if A~ can qualify as B~’s child under section 216(h)(3), an alternative provision of the Act.

The facts in this case are complicated. A~'s birth certificate shows he was born A~, Jr., on June , in Oklahoma City, Oklahoma, to P~ (P~) and A~. B~ died October XX, 1993, while domiciled in Oklahoma. His widow was J~ (J~). In February 1994, W~' mother, W~ (J~), filed a claim for child's benefits for L~, the child of W~ and B~. A~ listed no other children. She stated further that B~'s natural father was B~, but that B~ was later adopted by R~ (his stepfather).

The first application for benefits for A~ was filed June XX, 1996, by P~. She explained that she married Mr. B~ in November 1984 and that she and Mr. B~ separated in August 1985 and at various other times (but she could not furnish the exact dates). She stated that she did not divorce Mr. B~ until January 1992. Thus, A~ was born during J~'s marriage to B~. J~ also stated that Mr. B~ was not willing to furnish a statement regarding A~'s paternity. She also stated that no DNA or other forensic tests had been performed and that there was no evidence that Mr. B~ was sterile at the time that A~ was conceived. She made no statement as to whether Mr. B~ was living with or contributing to A~'s support at the time of the B~'s death. The June 1996 claim for A~ was denied on July XX, 1996.

On October XX, 1998, a second claim for benefits was filed on A~'s behalf by L~( S~), Mr. B~'s mother. She stated that although A~'s birth certificate showed Mr. B~ as A~'s father, Mr. B~ and Ms. J~ lived together a couple of months, during which time P~ became pregnant with A~. Ms. S~ stated further that, throughout the years, A~ would live with Mr. B~ off and on. She had accepted A~ as her grandson because Mr. B~ told her that A~ was his and A~ looked like Mr. B~. She stated further, We accepted [A~] in the family since he was a child. In addition, she stated that Mr. B~ bought clothes and toys for A~ and that A~ would stay with Mr. B~ during the summer and part of the school year. 28 Ms. S~'s claim for A~ was denied May XX, 1999. In September 1999, Ms. S~ again applied for benefits for A~. This is the application is currently under review.

As noted above, A~'s birth certificate shows he was born A~, Jr., on June. The birth certificate shows P~ as the informant. The February 1992 divorce decree between P~ and A~ indicates that the parties had agreed to continue certain matters involving the paternity of the "minor child alleged to be a product of the marriage." T~, P~'s attorney when she divorced Mr. B~, furnished a statement. He stated that at the time of 1992 divorce, Mr. B~ and P~ told him that A~ was Mr. B~'s natural child. The attorney stated that Mr. B~ requested DNA tests several times during the pendency of the divorce action, but the request was denied by the judge.

Mr. B~ was domiciled in Oklahoma when he died, October XX, 1993. As noted above, the last application for A~ was filed September XX, 1999, by Ms. S~. The August 1999 lab report shows a 99.3% probability that L~ and B~ (Mr. B~'s biological parents) are the grandparents of A~, Jr. The file contains statements, dated February XX, 2000, from K~, Sr., and R~, Jr., stating that they were B~'s brothers. 29 In his statement, K~ denied that T~, Jr. was his biological son. He stated further that T~ was B~'s "direct descendant." R~ stated that A~, Jr. was his "nephew by blood." He also stated that A~ was the son of his deceased brother, B~.

Even though Oklahoma law reveals no express limitation upon the timing of a determination of paternity, both an Oklahoma Appeals Court and the Oklahoma Supreme Court have stated that an adjudication of paternity after the death of the father does not give rise to inheritance rights. See Estate of King, 837 P.2d 463, 467 (Okla. 1990) (citing Okla. Stat. tit. 84, ' 215); see also Estate of Geller, 980 P. 2d 665, 669-670 (Okla. Ct. App. 1999). However, the Agency will not apply any State inheritance law requirement that an action to establish paternity must have been started or completed before the worker's death. 20 C.F.R. ' 404.355(b)(2)(2003). Accordingly, for Social Security purposes, A~ may still establish his relationship to Mr. B~.

Oklahoma law establishes inheritance rights for a child born out of wedlock whenever (1) the father, in writing, acknowledges himself to be the child's father, (2) the father and mother intermarry subsequent to 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. Okla. Stat. tit. 84, ' 215(d) (2003). Because the first three requirements contemplate acknowledgments that Mr. B~ did not make, according to the evidence presented, the only remaining option that A~ can use to establish inheritance rights from Mr. B~ under Oklahoma law is through a judicial determination of paternity.

Agency regulations provide that if applicable State inheritance laws require a court determination of paternity (as in this case), the Agency will not require that a child claimant actually obtain such a determination, but will decide for itself the child's paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. Id. Therefore, the Agency can determine A~'s relationship to Mr. B~ without a court determination of paternity.

Oklahoma statutes contain a specific law that that governs genetic testing in cases in which paternity is an issue. The law is entitled the "Genetic Testing to Determine Paternity Act." Okla. Stat. Tit. 10, §§ 501-508 (2003). Section 504(A) of the Genetic Testing to Determine Paternity Act provides:

Evidence which shows a statistical probability of paternity is admissible and shall be weighed in addition to other evidence of the paternity of the child. Evidence which shows a statistical probability of paternity may include but is not limited to:

1. Genetic test results provided for in the Genetic Testing to Determine Paternity Act; and

2. Medical, scientific, or genetic evidence relating to the paternity of the child based on tests performed by said experts.

Okla. Stat. Tit. 10, § 504(A) (2003). We do not believe that section 504(A)(1) of this act would apply in this case because section 501 of the Genetic Testing to Determine Paternity Act contemplates genetic testing of the mother, child and putative father. Our evidence in this area does not include DNA from the mother or the putative father. Okla. Stat. Tit. 10, §§ 501, 504(A)(1). However, we believe that section 504(A)(2) can apply to this case because the file contains "genetic evidence relating to the paternity of the child," in the form of the "DNA Grandparentage Test Report," discussed above. See Okla. Stat. Tit. 10, § 504(A)(2). As further support for the proposition that genetic testing can be used even when the purported father is deceased is a recent Oklahoma Supreme Court case holding that the decedent's brother, as personal representative of the decedent's estate, had standing to seek DNA testing to determine the issue of the putative son's paternity. See Estate of Tytanic, 61 P.3d 249, 252-53 (Okla. 2002). In Tytanic, the court noted that dramatic advances in genetic testing have made it possible to determine paternity with nearly 100% accuracy. See Estate of Tytanic, 61 P.3d at 253. This shows an increasing willingness of the courts to rely on such scientific evidence as proof of paternity issues. Therefore, we believe that Oklahoma courts would authorize the use of DNA testing of the paternal grandparents as evidence when the paternity of a child is at issue, as in this case.

Under Oklahoma law, a man, such as Mr. B~, is presumed to be the natural father of a child if the "statistical probability of paternity is established at 95% or more by scientifically reliable genetic tests." See Okla. Stat. Ann. tit. 10, ' 2(A)(5) (2003). A statistical probability of paternity established at 95% or greater creates a presumption of paternity that can be rebutted only by clear and convincing evidence. Okla. Stat. tit.10, ' 504(C). A statistical probability of paternity established at 98% or greater creates a conclusive presumption of paternity that cannot be disputed. Okla. Stat. tit. 10, ' 504(D). The DNA lab report demonstrated a 99.3% probability that L~and B~ are A~'s paternal grandparents. Even though the DNA lab report in this case does not meet the specific requirements of section 504(A)(1), title 10, as noted above, we believe the DNA lab report meets the requirement of "genetic evidence relating to paternity" as provided by section 504(A)(2) of title 10. Therefore, in our opinion, the lab report creates at least a rebuttable presumption that L~and B~ are A~'s paternal grandparents and that one of their sons is A~'s father.

As noted above, the file contains statements denying paternity from two of Mr. B~'s brothers. However, the file contains no information concerning whether or not Mr. B~ had any other biological brothers. Therefore, we recommend the following additional development. P~ should execute an affidavit (or other statement satisfactory to you) attesting to whether or not any of Mr. B~'s brothers could have fathered A~. In addition, you may also want to obtain affidavits or statements from any brothers, other than K~ and R~, attesting to the same issues. If further development of the record rules out Mr. B~'s brothers as A~'s father, then we believe that A~ can rely upon the basic presumption of paternity as specified under sections 2(A)(5) and 504(C) of title 10, to qualify for child's insurance benefits, but only if, as discussed below, you rebut the presumption of legitimacy for A~ as to Mr. B~.

Oklahoma law also presumes that a man is the natural father of a child if he and the child's natural mother are married to each other when the child is born. See Okla. Stat. Ann. tit. 10, ' 2(A)(1). A~ was born in 1986 during P~'s marriage to Mr. B~, which spanned 1986 through 1992. Even though under Oklahoma statutes Mr. B~ could also be presumed to be A~'s father because of the DNA tests, we cannot consider the DNA test without considering the effect of a time-limit restriction also found in the Oklahoma statutes. If a child, such as A~, is born during the course of a marriage and is reared by a husband and a wife as a member of their family without disputing the child's legitimacy for at least two years, the statutory presumption of paternity (as to the mother's husband) cannot be disputed by anyone. 30 See Okla. Stat. Ann. tit. 10, ' 3(B). It is our advice that you further develop the facts of the case, in order to resolve this issue.

POMS section GN 00306.065 generally provides guidance regarding evidentiary standards under state intestacy laws and genetic laboratory testing accreditation. Our research reveals that the Federal statutes addressing laboratory accreditation and certification do not apply to laboratories that perform DNA tests to establish paternity. Federal accreditation requirements governing the certification of laboratories pertain only to facilities that conduct Aexamination[s] of materials derived from the human body for the purpose of providing information for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings.@ 42 U.S.C. ' 263a(a). Federal regulations further state that the rules for certification of laboratories do not apply to components or functions of Aany facility or component of a facility that only performs testing for forensic purposes.@ 20 C.F.R. ' 493.3(b)(1) (2003).

The purpose of DNA testing in this case was to ascertain whether A~ was Mr. B~'s son, and, thus, could be entitled to child's survivor benefits based on Mr. B~'s record. The DNA test was used to establish relationship and was not performed for medical diagnosis, prevention, treatment, or health assessment. Accordingly, the Federal accreditation requirements do not apply to the laboratory that performed the DNA test. In addition, our research also reveals no certification or accreditation requirements under Oklahoma statutes for laboratories that perform paternity DNA tests. Therefore, the DNA test must be evaluated for authenticity in the same manner as any other evidence offered into a court of law. Nothing in the file indicates that the report has been altered or is fraudulent in any manner. In our opinion, we believe an Oklahoma court would conclude that the DNA lab report is valid.

If the DNA lab report is sufficient to establish paternity under State law, you inquired as to whether A~ would be entitled to retroactive benefits. As you know, 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. 20 C.F.R. ' 404.621(a)(1)(ii)(2003). Agency policy generally provides that an act that gives inheritance rights, but does not legitimate the child, is effective only from the date of the act or event, while an act that legitimates the child is effective retroactively to the birth of the child. See Social Security Ruling 85-17.

Oklahoma is listed under POMS GN 00306.085 as a State in which the child is legitimated from birth. Id. Oklahoma law provides that all children born within the State Ashall be@ deemed legitimate. Okla. Stat. Tit. 10, ' 1.2 (2003). The Oklahoma Supreme Court has ruled that the State may not erect impenetrable barriers to discriminate against illegitimate children by denying them substantial benefits generally accorded to all children. See Callison v. Callison, 687 P.2d 106, 109 (Okla. 1984) (equal protection analysis striking down 3-year statute of limitations barring support action for illegitimate children, when same restriction not imposed upon legitimated children). We believe that if you are satisfied that A~ is the biological son of B~, and not the son of A~, he should be treated as legitimate from birth.

As noted above, in order for the Agency to establish A~'s paternity as to Mr. B~ under state law, A~'s paternity as to Mr. B~ must be rebutted. In the alternative, you may be able to establish A~'s entitlement under section 216(h)(3) of the Act. See 42 U.S.C. ' 416(h)(3). This section provides in part that a child such as A~ can be entitled as a number holder's child if the number holder (1) had acknowledged the child in writing, (2) had been decreed by a court to be the child's father, or (3) had been ordered by a court to contribute to his support. See 42 U.S.C. ' 416(h)(3)(C)(i). None of these three requirements appear to have been met in this case. However, a child can also be entitled under a fourth requirement if other evidence shows the child to be the number holder's biological child and if the number holder was living with or contributing to the child's support at the time of the number holder's death. See 42 U.S.C. ' 416 (h)(3)(C)(ii). This provision does not require that you first rebut the presumption of paternity as to Mr. B~ because this provision establishes a child's relationship under Federal law without regard to state law.

