PR 01120.005 Arkansas

A. PR 09-146 Arkansas State Law Status of Child Based on Written Acknowledgment (NH James T~; SSN ~) – REPLY

DATE: July 31, 2009

1. SYLLABUS

In Arkansas, the number holder's written acknowledgment is sufficient evidence to establish that the claimant is the number holder's child under State law. Because acknowledgment does not legitimize the child in Arkansas, the first month of entitlement to benefits can be no earlier than the month of the acknowledgment.

2. OPINION

The purpose of this memorandum is to respond to your request for an opinion on whether a written acknowledgment by a number holder is sufficient evidence under Arkansas law to establish a child relationship to a number holder. Although the Social Security Administration (agency) awarded child's benefits in this case under section 216(h)(3)(B) of the Social Security Act (Act), you specifically asked whether a child relationship can be established under section 216(h)(2)(A) under Arkansas intestacy law. In addition, the Chicago Regional Office asked whether, considering the child was domiciled in Illinois at the time the child's application was filed, Arkansas would look to Illinois law to determine the child's right to inherit. In our opinion, the written acknowledgment is sufficient evidence to establish that the child is the number holder's child under Arkansas law, and the child would be entitled to inherit personal property from the number holder. We also believe that Arkansas would look to its own law, not Illinois law, to make this determination. Further, we believe that the child met the requirements for entitlement to child's benefits as of the date of the written acknowledgment, the date he established inheritance rights under Arkansas law.

As we understand the facts, Marshall C~ gave birth to Charles C~ on May 19, 1996, in Illinois. The agency awarded Title II disability benefits to the purported father, James T~ (number holder), who is currently domiciled in Arkansas, effective September 2006. The number holder did not list any children on his application for benefits.

On May 5, 2008, Ms. C~ protectively filed an application for Title XVI supplemental security income on Charles' behalf, which the agency denied. On September 19, 2008, Ms. C~ filed an application for Title II Social Security child's benefits for Charles on the number holder's account. On September 20, 2008, in connection with Ms. C~'s Title II application, the number holder signed Form SSA-795, Statement of Claimant or Other Person, in which he acknowledged that Charles was his son. The number holder stated that he and Ms. C~ had a relationship in Illinois in 1995 when Charles would have been conceived but that he and Ms. C~ were never married and never lived together. The number holder moved to Arkansas in 2001 and had not seen the child, who still resides in Illinois, in three years. The number holder also stated that he was not at Charles' birth, so his name was probably not on the birth certificate, no paternity tests had been performed, and he had not been ordered to pay child support. He did, however, voluntarily send money for the child's support when he was working.

In October 2008 and December 2008, the number holder's sister and Ms. C~'s uncle also submitted separate Form SSA-795s stating that the number holder had acknowledged that he was Charles' father. In April 2009, based on the number holder's acknowledgment and the statements from the sister and Ms. C~'s uncle, the agency awarded Charles Title II Social Security child's benefits beginning in September 2008, the date the number holder signed Form SSA-795, under section 216(h)(3)(B) of the Act.

The child of an individual entitled to old-age or disability benefits is entitled to child's benefits when he files for benefits, is under age 18, and was dependent on the disabled individual at the time of the application. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). Under section 216(h)(3)(B) of the Act, a written acknowledgment that an applicant is the child of an insured individual is sufficient to establish that the applicant is a child of the insured individual irrespective of intestate succession. 42 U.S.C. § 416(h)(3)(B); 20 C.F.R. § 404.355(a)(3). In this case, the agency awarded Title II child's benefits beginning in September 2008 based on the number holder's September 20, 2008, written acknowledgment.

The Act also provides that to determine whether an applicant is the child of a number holder, the Commissioner shall apply the law that would be applied to determine the devolution of intestate personal property by the courts of the state in which the number holder was domiciled. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). The applicant may be eligible for benefits as the number holder's natural child if the applicant could inherit the number holder's personal property under state intestacy law. Id.; 20 C.F.R. § 404.355(a)(1). If the number holder is living, as in this case, the agency looks to the laws of the state where the number holder has his permanent home when the application is filed. Id.; 20 C.F.R. §§ 404.355(b)(1), (3). Because the number holder was domiciled in Arkansas at the time Ms. C~ filed the application on Charles' behalf, we look to Arkansas law to determine whether Charles would be entitled to inherit from him.

