TN 14 (09-08)

PR 01120.019 Kansas

A. PR 08-187 Use of Sibling Deoxyribonucleic Acid (DNA) Testing and Resulting Probability of Siblingship to Establish Paternity in Kansas; Raymond V~, Deceased Number Holder, SSN ~

DATE: September 17, 2008

1. SYLLABUS

A Kansas court would consider DNA testing between the claimant and a "known child" of the deceased number holder showing a 99.9909 percent probability that the two are full siblings sufficient to establish a presumption of paternity which can only be rebutted by clear and convincing evidence to the contrary.

Since Kansas law makes no distinction between legitimate and non-legitimate children once paternity is established, the claimant may be entitled to benefits as earlier as the month of the number holder's death.

2. OPINION

You have asked for advice as to whether a claimant has provided sufficient evidence to establish inheritance rights under Kansas intestacy statutes in order to obtain surviving child's benefits. For the reasons detailed below, and based on our review of the controlling law and facts of this case, we believe that it is reasonable to conclude that a rebuttable presumption of paternity can be established, which would allow the claimant to inherit under Kansas intestacy law. Because the claimant could inherit under Kansas intestacy law, he would meet the requirements for entitlement under section 216(h)(2)(A) of the Social Security Act.

Factual Background

The memorandum and documentation you sent with your request indicates that Susan P~ filed for surviving child's benefits on behalf of her son, Noah T~. Ms. P~ alleged that Raymond V~ (deceased number holder) was Noah's biological father. The application for Noah was denied and Ms. P~ requested reconsideration. Based on your request we assume that the deceased number holder (NH) died domiciled in Kansas. Computer records show that he died in February 2008. Computer records also show that Ms. P~ filed an application for surviving child's benefits on Noah's behalf on February 28, 2008.

Noah's birth certificate does not reflect a father's name. The birth certificate of Noah's alleged full sibling, Shelby T~, identified the deceased NH as the father but it was not signed by him. There was a court order for the deceased NH to pay child support for Shelby, and Shelby is currently entitled to surviving child benefits on the NH's record. Ms. P~ submitted a DNA Parentage/Kinship Test Report from Genelex Corporation dated April 17, 2008, citing a probability of full-siblingship of 99.9909 percent based upon testing of Noah, Shelby, and Susan (assuming prior probability equals .50).

Ms. P~ also submitted a signed questionnaire in which she stated that she began dating the deceased NH in the summer of 1996 and that they lived together from June 1996 through November 1996. Shelby's birth certificate shows that he was born on May 9, 1997. Ms. P~ stated that she continued dating the deceased NH off and on through September 1999. Noah's birth certificate shows that he was born on April 9, 2000. Ms. P~ stated that she did not date anyone other than the deceased NH during the 12 months immediately before the month Noah was born. Ms. P~ stated that the deceased NH did not contribute to Noah's support, but that he did visit and took Noah to see the deceased NH's parents.

Raymond and Joyce V~, the deceased NH's parents, also submitted signed questionnaires in which they both stated Noah was the deceased NH's son. They reported that the deceased NH did not date or live with Noah's mother during the 12-month period immediately before his birth, never lived in the same household as Noah, and to their knowledge did not provide support for Noah. However, they reported that he did bring Noah to family events such as family reunions, birthday parties, and some holidays.

Analysis

Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement to child's insurance benefits. This section provides that every child (as defined in section 216(e)) of an individual who dies fully insured under the Act is entitled to benefits if the child applies for benefits, is unmarried and under 18 (or a full-time elementary or secondary school student and under age 19), or is under a disability that began before age 22, and was dependent on the deceased at the time of death. Id. A child who is "legitimate" or legally adopted by the insured individual is deemed dependent, and is thus entitled to benefits. See Social Security Act § 202(d)(3).

An "illegitimate" child can be deemed dependent on a deceased insured individual in several ways. First, section 216(h)(3)(C)(ii) of the Act provides that the child can be deemed dependent on the insured by showing that the insured was his or her parent and was living with or contributing to his or her support at the time of the insured's death. Second, section 216(h)(2)(B) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured was his or her parent and that his or her parents went through a purported marriage ceremony, but their marriage was invalid because of a legal impediment. Third, section 216(h)(3)(C)(i) of the Act provides that the child can be deemed dependent on the insured if the child can show that the insured had, prior to his death: (a) acknowledged in writing the child as his child; (b) been decreed by a court to be the child's parent; or (c) been ordered by a court to contribute to the support of the child on the basis of parenthood. Section 202(d)(3) of the Act provides that any child who meets the tests in sections 216(h)(2) or (h)(3) "shall be deemed to be the legitimate child of such individual." Based on the information provided, it does not appear that Noah can meet any of these requirements.