In summary, we conclude that the lab report standing alone is sufficient to create at least a rebuttable presumption that A~ is the grandchild of Mr. B~ 's parents and that one of their sons is A~'s father. Before using the lab report to prove A~'s relationship to Mr. B~, you should determine whether the number holder had any biological brothers (other than K~ and R~) who could have fathered A~, and, if so, further develop the record to eliminate them as possible fathers. Additionally, before using the lab report to rebut the paternity of A~ as to Mr. B~ and to establish Mr. B~'s paternity, you should consider the effect of section 3(B) of title 10 of the Oklahoma statutes, which provides, "If a child is born during the course of the marriage and is reared by the husband and wife as a member of their family without disputing the child's legitimacy for a period of at least two (2) years, the presumption cannot be disputed by anyone." See Okla. Stat. Ann. tit. 10, ' 3(B). If A~ does not qualify for benefits under state law, you should consider the requirements of entitlement under section 216(h)(3) of the Act. Further, Federal accreditation requirements do not apply to laboratories that perform DNA tests, and Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified. Therefore, we believe an Oklahoma court would conclude that the DNA lab report is valid. In addition, Oklahoma law concerning time limits for establishing paternity can be disregarded as can any previous distinction between heirship and inheritance rights under the POMS. If eligible, A~ would be entitled to appropriate retroactive benefits. 20 C.F.R. ' 404.621.

Tina M. Weddall
Regional Chief Counsel

By: Virginia Watson
Assistant Regional Counsel

See Okla. Stat. Ann. tit. 10, ' 3(A)

H. PR 04-337 REPLY - Using Results of DNA Test After the Number Holder's Death to Establish Inheritance Rights for a Child in Oklahoma -- R~, SSN ~

DATE: October 18, 2000

1. SYLLABUS

SSA can determine the child claimant's relationship to the deceased NH without a court determination of paternity. The DNA test results showing a 99.99% probability that the NH's parents were the child's grandparents creates a conclusive presumption of paternity under Oklahoma law, assuming SSA is satisfied that the child's mother did not have sexual contact with the NH's brother. Federal accreditation requirements do not apply to laboratories that perform DNA tests, and Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified. The child may be entitled to benefits with the full six months' retroactivity.

2. OPINION

Your memorandum of December XX, 1999, asked about the probative effect of a DNA lab report, dated January XX, 1999. This report was prepared by GeneScreen, a genetic testing lab in Dallas, Texas. You asked whether the lab report is sufficient for the Social Security Administration (SSA) to establish the filial relationship of the child, K~ (K~), to the deceased number holder, R~ (R~), under Oklahoma state law, or under Federal law. You also asked if Gene Screen (the lab) meets the accreditation requirements of State law under GN 00306.065. If we determine that the lab report is sufficient to establish paternity under state law, then you have asked for our opinion as to what date K~ would be recognized as R~' child.

Because of recently issued Social Security regulations, a child's relationship to a number holder under section 216(h)(2) can be established without the need for a court determination of paternity. In our opinion, the lab report is sufficient to prove conclusively that K~ is R~' son for Social Security benefit purposes, assuming that you are satisfied with the statement made by M~ (M~) that she had not had any sexual contact with R~' brother. If so, K~ can be paid effective August 1998, six months prior to his application date.

K~ was born December , in Chickasha, Oklahoma. No father's name was shown on the birth certificate at the time of K~'s birth; however, the mother's name was shown as M~. M1~ and M2~ never married, but had been dating exclusively for seven years. R~ was domiciled in Oklahoma when he died, July XX, 1997, five months before K~ was born.

A protective filing of February XX, 1999, was established for K~ on K~' social security account. K~ subsequently submitted what was called a "Paternity Evaluation Laboratory Report" (the lab report), dated January XX, 1999. The lab report based its evaluation upon DNA samples from K~, K~, and K~'s alleged paternal grandparents, Kermit R. G~ and I~ (the G~). The lab report shows a probability of 99.99 percent that the G~ were K~'s grandparents.

This opinion will address primarily section 216(h)(2) of the Social Security Act (the Act), which uses state law to determine the relationship of a child to an insured individual. As will be discussed below, the lab report is sufficient to establish K~'s inheritance rights under Oklahoma state law assuming that you are satisfied with K~'s statement that she had not had any sexual contact with R~' brother. Because we believe that K~ can qualify for benefits under state law, we will not address an alternative Federal provision, section 216(h)(3) of the Act. K~ was born posthumously in December 1997, five months after the number holder's death. When a posthumous child is involved, the number holder can be considered to have contributed to the support of the child if he contributed to the child's mother commensurate with the needs of the unborn child and taking into account the number holder's economic circumstances at the time of the number holder's death. See Wolfe v. Sullivan, 988 F.2d 1025, 1028 (10th Cir). Development of this issue is not needed, however, because, in our opinion, the lab report establishes K~'s inheritance rights under state law. Section 216(h)(2) provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which such insured individual was domiciled at the time of death. 42 U.S.C. § 416(h)(2). Since R~ was domiciled in Oklahoma at the time of his death, we must apply Oklahoma law.

We will address six questions in this case:

  1. What standard of proof does Oklahoma law require in order to establish paternity?

  2. Does Federal law or Oklahoma law require certification, accreditation, or licensure of laboratories performing DNA tests before the results of such tests can be used to establish paternity?

  3. What does Oklahoma law require in order to establish inheritance rights?

  4. Does Oklahoma law set a time limit for establishing inheritance rights?

  5. Do the new Social Security regulations allow the payment of benefits under section 216(h)(2) even if a child does not technically meet state law requirements, including any time limit restrictions?

  6. If K~'s relationship to R~ is established, for what month can he first be paid benefits?

1. Standard of Proof for Establishing Paternity under Oklahoma Law

Under Oklahoma law, evidence of statistical probability of paternity established at 98 percent or more creates a conclusive presumption of paternity. See Okla. Stat. tit. 10, § 504(D) (1999). The lab report shows a 99.99 percent probability of paternity; therefore, K~ has provided evidence that creates a conclusive presumption that the G~ are K~'s paternal grandparents. K~' death certificate shows I~ and K~' parents. In addition, the field office obtained a statement from K~ showing that R~ had only one brother, and that she had not had any sexual contact with that brother. Therefore, in our opinion, if you are satisfied with K~'s statement that she had not had any sexual contact with R~' brother, then the lab report is sufficient under Oklahoma state law to create a conclusive presumption that R~ was K~'s father.

2. Federal and Oklahoma Accreditation Requirements for Laboratories Performing DNA Tests

Our research reveals that the Federal statutes addressing laboratory accreditation and certification do not apply to laboratories that perform DNA tests to establish paternity. Federal accreditation requirements governing the certification of laboratories pertain only to facilities that conduct "examination[s] of materials derived from the human body for the purpose of providing information for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings." 42 U.S.C. § 263a(a). Federal regulations further state that the rules for certification of laboratories do not apply to components or functions of "any facility or component of a facility that only performs testing for forensic purposes." 20 C.F.R. § 493.3(b)(1). The purpose of DNA testing in this case was to ascertain whether K~ was R~' son and thus could be entitled to Social Security benefits based on R~' record. The DNA test used to establish relationship and benefit entitlement was not performed for medical diagnosis, prevention, treatment, or health assessment. Accordingly, the Federal accreditation requirements do not apply to the laboratory that performed the DNA test.

Our research also reveals no certification or accreditation requirements under the statutes of Oklahoma for laboratories that perform paternity DNA tests. Therefore, SSA may assume that a DNA lab report that appears authentic on its face is valid.

3. Oklahoma Requirements for Establishing Inheritance Rights

Oklahoma law establishes inheritance rights for a child born out of wedlock whenever (1) the father, in writing, acknowledges himself to be the child's father, (2) the father and mother intermarry subsequent to 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. See Okla. Stat. tit. 84, § 215(d) (1999). Because the first three requirements contemplate acknowledgments that R~ never made, the only remaining option that K~ can use to establish inheritance rights from R~ under Oklahoma law is a judicial determination of paternity.

4. Time Limits for Establishing Inheritance Rights

The next question addressed is whether Oklahoma law precludes a determination of paternity after the alleged father's death. Even though the Oklahoma statute reveals no express limitation upon the timing of such a determination of paternity, both an Oklahoma Appeals Court and the Oklahoma Supreme Court have stated that an adjudication of paternity after the death of the father does not give rise to inheritance rights. See Estate of King, 837 P.2d 463, 467 (Okla. 1990) (citing Okla. Stat. tit. 84, § 215); see also Estate of Geller, 980 P. 2d 665, 669-670 (Okla. Ct. App. 1999). Thus, even if K~ were to now obtain a court determination of paternity, such a determination might not suffice to establish K~'s inheritance rights under Oklahoma state law. Id. We need not resolve this question here in order to determine K~'s eligibility to receive surviving child's benefits, however, because new regulations change the way that the SSA applies state inheritance laws. Under the new regulations, SSA will not apply any state inheritance law requirement that an action to establish paternity must have been started or completed before the worker's death. See 20 C.F.R. § 404.355(b)(2) (2000). Accordingly, for social security purposes, K~ may establish his relationship to R~ after R~' death.

5. No Need for State Court Determination of Paternity

The new regulations also provide that if applicable State inheritance laws require a court determination of paternity (as in this case), SSA will not require that a child claimant actually obtain such a determination, but will decide for itself the child's paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2). Therefore, SSA can determine K~'s relationship to the deceased number holder without a court determination of paternity. As noted above, the DNA test report creates a conclusive presumption of paternity in this case because it shows a statistical probability of paternity greater than the 98 percent required by Oklahoma law to create such a presumption. See Okla. Stat. Ann. tit. 10, § 504(D). Therefore, under the new regulations, the DNA test report meets the standard of proof that the State court would use as the basis for a judicial determination of paternity. Assuming that you are satisfied with K~'s statement that she had not had any sexual contact with R~' brother, then SSA should treat K~ as if he had established inheritance rights from R~ under Oklahoma law. Under these circumstances, SSA will consider K~ as R~' child for benefit purposes under section 216(h)(2) of the Act.

6. First Month of Entitlement

The final question concerns the first month for which K~ can be entitled to benefits. Applicants for child's benefits not based on disability can be paid retroactive benefits for up to six months immediately before the month of application. 20 C.F.R. § 404.621(a)(1)(ii). For the reasons discussed below, we conclude that K~'s application, filed in February 1999, can be given full retroactivity to August 1998 even though the Program Operations Manual System (the POMS) may contain guidance to the contrary. The POMS provides that if an act or event (such as the lab report in this case) confers inheritance rights under applicable state law, but does not legitimate a child, the act or event generally has effect only from the date of such act or event. See POMS GN 00306.055(A)(3), 00306.075(A), 00306.080. However, the POMS sections covering this subject have not been updated for the State of Oklahoma, and they should not be followed. See POMS homa). Therefore, we must look to Oklahoma state law to determine the GN 00306.080issue of retroactivity.

Neither Oklahoma statutes nor Oklahoma case law limits the number of months of retroactive benefits that can be paid for a child who has inheritance rights only. In fact, under Oklahoma law, property descends upon death and vests immediately in heirs, legatees and devisees, subject only to the control of the county court for purposes of administration. Ware v. Beach, 322 P.2d 635, 639 (Okla. 1957), cert den'd, 358 U.S. 819 (1958); see Cassina v. Jones, 340 P.2d 482, 484 (Okla. 1959); Okla. Stat. tit. 84, §§ 211, 212. Therefore, even if the DNA test conferred only inheritance rights to K~, Oklahoma law provides for ownership of any property that he is due effective with the date of his father's death. Thus, we conclude that K~ should be entitled to the full six months' retroactivity.

Moreover, according to Oklahoma law, DNA test results confer more than mere inheritance rights and thus would provide an additional reason for paying full retroactive benefits to K~. Section 70 of title 10 of the Oklahoma Statutes provides that paternity may be established based on, among other things, a "scientifically reliable genetic" test, which K~ has provided. See Okla. St. 10, § 70(B)(2) (1999). Once paternity is established under this statute, the court is mandated to enter an order providing for support of the child and may provide for custody and visitation. See Okla. St. 10, § 70(C). Accordingly, even though Oklahoma does not describe the provisions of this statute as "legitimating" a child, the submission of a "scientifically reliable genetic" test under this section establishes paternity and clearly gives a child, such as K~, more than mere inheritance rights. Because K~ has provided the results of a "scientifically reliable genetic" test that creates a conclusive presumption of R~' paternity, K~ has sufficiently established that he has more than mere inheritance rights. Thus, for this additional reason, K~ is entitled to receive benefits effective August 1998, because his application was filed in February 1999. See 20 C.F.R. § 404.621(a)(1)(ii).

