TN 62 (06-21)

PR 01105.005 Arkansas

A. PR 21-034 Use of Half-Siblingship DNA Report to Establish Child Relationship

Date: May 10, 2021

1. Syllabus

Arkansas courts consider DNA test reports in making paternity determinations. If the results of paternity tests establish a 95% or more probability of paternity, after corroborating testimony concerning the child’s conception and birth, such genetic test results shall constitute a prima facie case of paternity and the burden shifts to the putative father to rebut that proof. In order for the DNA evidence to constitute prima facie proof of paternity, the test report must satisfy Arkansas statutory requirements for genetic testing.

We believe Arkansas courts would find that the half-sibling DNA test report, along with the supportive statements from relatives, constitute clear and convincing evidence of a parent-child relationship between the Claimant and the NH such that the Claimant could inherit from the NH under Arkansas intestate succession law as his illegitimate child. The effective date of their parent-child relationship is March xx, 2020, the date of the DNA report.

2. Questions Presented

You requested an opinion on whether the evidence submitted in this case establishes a parent-child relationship between the deceased number holder (NH) C~ and G~ (Claimant), a minor, for purposes of the Claimant’s application for child’s insurance benefits and the lump sum death payment (LSDP) on NH’s record under Title II of the Social Security Act (Act) as his child. Specifically, applying section 216(h)(2)(A) of the Act, you asked whether a half-sibling deoxyribonucleic acid (DNA) test report and several relatives’ statements constitute sufficient evidence to establish a parent-child relationship under Arkansas intestate succession law. If so, you inquired as to the effective date of their parent-child relationship. In the alternative, you asked whether the evidence established the requirements for a parent-child relationship under section 216(h)(3) of the Act.

3. Answer

We believe Arkansas courts would find that the half-sibling DNA test report, along with the supportive statements from relatives, constitute clear and convincing evidence of a parent-child relationship between the Claimant and the NH such that the Claimant could inherit from the NH under Arkansas intestate succession law as his illegitimate child. Thus, we believe there is legal support for the agency to find that the Claimant has proven a parent-child relationship under section 216(h)(2)(A) of the Act for purposes of his application for Title II benefits on the NH’s record as his child, and that the effective date of their relationship is March xx, 2020, the date of the half-sibling DNA test report.[1]

4. Background

The NH died June xx, 2019, in Arkansas

The NH died June xx, 2019, while domiciled in Arkansas. The NH’s Arkansas death certificate lists his married status at the time of death as divorced. The informant was S~, his daughter. We located the NH’s online obituary, which identified his survivors as including two daughters (S~ and A~) and one son (the Claimant), as well as four brothers (including T~) and two grandchildren.[2]

The Applicant filed for Child’s Insurance Benefits and the LSDP on behalf of the Claimant on April xx, 2020

On April xx, 2020, A2~ (Applicant) filed an application for surviving child’s insurance benefits and the LSDP on behalf of her son, the Claimant, who was born on March xx 2017. The Claimant’s Arkansas birth certificate reflects that the Applicant is his mother but does not identify a father.

Relatives’ Statements in Support of the Application for Benefits

In support of the Claimant’s application for benefits, the Applicant completed the Form SSA-2519 Child Relationship Statement on June xx, 2020, in which she reported that the Claimant was the NH’s child. She reported that the NH admitted orally to others, including his family, that the Claimant was his child. She also explained that the NH was at the hospital the day the Claimant was born in 2017; that she and the NH lived together from 2016 until four days prior to the NH’s death on June xx, 2019; that the NH had not been allowed to sign anything at the hospital on the day the Claimant was born because he was on drugs that day; and that the NH did not work much and did not have income to contribute to the Claimant’s support.

