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