In summary, we conclude that the lab report is sufficient to prove conclusively that K~ is R~' son for Social Security benefit purposes assuming that you are satisfied with K~'s statement that she had not had any sexual contact with R~' brother. Federal accreditation requirements do not apply to laboratories that perform DNA tests. Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified. In addition, Oklahoma law concerning time limits for establishing paternity can be disregarded as can any previous distinction between heirship and inheritance rights under the POMS. Accordingly, K~ can be paid child's benefits retroactively to August 1998.

Tina M. Waddell
Regional Chief Counsel

By: Virginia Watson
Assistant Regional Counsel

I. PR 03-018 Using Results of DNA Test After the Number Holder's Death to Rebut Presumption of Legitimacy and Establish Inheritance Rights for a Child in Oklahoma – R~ L~ K~, SSN ~ -- REPLY

DATE: October 31, 2002

1. SYLLABUS

The following evidence is sufficient to rebut the presumption that the child claimant was the natural child of the mother's husband: a DNA report indicating a 99.4 percent probability that the child claimant has the same biological father as a child already entitled on the NH's record under section 216(h)(2)(A) of the Act (State intestacy law); the husband's lack of access during the conception period; and statements from the child's mother and her husband denying paternity. Further, the DNA test, together with other evidence presented, would be sufficient for an Oklahoma court to conclude that the claimant can inherit from the NH. The child is legitimated from birth. Federal accreditation requirements do not apply to laboratories that perform DNA tests for paternity purposes, and Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified.

2. OPINION

You have inquired as to whether the presumption of legitimacy in Oklahoma that J~ is the father of J~, the child claimant, has been rebutted. You have also asked whether the evidence is sufficient to establish a relationship of the child to the purported father, R~, the deceased number holder. Further, you asked about the probative effect of a DNA laboratory report prepared by H.A. Chapman Institute of Medical Genetics, a genetic testing laboratory (the DNA lab) in Tulsa, Oklahoma. In addition, you asked whether the DNA lab meets the accreditation requirements of State law under Program Operations Manual System (POMS) GN 00306.065 (evidentiary standards under state intestacy laws). You also asked whether Oklahoma law imposes any additional requirements other than those found under POMS for rebutting the presumption of legitimacy by demonstrating a lack of “access” by the husband to the spouse during the time of conception. See POMS GN 00306.021. If we determine that the DNA lab report is sufficient to establish paternity under State law, then you have asked for our opinion as to what date J~ would be recognized as R~'s child for Social Security benefit purposes. Specifically, you asked whether it would be from birth or from the date of the DNA lab report.

We conclude that the DNA lab report, the husband's lack of access during the period of conception, statements from the child's mother and her husband denying paternity, and a prior (Agency) ruling are sufficient to rebut the presumption that J~ was Mr. H~'s natural (biological) son. Further, the DNA test, together with other evidence presented, would be sufficient for an Oklahoma court to conclude that J~ is R~'s natural son. We believe that J~ would be able to inherit from the purported father, R~. Oklahoma law does not generally impose additional requirements for rebutting the presumption of legitimacy than those found under the POMS. Federal accreditation requirements do not apply to laboratories that perform DNA tests for paternity purposes. Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified. Oklahoma by statute legitimizes all children born within the state from birth. Accordingly, J~ can be paid child's insurance benefits retroactively as permitted by Agency regulations. 20 C.F.R. § 404.621 (2002).

A~ and J~ were married on October XX, 1985, and separated in August 1986. According to both individuals, they have not lived together since the separation. It is not clear whether they ever divorced. Together they have a biological daughter, C~, who is not the subject of this legal opinion. A~ was born on October, and C~ was born on July. J~ was listed as the father on both birth certificates. However, J~ has denied that he is the biological father of A~ and J~. A~ has stated that she met and became intimate with R~ soon after her separation from J~. R~ died on September XX, 1989, in an automobile accident in Arizona.

A~ filed child's insurance benefit claims on behalf of A~ and J~ on August XX, 1992. The claims were denied at the initial and reconsideration levels for lack of credible evidence demonstrating acknowledgment by R~. The claims were appealed to an administrative law judge (ALJ) who on March XX, 1994, denied them as well. However, on March XX, 1995, the Appeals Council vacated the decision, and remanded the claims for further development and a new hearing. On October XX, 1996, ALJ S~ issued a fully favorable decision on A~'s claim, finding that she was the “child” of the deceased wage earner, R~, and entitled to child's insurance benefits on his earnings record. ALJ C~ determined that R~ had publicly acknowledged A~ as his daughter, and “otherwise treated her as if she were a child born in wedlock.” Okla. Stat. tit. 84, § 215(d) (2000). On October XX, 1996, A~, through her attorney, withdrew J~'s appeal before ALJ C~ for child's insurance benefits.

On April XX, 2000, A~ again filed for child insurance benefits on behalf of J~. She submitted a letter from the DNA lab. In a letter dated April XX, 2000, the DNA lab stated that they had tested blood samples from A~, as well as A~ and J~. The test results indicated a 99.4 percent probability that A~ and J~ have the same biological father because they share the same paternally inherited genetic markers.

This opinion will address primarily section 216(h)(2) of the Social Security Act (the Act), which directs us to apply State law to determine the relationship of a child to an insured individual. Because we believe that J~ can qualify for benefits under State law, we will not address the alternative Federal provisions under section 216(h)(3) of the Act./ Section 216(h)(2)(A) of the Act provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which such insured individual was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A).

The term domicile is defined as a person's true, fixed, and permanent home, to which he intends to return and remain even though he may reside elsewhere. See Black's Law DictI~ry at 501 (7th ed.1999). Under Oklahoma probate law, the terms domicile and residence are used interchangeably. See Groseclose v. Rice, 366 P.2d 465, 467 (Okla. 1961). The determination of residence or domicile is a question of fact. Id. at 469. R~ died in an automobile accident in Arizona. The record revealed that his job as a photographer required him to travel extensively, often living out of motels. However, according to the evidence provided with your request for legal opinion, R~ had lived in Oklahoma for an extended period of time in 1986 and had rented an apartment there. In A~'s claim, ALJ C~ found that the number holder was domiciled in Oklahoma because he had maintained an Oklahoma driver's license. In addition, the record revealed that R~ would often return to Oklahoma for extended periods of time to visit the claimant's mother and his daughter A~. We believe that these facts establish Oklahoma as R~'s domicile. There is no evidence that the number holder intended to abandon Oklahoma as his domicile and establish his permanent home in another state. Id. Therefore, we will apply Oklahoma law.

J~ and A~ were still married at the time of J~'s birth. Oklahoma State law provides that all children born in wedlock are presumed to be legitimate, and the husband is presumed to be the natural father of the child for all intents and purposes if the child is born during the marriage. Okla. Stat. tit. 10, §§ 1, 2 (2000). However, this presumption of paternity may be disputed by the husband, the wife, the putative father, or their descendants. Okla. Stat. tit. 10, §§ 2B, 3 (2000)./ Oklahoma law views a paternity determination as a question of fact to be determined by a preponderance of the evidence standard. See In the Matter of C.G., 637 P.2d 66, 69 n. 8 (Okla. 1981)(citing to Greenback v. State, 36 P.2d 882, 883 (Okla. 1934)). Under Oklahoma law, the process for disputing paternity is patterned after the same requirements to establish paternity. Okla. Stat. tit. 10, § 70B(2)-(3) (2000). Paternity may be established or disputed in part by a district or administrative court order, or scientifically reliable genetic tests including, but not limited to, blood tests. Id. If genetic testing is used to dispute the presumption of legitimacy of a child born during wedlock (as in this case), the presumption is overcome if a court would find, after considering the DNA test(s) and expert testimony, that the husband is not the father of the child. Okla. Stat. tit. 10, § 505 (2000). See also State ex. rel. Dept. of Human Services on Behalf of Snellings v. Strohmeyer, 925 P.2d 77, 78 (Okla. Ct. App. 1995). The DNA tests indicating that A~ and J~ have the same biological father significantly undermines the presumption that Mr. H~ was the natural father of J~ given the Agency's previous ruling that R~ was A~'s father.

In addition, Oklahoma courts have held that the presumption of legitimacy can be overcome by “clear, satisfying and conclusive evidence” that the husband did not have “access” to his spouse when the child was conceived. See In Re Davis' Estate 36 P.2d 471, 473 (Okla. 1934); Wilkerson v. State, 364 P.2d 709, 711-12 (Okla. Crim. App. 1961). The Oklahoma Supreme Court has referred to the term “access” as meaning sexual intercourse. See Jackson v. Jackson, 76 P.2d 1062, 1064 (Okla. 1938). The lack of access has been defined to cover (1) impotency, (2) husband was entirely absent from his wife during the period where the child was conceived, or (3) husband was present with his wife during such period, but only under circumstances which afford clear and satisfactory proof that there was no sexual intercourse between them./ Id. Both J~ and A~ have indicated that they never lived together after their separation in August 1986. J~ H~ never indicated that he had access to his spouse during the period when the child claimant was conceived. It is our opinion that, under Oklahoma law, these facts, together with the DNA test and the Agency's previous ruling concerning the paternity of A~, provided sufficient evidence to rebut the presumption of paternity of J~, and establish paternity of R~.

Even though Oklahoma law reveals no express limitation upon the timing of a determination of paternity, both an Oklahoma Appeals Court and the Oklahoma Supreme Court have stated that an adjudication of paternity after the death of the father does not give rise to inheritance rights. See Estate of King, 837 P.2d 463, 467 (Okla. 1990) (citing Okla. Stat. tit. 84, § 215); see also Estate of Geller, 980 P. 2d 665, 669-670 (Okla. Ct. App. 1999). Thus, even if J~ were to now obtain a court determination of paternity, such a determination might not suffice to establish his inheritance rights under Oklahoma law./ Id. We need not resolve this question here in order to determine J~'s eligibility to receive child's insurance benefits because the Agency will not apply any state inheritance law requirement that an action to establish paternity must have been started or completed before the worker's death. 20 C.F.R. § 404.355(b)(2) (2002). Accordingly, for Social Security purposes, J~ may still establish his relationship to the deceased number holder.

It appears that Oklahoma's genetic testing paternity scheme contemplates the testing of the putative father directly. Section 501 of title 10 states that, “In a civil action in which paternity is a relevant fact and at issue, the court shall order the mother, the child and putative father to submit to genetic testing. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require unless such individual is found to have good cause for refusing to cooperate” Okla. Stat. tit. 10, § 501 (2000)(emphasis added).

While there is no standard definition for the term “good cause” in the context of a Oklahoma paternity proceeding, one Oklahoma case defined the term good cause, in the context of a child support case, as requiring some level of hardship. See Department of Human Services v. Glasby, 858 P.2d 1291, 1295 (Okla. Ct. App. 1993). The hardship of a child orphaned by the untimely death of the father is obvious. Likewise obvious, the genetic testing of R~ directly is impossible since he died in 1989. Under the facts of this case, the father has not “refused” to be tested because he is deceased, and no adverse inference would follow. Therefore, the interests of justice can require a finding of paternity in favor of J~.

As to the issue of R~'s paternity of J~, if genetic testing establishes a statistical probability of paternity by 95 percent or greater, this creates a presumption of paternity that can only be rebutted by clear and convincing evidence. Okla. Stat. tit.10, § 504C (2000). If genetic testing establishes a statistical probability of paternity at 98 percent or greater, this creates a conclusive presumption of paternity that cannot be disputed. Okla. Stat. tit. 10, § 504D (2000). Applying the facts to the law, the DNA lab report concluded that the probability A~ and J~ have the same biological father was 99.4 percent. R~, Ph.D., the DNA lab director, stated that the results of DNA testing indicated that A~ and J~ have the same father inasmuch as they share the same paternally inherited genetic markers.

The Agency is also obligated to follow the 1996 administrative adjudication from ALJ C~ that concluded A~ was the child of the deceased wage earner, R~. See 20 C.F.R. § 404.955 (2002) (decision of an ALJ is binding on all parties); 20 C.F.R. § 404.355(b)(2) (agency given discretion in applying state inheritance law standards). See also Blair v. Apfel, 229 F.3d 1294, 1295 (10th Cir. 2000) (absent a colorable constitutI~l claim, courts generally lack jurisdiction to reopen a prior Agency adjudication). Under the facts of this case, the Agency cannot ratI~lly conclude that R~ was the father of A~, but not the father of J~, when genetic testing has demonstrated that both siblings have the same biological father. Id. This is also supported by consideration of Okla. Stat. tit. 10, §§ 70B, 504D, as previously discussed above. Therefore, SSA should consider J~ to be R~'s child for benefit purposes under section 216(h)(2) of the Act.