The Applicant also provided her own handwritten (and undated) statement to the agency. She wrote that she and the NH began a relationship in April 2016, which continued for more than three years until the NH’s death in June 2019. She stated that she and the NH lived with her mom in Texas for a few months then moved to Arkansas when she was pregnant with the Claimant where they lived with her sister. She stated that the NH loved the Claimant and was present for his birth in 2017. She said that the NH was prevented from being on the Claimant’s birth certificate because she was married to another man, M~, even though they had been separated since December 2015 and M~ lived in California. She stated that she wished she had gotten her divorce from M~ before the Claimant was born in 2017 and that she had planned to do so, but said it was difficult because he lived in California and she did not have a lot of money. She and M~ eventually divorced in May 2020[3] . She stated that both of the NH’s parents were deceased and that she obtained DNA testing from the NH’s daughter (S~) to confirm that the NH’s daughter and the Claimant were half-siblings (with different mothers). She wrote that everyone in the NH’s family and in her family knew that the Claimant was the NH’s child. She provided statements from some of these relatives, as described next.

The Applicant provided a handwritten (and undated) statement from her sister, M2~, to the agency in support of her application for benefits for the Claimant. M2~ wrote that the NH “was very aware that [the Claimant] belonged to him as well as he acknowledge[d] and said [the Claimant] was his and he was very proud to be [the Claimant’s] father.” She stated that the NH was at the hospital at the time the Claimant was born in 2017. She stated that the Applicant and the NH lived with her when the Claimant was born and that she had many videos and photos of him holding the Claimant.

The Applicant provided a handwritten (and undated) statement from A~, one of the NH’s daughters. A~ wrote: “My dad [the NH] was very aware of [the Claimant] being his son and acknowledged before and after [the Claimant’s] birth.”

The Applicant provided a handwritten (and undated) statement from T~, one of the NH’s brothers. T~ wrote that the NH acknowledged the Claimant as his son before and after his birth.

March xx, 2020 Half-Sibling DNA Relationship Report

The Applicant also submitted a half-sibling DNA Relationship Report from Laboratory Corporation of America (LabCorp). The DNA Relationship Report states that LabCorp is accredited by AABB. The DNA Relationship Report identifies specimens from three individuals were tested: the Applicant as the child’s mother, the Claimant as the child, and S~ (the NH’s biological daughter[4] ) as the child’s alleged half-sibling. The DNA Relationship Report states that S~ has a different mother who was not tested. The Applicant and the Claimant provided their DNA specimen in February 2020 and S~ provided her DNA specimen in March 2020 to determine whether the Claimant and S~ were half-siblings or unrelated. The DNA Relationship Report’s conclusion states: “The likelihood ratio indicates that [the Claimant] and S~ are 257 times more likely to be half siblings as opposed to unrelated. Their probability of relatedness as half siblings is 99.61% as compared with the possibility that they are unrelated persons. These findings support the assertion that [the Claimant] and S~ are half siblings.” LabCorp laboratory representative M3~, PhD, D-ABC signed the DNA Relationship Report on March xx, 2020, “under penalties for perjury” and swore the facts and results therein to be true and correct before a notary public, who signed and certified the report as well.

Two chain of custody documents were provided with the DNA Relationship Report. S~'s chain of custody document contains her photograph, fingerprint, and signature; shows that N~ with Child Support Enforcement certified and affirmed under “penalties for perjury” that she collected and packaged the DNA specimen from S~ on March xx, 2020; and shows that a LabCorp representative certified and affirmed under “penalties for perjury” that she received the sealed container with S~'s specimen via Federal Express on March xx, 2020, and that there was no evidence that the package had been tampered with or opened.

The Claimant’s chain of custody document contains a photograph of the Claimant with the Applicant’s signature and a fingerprint from the Applicant and the Claimant; shows that someone from the County Courthouse certified and affirmed “under penalties for perjury” that she collected and packaged the DNA specimen from the Applicant and the Claimant on February xx, 2020; and shows that a LabCorp representative certified and affirmed under “penalties for perjury” that she received the sealed container with their specimen via Federal Express (the received date is stamped, but unclear on the copy we have) and that there was no evidence that the package had been tampered with or opened.

5. Analysis

a. Federal Law: Entitlement to Child’s Insurance Benefits and the LSDP under the Act as a Natural Child per Section 216(h)(2)(A)

Under Title II of the Act, a claimant may be entitled to child’s insurance benefits and the LSDP on an insured individual’s account if, among other things, he or she is the insured individual’s child.[5] See 42 U.S.C. § 402(d)(1), (i); 20 C.F.R. §§ 404.350, 404.392(a)(2). The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354˗404.359. Consistent with the scope of your request and the facts of this claim, our inquiry focuses on whether the Claimant is the NH’s natural child.