However, an "illegitimate" child who does not meet any of the above requirements for showing dependency can also be entitled to benefits under section 216(h)(2)(A) if the child could inherit personal property under "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 his death . . . ." Id. See also 20 C.F.R. § 404.355(a)(1)(2008); Program Operations Manual System (POMS) GN 00306.055. An illegitimate child who meets the standard which Congress set forth in section 216(h)(2)(A) of the Act is deemed to be legitimate and, therefore, dependent. See Matthews v. Lucas, 427 U.S. 495, 514-15 n.17 (1976). If the insured is deceased, the Social Security Administration applies the law on inheritance rights where the insured had his permanent home when he died. See 20 C.F.R. § 404.355(b)(1).

Social Security Ruling (SSR) 06-2p discusses the effect of DNA testing which shows a sibling relationship when determining whether a claimant (C2) is entitled to benefits under the state law definition and the alleged sibling (C1) is already entitled to benefits as the NH's child. SSR 06-2p states that we will continue to determine whether the claimant could inherit under the applicable state's intestacy statutes. However, we will not review C1's relationship to the NH under State law in determining C2's relationship to the NH when: (1) we have determined that C1 meets one of the federal definitions; (2) there is no reason to question that determination, and (3) DNA test results show a high probability of a sibling relationship between C1 and C2. In effect, we will consider C1 to be the known child of the NH rather than reviewing C1's relationship to the NH under State law. See SSR 06-2p.

In this case, you have indicated that the deceased NH was domiciled in Kansas; therefore, Kansas intestacy law applies. Kansas intestacy statutes provide that if a decedent has a surviving child or children and no spouse, all his or her property shall pass to the surviving child. See Kan. Stat. Ann § 59-506 (2007). Kansas statutes further provide that "children" for purposes of inheritance issues means "biological children, including a posthumous child; children adopted by law; and children whose parentage is or as has been determined by the Kansas Parentage Act or prior law." See Kan. Stat. Ann. § 59-501.

The Kansas Parentage Act states that a man is presumed to be the father of a child, if, among other things, genetic test results indicate a probability of 97 percent or greater that the man is the father of the child. See Kan. Stat. Ann § 38-1114(a)(5) (2007). Kansas statutes further provide that the presumption of paternity can only be rebutted by clear and convincing evidence. See Kan. Stat. Ann § 38-1114(b) (2007). The Kansas Supreme Court has defined "clear and convincing evidence" as evidence which is "sufficient to establish that the truth of the facts asserted is 'highly probable.'" See In re B.D.-Y., 187 P.3d 594, 601 (Kan. 2008). See also In re Dennis, 188 P.3d 1, 14 (Kan. 2008); In re X.D., No. 100, 148, slip op. at 3, 2008 WL 4068183 (Kan. 2008). It is an intermediate standard of proof between a preponderance of the evidence and beyond a reasonable doubt. See In re B.D.-Y. at 598.

The Kansas Parentage Act does not specifically address a situation in which the child's sibling and not the alleged father provided the DNA samples. However, we believe that the results of the DNA test in this case would be considered, and would be sufficient to establish at least a rebuttable presumption of paternity. See Kan. Stat. Ann § 38-1119 (evidence relating to paternity may include…"[a]ny other evidence relevant to the issue of paternity of the child"). In this case, DNA test results from samples taken from the Noah, Noah's mother, and Shelby, Noah's alleged sibling, indicate that the probability of full-siblingship is 99.9909 percent. The requirements of SSR 06-2p are met in this case, so Shelby is considered the "known child" of the NH. Additionally, under Kansas law, the court order for Shelby's support is sufficient in and of itself to create a rebuttable presumption of paternity for Shelby. Thus, we believe that a compelling argument could be made that the DNA test results showing a 99.9909 percent chance that Noah and Shelby are full siblings creates a rebuttable presumption of paternity for Noah. Consequently, the child could inherit under the relevant Kansas intestacy statute.

Additionally, although no Kansas case specifically addresses the use of sibling DNA tests in paternity actions, Kansas courts generally admit genetic test results to establish paternity. See Kan. Stat. Ann §§ 38-1114, 38-1118, 38-1119 (2007); Hausner v. Blackman, 662 P.2d 1183 (Kan. 1983) (holding that scientifically reliable evidence of alleged child's father, meeting relative legal evidentiary standards, is admissible in paternity actions, and admitting blood test results). Other jurisdictions have noted the possible relevance of sibling blood and DNA testing.