POMS section GN 00306.065 generally provides guidance regarding evidentiary standards under state intestacy laws and genetic testing accreditation. Our research reveals that the Federal statutes addressing laboratory accreditation and certification do not apply to laboratories that perform DNA tests to establish paternity. Federal accreditation requirements governing the certification of laboratories pertain only to facilities that conduct “examination[s] of materials derived from the human body for the purpose of providing information for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings.” 42 U.S.C. § 263a(a). Federal regulations further state that the rules for certification of laboratories do not apply to components or functions of “any facility or component of a facility that only performs testing for forensic purposes.” 20 C.F.R. § 493.3(b)(1) (2002).

The purpose of DNA testing in this case was to help ascertain whether J~ was R~'s son, and thus could be entitled to child's insurance benefits based on R~'s earnings record. The DNA test used to establish paternity and the benefit entitlement was not performed for medical diagnosis, prevention, treatment, or health assessment. Accordingly, the Federal accreditation requirements do not apply to the laboratory that performed the DNA test. In addition, our research also reveals no certification or accreditation requirements under the statutes of Oklahoma for laboratories that perform paternity DNA tests. There was no evidence presented in your request for legal opinion that would lead us to conclude that the genetic testing results from the DNA laboratory was suspect or fraudulent.

You have also asked what would be the first month that J~ could be awarded child's benefits. Applicants for child's insurance benefits can be paid retroactive benefits prior to the month of application. 20 C.F.R. § 404.621. Agency policy provides that an act that gives inheritance rights, but does not legitimate the child is effective only from the date of the act or event, while an act that legitimates the child is effective retroactively to the birth of the child. See Social Security Ruling 85-17.

Oklahoma law provides that all children born within the State “shall be” deemed legitimate. Okla. Stat. tit. 10, § 1.2 (2000). It was the intent of Oklahoma law to abolish the stigma of defining children by terms of illegitimate and legitimate, but rather refer to them as children born out of wedlock. Okla. Stat. tit. 10, § 1.1 (2000). However, this change in the law was more than mere semantics. The Oklahoma Supreme Court has ruled that the State may not erect impenetrable barriers to discriminate against illegitimate children by denying them substantial benefits generally accorded to all children. See Callison v. Callison, 687 P.2d 106, 109 (Okla. 1984) (equal protection analysis striking down 3-year statute of limitations to bring support action illegitimate children, when same restriction not imposed upon legitimated children). Under Oklahoma intestacy law, once an individual has been judicially determined to be the father of a child born out of wedlock, the child stands in identical relation to his father and his kindred, and his kindred to the child. Okla. Stat. tit. 84, § 215(d). Based upon the foregoing, Oklahoma has not maintained a substantive distinction between legitimate and illegitimate children, and has legitimated all children born within the State from birth. Therefore, we believe that J~, as R~'s biological son, should be treated as if he were legitimate from birth.

In summary, we conclude that the DNA lab report, the husband's lack of access during the period of conception, statements from the child's mother and her husband denying paternity, and the prior administrative ruling are sufficient to rebut the presumption that J~ was the natural son of Mr. H~. Further, the DNA test, together with other evidence presented, would be sufficient for an Oklahoma court to conclude that J~ is R~'s biological son. J~ would be able to inherit from his purported father, R~. Oklahoma law does not generally impose additional requirements to rebut the presumption of legitimacy than those found under the POMS. Federal accreditation requirements do not apply to laboratories that perform DNA tests. Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified. Oklahoma law legitimizes all children born within the state from birth. Accordingly, J~ can be paid child's insurance benefits retroactively as permitted by Agency regulations. 20 C.F.R. § 404.621.

Tina M. Waddell
Regional Chief Counsel

By: Thomas C. Strafuss
Assistant Regional Counsel

J. PR 02-090 REPLY - Using Results of DNA Test After the Number Holder's Death to Establish Inheritance Rights for a Child in Oklahoma -- T~, SSN ~

DATE: May 29, 2002

1. SYLLABUS

Results of DNA testing on the child claimant, her mother, and her alleged paternal grandparents are not sufficient, standing alone, to prove conclusively that the child is the child of the NH for intestacy purposes. The FO should determine whether the NH had any biological brothers who could have fathered the child, and if so, further develop the record to eliminate them as possible fathers. If it is determined that the child is the NH's biological child, she should be treated as if she was legitimate from birth.

2. OPINION

You have asked about the probative effect of a DNA lab report, dated March XX, 2001./ You inquired whether the DNA lab report is sufficient for the Social Security Administration (SSA) to establish the parent-child relationship of a child, A~, to a deceased number holder, T~, under Oklahoma State law, or under Federal law. You also asked if the DNA lab meets the accreditation requirements of State law pursuant to Program Operations Manual System (POMS) GN 00306.065 (evidentiary standards under state intestacy laws). If we determine that the DNA lab report is sufficient to establish paternity under State law, then you have asked for our opinion as to what date A~ would be recognized as T~'s child, from birth or from the date of the DNA lab report.

In our opinion, current Social Security regulations provide that a child's relationship to a number holder, under section 216(h)(2) of the Social Security Act (the Act), can be established without the need for a court determination of paternity. The DNA lab report standing alone is not sufficient to prove conclusively that A~ is T~'s daughter for Social Security benefit purposes. More development of the record is required to determine whether T~ had any biological brothers, and if so, whether such brothers could have fathered A~. Finally, in our opinion, Oklahoma law legitimates all children born within the State from birth, and A~, if determined to be T~'s child, would be entitled to appropriate retroactive benefits. 20 C.F.R. 404.621 (2000).

A~ was born on August, in Tulsa, Oklahoma. No father's name was shown on her birth certificate. However, the mother's name was listed as S~ (T~). T~ and T~ never married, but had lived together from 1993 until early 1995. They never held themselves out as husband and wife, and no common-law marital relationship was ever alleged. T~ was not married to anyone else at the time of the conception or birth of A~. T~ subsequently married in 1996. There was no court order of paternity or child support issued prior to the number holder's death, and there is no credible evidence that he ever contributed any financial assistance to A~' support. Ms. F~ indicated that she and T~ executed an affidavit before a notary public attesting to his parentage, but she has been unable to produce the document. T~ was domiciled in Oklahoma when he died on February XX, 1999, over four years after A~ was born. It is not clear from your legal opinion request whether T~ had any biological brothers.

A constructive filing date of August XX, 1999, was established for child's insurance survivor benefits on T~'s Social Security account. Ms. F~ submitted a DNA laboratory report, dated March XX, 2001. The lab report based its evaluation upon DNA samples from A~, her mother, and A~' alleged paternal grandparents, B~ and S~. The DNA lab report demonstrated a probability of 99.83 percent that B~ and S~ were A~' grandparents. However, the DNA lab report also stated that, "If B~ and S~ have multiple children who are possible parents of A~ D~, the testing performed here cannot distinguish among them as true parents of the child." See DNA lab report at page 2.

Section 216(h)(2)(A) of the Act provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which such insured individual was domiciled at the time of death. 42 U.S.C. 416(h)(2)(A). Since T~ was domiciled in Oklahoma at the time of his death, we must apply Oklahoma law.

Even though Oklahoma law reveals no express limitation upon the timing of a determination of paternity, both an Oklahoma Appeals Court and the Oklahoma Supreme Court have stated that an adjudication of paternity after the death of the father does not give rise to inheritance rights. See Estate of King, 837 P.2d 463, 467 (Okla. 1990) (citing Okla. Stat. tit. 84, 215); see also Estate of Geller, 980 P. 2d 665, 669-670 (Okla. Ct. App. 1999). Thus, even if A~ were to now obtain a court determination of paternity, such a determination might not suffice to establish her inheritance rights under Oklahoma law. Id. We need not resolve this question here in order to determine A~' eligibility to receive child's survivor benefits because SSA will not apply any State inheritance law requirement that an action to establish paternity must have been started or completed before the worker's death. 20 C.F.R. 04.355(b)(2)(2000). Accordingly, for Social Security purposes, A~ may still establish her relationship to the number holder after his death. Current Agency regulations also provide that if applicable State inheritance laws require a court determination of paternity (as in this case), SSA will not require that a child claimant actually obtain such a determination, but will decide for itself the child's paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. Id. Therefore, SSA can determine A~' relationship to T~ without a court determination of paternity.

Oklahoma law establishes inheritance rights for a child born out of wedlock whenever (1) the father, in writing, acknowledges himself to be the child's father, (2) the father and mother intermarry subsequent to 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. Okla. Stat. tit. 84, 215(d) (2000). Because the first three requirements contemplate acknowledgments that T~ never made, the only remaining option that A~ can use to establish inheritance rights from T~ under Oklahoma law is through a judicial determination of paternity.

In an Oklahoma judicial proceeding where the issue of paternity is relevant, it appears that Oklahoma law contemplates testing of the putative father's blood directly. Section 501 of title 10 states that, "In a civil action in which paternity is a relevant fact and at issue, the court shall order the mother, the child and putative father to submit to genetic testing." Okla. Stat. tit. 10, 501 (2000). However, the statute also provides a good cause exception for the failure of any party to submit to paternity testing./ Id. There is no standard definition for the term "good cause" in the context of a Oklahoma paternity proceeding. However, one Oklahoma court defined the term good cause, in the context of a child support case, as requiring some level of hardship. See Department of Human Services v. Glasby, 858 P.2d 1291, 1295 (Okla. Ct. App. 1993). Obviously, the genetic testing of T~ directly cannot take place because he died in 1999. In our opinion, this fact could meet the requirement for good cause.

Under Oklahoma law, a statistical probability of paternity established at 95 percent or greater creates a presumption of paternity that can only be rebutted by clear and convincing evidence. Okla. Stat. tit.10, 504C (2000). A statistical probability of paternity established at 98 percent or greater creates a conclusive presumption of paternity that cannot be disputed. Okla. Stat. tit. 10, 504D (2000). The DNA lab report demonstrated a 99.83 percent probability that B~ and S~ are her paternal grandparents. However, it is not clear from your request for a legal opinion whether T~ had any biological siblings. The DNA lab report clearly stated that DNA testing could not exclude any other male siblings as true parents of A~. Therefore, we believe the conclusive presumption of paternity cannot be applied under the facts of this case.

We recommend that more development of the record be undertaken to determine whether T~ had any biological brothers. If there are any, F~ should then execute an affidavit (or other statement satisfactory to you) attesting to whether or not any such brothers could have fathered A~. In addition, you may also want to obtain affidavits or statements from the number holder's biological brothers (if any) attesting to the same issues. If further development of the record negates these concerns, then we believe that A~ can rely upon the basic presumption of paternity as specified under Okla. Stat. tit.10, 504C to qualify for child's insurance benefits.

POMS section GN 00306.065 generally provides guidance regarding evidentiary standards under state intestacy laws and genetic testing accreditation. Our research reveals that the Federal statutes addressing laboratory accreditation and certification do not apply to laboratories that perform DNA tests to establish paternity. Federal accreditation requirements governing the certification of laboratories pertain only to facilities that conduct "examination[s] of materials derived from the human body for the purpose of providing information for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings." 42 U.S.C. 263a(a). Federal regulations further state that the rules for certification of laboratories do not apply to components or functions of "any facility or component of a facility that only performs testing for forensic purposes." 20 C.F.R. 493.3(b)(1) (2000).

The purpose of DNA testing in this case was to ascertain whether A~ was the daughter of T~, and thus could be entitled to child's survivor benefits based on his record. The DNA test used to establish relationship and benefit entitlement was not performed for medical diagnosis, prevention, treatment, or health assessment. Accordingly, the Federal accreditation requirements do not apply to the laboratory that performed the DNA test. In addition, our research also reveals no certification or accreditation requirements under the statutes of Oklahoma for laboratories that perform paternity DNA tests. Therefore, the DNA test must be evaluated for authenticity in the same manner as any other evidence offered into a court of law. The documentation provided with your request for a legal opinion demonstrated that the DNA samples were provided by the claimant, her mother, and paternal grandparents. The director of the DNA lab submitted a letter briefly outlining the DNA extraction and testing process with accompanying results. There are no apparent chain of custody issues. In our opinion, we believe an Oklahoma court would conclude that the DNA lab report is valid.

If the DNA lab report is sufficient to establish paternity under State law, you inquired as to whether A~ would be entitled to retroactive benefits. As you know, 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. 20 C.F.R. 404.621(a)(1)(ii)(2000). Agency policy generally provides, that an act that gives inheritance rights, but does not legitimate the child, is effective only from the date of the act or event, while an act that legitimates the child is effective retroactively to the birth of the child. See Social Security Ruling 85-17.