Arkansas intestate succession law provides that an illegitimate child may inherit personal property from his father if the man made a written acknowledgment that he is the father of the child. Ark. Code Ann. § 28-9-209(d)(2). In this case, on September 20, 2008, the number holder submitted a written statement that Charles was his son. Based on the number holder's written acknowledgment, we believe that an Arkansas court would find that the number holder was Charles' father, and Charles would be entitled to inherit personal property from the number holder.

The Chicago Regional Office also asked whether, considering that Charles was born in Illinois, was domiciled in Illinois at the time of his application, and the number holder lived in Illinois at the time of Charles' birth, Arkansas would look to Illinois law to determine the child's right to inherit. The Chicago Regional Office indicated that, under Illinois law, Charles would be entitled to receive retroactive benefits based on the protective filing date of May 5, 2008, from his first application.

Because the number holder was domiciled in Arkansas at the time Ms. C~ filed the application on Charles' behalf, Arkansas law, not Illinois law, is utilized to determine whether Charles would be entitled to inherit from him. The Arkansas intestate succession statute provides the methods for determining when an illegitimate child may inherit personal property from his father and does not indicate that it would apply other states' laws to make this determination. See Ark. Code Ann. § 28-9-209. Hence, under Arkansas law, Arkansas would apply Arkansas intestacy law.

With regard to the first possible month of entitlement, agency policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. Social Security Ruling 85-17. Although Arkansas law allows an illegitimate child to inherit from his father once the man has made a written acknowledgment that he is the father of the child, the law does not legitimate the child. Ark. Code. Ann. § 28-9-209(d). Therefore, under Arkansas law, Charles obtained inheritance rights based on the written acknowledgment but he was not legitimated.

Social Security regulations provide that a claimant who files an application for benefits before the first month he meets the requirements for entitlement may receive benefits from the first month he meets all the requirements. 20 C.F.R. §§ 404.352(a)(2), 404.620(a)(1). We believe that Charles met the requirements for entitlement when he established inheritance rights under Arkansas law as of the date of the written acknowledgment dated September 20, 2008. Because the written acknowledgment established inheritance rights, but did not legitimate the child, benefits should be prospective only from that date and not retroactive.

In conclusion, we believe that the number holder's September 2008 written acknowledgment is sufficient evidence to establish that the child is the number holder's child under Arkansas law. We also believe that Arkansas would look to its own law to determine the child's right to inherit from the number holder. Further, the first possible month of entitlement occurred in September 2008 when the number holder acknowledged the child, and benefits should be prospective only from the September 2008 date of acknowledgment.

Very Truly Yours

Michael M~
Regional Chief Counsel
By:____________________
Carolyn E. W~
Assistant Regional Counsel

B. PR 07-198 Arkansas State Law Use of Sibling Screening Report to Establish Child Relationship (NH Deon Y~, SSN ~) - REPLY

DATE: August 22, 2007

1. SYLLABUS

When a putative father is deceased, an Arkansas court may order that the mother and child submit to scientific testing to determine whether that putative father can be excluded as being the biological father of the child and to establish the probability of paternity if the testing does not exclude the putative father. In addition, an Arkansas court may include paternal relatives within its order for paternity testing. Thus, we believe that an Arkansas court would consider a sibling DNA test establishing a 99.8 percent probability that an established child of the number holder and our claimant are full siblings along with other evidence in order to establish the number holder's paternity.

The claimant can receive Social Security survivor benefits on the number holder's account as of March 5, 2007, the date of the DNA report.

2. OPINION

You have asked us to provide a legal opinion regarding whether Cortez Y~ (Cortez) may be entitled to Social Security survivor benefits on the earnings record of Deon Y~ (the deceased number holder). Specifically, you have asked whether a sibling deoxyribonucleic acid (DNA) test report is sufficient to establish that Cortez is the number holder's child under Arkansas law. We believe that the sibling DNA test report is sufficient to establish that Cortez is the number holder's child under Arkansas law. He is entitled to benefits on the number holder's account as of the date of the DNA test report establishing paternity.