To determine a claimant’s status as a natural child, the agency must determine whether the claimant could inherit the insured individual’s personal property as his child under the intestacy laws of the State where the insured individual had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Arkansas law controls because the NH’s permanent home was in Arkansas when he died in 2019. Therefore, we apply Arkansas intestate succession laws to determine whether the Claimant could inherit from the NH as his child.

b. State Law: A Child’s Right to Inherit under Arkansas Intestate Succession Law

1. Inheritance as a Legitimate Child under Arkansas Intestate Succession Law

Arkansas intestate succession laws distinguish between legitimate and illegitimate children and provide for different methods of proving the parent-child relationship for inheritance purposes for legitimate versus illegitimate children. See Ark. Code Ann. § 28-9-209. We first examine whether the Claimant can inherit from the NH as his legitimate child under Arkansas’s intestate succession laws.

Arkansas law identifies the following four methods by which a child is treated as a legitimate child and is able to inherit through intestate succession:

(a)(1) If the parents of a child have lived together as man and wife and, before the birth of their child, have participated in a marriage ceremony in apparent compliance with the law of the state where the marriage ceremony was performed, though the attempted marriage is void, their child is deemed to be the legitimate child of both parents for all purposes of intestate succession.

(2) A child born or conceived during a marriage is presumed to be the legitimate child of both spouses for the same purposes. (b) If a man has a child or children by a woman, and afterward intermarries with her and recognizes the child or children to be his, the child or children shall be deemed and considered legitimate. (c) Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence.

Ark. Code Ann. § 28-9-209(a)-(c).

Based on the evidence provided in this case, Claimant would not be able to inherit as the NH’s legitimate child under any of the above-listed methods because the NH and the Applicant were never married under Arkansas law or attempted to marry in apparent compliance with State law. Indeed, although they were separated, the Applicant was married to another man, M~, during her relationship with the NH from 2016 through 2019 and at the time the Claimant was born in 2017, as she did not obtain a divorce from M~ until 2020. Thus, as the evidence shows that the Applicant was married to M~, not the NH, at the time the Claimant was born, Arkansas law presumes that the Claimant is the legitimate child of M~. See R.N. v. J.M., 61 S.W.3d 149, 153 (Ark. 2001) (noting that an illegitimate child is a child born at the time his parents are not married to each other, and a legitimate child is a child born at the time his parents are married to each other). The presumption of legitimacy of a child born during a marriage is a rebuttable presumption. Ark. Code Ann. § 16-43-901(a)-(b); R.N. v. J.M., 61 S.W.3d at 153.

We next consider whether the Claimant has both rebutted this presumption that he is the legitimate child of M~ and established the right to inherit from the NH as his illegitimate child.

2. Rebutting the Presumption of Legitimacy with Clear and Convincing Evidence

As stated, the presumption of legitimacy of a child born during a marriage is a rebuttable presumption. See Ark. Code Ann. § 16-43-901(a)-(b); R.N. v. J.M., 61 S.W.3d at 153-155. Clear and convincing evidence is the standard of proof required to rebut the legitimacy presumption. Ark. Code Ann. § 16-43-901(d); R.N. v. J.M., 61 S.W.3d at 155. “Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established.” Dinkins v. Arkansas Dep’t of Human Services, 40 S.W.3d 286, 291 (Ark. 2001); see also Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988) (clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted”). The type of evidence considered in rebutting the presumption of legitimacy includes: genetic testing that complies with section 9-10-108 of the Arkansas Code; testimony from the biological mother as to who is the biological father, the time and place of conception, access by the putative father and her husband, support or lack of support for the child, and any other matters necessary to the establishment of paternity; testimony from the biological mother’s husband regarding the marriage, period of cohabitation with the mother, period of nonaccess with the biological mother, and date of separation from the biological mother; and testimony from the putative father as to period of cohabitation with the mother, period of nonaccess with the biological mother, and lack of sexual contact with the biological mother. See Ark. Code Ann. § 16-43-901(a)-(c), (e).