Oklahoma is listed under POMS GN 00306.085 as a State in which the child is legitimated from birth. Id. Oklahoma law provides that all children born within the State "shall be" deemed legitimate. Okla. Stat. Tit. 10, 1.2 (2000). It was the intent of Oklahoma law to abolish the stigma of defining children by terms of illegitimate and legitimate, but rather refer to them as children born out of wedlock. Okla. Stat. Tit. 10, 1.1 (2000). However, this change in the law was more than mere semantics. The Oklahoma Supreme Court has ruled that the State may not erect impenetrable barriers to discriminate against illegitimate children by denying them substantial benefits generally accorded to all children. See Callison v. Callison, 687 P.2d 106, 109 (Okla. 1984) (equal protection analysis striking down 3-year statute of limitations barring support action for illegitimate children, when same restriction not imposed upon legitimated children). Under Oklahoma intestacy law, once an individual has been judicially determined to be the father of a child born out of wedlock, the child stands in identical relation to his father and his kindred, and the father and his kindred to the child. Okla. Stat. Tit. 84, 215(d). Therefore, Oklahoma State law has not maintained a substantive distinction between legitimate and illegitimate children, and has legitimated all children from birth. We believe that if you are satisfied that A~ is the biological daughter of T~, she should be treated as if she was legitimate from birth.

In summary, we conclude that the DNA lab report standing alone is not sufficient to prove conclusively that A~ is T~'s daughter for Social Security benefit purposes. You should determine whether the number holder had any biological brothers who could have fathered the A~, and, if so, further develop the record to eliminate them as possible fathers. Further, Federal accreditation requirements do not apply to laboratories that perform DNA tests, and Oklahoma law does not require that laboratories performing DNA tests in paternity suits be certified. Therefore, we are satisfied that the DNA lab report would be admitted into an Oklahoma court of law. In addition, Oklahoma law concerning time limits for establishing paternity can be disregarded as can any previous distinction between heirship and inheritance rights under the POMS. Accordingly, A~ would be entitled to appropriate retroactive benefits. 20 C.F.R. 404.621.

Tina M. Waddell
Regional Chief Counsel

By: Thomas C. Strafuss
Assistant Regional Counsel

K. PR 02-024 Whether a 1999 Georgia Court Order Finding the Child is the Biological and Legitimate Child Could Establish Paternity of a Wage Earner Who Died in Oklahoma in 1982 Before the Child was Born [NH R~, SSN ~]

DATE: September 28, 2000

1. SYLLABUS

In accordance with Gray v. Richardson, SSA is not bound by a Georgia court's Order Establishing Paternity and Legitimization stating that the child was born of a common-law marriage established under the States of Oklahoma and Georgia, and was therefore the biological and legitimate child of the NH. The issue was not genuinely contested before the State court by parties with opposing interests, and the State court's order is not consistent with the law enunciated by the highest court of the State. There is no evidence of a common-law marriage in Oklahoma or Georgia.

2. OPINION

You have requested an opinion regarding whether a 1999 Georgia State Court Order finding that M~ (M~) is the biological and legitimate child of R~ (R~) establishes paternity for the purpose of awarding Social Security surviving child's benefits. / In our opinion, the Social Security Administration (SSA) should not accept the Order as establishing the paternity of M~ because the proceedings were not genuinely contested and the Order is not consistent with the law enunciated by the highest court of the State.

R~'s death certificate indicates that he was 20 years old when he died in Oklahoma on March XX, 1982. His death was deemed a suicide by the medical examiner. His father, M~ (the senior R~), informed the medical examiner that his son was never married and was a resident of Oklahoma. M~'s birth certificate was completed by her mother, T~ (T~), a resident of Oklahoma, who signed her name as "T~." The birth certificate indicates that M~ was born in Oklahoma on November, and that her father was R~.

R~'s father, mother ( M~), and brother, R~, were recently contacted by the undersigned. The senior R~ said that R~ never resided in Georgia, and in fact had never visited Georgia with Ms. P~. He noted that his son lived at home with him in Lawton, Oklahoma until his son turned 18 and got a job with Haliburton in Davis, Oklahoma. R~ then lived in Davis until he died. R~ said that his brother and Ms. P~ lived together for a short time, and that his brother never indicated to him that Ms. P~ and he considered themselves married. R~ did not believe that M~ was his brother's child because Ms. P~ had sexual relations with other men at that time. R~'s mother and father both reported that they were not notified that Ms. P~ and M~ had filed a Petition To Establish Paternity And Legitimization.

In May 1983, Ms. P~ filed applications for surviving child's benefits on behalf of M~, and surviving widow's benefits on behalf of herself, alleging that she and R~ had a common law marriage. Both applications were denied in December 1983, on the basis that Ms. P~ could not establish that a marriage existed under the deemed marriage provisions or under the laws of Oklahoma, and that M~ was not a deemed child and could not inherit under Oklahoma law.

Another application for surviving child's benefits was filed in May 1991, when Ms. P~ and M~ were residents of Florida. The SSA obtained information from the prior file, which contained statements from Ms. P~ that she had not used R~'s surname because they were not married. There were also statements from a friend who noted that Ms. P~ did not want to marry R~. The friend also noted that R~ and Ms. P~ had an argument and R~ had kicked Ms. P~ out of the house a few days before he committed suicide. Ms. P~ also informed the SSA that R~ did not acknowledge that M~ was his child because he did not know Ms. P~ was pregnant at the time of his death. In the 1991 application, Ms. P~ acknowledged that M~ does not meet the requirements to be entitled on R~'s record, but was advised by an attorney to file again nevertheless. This application was denied by the SSA in June 1991, as there was no new and/or material evidence to show that the previous denial was incorrect.

In September 1999, Ms. P~ filed a Petition to Establish Paternity and Legitimization (Petition) in the Superior Court of Charlton County, Georgia. Ms. P~ states that she is a resident of Charlton County, Georgia. The Petition incorrectly states that R~ was killed on April XX, 1982. The Petition further states that Ms. P~ and R~ "were common law married under the laws of the States of Oklahoma and Georgia, which they has (sic) resided in both." On this basis alone, it was requested that M~ be found the child of R~ and Ms. P~. The undersigned contacted Ms. P~'s attorney, Kenneth F~. According to T~, only Ms. P~ and M~ testified at the hearing, and the Guardian Ad Litem for M~ gave a report. On November XX, 1999, S~, Judge, Superior Court of Charlton County, Georgia, signed an Order Establishing Paternity and Legitimization, prepared by T~. This Order states that M~ was born as issue of a common law marriage established under the States of Oklahoma and Georgia, and was therefore the biological and legitimate child of R~.

On December XX, 1999, Ms. P~ filed the current application for surviving child's benefits on behalf of M~. In that application, Ms. P~ incorrectly states that "no previous application has been filed with the Social Security Administration for whom this application is being filed." Ms. P~ also noted that only her parents show an active interest in M~. R~'s parents are not listed.

On June XX, 2000, Ms. P~ wrote a letter to a United States Representative from Jacksonville, Florida. Ms. P~ indicated that she was now living in Yulee, Florida. She states in this letter, "When I was twenty years old, I was engaged to be married and pregnant. Six months pregnant my fianc was killed in an automobile accident..."

The Social Security Act provides that in determining whether an applicant is the child of a fully insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which the insured was domiciled at the time of his death. 42 U.S.C. 416(h)(2)(A). Thus, eligibility for Social Security benefits depends on whether the individual would inherit under the law of intestate succession in the state where decedent was domiciled. In this case, Oklahoma law controls because R~ was domiciled in Oklahoma at the time of his death. Id.

An issue of a valid marriage is entitled to inherit under the law of intestate succession in Oklahoma. 84 Okl. St. Ann 213. The Oklahoma statutes further provide that a child conceived during a valid marriage, but not born at the time of the father's death, is deemed an existing person for inheritance purposes if subsequently born alive within ten (10) months after the death of the father. 15 Okla. St. Ann. 15; 10 Okla. St. Ann. 2. Likewise, Georgia statutes provide that all children, including issue of a common law marriage, are legitimate if born in wedlock or within the usual period of gestation thereafter. Ga. St. Ann. 19-7-20; 1958-1959 Op. Att'y Gen. p. 89.

To establish entitlement to surviving child's benefits as a dependent child, M~ must meet one of four provisions found at 216(h) of the Social Security Act, 42 U.S.C. 416(h). In the present case, Ms. P~ asserts that because M~ is the child of a valid common law marriage established under the laws of Oklahoma and Georgia, M~ is entitled to Social Security surviving child's benefits based on the first statutory alternative, found at 42 U.S.C. 402(d)(3) and 416(h)(2)(B). These sections provide that the child of a valid or putative marriage is deemed to be dependent for support on the deceased wage earner and is thus eligible for surviving child's insurance benefits without the necessity of proving actual dependence. 42 U.S.C. 402(d)(3) and 416(h)(2)(B). The alleged existence of a common law marriage was the only proof of paternity submitted to the Georgia State Court. Thus, M~'s claim for surviving child's benefits is dependent on the validity of the Georgia State Court's finding that a common law marriage was established in either Georgia or Oklahoma.

In Social Security Ruling 83-37c, which adopts the decision in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the Social Security Administration explains when it is bound by state court decisions on family law issues. Although the Commissioner is not bound by a state court's decision in a proceeding to which he was not a party, the Social Security Administration must accept state court decisions where:

  1. an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction;

  2. this 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 court is consistent with the law enunciated by the highest court of the State.

See Social Security Ruling 83-37c; Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973).

Whether or not the Georgia State Court was a court of competent jurisdiction is not entirely clear. The superior courts of Georgia have "subject matter" jurisdiction in all proceedings for the determination of paternity of children who are residents of the state. Ga. St. Ann. 19-7-40. However, it is unclear whether the superior court had "jurisdiction over the person" ("personal jurisdiction") of all the necessary parties in the present case. The Code of Georgia provides that a court may order service upon a person outside the state upon a finding that there is a constitutI~lly permissible basis for jurisdiction over the person, including those enumerated in Article 3, Chapter 11 of Title 19. Ga. St. Ann. 19-7-41. The relevant statute in Article 3, Chapter 11, is the State of Georgia's version of the Uniform Interstate Family Support Act, which lists eight methods a state court may exercise "personal jurisdiction" over a nonresident individual in a proceeding to establish or determine parentage. Ga-St-Ann. 19-11-110. However, this statute assumes that the putative father is alive and is silent as to the process for deceased putative fathers. It is important to note that the Court of Appeals of Georgia has held that the administrator of a deceased putative father's estate was a necessary party regardless of whether the proceeding was one to establish legitimization of a child or one to have a new birth certificate issued, or both. Ward v. Ward, 115 Ga. App. 778, 779, 782, 156 S.E.2d 210, 211, 213 (1967). Under Oklahoma law, when a person dies intestate with no known wife or children, the father or mother of the decedent is the administrator of the estate. 58 Okl. St. Ann. 122. Both of R~'s parents reported to the undersigned that they were not informed that Ms. P~ and M~ had filed the Petition to Establish Paternity and Legitimization.

Thus, although it is unclear whether the Georgia State Court had obtained "personal jurisdiction" over all the necessary parties to issue the Order in the present case, this need not be conclusively resolved in light of the fact that the SSA need not accept the state court Order where the issue was not genuinely contested by parties with opposing interests, nor where resolution by the state court is consistent with the law enunciated by the highest court of the State. See Social Security Ruling 83-37c; Gray v. Richardson, supra.

Clearly, the issue of R~'s paternity was not genuinely contested by parties with opposing interests. As noted above, only Ms. P~, M~ and the Guardian Ad Litem for M~ presented evidence in the state court proceeding which found that a common law marriage existed in Georgia and Oklahoma, and that M~ was an issue of that marriage.

Furthermore, as shown below, the findings of the Georgia State Court that a valid common law marriage existed in Georgia and Oklahoma are contrary to the evidence as a whole and not binding on the SSA because they are not consistent with the law enunciated by the highest court of the State.

The State of Georgia no longer allows individuals to enter into common law marriages; however, otherwise valid common law marriages entered into prior to January XX, 1997 are continued to be recognized. Ga. St. Ann. 19-3-1.1. To have established a valid common law marriage in Georgia prior to January XX, 1997, there must be (1) parties able to contract, (2) an actual contract of marriage where the husband and wife agree to live together as man and wife and they hold themselves out to the world as married, and (3) consummation by cohabitation in Georgia. Ga. St. Ann. 19-3-1 (1999); Georgia Osteopathic Hosp. V. O'Neal, 198 Ga. App. 770, 777-78, 403 S.E.2d 235, 243-44 (1991); Kersey v. Gardner, 264 F. Supp. 887, 889 (M.D. Ga. 1967). There is no credible evidence demonstrating that R~ and Ms. P~ ever held themselves out as married, and cohabitated in the State of Georgia. Thus, R~ and Ms. P~ did not establish a common law marriage in Georgia.