As we understand the facts, the number holder was born on January 7, 1980. He died on September 1, 2002, while residing in Arkansas. He never married. In September 2002, Shonna R~ filed claims for child survivor's benefits on the number holder's account on behalf of her biological children, Cortez (born August 4, 2000), Deon Y~ Jr. (born August 10, 1999), and Shanikqua Y~ (born April 6, 1988). The Social Security Administration (Agency) allowed Deon Jr. and Shanikqua's claims, but denied Cortez's claim because Ms. R~s provided no evidence that the number holder was Cortez's father.

In March 2007, Ms. R~s filed a new claim for child's survivor benefits on the number holder's account on behalf of Cortez. With this new claim, Ms. R~s submitted a sibling screening report. The March 5, 2007, report showed the probability of full-siblingship between Cortez and Deon Jr. as 99.8 percent and that the likelihood that they shared the same biological mother and father as 6,505 to one. Ms. R~s also submitted four statements from friends and relatives indicating that the number holder acknowledged that Cortez was his son and that the number holder supported him.

A child may be eligible for Social Security survivor benefits if he is the child of a number holder who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.355. To show that he is the number holder's child, the child must prove one of the following: (1) he is the number holder's natural child, and 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; (2) he is the number holder's natural child and a) the number holder has acknowledged this in writing, b) a court has decreed the number holder to be the child's parent, or c) a court has ordered the number holder to contribute to the child's support because the child is the number holder's child; (3) the number holder was the child's natural parent and was either living with the child or contributing to his support when the number holder died; or (4) the child could inherit property through intestate succession as the number holder's child. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Here, Cortez cannot prove the first three elements mentioned above. First, the number holder and Ms. R~s never participated in a marriage ceremony. Second, the number holder never acknowledged in writing that Cortez was his natural child, no court ever decreed him to be his parent, and no court ever ordered him to contribute to his support. Third, there is no indication that the number holder was living with Cortez or contributing to his support when he died. Consequently, to prove that he is eligible for benefits on the number holder's account, Cortez must show that he could inherit property through intestate succession as the number holder's child. Arkansas law controls because the number holder had his permanent home in Arkansas when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

Under Arkansas law, in pertinent part, an illegitimate child may inherit property from his father through intestate succession if the child has commenced an action or a claim against his father's estate within 180 days of his father's death and a court of competent jurisdiction has established the child's paternity. See Ark. Code Ann. § 28-9-209(d)(1) (West 2007). Agency regulations, however, provide that the Commissioner will not apply any state law that requires a court to establish paternity within a specified period of time after the number holder's death. See 20 C.F.R. § 404.355(b)(2). Moreover, if state law requires a court determination of paternity, the Commissioner will not require the child to obtain such a determination. See id. Instead, the Agency will apply the same standard of proof that a state court would apply and thereby make its own determination of paternity. See id.

Arkansas law provides that when a child alleges that he is the illegitimate offspring of a deceased man and, on that basis, claims the right to share in his estate, he must prove paternity by clear and convincing evidence. McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983); see also Ark. Stat. Ann. 9-10-103(f) (West 2007) (where paternity is disputed, a court may issue a temporary child support order if there is clear and convincing genetic evidence of paternity). Clear and convincing evidence is "proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted." Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988).

Arkansas courts consider DNA test reports when they make paternity determinations. See Ross v. Moore, 785 S.W.2d 243, 245 (Ark. Ct. App. 1990) ("genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits"). Under Arkansas law, when the father is deceased or unavailable, the trial court may order that the mother and child submit to scientific testing to determine whether the putative father can be excluded as being the biological father of the child and to establish the probability of paternity if the testing does not exclude the putative father. See Ark. Code Ann. § 9-10-108(a)(3)(A) (West 2007). In addition, an Arkansas court may include paternal relatives within its order for paternity testing. See Ark. Code Ann. § 9-10-108(a)(3)(B) (West 2007). Thus, we believe that an Arkansas court would consider the DNA test in this case to establish the number holder's paternity.

Under Arkansas law, if the results of the paternity test establish a 95 percent or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony of the mother concerning access during the probable period of conception, "it shall constitute a prima facie case of establishment of paternity." Ark. Code. Ann. § 9-10-108 (a)(6)(A) (West 2007). The DNA test report in this case showed the probability of full-siblingship between Cortez and Deon Jr. as 99.8 percent. In addition, Ms. R~'s assertion that the number holder is the father presumes that he had access to her during the probable time of Cortez's conception. And the statements that Ms. R~s submitted are additional evidence to show that the number holder acknowledged Cortez as his son. Given these facts, we believe that an Arkansas court would find that Ms. R~s has clearly and convincingly shown that the number holder was Cortez's father.