Here, we believe Arkansas courts would find that there is evidence of separation, lack of cohabitation, and lack of access as to the Applicant and M~ sufficient to rebut the presumption that the Claimant is M~'s legitimate child. The Applicant provided statements explaining that she and M~ separated and no longer lived together as of December 2015 and that M~ moved to California when they separated, where he remains, while she lived in Texas and Arkansas. The Applicant provided a copy of a Judgment of Dissolution filed on May xx, 2020 in case of Marriage of M~ v. A~, No. xx, Superior Court of California, County of Fresno. The Judgment terminated the marriage between the Applicant and M~ on May xx, 2020. Importantly, the Judgment identified only one child born of their marriage: C2~ born July xx, 2011. An order regarding child custody and parenting time was entered in this case only as to C2~. We believe the information from the divorce judgment and child custody order serves as M~'s acknowledgment that the Claimant, born to the Applicant in 2017, was not his child. Thus, both the Applicant and M~, through the divorce decree, have provided evidence that rebuts the presumption that the Claimant is the legitimate child of M~. See Ark. Code Ann. § 16-43-901 (a) (the biological mother may provide testimony as to a child’s paternity), (b) (the biological mother’s husband may provide testimony as to a child’s paternity).

Additionally, genetic testing and statements support finding the NH is the Claimant’s biological father. The Applicant’s statements explain that she and the NH were living together from 2016 until his death in 2019 and that the Claimant was born during this time. Although the NH is deceased and did not acknowledge the Claimant as his child in writing, all of the relatives’ statements assert that the NH is the Claimant’s father, including statements from the NH’s daughter (A~) and his brother (T~). They all state that the Applicant and the NH were living together, that the NH was present for the Claimant’s birth, and that the NH acknowledged the Claimant as his child before and after his birth. See Ark. Code Ann. § 16-43-901(a) (the biological mother may provide testimony as to a child’s paternity), (c) (the child’s putative father may provide testimony as to a child’s paternity). Further, as examined more closely below, the half-sibling DNA Relationship Report establishes a 99.61% probability of relatedness as to the Claimant and the NH’s biological daughter (S~). See Ark. Code Ann. § 16-43-901(e) (in determining paternity, the court may consider genetic testing that complies with Ark. Code Ann. § 9-10-108); Keahey v. Cox, No. 05-1415, 2006 WL 2687046 (Ark. Ct. App. Sept. 20, 2006) (considering half-sibling DNA test results along with other evidence to find that the deceased’s paternity had been rebutted by clear and convincing evidence).

Thus, we believe Arkansas courts would find that the evidence – the half-sibling DNA Relationship Report supporting the NH’s relationship with the Claimant; the Applicant’s statements regarding her separation from M~ since December 2015 and cohabitation with the NH beginning in 2016; the relatives’ statements regarding the NH’s cohabitation with and acknowledgment of the Claimant as his child; and the 2020 California divorce decree recognizing only one child of the marriage between the Applicant and M~ (not the Claimant) – constitutes clear and convincing evidence to rebut the presumption that the Claimant is M~’s legitimate child. Having rebutted the presumption of legitimacy as to M~, we next consider more closely whether the Claimant has proven the right to inherit from the NH as his illegitimate child.[6]

3. Inheritance as an Illegitimate Child under Arkansas Intestate Succession Law

Under Arkansas law, an illegitimate child may inherit from a putative father if the child commences a claim against the father’s estate within 180 days of the father’s death[7] and if one of the following requirements is satisfied:

(1) a court of competent jurisdiction has established paternity or determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of this section;

(2) the man has made a written acknowledgment that he is the father of the child;

(3) the man’s name appears with his written consent on the birth certificate as the father of the child;

(4) the mother and father intermarry prior to the birth of the child;

(5) the mother and putative father attempted to marry each other prior to the birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or

(6) the putative father is obligated to support the child under a written voluntary promise or by court order.

Ark. Code Ann. § 28-9-209(d).

