Under West Virginia law, a DNA test showing 99.9999 percent probability that the claimant is the child of the deceased number holder is clear and convincing evidence sufficient to rebut the presumption of legitimacy and establish a parent/child relationship between the claimant and the deceased. The use of such blood evidence is limited to cases where its admission will cause no harm to the child and does not grant inheritance rights retroactively.

QUESTION PRESENTED

This is in response to your October 13, 2005 request for an opinion as to (1) whether the presumption of legitimacy between the Number Holder and Calvin D. J~ has been rebutted under West Virginia law; (2) whether a parent-child relationship between the Number Holder and J~ has been established; (3) the effective date of that relationship; and (4) whether J~ is entitled to retroactive benefits.

CONCLUSION

We have reviewed the information that you provided and have researched relevant West Virginia law regarding the presumption of legitimacy of a child born during a valid marriage. Based on our research, we have concluded that the evidence is sufficient to overcome the presumption that Calvin D. J~ (Calvin) is not the Number Holder's child. Accordingly, Calvin is entitled to child's benefits under the Number Holder's account.

FACTUAL BACKGROUND

Mable J~ and R. Dale J~ were married on April 24, 1999. According to Mable, she and her husband lived together at all times after their marriage except for a four day separation from December 26 to December 29, 2003. During the four day period, Mable had sexual relations with the Number Holder, a resident of Spencer, West Virginia. On September 21, 2004, approximately nine months after sexual relations between Mable and the Number Holder, Mable gave birth to Calvin.

Calvin's birth certificate and an application for his social security number identify Mable and Randall J~ as Calvin's parents.

On October 12, 2004, three weeks after Calvin's birth, the Number Holder was killed by a blunt force injury to his head in an altercation outside of his home.

On May 31, 2005, Mable applied for a lump sum death payment and monthly survivor benefits for Calvin. As proof of paternity of the Number Holder, Mable submitted a DNA paternity test showing a 99.9999 percent probability that the Number Holder was Calvin's father. The combined paternity index was 18,053,257. Additionally, Sherry C~, sister of the deceased Number Holder, provided a statement that the Number Holder told her that Calvin looked like him and that the Number Holder thought Calvin was his son.

DISCUSSION

The general criteria for entitlement to child's insurance benefits are found in 42 U.S.C. § 402(d)(1). Section 402(d)(1) provides that every "child" of an individual who dies fully or currently insured under the Act is entitled to child's insurance benefits if the child has applied for such benefits, is unmarried, under the age of 18, and was dependent upon the insured individual at the time of the insured's death. Id. A child is deemed dependent if he was (1) living with or supported by the wage earner at the time of his death, or (2) is the legitimate child of the wage earner. 42 U.S.C. § 402(d)(3).

If a child is illegitimate, he may nonetheless be deemed legitimate for purposes of the Act (and deemed dependent and entitled to benefits) if he can establish that he would be entitled to inherit personal property from the deceased wage earner under the intestacy laws of the wage earner's state of domicile at death under 42 U.S.C. § 416(h)(2)(A).

Calvin's paternity does not squarely fit into the Act's criteria for receiving child's benefits since Calvin was born into a marriage (and hence was legitimate) but not into a marriage between his biological parents. Thus, while he was technically neither the legitimate child of the Number Holder nor an illegitimate child (because he was born in wedlock), for purposes of the Act, the section on illegitimacy would be applicable because the relationship at issue is between Calvin and the Number Holder. Therefore, a determination must be made as to whether Calvin could inherit from the Number Holder's estate under the intestacy laws of West Virginia POMS GN 00306.670, the Agency's guideline for establishing child relationships and dependency, also looks to West Virginia's Intestacy laws in making the determination of paternity. West Virginia Code § 42-1-5 and the POMS state that a child can establish paternity when the putative father (insured) is deceased, by "clear and convincing" evidence. Clear and convincing evidence is defined as the degree of proof which will produce in the mind of the adjudicator a firm belief or conviction of paternity. While the POMS state that no particular amount, type, or combination of evidence is sufficient to meet the standard, it states that undisputed genetic blood or tissue test results which show a statistical probability of paternity of 98% or greater shall constitute clear and convincing evidence of paternity. Thus, the DNA results in this case would compel a finding of paternity for the Number Holder.

Having determined that Calvin would generally qualify for child's insurance benefits under West Virginia's intestacy laws and under the POMS, we will now analyze whether the presumption of Calvin's legitimacy can be rebutted under the common law of West Virginia. Because West Virginia follows the Lord Mansfield Rule, there is a strong presumption that a child born during a marriage is the husband's child. Young v. Prichard, 542 S.E.2d 925, 929 (W. Va. 2000); See State v. Reed, 149 S.E. 669, 671 (W. Va. 1929). West Virginia law, however, clearly recognizes that the presumption of legitimacy may be rebutted with "clear and satisfactory evidence" of non access of the husband, impotency, or sterility. See State ex rel J.L.K. v. R.A.I., 294 S.E.2d 142, 146 n.9 (W. Va. 1982); L.A.M. v. M.L.M., 250 S.E.2d 40, 43 (W. Va. 1978) (citing 9 Wigmore, Evidence § 2527 (C~ Rev. 1961)); see also, POMS GN 00306.025 (stating generally that the presumption of legitimacy may be rebutted by sterility or absence of the husband during the entire period of possible conception and, in some states, by blood/genetic tests).