Additionally, DNA testing of a deceased father's parents has been allowed in other jurisdictions as evidence to prove paternity. We believe that a Kansas court would consider the DNA testing submitted in this case as evidence of paternity.

While genetic tests are generally admissible in paternity proceedings, a recent Kansas Court of Appeals case reversed a lower court decision because the Court had made a decision of paternity based solely on DNA tests, without regard to other factors relevant to the issue of the child's paternity. See Ferguson v. Winston, 996 P. 2d 841 (Kan. App. 2000). In Ferguson, the Appeals Court noted that while DNA evidence is "very strong" there was no evidence to warrant finding that it is conclusive. Instead, the Court noted that at the very least, the court adjudicating paternity was required to consider the evidence which may be in contradiction to the DNA evidence before making a decision on paternity. Ferguson, 996 P.2d at 845.

Here, there is no contrary evidence of paternity. Although there was no father's name listed on Noah's birth certificate, the deceased NH's name was listed on Shelby's birth certificate, the deceased NH had a court order to support Shelby, and DNA testing shows a 99.9909 percent chance that Noah and Shelby are full siblings. Additionally, the deceased NH's parents completed written questionnaires in which they both stated that Noah was the deceased NH's son, that their son never denied Noah was his child, and that their son brought Noah to family events such as family reunions, birthday parties, and some holidays. Ms. P~ reported that she did not date anyone else in the 12-month period prior to Noah's birth, that the deceased NH took Noah to visit his parents, and that Noah continued to visit the deceased NH's parents. We believe that the DNA test results, in conjunction with the other evidence presented, would be sufficient to establish a rebuttable presumption of paternity under the Kansas Parentage Act. Accordingly, the child could establish entitlement to inheritance under Kansas intestacy law.

You also asked whether Noah is entitled to retroactive benefits. The Act provides that a child of an individual who dies fully or currently insured shall be entitled to child's insurance benefits for each month, beginning with the first month in which such child meets the criteria specified in Section 202(d)(1). See Social Security Act § 202(d)(1)(i). The regulations also state that if a claimant meets all the requirements for entitlement while the application is in effect, he may receive benefits from the first month that he meets all the requirements for entitlement. See 20 C.F.R. §§ 404.620(a)(1). If the claimant met all of the requirements for surviving child's benefits prior to the date of his application, the claimant may be paid up to six months of retroactive benefits. See 404.621(a)(2)(2008).

SSA policy provides that statutes which legitimize a child tend to be given retroactive effect, whereas statutes which confer inheritance rights without legitimizing the child generally operate only prospectively. See SSR 85-17; POMS 00306.055. Kansas law makes no distinction between legitimate and illegitimate children. See Kan. Stat. Ann. § 38-1112 ("The parent and child relationship "extends equally to every child and to every parent, regardless of the marital status of the parents."). See also POMS GN 00306.085 (In Kansas a child is considered to be legitimate from the date of birth). Furthermore, Kansas law provides that once paternity has been established, the father may be ordered to reimburse the mother the expenses of support from the child's date of birth. See Kan. Stat. Ann. § 38-1121(e). See also Brakey v. Howe, 84 P.3d 1047, 2004 WL 376417 at *5 (Kan. App. 2004) (unpublished decision) (citing Skillett v. Sierra, 53 P.3d 1234, 1240-41 (Kan. App. 2002) (unpublished decision) ("Kansas courts have held that after the father's paternity has been adjudicated, the mother of the child is entitled to reimbursement from the father for his share of the amount of child support that would have been computed from the date of birth.").

In this case, the deceased NH died in February 2008, the same month in which Ms. P~ filed Noah's application for surviving child's benefits. Accordingly, Noah first met all of the requirements for benefits as of February 2008, and he can be entitled to benefits as of that date.

Conclusion

In sum, we believe that Kansas courts would consider the sibling DNA test results. We also believe that such test results, in conjunction with the other evidence presented, would be sufficient to establish a rebuttable presumption of paternity under the Kansas Parentage Act. Because the child could establish entitlement to inheritance under the relevant Kansas intestacy statute, he has met the requirements for entitlement under section 216(h)(2)(A). Additionally, the child met the requirements for entitlement as of February 2008 and he can be entitled to benefits as of that date.

Kristi A. S~
Acting Chief Counsel, Region VII
By_____________

Kristin L. E~
Assistant Regional Counsel


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PR 01120.019 - Kansas - 09/23/2008
Batch run: 01/27/2009
Rev:09/23/2008