The circumstances enumerated in subsections (d)(2)-(6) do not apply to the facts of this case as there is no written acknowledgment by NH, written consent by NH, child support obligation, or attempted marriage between NH and Applicant. See Ark. Code Ann. § 28-9-209(d)(2)-(6). The second part of subsection (d)(1) applies to a court’s determination of a child’s legitimacy due to parents participating in a marriage ceremony, parents subsequently marrying, or a child’s conception following artificial insemination. See Ark. Code Ann. § 28-9-209(a), (b), (c), (d)(1). None of these circumstances are applicable to the facts of this case. Finally, a court of competent jurisdiction has not established paternity of the child per the first part of subsection (d)(1). See Ark. Code Ann. § 28-9-209(d)(1). However, agency regulations provide that if a State inheritance law requires a court determination of paternity, the agency will not require that the claimant obtain such a determination. See 20 C.F.R. § 404.355(b)(2). Instead, the agency will apply the same standard of proof that the State court would apply in making its own determination of paternity. See id. Consequently, for purposes of this analysis of the right to inherit as an illegitimate child under Ark. Code Ann. § 28-9-209(d)(1), the agency will not require an Arkansas court determination of paternity. Rather the agency will apply the standard of proof that an Arkansas court would apply in making a paternity determination. See id.

The Arkansas Code’s statutory provisions related to domestic relations includes a chapter governing “paternity” specifically and allows for suits to determine paternity for a child born outside of marriage. See Ark. Code Ann. §§ 9-10-102 – 9-10-121.[8] Arkansas law provides that when a child alleges that he is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, the child must prove paternity by clear and convincing evidence.[9] McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983) (implementing clear and convincing standard in paternity cases involving a deceased putative father and recognizing that the preponderance of the evidence standard applies when the putative father is living). As noted, “[c]lear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established.” Dinkins, 40 S.W.3d at 291; see also Ross, 758 S.W.2d at 424 (clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted”). Therefore, in order to inherit from the deceased NH, the Claimant must prove the NH’s paternity by clear and convincing evidence.

In terms of what evidence might support this standard, Arkansas courts consider DNA test reports in making paternity determinations, both as prima facie evidence of paternity as well as evidence to satisfy the clear and convincing standard of proof. See Ark. Code Ann. § 9-10-108(a)(6) (if the results of paternity tests establish a 95% or more probability of paternity, after corroborating testimony concerning the child’s conception and birth, such genetic test results shall constitute a prima facie case of paternity and the burden shifts to the putative father to rebut that proof); Johnson v. Johnson, 593 S.W.3d 33 (Ark. Ct. App. 2020) (DNA test results in substantial compliance with Ark. Code Ann. § 9-10-108 supported judgment of paternity in an estate claim); Ross, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey, 2006 WL 2687046, at *4, 6 (applying DNA evidence to satisfy clear and convincing standard). We consider the evidence provided to determine whether it satisfies Arkansas law and establishes the NH’s paternity as to the Claimant.

a. Prima Facie Proof of Paternity

Section 9-10-108(a)(6) specifically provides that if the results of the genetic testing establish a 95% or more probability that the putative father is the child’s biological father after corroborating testimony of the mother in regard to access during the probable period of conception, such genetic testing results shall constitute a prima facie case of establishment of paternity, and the burden of proof shifts to the putative father to rebut that proof. Ark. Code Ann. § 9-10-108(a)(6)(A). Thus, there must be corroborating testimony from the mother and the DNA test results must meet a 95 percent threshold in order to constitute prima facie evidence. See id.

In addition, in order for the DNA evidence to constitute prima facie proof of paternity, the test report must satisfy Arkansas statutory requirements for genetic testing: (1) the tests shall be made by a qualified expert; (2) the qualified expert prepares a written report of the test results that is certified and sworn to before a notary public; and (3) documents of the chain of custody of the samples taken from test subjects must be verified by affidavit by a person witnessing the procedure, packaging, and mailing the samples and by a person signing for the samples at the place where the samples are subject to the testing procedure. Ark. Code Ann. § 9-10-108(a)(4), (5), (6) (setting out qualified expert, chain of custody, and percentage of probability requirements).