POMS GN 00306.025, Lord Mansfield Rule, recognizes that many states such as West Virginia apply the Lord Mansfield Rule, which bars the mother of the child and her legal husband at the time the child was conceived or born from giving testimony that might prove that the child is illegitimate, i.e., that the child is the natural child of a man other than the husband. Where the applicable state law does not permit introduction of such evidence, the Agency will not accept it for purposes of determining the child's status under state law. The Agency recognizes, however, that the statements of the mother and her legal husband may furnish leads to other competent evidence which SSA may use in rebutting the presumption of legitimacy.

Because the only evidence of "non-access" in this record is from Mable, the Lord Mansfield Rule would preclude any consideration of that evidence. Notably, even if such evidence from Mable could be considered, a marital separation of less than one week during the potential period of conception is insufficient to clearly and satisfactorily demonstrate conception-precluding non-access. We also note that there is no evidence that Randall was either impotent or sterile. Thus, under the "traditional" methods of rebutting the presumption of legitimacy of a child born during a marriage, Mable could not rebut the presumption of Calvin's legitimacy. Therefore, the critical issue becomes whether the DNA evidence of the Number Holder's paternity is a permissible method of rebutting the presumption of paternity under West Virginia law.

When Lord Mansfield contemplated his rule to protect the legitimacy of children born in wedlock, DNA evidence did not yet exist and the social purpose of the rule - to prevent parents from imposing the stigma of illegitimacy on children born in their marriage - has diminished in today's society. See, e.g., Michael K.T. v. Tina L.T., 387 S.E.2d 866, 869-70 (W. Va. 1989) (stating that "it has been recognized that the stigma of illegitimacy is diminishing in the wake of a society which is composed of so many non-traditional households (e.g. single parents, step-parents, etc.)."

In Michael K. T., the Supreme Court of Appeals of West Virginia did note in dicta that West Virginia's own statute enacted to allow mothers to obtain support payments from putative fathers (West Virginia Code § 48-24-103(a)(3)) provides that undisputed blood or tissue test results which show the requisite statistical probability of paternity (presently 98 percent) legally establish the paternity of any man sued for support. Id. at 870. The language of West Virginia's paternity statute is a strong indication that blood test evidence would be deemed sufficient to overcome the presumption of legitimacy in paternity cases.

Although Michael K. T. was a divorce proceeding in which the husband's attempt to use blood test results was to disprove his own paternity to avoid child support, the case holding lends general support for the use of blood evidence in West Virginia in cases involving disputed paternity. The Court ruled that the presumption of legitimacy that arises when a child is born or conceived during a marriage is rebuttable and that blood test results may be used to rebut the presumption of legitimacy where the equities surrounding the particular facts and circumstances of the case warrant admission of blood test results. Id. at 870-71. The Court would preclude the use of blood test evidence to disprove paternity when the individual attempting to disestablish paternity has held himself out to be the father of the child for a sufficient period of time such that disproof of paternity would result in undeniable harm to the child. Id. at 871-72. Thus, even in a case where a parent to the marriage is attempting to disprove his own paternity, use of blood evidence is admitted if no harm would come to the child. By so finding, the Court implicitly ruled that blood evidence may be used to rebut the presumption of legitimacy in certain cases.

CONCLUSION

We believe that the intestacy laws of West Virginia, the acknowledgement in West Virginia Code § 48-24-103(a)(3) that test results which show a statistical probability of paternity of more than ninety-eight percent legally establish the paternity of any man sued for support, and the dicta from Michael K. T. case all suggest that DNA evidence may be considered to rebut the presumption of Randall's paternity in this case. Even if we were to examine Calvin's best interests based on our limited information, it appears from Calvin's age, it is unlikely that he would be harmed from a determination that the Number Holder was his biological father.

Finally, the regulations provide that if the insured is deceased, the children are entitled to benefits beginning with the first month covered by the application in which they meet all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations provide that children may receive retroactive benefits for up to twelve months preceding the date of the application. 20 C.F.R. § 404.621. However, benefits can only be paid from the first month that all requirements for entitlement are met. 20 C.F.R. § 404.620(a)(1).

In this case, both the application for benefits and the latest necessary piece of evidence to establish paternity were provided in May 2005. Therefore, retroactive benefits should not be paid in this case.

