TN 9 (09-06)

PR 01120.020 Kentucky

A. PR 07-006 DNA Testing, Kentucky Deceased Number Holder (NH) - Larry S~ Claimant - Michaela P. S~

DATE: November 1, 2006

1. SYLLABUS

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

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

2. OPINION

QUESTION PRESENTED

Whether Michaela P. S~ (Claimant) can receive survivor's benefits on the earnings record of Larry S~ (NH)?

ANSWER

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

FACTS

NH died domiciled in Kentucky on November 12, 2005. Claimant was born on March 21, 2003. Claimant's mother filed an application for benefits on Claimant's behalf on NH's record on August 9, 2006. Claimant's mother submitted a report of DNA testing conducted in September 2005 showing a 99.99 % probability that NH was Claimant's biological father. The DNA testing was voluntary and arranged by a Kenton County child support officer. The blood was drawn from NH, Claimant, and Claimant's mother at a Covington clinic and sent to Orchid Genescreen, a Dayton, Ohio, laboratory accredited by the American Association of Blood Banks, for genetic testing. An affidavit establishes the chain of custody of the blood sample.

ANALYSIS

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

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

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

CONCLUSION

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

Mary A. S~
Regional Chief Counsel
By: _________
Laurie G. R~
Assistant Regional Counsel

B. PR 06-290 DNA Testing, Kentucky Deceased Number Holder (NH) - Ralph K~ Claimant - Ryan C~

DATE: August 22, 2006

1. SYLLABUS

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

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

2. OPINION

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

FACTS

NH died domiciled in Kentucky on June 2, 2004. Claimant was born on October 27, 2004. Claimant's mother filed an application for benefits on Claimant's behalf on NH's record on March 15, 2006. Claimant's mother submitted a report of DNA testing conducted in February 2006 showing a 99.97 percent probability that NH was Claimant's biological father. NH's blood apparently was obtained during NH's post-mortem examination and sent to the Medical Examiner's Toxicology Laboratory, which then released a specimen to Orchid Cellmark, a Dayton, Ohio, laboratory accredited by the American Association of Blood Banks, for genetic testing. An affidavit establishes the chain of custody of the blood sample.

ANALYSIS

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

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

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

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

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

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

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

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

CONCLUSION

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

Mary A. S~
Regional Chief Counsel
By: _________
Laurie G. R~
Assistant Regional Counsel

C. PR 88-023 Determination Of Date Of Child Relationship Julius C. H~, SSN ~

DATE: September 13, 1988

1. SYLLABUS

We advised that under Kentucky intestacy law, where a blood test, was obtained to prove paternity in connection with an application for child's insurance benefits, the effective date for entitlement would be based on the date of the application rather than the date of the blood test. (H~, Julius C. SSN ~ - RAIV [Adams] - to ARC, Progs., Atl., 09/13/88)

2. OPINION

Your office has requested our advice on whether a blood test is an act of recognition or acknowledgment in the followin9 situation. A claim for' child's insurance benefits was filed on the wage record of Julius C. H~ in September 1986. A blood test was obtained in May 1987 which was used as the “convincing evidence” necessary to establish paternity pursuant to Program Operations Manual System (POMS)

Since you were able to establish paternity through convincing evidence under POMS GN 00306.135, it was not necessary to further determine whether there had been an acknowledgment or recognition of child by the father for purposes of inheritance pursuant to POMS GN 00306.100. You had already noted that the child is able to inherit the intestate personal property of the wage earner under Kentucky law based on the evidence submitted in connection with the application. The blood test was evidence of paternity and not represent any type of acknowledgment or recognition provided lot in GN 00306.100. Based on the foregoing conclusions, it is our opinion that the month of entitlement can be retroactive to September 1986, when the application for benefits was filed. See, 20 C.F.R. §404.355.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501120020
PR 01120.020 - Kentucky - 11/17/2006
Batch run: 11/29/2012
Rev:11/17/2006