With regard to the first possible month of entitlement, Agency policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. Social Security Ruling 85-17. Arkansas law allows an illegitimate child to inherit from her father once paternity has been established, even if the child is not legitimate. Ark. Code Ann. § 28-9-209(d) (West 2007). In this case, the act that gives Cortez inheritance rights is the March 5, 2007, DNA laboratory report.

The regulations provide that if the number holder is deceased, his children are entitled to benefits beginning the first month covered by the application in which they meet all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The requirements for entitlement to child's benefits include proof that the child (a) is the insured person's child, (b) is dependent on the insured, (c) applied for benefits, (d) is unmarried, and (e) under the age of 18. 20 C.F.R. § 404.350(a)(1). Cortez did not meet all the requirements for entitlement until the March 5, 2007, DNA laboratory report showed the probability of full-siblingship between Cortez and Deon Jr. as 99.8 percent and the likelihood that they shared the same biological mother and father as 6,505 to one. Thus, the first date that Cortez could be entitled to child's benefits on the number holder's account is March 5, 2007.

In sum, we conclude that the DNA test reports and the additional evidence that Ms. R~s submitted are sufficient to establish that Cortez is the number holder's child under Arkansas law. As such, Cortez can receive Social Security survivor benefits on the number holder's account as of March 5, 2007.

Tina M. W~
Regional Chief Counsel
By:____________________
Julia D~
Assistant Regional Counsel

C. PR 02-091 Retroactive Effective Date of Posthumous Court Order of Paternity Based on DNA Testing in Arkansas- Richard Z~- REPLY; SSN ~

DATE: June 3, 2002

1. SYLLABUS

When the child claimants have inheritance rights in Arkansas with respect to the NH due to a posthumous court order based on DNA testing, the children can only be awarded benefits prospective from the date of the DNA report. The children were not legitimated by the DNA testing.

2. OPINION

You requested a legal opinion regarding whether an act or event conferring inheritance rights is only effective prospectively under Arkansas state law. Specifically, you requested a legal opinion about the date from which C~ S. Jordan (C~) and Jordan L. K~ (Jordan), surviving children, may be awarded surviving child's benefits on the record of deceased wage earner, Richard Z~. You also inquired, if inheritance rights are prospective only, whether the date of the DNA report or the court order date should be used to establish the date of entitlement. For the reasons stated below, we are of the opinion that both C~ and Jordan can only be awarded benefits prospective from the DNA report date.

The insured worker, Richard Z~, died on April 2, 1998, while domiciled in Arkansas. C~ was born in Arkansas on March 9, 1994, to Billie Dean J~. Ms. J~ and Mr. Z~ were never married, nor was Mr. Z~ named on C~'s birth certificate. C~'s guardian and grandmother, Ms. Geraldine J~, filed for surviving child's benefits on July 22, 1998, on C~'s behalf, alleging that C~ was Richard Z~'s child. She also reported that a posthumous judgment of paternity issued by the Juvenile Division of the Chancery Court of Garland County, Arkansas on July 13, 1998, declared Richard Z~ as C~'s father. Pursuant to the Program Operations Manual System (POMS) GN 00306.080 Arkansas (c)(2), the Social Security Administration (SSA) used the Arkansas Court Order of Paternity as the basis of paternity to award C~ surviving child's benefits under Section 216(h)(2)(A) of the Social Security Act. The effective date of entitlement to surviving child's benefits was July 1998. In a request for reconsideration, Geraldine Jordan contended that the month of entitlement should be earlier.

Janet K~ filed for surviving child's benefits on behalf of her son Jordan, who was born August 19, 1996. Since Jordan's name was mentioned on C~'s application, SSA used the same filing date as C~'s, July 22, 1998, but noted that the claim was "delayed" as a paternity suit was pending on behalf of Jordan. The Juvenile Division of the Chancery Court of Garland County, Arkansas rendered a Judgment of Paternity on September 25, 1998, ordering the Arkansas Department of Health, Bureau of Vital Statistics to issue a new birth certificate for Jordan to reflect Richard Z~ as their father. SSA awarded surviving child's benefits to Jordan effective July 1998. However, the award letter stated "August 1998" as the date of entitlement. You do not know the source of the latter-mentioned month of entitlement, but have noted the inconsistencies in the record.

