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.  

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 3, 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 6, 2013, six months immediately before December 6, 2013, the date of the childrens’ applications.

BACKGROUND

As we understand the facts, the deceased number holder died on April 16, 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 6, 2013, S~ filed new claims for child’s benefits on the deceased number holder’s account and provided additional evidence, including the December 3, 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~ ^[1] and E~Sr.. In particular, a copy of a Decree of Divorce the District Court of Comanche County, Oklahoma entered on September 30, 1997 (divorce decree) stated that B~ and E~ Sr. were legally married in Oklahoma on November 24, 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, E~, who was born on October. The divorce decree established that B~ and E~ Sr. divorced on September 30, 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 3, 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 24, 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. ^[2] 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 Ms. S~ has established by clear and convincing evidence that the deceased number holder is the children’s father. The Oklahoma Uniform Parentage Act ^[3] 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). ^[4]

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~Sr.) 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 3, 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. ^[5] 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 3, 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).^[6] 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. ^[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 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). ^[8] 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. ^[9] 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 6, 2013. Thus, the children are entitled to retroactive benefits beginning June 6, 2013, six months immediately before the month S~ filed their December 6, 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 6, 2013, six months immediately before the month S~ filed the December 6, 2013, application.

Sincerely,

Michael McGaughran

Regional Chief Counsel

By___________

Una McGeehan

Assistant Regional Counsel

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.

Your memorandum of December 16, 1999, asked about the probative effect of a DNA lab report, dated January 19, 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 22, 1997, five months before K~ was born.

A protective filing of February 24, 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 19, 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. (a) 

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

2. (b) 

   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. (c) 

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

4. (d) 

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

5. (e) 

   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. (f) 

   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

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.

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 4, 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 7, 1989, in an automobile accident in Arizona.

A~ filed child's insurance benefit claims on behalf of A~ and J~ on August 31, 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 22, 1994, denied them as well. However, on March 21, 1995, the Appeals Council vacated the decision, and remanded the claims for further development and a new hearing. On October 23, 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 23, 1996, A~, through her attorney, withdrew J~'s appeal before ALJ C~ for child's insurance benefits.

On April 10, 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 17, 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

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.

You have asked about the probative effect of a DNA lab report, dated March 13, 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 2, 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 16, 1999, was established for child's insurance survivor benefits on T~'s Social Security account. Ms. F~ submitted a DNA laboratory report, dated March 13, 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