When a father, such as the NH in this case, is deceased or unavailable, the trial court may order the mother and child to submit to scientific testing to determine whether paternity testing excludes the putative father as being the child’s biological father, and if the testing does not exclude the putative father, to establish the probability of paternity. See Ark. Code Ann. § 9-10-108(a)(3)(A). If the putative father is unavailable, an Arkansas court may consider DNA test reports from other paternal relatives. See Ark. Code Ann. § 9-10-108(a)(3)(B).

In this case, as the NH is deceased, DNA testing was performed on the child’s mother (the Applicant), the Claimant, and S~ (one of the NH’s biological daughters). The DNA Relationship Report’s conclusion states: “The likelihood ratio indicates that [the Claimant] and S~ are 257 times more likely to be half siblings as opposed to unrelated. Their probability of relatedness as half siblings is 99.61% as compared with the possibility that they are unrelated persons. These findings support the assertion that [the Claimant] and S~ are half siblings.” LabCorp laboratory representative M3~, PhD, D-ABC signed the DNA Relationship Report on March xx, 2020, “under penalties for perjury” and swore the facts and results therein to be true and correct before a notary public, who signed and certified the report as well. While the DNA Relationship Report does not test the NH because he is deceased, the report complies with Ark. Code Ann. § 9-10-108(a)(3)(B) because it tests S~, a “paternal relative” of the NH, and the test results of 99.61% relatedness meet the 95% statutory threshold. See Keahey, 2006 WL 2687046, at *4-6 (holding that half-sibling DNA evidence of 98.82% was clear and convincing evidence that the parties were more probably half siblings with a common parent). Further, the DNA Relationship Report appears to meet the Arkansas statutory requirements for genetic testing because the LabCorp representative prepared the written report of the test results that was certified and sworn to before a notary public. See Ark. Code Ann. § 9-10-108(a)(4).

Additionally, the record contains copies of documents establishing proper chain of custody of the DNA specimens that would appear to substantially comply with the law, although the signed certifications made under penalties of perjury from the collectors and recipients of the specimens were not in the exact proper affidavit form. See Ark. Code Ann. § 9-10-108(a)(5)(B); Johnson, 593 S.W.3d at 36-39 (holding that in a case where no challenge to the authenticity of the DNA test results or allegation of tampering has been made, the trial court did not err in admitting the DNA test results that “substantially complied” with the relevant statutory requirements although the statements from the collectors and the recipients were not in the exact proper affidavit form). No one has challenged the authenticity of the DNA test results or alleged tampering with the DNA testing specimen; rather, it appears that the NH’s daughter willingly participated in the DNA testing to assist the Applicant in establishing the NH’s paternity as to the Claimant. Thus, we believe Arkansas courts would find that the DNA Relationship Report complies with Arkansas statutory requirements for genetic testing and is admissible in proving the NH’s paternity as to the Claimant.

Section 9-10-108 also requires the mother’s corroborating testimony as to access in order for DNA results to be prima facie evidence. See Ark. Code Ann. § 9-10-108(a)(6)(A). Here, the Applicant stated that she and the NH resided in the same household from 2016 until four days prior to the NH’s death in 2019. Also, other evidence, including relatives’ statements as to the NH’s cohabitation with the Applicant, his presence at the Claimant’s birth, and his acknowledgment that the Claimant was his son, supports the NH’s paternity as to the Claimant. See Keahey, 2006 WL 2687046, at *4-6 (other evidence establishing paternity).

Thus, we believe Arkansas courts would find that the half-sibling DNA Relationship Report, supported by the statements provided, is prima facie evidence that the NH is the Claimant’s father. As noted, the burden then shifts to the putative father to rebut this evidence; however, here, the NH’s relatives support his paternity as to the Claimant as reflected in their statements, participation in the half-sibling DNA testing, and the NH’s obituary identifying the Claimant as his son.

b. Clear and Convincing Proof of Paternity

We further believe Arkansas courts would find that the totality of the evidence constitutes clear and convincing evidence of the NH’s paternity with respect to the Claimant under Arkansas law. See Ross, 758 S.W.2d at 424 (clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted). As stated above, Arkansas courts consider DNA test reports in making paternity determinations, both as prima facie evidence of paternity as well as evidence to satisfy the clear and convincing standard of proof. See Ark. Code Ann. § 9-10-108; Ross, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey, 2006 WL 2687046, at *4, 6 (applying DNA evidence to satisfy clear and convincing standard).