When a common law marriage is alleged to have been established in another state, the State of Georgia will apply the law of that other state in determining whether a valid common law marriage exists. Ga. St. Ann. 24-7-24(a)(2). In the present case, it was alleged that a common law marriage was established in Oklahoma. Under Oklahoma Law, a party asserting a common law marriage must prove the following elements with clear and convincing evidence: (1) an actual and mutual agreement between the spouses to be husband and wife, (2) a permanent relationship, (3) an exclusive relationship proved by cohabitation as man and wife, and (4) the parties to the marriage must hold themselves out publicly as husband and wife. Estate of Stinchcomb v. Stinchcomb, 674 P.2d 26, 28-29 (Okla.1983) (citing Matter of Phifer's Estate, 629 P.2d 808 (Okla. Ct. App. 1981)).

There is no credible evidence that R~ and Ms. P~ had an actual and mutual agreement to be husband and wife, or that they held themselves out publicly as husband and wife. The senior R~ reported on his son's death certificate that his son was never married and was a resident of Oklahoma. The senior R~ further noted that his son always lived in Oklahoma and did not live in Georgia with Ms. P~.

Ms. P~'s prior admissions further show that when she filed M~'s second application for surviving child's benefits, she knew that she did not meet the requirements to be entitled on R~'s record. Ms. P~ also admitted that she did not use R~'s surname because she did not consider herself married to him, and there was evidence from a friend showing that Ms. P~ did not want to marry R~. Even as late as the June XX, 2000, letter to her United States Representative, Ms. P~ states that she was only engaged to be married. No common law marriage exists when a couple refers to themselves as engaged to be married; an agreement to marry in the future is not sufficient. In re Estate of Wilson, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999); In re Gray's Estate, 119 Okla. 219, ____, 250 P. 422, 425 (1926). "A mere promise of future marriage, followed by illicit relations, is not a common law marriage." Wheaton v. State, 185 P.2d 931, 937, 85 Okla. Crim. 132, 143-44 (Okl. Cr. App. 1947). Finally, there is no evidence R~ ever indicated to his family that he considered himself married to Ms. P~.

R~ and Ms. P~ also did not have a permanent relationship, and it is questI~ble whether they had an exclusive relationship. The evidence shows that R~'s brother, R~, reported that R~ and Ms. P~ only lived together for a short period of time in Oklahoma and that Ms. P~ may have had sexual relationships with other men. Evidence from the prior applications also show that R~ had kicked Ms. P~ out of his house a few days before he died.

The overwhelming evidence shows a common law marriage could not have been entered in Georgia because R~ never resided there, nor in Oklahoma because Ms. P~ believed, at the most, to be engaged to R~ at the time of his death, and they did not hold themselves out as husband and wife to family and friends. Therefore, it is unlikely the highest court of Georgia would have found a valid common law marriage existed in either Georgia or Oklahoma based on these facts. In re Estate of Wilson, 236 Ga. App. 496, 496, 512 S.E.2d 383, 385 (1999) (No common law marriage exists when a couple does not hold themselves out as husband and wife and refer to themselves as engaged to be married). The SSA therefore, need not accept the Georgia State Court Order finding that M~ was an issue of a valid common law marriage between Ms. P~ and R~. The Georgia State Court Order would only be considered along with the other evidence before the Administration. Kersey v. Gardner, 264 F. Supp. 887, 890 (M.D. Ga. 1967).

Based on the foregoing discussion, it is our conclusion that the SSA is not bound by the Order because it was not genuinely contested before the state court by parties with opposing interests, and the state court's Order is not consistent with the law enunciated by the highest court of the State.

Tina M. Waddell
Regional Chief Counsel

By: Christopher C~
Assistant Regional Counsel

L. PR 01-119 Oklahoma State Law Evidence Standard to Establish Child Relationship NH - B~, SSN~

DATE: February 28, 2001

1. SYLLABUS

Under Oklahoma law, a man is presumed to be the natural father of a child if, before the child's birth, he and the child's mother have cohabitated and the child is born within 10 months after the termination of cohabitation. The term cohabitation means the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage. An "off and on" relationship does not satisfy this requirement.

Sporadic instances of the child's mother residing with the NH and attempted informal acknowledgments by the NH's mother and his former roommate do not meet a clear and convincing evidentiary standard.

2. OPINION

You asked whether the evidence presented would establish A~ (A~) as the biological child of the deceased number holder B~ (B~) under Oklahoma law. If we determine that the Oklahoma evidentiary standard was met, you asked whether such evidence would legitimate the child or provide him inheritance rights only. If inheritance rights are conferred, you asked whether those rights are only prospective under Oklahoma law.

For the reasons discussed below, we believe that the evidence presented would not establish that A~ is the biological child of B~ under Oklahoma law.

A~ was born March, in Iowa. No father's name was shown on the birth certificate at the time of A~'s birth. The mother's name was shown as A~ . (A~) as not married at the time of conception or birth of A~. Although A~ Claims that she and B~ lived together off and on for several months between 1997 and 1999, B~ and A~ never married, nor is a common law marriage alleged. B~ never formally acknowledged A~ as his child, nor was he declared by a court to be A~'s father. B~ died February XX, 2000, while domiciled in Oklahoma, before A~ was born. Thus, B~ never lived with nor supported A~. Moreover, there is no evidence indicating that he contributed to Ms. J~'s living expenses or medical expenses while she was pregnant.

In April 2000, A~ filed for survivor benefits and lump-sum death benefits for A~ on B~'s Social Security account. B~'s mother, C~ (C~) wrote a notarized letter on April XX, 2000, that "acknowledges and recognizes" A~ as B~'s son. B~'s former roommate, C~(C~) stated in a Report of Contact that A~ was B~'s son "to the best of his knowledge."

The claim has not been allowed or denied because you first require a legal opinion as to whether Oklahoma state law permits a finding of a child relationship based on an informal oral acknowledgment through the statements of the putative father's mother and roommate.

This opinion will address primarily section 216(h)(2) of the Social Security Act (the Act), which refers to the issue of paternity to the law of the state in which the deceased putative father was domiciled at the time of death. A~ cannot qualify under an alternative Federal provision, section 216(h)(3) of the Act, because he does not meet the requirements of that provision.

Section 216(h)(2) provides that in determining whether an applicant is the child or parent of a deceased insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which such insured individual was domiciled at the time of death. 42 U.S.C. 416(h)(2) (2000). Since B~ was domiciled in Oklahoma at the time of his death, we therefore, must apply Oklahoma law.

A~ was born posthumously in March, a month after the number holder's death. Under federal and state law, when a posthumous child is involved, the number holder can be considered to have contributed to the support of the child if his contributions were commensurate with the needs of the unborn child, taking into account the number holder's economic circumstances at the time of his death. See Wolfe v. Sullivan, 988 F.2d 1025, 1028 (10th Cir. 1993).

Ms. J~ stated that M~ never contributed to her living or medical expenses while she was pregnant. Thus, B~ cannot be considered to have contributed to A~'s support before his death. See Wolfe, 988 F.2d at 1028.

Under Oklahoma law, a man is presumed to be the natural father of a child for all intents and purposes if:

. . .[b]efore the child's birth, he and the child's natural mother have cohabitated and the child is born within ten (10) months after the termination of cohabitation. As used in this paragraph, the term cohabitation means the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law. . . .

See Okla. Stat. tit. 10, 2(A)(2)(2000). By asserting that she and B~ lived together "off and on" in the application materials, Ms. J~ tacitly conceded that she did not live with B~ "continuously and habitually." Thus, her statement that she lived together "off and on" with B~ is not sufficient to establish a presumption of paternity under the Oklahoma provision. See Okla. Stat. tit. 10, 2(A)(2)(2000). Oklahoma law also states that a court can find "clear and convincing evidence of paternity, . . . [if there exists] a notarized written statement acknowledging paternity of the child executed by the putative father." See Okla. Stat. tit.10, 83(E)(2)(b)(1999).

Here, B~ did not make a notarized written acknowledgment of paternity of A~, rather his mother makes such an acknowledgment. Thus, neither Ms. J~' notarized acknowledgment of A~ as B~'s son, nor Mr. J~' statement are sufficient to establish a presumption of paternity under Okla. Stat. tit. 10, 83(E)(2)(b).

Oklahoma law establishes inheritance rights for a child born out of wedlock whenever: (1) the father, in writing, acknowledges himself to be the child's father; (2) the father and mother intermarry subsequent to 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. See Okla. Stat. tit. 84, 215(d) (1999).

The first three requirements contemplate acknowledgments absent from the evidence presented. Thus, A~'s only remaining option to establish inheritance rights from B~ under Oklahoma law is a judicial determination of paternity. Here, there has been no such judicial determination. However, under new SSA regulations, even if applicable State inheritance laws require a court determination of paternity, SSA will not require that a child claimant actually obtain such a determination, but will decide for itself the child's paternity by using the standard of proof that the State court would use as the basis for determining paternity. 20 C.F.R. 404.355(b)(2)(2000).

In order "for a child born out of wedlock to inherit from his father by intestate succession . . . there must be clear and convincing [evidence] as to the relationship and kinship," between the child and the deceased. See Estate of King, 837 P.2d 463, 467 (Okla. 1990)(citing Okla. Stat. tit. 84, 215). Under Oklahoma law, evidence of statistical probability of paternity established at 98 percent or more creates a conclusive presumption of paternity. See Okla. Stat. tit. 10, 504(D) (1999). However, no evidence of such a test has been presented to date.

The final question concerns the first month for which A~ would be entitled to benefits if he establishes his filial relationship to B~. SSA allows applicants for child's benefits not based on disability to be paid retroactive benefits for up to six months immediately before the month of the application. 20 C.F.R. 404.621(a)(1)(ii).

For the reasons discussed below, we conclude that A~'s application, filed in April 2000, could be given full retroactivity even though the Program Operations Manual System (the POMS) contains guidance to the contrary. The POMS provides that if an act or event confers inheritance rights under applicable state law, but does not legitimate a child, the act or event generally has effect only from the date of such act or event. See POMS GN 00306.055(A)(3), 00306.075(A), 00306.080. Newly issued POMS regarding Oklahoma state law are consistent with this opinion. Therefore, we must look to Oklahoma state law to determine the issue of retroactivity.

Neither Oklahoma statutes nor Oklahoma case law limits the number of months of retroactive benefits that can be paid for a child who has inheritance rights only. In fact, under Oklahoma law, property descends upon death and vests immediately in heirs, legatees and devisees, subject only to the control of the county court for purposes of administration. Ware v. Beach, 322 P.2d 635, 639 (Okla. 1957), cert den'd, 358 U.S. 819 (1958); see Cassina v. Jones, 340 P.2d 482, 484 (Okla. 1959); Okla. Stat. tit. 84, 211, 212.

Therefore, if the informal acknowledgment had been sufficient under Oklahoma law to confer only inheritance rights to A~, state law provides for ownership of any property that he would have been due effective with the date of his father's death. Thus, we conclude that, if he establishes paternity, A~ would be entitled to benefits effective March 2000, the month he was born. 20 C.F.R. 404.621(a)(1)(ii).

In summary, we conclude that Ms. J~'s sporadic instances of residing with B~ and the attempted informal acknowledgments by B~'s mother and his former roommate are not sufficient under Oklahoma state law to establish A~ as the child of B~. Unless A~ can establish by clear and convincing evidence, possibly through blood tests, that he is the child of B~, he is not entitled to any benefits under the Social Security Act based on B~'s account. If A~ does establish paternity under Oklahoma law, then under the Act he would be entitled to inheritance rights and to retroactive benefits from March 2000, the month of his birth.

M. PR 00-066 Using Results of DNA Test After the Number Holder's Death to Establish Survivor Rights for a Child in Oklahoma E~, SSN ~

DATE: June 30, 1999

1. SYLLABUS

Under Oklahoma law, evidence of statistical probability of paternity established at 98% or more creates a conclusive presumption of paternity.

2. OPINION

This memorandum is in response to your request for an opinion regarding whether or not a laboratory report is sufficient evidence to establish the relationship of the child, L~ (L~), to the number holder, E~(E~), under Oklahoma State law or under federal law, as described by section 216(h)(2) of the Social Security Act, 42 U.S.C. 416(h)(2), and codified in recently revised regulations at 20 C.F.R. 404.354-55. See 63 Fed. Reg. 57,590 (1998) (attached).

In this case, a DNA paternity evaluation report was submitted as evidence of N~'s paternity in a request for survivor's benefits for L~. The facts relating to this request reveal that L~ was born to S~(S~) on May in Hobart, Oklahoma.