Donna L. C~

Regional Chief Counsel

By: _______________________

Stephen T. G~

Assistant Regional Counsel

A paternity test showed 99.99% statistical probability that the NH was the child claimant's biological father. In addition, a West Virginia Circuit Court ruled that the paternity test results constituted clear and convincing evidence of paternity. The tests results establish the child's paternity for inheritance purposes under West Virginia law. Moreover, the child can establish a parent-child relationship with the NH based on the Circuit Court order.

West Virginia considers a child legitimate from the date of birth, as opposed to the date of the legitimating act.

QUESTION PRESENTED

On September 14, 2001, you asked for our advice on the following issues: (1) whether a parent-child relationship can be established between Ronald R. P~ and Natalie D. T~; (2) the effective date of that relationship; and (3) whether retroactive benefits should be paid.

CONCLUSION

Based on our review of the information you provided and our research of the applicable law, we conclude that a parent-child relationship has been established between Ronald P~ and Natalie T~. The effective date of the relationship is November 9, 1984, and Natalie T~ is entitled to benefits retroactive to June 22, 2000.

BACKGROUND

On June 22, 2001, Marilyn A. T~, a resident of Virginia, filed an application for child's insurance benefits on behalf of her minor daughter, Natalie D. T~ (Natalie), who is also a resident of Virginia, based upon an alleged parent-child relationship between Ronald R. P~ and Natalie. The information you provided indicated that Mr. P~, a resident of West Virginia, has been entitled to benefits since July 1992.

Natalie was born on November 9, 1984 in Jefferson County, West Virginia. Ms. T~ and Mr. P~ were never married. In addition, neither Natalie's birth certificate nor her application for a social security number identified the name of her father. Further, Mr. P~ never advised the Social Security Administration that he had a child. However, a paternity test performed on February 22, 2001 showed a 99.99% statistical probability that Mr. P~ was Natalie's biological father. Moreover, the Circuit Court of Jefferson County, West Virginia, by Order entered June 6, 2001, ruled that the paternity test results constituted clear and convincing evidence of paternity and declared that Mr. P~ was Natalie's biological father. The court further ordered that Natalie's birth certificate be amended so as to name Mr. P~ as her natural father. By Order entered August 13, 2001, the Circuit Court of Jefferson County, West Virginia, directed Ms. T~ to apply for social security benefits on Natalie's behalf.

DISCUSSION

When determining paternity for purposes of entitlement to social security benefits, the Commissioner applies the inheritance laws of the state in which the insured individual was domiciled at the time the applicant filed her application. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b) (2001). Here, Mr. P~ was domiciled in West Virginia when Ms. T~ filed Natalie's application for benefits. Accordingly, the laws of West Virginia control.

Under West Virginia law, paternity for inheritance purposes can be established prior to the death of the putative father by (1) the father's acknowledgment that he is the child's father; (2) an order of a court of West Virginia; or (3) an order of a court of competent jurisdiction in another state. W. Va. Code § 42-1-5. In addition, W. Va. Code § 48-24-103(A)(3), a provision which deals with family obligations, provides that undisputed blood test results which show a statistical probability of paternity of more than ninety-eight percent shall legally establish the man as the father of the child for all purposes. Undisputed test results are considered more than an expression of an opinion upon which a trier of fact may accept or reject; they are a statement of scientifically established fact and as a matter of law establish paternity. Mildred L. M. v. John O. F., 452 S.E.2d 436 (1994). Moreover, Natalie can establish a child-parent relationship with Mr. P~ based on the Circuit Court of Jefferson County's order entered June 6, 2001 which declared that the blood test results were clear and convincing evidence of paternity and ruled that Mr. P~ was Natalie's father.

With respect to the effective date of the parent-child relationship, the POMS indicate that the State of West Virginia considers a child legitimate from the date of birth, as opposed to the date of the legitimating act. POMS GN 00306.085. Thus, the effective date of the parent-child relationship is November 9, 1984, Natalie's date of birth.

Lastly, you asked whether Natalie was entitled to retroactive benefits. The regulations provide that if the insured is living, the child is entitled to benefits beginning with the first month covered by their application throughout which the child meets all the other requirements for entitlement if the first month of entitlement is September 1981 or later. 20 C.F.R. § 404.352(a)(2)(i) (2001). As noted above, Natalie's parent-child relationship is effective November 9, 1984, the date of her birth. Therefore, Natalie met the requirements for entitlement to child's benefits with the first month of her application, which was filed on June 22, 2001. The regulations further provide that a child may receive retroactive benefits for up to twelve months preceding the date of their application. 20 C.F.R. § 404.621(a)(1)(i) (2001); see also, POMS GN 00204.030. Therefore, because Natalie met all the requirements for entitlement to child's benefits throughout the twelve month period before her application was filed, Natalie is entitled to retroactive benefits to June 22, 2000.