Here, as addressed above, the Claimant has provided a half-sibling DNA Relationship Report that meets Arkansas’ statutory requirements for genetic testing and shows that the Claimant is likely the NH’s biological child. The Claimant has also provided witness evidence in the form of his mother’s statements and the NH’s relatives’ statements that support the cohabitation of the Applicant and the NH from 2016 until his death in 2019; that state that the NH was present for the Claimant’s birth in 2017; and that all confirm that the NH orally acknowledged the Claimant to be his child before and after his birth in 2017. The NH’s online obituary recognizes the Claimant as his son and one of his survivors. Viewed in sum, we believe Arkansas courts would find that this evidence constitutes clear and convincing evidence that the NH is the Claimant’s father.[10] Consequently, we believe the Claimant has proven the right to inherit from the NH under Arkansas intestate succession law as his illegitimate child. See Ark. Code Ann. § 28-9-209(d)(1).

c. Effective Date of the Parent-Child Relationship

Finally, you asked for the effective date of their parent-child relationship. Agency policy distinguishes among legitimate, illegitimate, and legitimated children and differences with the effective date of the parent-child relationship. See POMS GN 00306.001(H) (defining “illegitimate child”), (M) (defining “legitimate child”), (N) (defining “legitimizing event”), GN 00306.050(A)(3) (“a child legitimated after birth is considered to be legitimate from birth”), GN 00306.055(A)(1) (distinguishing between a legitimated child and an illegitimate child with inheritance rights). Agency policy provides that for an illegitimate child with inheritance rights, “[a]n act/event conferring inheritance rights generally has effect only from the date of such act/event. . . . If a provision . . . 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 claimant’s status as the NH’s child is established effective with” the dates of the evidence submitted. POMS GN 00306.055(A)(3). “[I]f one piece of evidence satisfies the applicable standard of proof (e.g., blood test results constitute clear and convincing evidence), the date of that piece of evidence” is the effective date of the parent-child relationship. Id. As addressed earlier in the opinion, Arkansas intestate succession laws distinguish between legitimate and illegitimate children and provide for different methods of proving the parent-child relationship for inheritance purposes for legitimate versus illegitimate children. See Ark. Code Ann. § 28-9-209. As the Claimant has proven a right to inherit from the NH as an illegitimate child under Arkansas law based on the half-sibling DNA Relationship Report (supported by statements), the effective date of their parent-child relationship is March xx, 2020, the date of this report.[11] See POMS GN 00306.055(A)(3).

6. Conclusion

We believe Arkansas courts would find that the half-sibling DNA test report, along with the supportive statements from relatives, constitute clear and convincing evidence of a parent-child relationship between the Claimant and the NH such that the Claimant could inherit from the NH under Arkansas intestate succession law as his illegitimate child. Thus, we believe there is legal support for the agency to find that the Claimant has proven a parent-child relationship under section 216(h)(2)(A) of the Act for purposes of his application for Title II benefits on the NH’s record as his child and that the effective date of their relationship is March xx, 2020.

B. PR 14–152 Arkansas State Law—Child Relationship and Dependency, NH L~

Date: August 19, 2014

1. Syllabus

Under the Act, a claimant is a number holder’s natural child if:

(1) he or she could inherit property through intestate succession as the number holder’s natural child;

(2) he or she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment;

(3) he or she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or

(4) the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died. In this case, the claimant does not qualify as the DNH’s natural child under tests two, three, or four, listed above. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, the claimant must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where the NH had his permanent home when he died.

Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, the child must prove paternity by clear and convincing evidence. The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Claimant and the claimant’s brother were half-biological siblings was a “home kit” DNA test. The DNA report does not comply with Arkansas law and there is no corroborating evidence concerning the claimants mother’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, the claimant has not presented clear and convincing evidence to establish paternity. Based on the evidence submitted, the claimant is not entitled to child’s insurance benefits on the DNH’s record.