No father's name was shown on the birth certificate at the time of L~'s birth. N~ and C~ never married prior to N~'s death on November XX, 1998. N~ never acknowledged L~ as his child and was not declared by a court to be the father of L~. Moreover, N~ never lived with or supported L~.

On December XX, 1998, C~ filed for survivor's benefits for L~, claiming that N~ was L~'s biological, or natural, father. Submitted with the application was a DNA paternity evaluation report dated October XX, 1995, which was prepared by LabCorp, a laboratory in Burlington, North Carolina. The report based its evaluation upon DNA samples from L~, and N~. The report stated that the probability is 99.32 percent that N~ is L~'s father, as compared to an untested, randomly chosen man of the North American Caucasian population.

The Social Security Act provides that one must apply State inheritance laws when determining if an applicant is a child for Social Security benefit eligibility purposes. Section 216(h)(2)(A) of the Act, 42 U.S.C. 416(h)(2)(A). Under the revised regulations, a child's relationship to a number holder can now be established without the need for a court determination of paternity. The regulations provide that an insured's natural child may be eligible if he or she could inherit personal property under State inheritance laws if the insured died without a will. However, any State inheritance law which requires that an action be taken within a specified period of time after the insured's death or the child's birth, or that an action to establish paternity must have been started or completed before the insured's death, will not be applied. Paternity will be established by using 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.

Five questions will be addressed in this opinion:

(1) What standard of proof does Oklahoma Law require in order to establish paternity?

(2) What does Oklahoma law require in order to establish inheritance rights?

(3) Does Oklahoma law set a time limit for establishing inheritance rights?

(4) Do the new Social Security regulations allow the payment of benefits under section 216(h)(2) even if a child does not technically meet state law requirements, including any time limit restrictions?

(5) If L~'s relationship to N~ is established, for what month can he first be paid benefits?

First, under Oklahoma law, evidence of statistical probability of paternity established at 98 percent or more creates a conclusive presumption of paternity. See Okla. Stat. Ann. Tit. 10, 504(D) (West, WESTLAW through end of 1997 1st Sess.). Since the lab report shows a 99.32 percent probability of paternity, L~ has provided evidence which creates a conclusive presumption that N~ is L~'s father.

Second, Oklahoma law establishes inheritance rights for a child born out of wedlock whenever (1) the father, in writing, acknowledges himself to be the child's father, (2) the father and mother intermarried subsequent to the child's birth, and the father, after such marriage, acknowledged the child as his own or adopted him into his family, (3) the father publicly acknowledged 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 was judicially determined to be such in a paternity proceeding before a court of competent jurisdiction. See Okla. Stat. Tit. 84, 215(d) (West, WESTLAW through end of 1997 1st Sess.). Because the first three requirements contemplate actions taken by an alleged father and because N~ never took such actions, the only remaining option left for L~ to establish inheritance rights from N~ under state law is a judicial determination of paternity.

The third question concerns whether Oklahoma state law precludes a determination of paternity after the alleged father's death. Even though the Oklahoma statute reveals no express limitation upon the timing of such a determination of paternity, the Oklahoma Supreme Court has suggested that an adjudication of paternity after the death of the father does not give rise to inheritance rights. See Estate of King, 837 P.2d 463, 467 (Okla. 1990). Thus, even if L~ were to now obtain a court determination of paternity, such a determination might not suffice to establish L~'s inheritance rights under Oklahoma state law. Id. However, this question need not be resolved here in order to determine L~'s eligibility to receive surviving child's benefits because new federal regulations changed the way that Social Security Administration (Agency) applies state inheritance laws. Under the new regulations, the Agency will not apply any state inheritance law requirement that an action to establish paternity must have been started or completed before the worker's death. Accordingly, for social security purposes, L~ may establish his relationship to N~ after N~'s death without regard to state time limitations.

In response to the fourth question, the new regulations also provide that if an applicable State inheritance law requires a court determination of paternity (as in this case), the Agency will not require that a child claimant actually obtain such a determination, but will decide the child's paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. 20 C.F.R. 404.355(b)(2). Therefore, the Agency can determine L~'s relationship to the deceased number holder without a court determination of paternity. Because the DNA tests administered in this case would be deemed to conclusively prove paternity by any Oklahoma court, the Agency should treat L~ as if he had established inheritance rights under Oklahoma law. Accordingly, under the new regulations, the Agency should consider L~ as N~'s child for benefit purposes under section 216(h)(2) of the Social Security Act.

The fifth question concerns the first month for which L~ can be entitled to benefits. In order to answer this question, compliance with the applicable Agency regulations concerning entitlement and payment must be established. Entitlement for child's benefits is based upon whether the applicant is unmarried and under the age of eighteen, has filed an application, is the insured person's child, and is dependent upon the insured. See 20 C.F.R. 404.350. In this case, L~ is unmarried and under the age of eighteen. An application has been filed and, based upon DNA testing as discussed above, paternity has been established. See 20 C.F.R. 404.354(a) and (b); 404.355(a). In addition, once L~ is established as N~'s natural child, he is considered dependent upon N~. See 20 C.F.R. 404.360 and 404.361. Once entitlement is established, 20 C.F.R. 404.352(a) provides that, when the insured is deceased, a child's benefits begin with the first month covered by the application in which all other requirements for entitlement are met. Applications for child's benefits not based on disability can be retroactive for up to six months immediately before the month of application. 20 C.F.R. 404.621(a)(1)(ii)(1998). Since L~'s applications for benefits was filed in December 1998, one month after N~'s death, L~ can be entitled to benefits effective with the month of death, November 1998.

Enclosure: Case file

Copr. (C) West 1998 No Claim to Orig. U.S. Govt. Works

63 FR 57590-01 1998 WL 745835 (F.R.) (Cite as: 63 FR 57590)

RULES and REGULATIONS

SOCIAL SECURITY ADMINISTRATION

20 20 C.F.R. 404.1512(D)(2)(1998). Part 404

RIN 0960-AE30

Application of State Law in Determining Child Relationship

Wednesday, October 28, 1998

* ~AGENCY: Social Security Administration (SSA).

ACTION: Final rules.

SUMMARY: These final regulations revise our rules on determining whether a natural child has inheritance rights under appropriate State law and therefore may be entitled to Social *~ Security benefits as the child of an insured worker. Specifically, they revise our rules to explain which version of State law we will apply, depending on whether the insured is living or deceased, how we will apply State law requirements on time limits for determining inheritance rights, and how we will apply State law requirements for a court determination of paternity. They also clarify our current rule on determining an applicant's status as a legally adopted child of an insured individual.

EFFECTIVE DATE: These regulations are effective November 27, 1998.

SUPPLEMENTARY INFORMATION:

Time for Determining Relationship of Natural Child

Section 216(h)(2)(A) of the Social Security Act (the Act) states in part that in determining whether an applicant is the child of a deceased insured individual, the Commissioner of Social Security (the Commissioner) shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his or her death.

A child of a valid marriage has inheritance rights under the laws of all States. When determining the relationship of a child born out of wedlock to a deceased insured person under section 216(h)(2)(A), we have always looked to the law that was in effect in the insured's State of domicile at the time he or she died. Some Federal courts have also interpreted the provision this way. See Schaefer on behalf of Schaefer v. Heckler, 792 F.2d 81 (7th Cir. 1986); Ramon v. Califano, 493 F. Supp. 158 (W.D. Tex. 1980); and A~ v. Califano, 452 F. Supp. 205 (D. Md. 1978).

Other courts have adopted different interpretations. For example, in Owens v. Schweiker, 692 F.2d 80 (9th Cir. 1982), the court held that section 216(h)(2)(A) should be read to require the use of the State law of domicile that was in effect at the time of our determination on the child's claim. We, therefore, published a final rule (49 FR 21512) on May 22, 1984, amending s 404.354 of our regulations to clarify and reinforce our policy on applying State inheritance laws. However, after we amended our regulations, we also published Acquiescence Ruling (AR) 86-17(9) to clarify that we would apply the Owens decision to claims of children residing in the 9th Circuit. (We are publishing a notice today to rescind AR 86-17(9) effective with the effective date of these final regulations.)

Still other courts have held that the relevant law is the law in force at the time the child applies for benefits (see Cox on behalf of Cox v. Schweiker, 684 F.2d 310 (5th Cir. 1982); and Hart by and through Morse v. Bowen, 802 F.2d 1334 (11th Cir. 1986)).

Recognizing that the language in section 216(h)(2)(A) could be viewed as ambiguous and has not been interpreted the same by all courts, we are amending our policy as stated in s404.354(b). We believe that a policy that permits us to apply any of several potentially applicable State inheritance laws would best effectuate Congress' intent with regard to serving the interests of a surviving child born out of wedlock. Therefore, when the insured is deceased, we will determine the status of such a child by applying the State inheritance law that is in effect when we adjudicate the child's claim for benefits. If the child does not have inheritance rights under that version of State law, we will apply the State law that was in effect when the insured died, or any version of State law in effect from the time the child first could be entitled to benefits based on his or her application until the time we make our final decision on the claim, whichever version is more beneficial to the child.

We also explain in these final regulations how we will determine which law was in effect as of the date of death. First we will look to the inheritance law that was in effect on the date of the insured's death. Then, if a law enacted after the insured's death is retroactive to the date of his or her death, we will apply that law. However, if a law in effect at the time of death was later declared unconstitutional, we will apply the State law which superseded the unconstitutional law.

Regarding the child of a living insured worker, our rule in s404.354(b) provided that the Commissioner will apply the inheritance law that was in effect when the child's claim was filed. We are amending ss404.354 and 404.355 to clarify that we will look to the versions of State inheritance laws that were in effect from the first month for which the child could be entitled to benefits up to and including the time of our final decision and we will apply the version most beneficial to the child.

State Law Time Limits

As previously stated, section 216(h)(2)(A) of the Act provides that, in determining whether an applicant is the child of a deceased insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his or her death. That section further states that an applicant who, according to such law, would have the same status relative to taking intestate personal property as a child or parent shall be deemed such respective child or parent.

Many State laws impose time limits within which someone must act to establish paternity for purposes of intestate succession. Such time limits are intended to provide for an orderly and expeditious settlement of estates. Since this is not the purpose of Social Security benefits for children, we provide in these final regulations that we will not apply a State's time limits within which a child's relationship must be established when we determine the child's status under section 216(h)(2)(A). Not applying time limits is consistent with our belief that such a policy on applying State inheritance laws will best serve the interests of the children Congress sought to protect when it enacted section 216(h)(2)(A) of the Act.

Court Order Requirements

Some State laws require a court determination of paternity for a child born out of wedlock to have inheritance rights. In determining a child's status under section 216(h)(2)(A), our policy has been to require that a claimant submit a court determination of paternity if one is required under State inheritance law. However, we are revising this policy by stating in these rules that, regarding a State that requires a court determination of paternity, we will use the standard of proof that the State court would use as the basis for such a determination, but we will not actually require a determination by a State court. Of course, if a State court with jurisdiction over the matter declares that a child can take a child's share of an insured individual's estate under intestate inheritance laws, or if a State court determines a child's paternity and such determination would prevail in that State's intestacy proceedings, SSA could generally rely on such State court findings. So, while we will not require an applicant to * ~ obtain a State court's determination, we will be guided by such determination that an applicant has obtained, subject to the prerequisites stated in Social Security Ruling 83-37c for accepting State court determinations. Those prerequisites are: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) this 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.

If we evaluate paternity by using the same standards that the appropriate State court would use if the issue were properly before it, we believe we will satisfy the intent of section 216(h)(2)(A) that we apply "such law as would be applied" by the State court to determine inheritance rights. We believe that the requirement of section 216(h)(2)(A) to apply State law will be satisfied if we apply the same substantive standard as a State court would apply to determine paternity.

Legally Adopted Child

The provisions for paying benefits to children of an insured individual were added to the Act by the Social Security Act Amendments of 1939 (Public Law 76- 379). Our policy for determining whether an applicant qualifies as the "child" of an insured individual has always been that we apply State law on inheritance rights to determine the status under the Act of a natural child, i.e., biological child, and State law on adoption to determine the status of a child legally adopted by the insured. To avoid any uncertainty about our policy, we are amending our regulations to state more clearly how we determine a child's status as an individual's natural child or adopted child.

Section 202(d)(1) of the Act provides for benefits to a child as defined in section 216(e) of the Act. Section 216(e) states, in part, that the term "child" means the child or legally adopted child of an individual. Section 216(e) further states the requirements for a person to be deemed the legally adopted child of a deceased individual. Section 216(e) thus distinguishes between a natural child and an adopted child.