We would note that although the Chancery Court ordered SSA to enroll these children in a beneficiary program, such orders have no force and effect on SSA because of the Supremacy Clause of the United States Constitution and because state courts have no jurisdiction to hear Social Security cases. See U.S.C. Const. Art. 6, cl. 2; United States v. North Dakota, 856 F.2d 1107, 1111 (8th Cir. 1988) ("activities of the Federal Government are free from regulation by any state") (emphasis in original); 42 U.S.C. § 405 (Social Security disputes are heard in Federal District Court). You indicated that SSA has already awarded C~ and Jordan surviving child's benefits as they are considered Richard Z~'s natural children under 42 U.S.C. § 416(h)(2)(A) and 20 C.F.R. §§ 404.354 and 404.355.

The Social Security Act provides that in determining whether an applicant is the child of an 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 death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, eligibility for Social Security benefits depends on whether the child would inherit under the law of intestate succession in the state where the decedent was domiciled. Arkansas law controls because the wage earner was domiciled in Arkansas at the time of his death. There is no dispute in this case that paternity has been established.

Your concern is the first month that C~ and Jordan could be awarded surviving child's benefits. SSA policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. See Social Security Ruling 85-17. Although Arkansas law allows an illegitimate child to inherit from his father once paternity is established, the law does not legitimate the child. See Ark. Code Ann. § 28-9-209. Therefore, C~ and Jordan obtained inheritance rights based on the DNA testing, but neither child was legitimated.

Social Security regulations provide that a claimant who files an application for benefits before the first month he meets the requirements for entitlement may receive benefits from the first month he meets all the requirements. 20 C.F.R. § 404.620(a)(1). We believe that C~ met the requirements for entitlement when he established inheritance rights as of the date of the DNA test result report dated May 5, 1998. Jordan met the requirements for entitlement when he established inheritance rights as of the date of the DNA test result report dated September 1, 1998. Because the DNA tests established inheritance rights, but did not legitimate the children, benefits should be prospective only from these dates and not retroactive to birth.

You also asked about the state accreditation requirements. Arkansas law does not have accreditation requirements for DNA testing to prove paternity. Our research reveals no certification or accreditation requirements under the statutes of Arkansas for laboratories that perform paternity DNA tests.

The Arkansas paternity statute provides:

4) The [DNA] tests shall be made by a duly qualified expert or experts to be appointed by the court.

(5) (A) A written report of the test results prepared by the duly qualified expert conducting the test, or by a duly qualified expert under whose supervision or direction the test and analysis have been performed, certified by an affidavit duly subscribed and sworn to by him or her before a notary public, may be introduced in evidence in paternity actions without calling the expert as a witness unless a motion challenging the test procedures or results has been filed within thirty (30) days of the trial on the complaint and bond is posted in an amount sufficient to cover the costs of the duly qualified expert to appear and testify.

A.C.A. § 9-10-108(a)(4),(5). Review of the file shows reports from the Laboratory Corporation of America signed by Lee S. T~, Ph.D., the Associate Director in the Paternity Evaluation Department of Laboratory Corporation of America Holdings. Included with the reports are notarized affidavits stating that Dr. T~ supervised and directed the paternity tests for C~ Jordan and Jordan K~ and that he independently reviewed the results. Dr. T~ held himself out as an expert, providing his educational background and experience with over 10,000 paternity cases. He stated that he is familiar with paternity calculations, and has testified as an expert in over 300 paternity trials in more than 17 states. In our opinion, this information satisfies the requirements under Arkansas law that a duly qualified expert conduct or supervise the paternity test and provide a written report with a sworn statement. See A.C.A. § 9-10-108(a)(4),(5). Since the Chancery Court entered an order for paternity testing in the case of C~ Jordan and Jordan K~, it can be assumed that the court appointed the duly qualified expert. As such, the DNA report date may be used instead of the court order date.

Tina M. W~
Regional Chief Counsel

By: ____________________________
Kim E. G~
Assistant Regional Counsel


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PR 01120.005 - Arkansas - 09/26/2012
Batch run: 09/26/2012
Rev:09/26/2012