Further, section 216(h)(2)(A) provides that the status of an applicant for benefits as a child (as opposed to a legally adopted child, a stepchild, or other type of individual who can qualify under section 216(e) of the Act as a "child" for purposes of section 202(d) of the Act) is determined by applying the law on devolution of intestate personal property that would be applied by the courts in the State of the insured individual's domicile. This is a test for the status of a natural child.

The legislative history of sections 216(e) and 216(h)(2)(A) shows that Congress intended us to use section 216(h)(2)(A) to determine the status of natural children. Section 209(k), enacted in 1939, provided the first definition of "child" by stating in part that the term means the child of an individual, the stepchild of an individual, and a child legally adopted by an individual before the adopting individual attained age 60 and prior to the beginning of the twelfth month before the month in which he or she died. Section 209(m), also enacted in 1939, contained language that is the same as the present section 216(h)(2)(A) and described how we determine whether an applicant is the child of the insured individual.

Then in 1946, Congress amended section 209(k) to allow some children adopted by individuals aged 60 or older to receive benefits. Congress' explanation of the amended section 209(k) was that under existing provisions of the Act, a stepchild or an adopted child is not a "child" for benefit purposes unless certain conditions are met. H.R. Rep. No. 2526, 79th Cong., 2d Sess. 26 (1946); S. Rep. No. 1862, 79th Cong., 2d Sess. 34 (1946). Thus, since the first provision for paying benefits to children of an insured worker, there has been a clearly defined distinction between natural children and adopted children and clearly defined conditions for determining the status of an adopted child, which conditions are not affected by section 216(h)(2)(A).

Along with the structure of the Act and the legislative history of provisions defining "child," we have consistently interpreted the State intestacy law provisions of section 216(h)(2)(A) as not applying to children legally adopted by the insured individual. Our first regulation on the status of a child was published in 1940. That regulation defined a "child" as a son or daughter (by blood) of a wage earner and then went on to define "adopted children." 5 FR 1880 (May 21, 1940). We have maintained that position from the first regulation to the present. In the present s404.354, we state that a child may be related to the insured as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. In s404.355, we explain the conditions for eligibility as a natural child, which include applying State inheritance law, and in s404.356 we state the requirement for eligibility as a legally adopted child.

In these final regulations, we are amending s404.356 to explicitly provide that we will determine an applicant's status as a legally adopted child by applying the adoption laws of the State or foreign country where the adoption took place.

Addition of Northern Mariana Islands

Further, we are adding the Northern Mariana Islands to the names of entities whose laws we will use to determine a child's relationship to the insured individual, depending on his or her permanent home.

Comments on Notice of Proposed Rulemaking (NPRM)

On January 30, 1997, we published proposed rules in the Federal Register at 62 FR 4494 and provided a 60-day period for interested individuals to comment. We received three letters with comments. One commenter said the proposed regulations' use of the law most beneficial to the interests of the child is a positive change which is consistent with the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193). Following are summaries of the other two comments and our responses to them.

Comment: One commenter suggested that a mechanism be implemented whereby SSA would notify the State Child Support Enforcement agency of all paternity determinations we make.

Response: A determination of paternity made by SSA is not the equivalent of an administrative order of paternity required by the States. Paternity determinations made by SSA are used only for SSA purposes.

Comment: One commenter was concerned that proposed s404.355 might be interpreted such that a child born out of wedlock for whom paternity was not established while the insured was alive would not qualify as the child of the insured. The commenter suggested that we add clarifying language to s 404.355(a)(3) to address this issue.

Response: We have revised s404.355(a) to clarify that paragraphs 1 through 4 are alternative means of establishing a child's status under the Act. As revised, subsection (a) provides that a child may be eligible for benefits as the insured's natural child if the child qualifies under any of the four paragraphs.

After considering the comments on the proposed regulations, we have revised s 404.355(a), as discussed in the response to the public comment. We *57593 have also revised paragraph (b)(3) of s404.355 to clarify the rule on selecting the State law that we apply in determining the relationship between a child and an insured individual when the insured is alive at the time the child applies for benefits on the insured's earnings record. As revised, paragraph (b)(3) provides that we determine the State where the insured individual had his or her permanent home when the child applies for child's insurance benefits, and we apply the law of that State. In addition, we have made several minor, nonsubstantive revisions to the rules. With these exceptions, we are publishing the proposed regulations unchanged as final regulations.

Regulatory Procedures

Regulatory Flexibility Act

We certify that these final regulations will not have a significant economic impact on a substantial number of small entities because they affect only individuals. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

Executive Order 12866

We have consulted with the Office of Management and Budget (OMB) and determined that these final rules do not meet the criteria for a significant regulatory action under Executive Order 12866. Thus, they were not subject to OMB review.

Paperwork Reduction Act

These final regulations impose no additionall reporting or record keeping requirements necessitating clearance by OMB.

List of Subjects in 20 CFR Part 404

Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance, Reporting and record keeping requirements, Social Security. (Catalog of Federal Domestic Assistance Program Nos. 96.001 Social Security-Disability Insurance; 96.002 Social Security-Retirement Insurance; 96.004 Social Security-Survivors Insurance)

Dated: October 20, 1998.

K~,

Commissioner of Social Security.

For the reasons set out in the preamble, we are amending subpart D of part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below.

PART 404FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

Subpart D[Amended]

1. The authority citation for subpart D of part 404 continues to read as follows:

Authority: Secs. 202, 203(a) and (b), 205(a), 216, 223, 225, 228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 403(a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).

2. Section 404.354 is revised to read as follows:

s404.354 Your relationship to the insured.

You may be related to the insured person in one of several ways and be entitled to benefits as his or her child, i.e., as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. For details on how we determine your relationship to the insured person, see ss404.355 through 404.359.

3. Section 404.355 is revised to read as follows:

s404.355 Who is the insured's natural child?

(a) Eligibility as a natural child. You may be eligible for benefits as the insured's natural child if any of the following conditions is met:

(1) You could inherit the insured's personal property as his or her natural child under State inheritance laws, as described in paragraph (b) of this section.

(2) You are the insured's natural child and the insured and your mother or father went through a ceremony which would have resulted in a valid marriage between them except for a "legal impediment" as described in s404.346(a).

(3) You are the insured's natural child and your mother or father has not married the insured, but the insured has either acknowledged in writing that you are his or her child, been decreed by a court to be your father or mother, or been ordered by a court to contribute to your support because you are his or her child. If the insured is deceased, the acknowledgment, court decree, or court order must have been made or issued before his or her death. To determine whether the conditions of entitlement are met throughout the first month as stated in s404.352(a), the written acknowledgment, court decree, or court order will be considered to have occurred on the first day of the month in which it actually occurred.

(4) Your mother or father has not married the insured but you have evidence other than the evidence described in paragraph (a)(3) of this section to show that the insured is your natural father or mother. Additionally, you must have evidence to show that the insured was either living with you or contributing to your support at the time you applied for benefits. If the insured is not alive at the time of your application, you must have evidence to show that the insured was either living with you or contributing to your support when he or she died. See s404.366 for an explanation of the terms "living with" and "contributions for support."

(b) Use of State Laws(1) General. To decide whether you have inheritance rights as the natural child of the insured, we use the law on inheritance rights that the State courts would use to decide whether you could inherit a child's share of the insured's personal property if the insured were to die without leaving a will. If the insured is living, we look to the laws of the State where the insured has his or her permanent home when you apply for benefits. If the insured is deceased, we look to the laws of the State where the insured had his or her permanent home when he or she died. If the insured's permanent home is not or was not in one of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, or the Northern Mariana Islands, we will look to the laws of the District of Columbia. For a definition of permanent home, see s404.303. For a further discussion of the State laws we use to determine whether you qualify as the insured's natural child, see paragraphs (b)(3) and (b)(4) of this section. If these laws would permit you to inherit the insured's personal property as his or her child, we will consider you the child of the insured.

(2) Standards. We 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, or that an action to establish paternity must have been started or completed before the worker's death. 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.

(3) Insured is living. If the insured is living, we apply the law of the State where the insured has his or her permanent home when you file your application for benefits. We apply the version of State law in effect when we make our final decision on your * ~ application for benefits. If you do not qualify as a child of the insured under that version of State law, we look at all versions of State law that were in effect from the first month for which you could be entitled to benefits up until the time of our final decision and apply the version of State law that is most beneficial to you.

(4) Insured is deceased. If the insured is deceased, we apply the law of the State where the insured had his or her permanent home when he or she died. We apply the version of State law in effect when we make our final decision on your application for benefits.

If you do not qualify as a child of the insured under that version of State law, we will apply the version of State law that was in effect at the time the insured died, or any version of State law in effect from the first month for which you could be entitled to benefits up until our final decision on your application. We will apply whichever version is most beneficial to you. We use the following rules to determine the law in effect as of the date of death:

(I) If a State inheritance law enacted after the insured's death indicates that the law would be retroactive to the time of death, we will apply that law; or

(ii) If the inheritance law in effect at the time of the insured's death was later declared unconstitutional, we will apply the State law which superseded the unconstitutional law.

4. Section 404.356 is amended by adding a sentence at the end to read as follows:

s404.356 Who is the insured's legally adopted child?

* * * We apply the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws described in s404.355, to determine whether you are the insured's legally adopted child.

[FR Doc. 98-28707 Filed 10-27-98; 8:45 am]

BILLING CODE 4190-29-P

63 FR 57590-01, 1998 WL 745835 (F.R.) END OF DOCUMENT


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 4, 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.

[15]

. The information provided shows several variations on B~’s name. SSA’s numident record shows her name as B~. The DNA testing documentation lists her name as B1~ (and B2~) (B1~and B2~), but her own signature in these documents indicates B~. The deceased number holder’s obituary lists her name as B~ (L~) F~. Finally, the Oklahoma divorce decree lists her name as B~. Despite the name variations, we understand the names to refer to the same person, B~, which is consistent with SSA’s numident record.

[16]

. 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. S~ has asserted that the children are the deceased number holder’s natural children, and there is no evidence or claim of adoption or status as a stepchild. Thus, our focus is only upon whether the claimants are the number holder’s natural children.

[17]

. In 2006, Oklahoma adopted the Uniform Parentage Act. Okla. Stat. Ann. tit. 10, § 7700-101 (Uniform Parentage Act).

[18]

. 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).

[19]

. We have addressed the issue using DNA test results of a single relative of the alleged father to establish paternity posthumously and reached a similar conclusion (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 01005.040.A Oklahoma, PR 12-106 Oklahoma State Law Status of Child Relationship (NH M~ ~: SSN ~) – REPLY (May 30, 2012).

[20]

. 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).

[21]

. 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).

[22]

. 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 the 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 lexicon”).

[23]

. This has been our long standing historical legal position with regard to retroactivity under Oklahoma law. See POMS GN 00306.600; POMS PR 01105.040.B Oklahoma, PR 14-044 Oklahoma State Law – Use of Siblingship DNA Report to Establish Child Relationship (NH Tyler ~; SSN ~) – REPLY (January 10, 2014); POMS PR 01005.040.A Oklahoma, PR 12-106 Oklahoma State Law Status of Child Relationship (NH M~ ~: SSN ~) – REPLY (May 30, 2012); POMS PR 01115.040.C Oklahoma, PR 05-112 Using Results of DNA Test After the Number Holder’s Death to Establish Inheritance Rights for a Child In Oklahoma (NH B~ ~; SSN ~) – REPLY (September 9, 2003); POMS PR 01115.040.E PR 03-018 Using Results of DNA Test After the Number Holder’s Death to Rebut Presumption of Legitimacy and Establish Inheritance Rights for a Child in Oklahoma (NH R~; SSN ~) – REPLY (October 31, 2002).

[24]

. A~’s last name is now B~, which the DNA documentation reflects.

[25]

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

[26]

. 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 names and photographs of the individuals whose specimens have been taken; (2) the names of the individuals who collected the specimens; (3) the places where the specimens were collected and the dates of the collections; (4) the names of the individuals who received the specimens in the testing laboratory; and (5) the dates on which the specimens were received. Okla. Stat. Ann. tit. 10, § 7700-504(B).

[27]

. This lab report was prepared by H.A. Chapman Institute of Medical Genetics, a genetic testing lab (the DNA lab) in Tulsa, Oklahoma.

[28]

. These facts if developed further, could be relevant to show whether A~’s paternity as to Mr. B~ was disputed before he was two years old or to establish if Mr. B~ was living with or contributing to A~=s support at the time of Mr. B~’s death.

[29]

. Even though these men have the same last name as Mr. B~'s adoptive parents, their statements imply that they are Mr. B~'s biological brothers.

[30]

. The only persons authorized by statute to dispute the paternity of a child born during a marriage are the husband, wife, the alleged father, or their descendants.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115040
PR 01115.040 - Oklahoma - 09/26/2016
Batch run: 09/26/2016
Rev:09/26/2016