1. Opinion

QUESTION PRESENTED

You have asked us to provide a legal opinion regarding whether the evidence in the claims file, including a home kit half-siblingship deoxyribonucleic acid (DNA) test report, is sufficient to establish a parent-child relationship between Larry, the deceased number holder (DNH), and Keirstyn

ANSWER

In our opinion, the evidence submitted does not establish that Keirstyn is entitled to child’s benefits on the DNH’s account. If Keirstyn submits additional relevant evidence, our office will evaluate the new evidence.

BACKGROUND

As we understand the facts, Keirstyn was born on January, to Anita (Anita). Keirstyn’s birth certificate does not identify a father. Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy was her father. Keirstyn’s Numident record lists Stacy as her father. The DNH died in Arkansas on August XX, 2009.

On October XX, 2013, Kristina (Kristina), Keirstyn’s guardian, filed a surviving child’s benefit claim on Keirstyn’s behalf on the DNH’s record claiming that she is the DNH’s biological child. At the time of the application, Keirstyn was 14 years old. In support of establishing a biological parent-child relationship, Kristina submitted a certified half-siblingship DNA test report dated September XX, 2013, showing a 99.84 percent probability that Carl (Carl) and Keirstyn were half-biological siblings. A Certificate of Live Birth from the State of Illinois shows that Carl was born on January, and lists the DNH as his father. Carl stated that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young. Thus, Kristina’s claim is that Carl and Keirstyn are half-siblings and that the DNH is their father.

The agency developed the case to determine whether Keirstyn might be the DNH’s child. In reviewing the case, the agency was concerned, among other things, because the DNA testing was the result of a home kit, the results of the DNA analysis stated that they were “non-legally binding,” and the “photo IDs for the persons submitting these samples were not verified by the witness.”

ANALYSIS

A. Requirements for Child’s Insurance Benefits under the Social Security Act

The Social Security Act (Act) provides that the child of an individual number holder who is entitled to old-age or disability benefits or who dies a fully or currently insured individual is entitled to surviving child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350(a)(1), 404.352(a). To be entitled to survivor’s benefits on an insured individual’s account, a child must show she:

(1) is that individual’s child,

(2) applies for benefits,

(3) is unmarried,

(4) is under the age of eighteen, and

(5) is dependent upon the individual in question.

See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Here, it is undisputed that Keirstyn applied for benefits, is unmarried, and is under the age of 18. Thus, our focus is only upon whether Keirstyn is the DNH’s child. See 42 U.S.C. §§ 402(d)(1), 416(e)(1); 20 C.F.R. § 404.354.

(1) she could inherit property through intestate succession as the number holder’s natural child;

(2) she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment;

(3) she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or

(4) the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died.

See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Keirstyn does not qualify as the DNH’s natural child under tests two, three, or four, listed above. According to the information that we received, Anita, Keirstyn’s mother, and the DNH were never married and did not participate in a ceremony that would have resulted in a valid marriage. Before his death, the DNH never acknowledged Keirstyn as his child in writing, no court decreed him to be her parent or ordered him to contribute to her support, and he never lived with Keirstyn or contributed to her support. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, Keirstyn must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where he had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).

B. Requirements for Inheritance as a Child Under Arkansas Intestate Succession Laws

Arkansas law states that a child is illegitimate when she is born to parents who are not married to each other. Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). Because the evidence does not show that Anita was married to the DNH when Keirstyn was born, Arkansas law considers Keirstyn an illegitimate child. See Ark. Code Ann. § 28-9-209(a)-(c) (identifying circumstances under which child should be considered legitimate).

Under section 28-9-209(d) of the Arkansas Inheritance Code, an illegitimate child may inherit property from her father through intestate succession under Arkansas intestacy law when the child has commenced an action or a claim against her father’s estate within 180 days of her father’s death and the illegitimate child meets at least one of certain conditions:

(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section;

(2) The man acknowledged in writing that he is the child’s father;

(3) The man’s name appears with his written consent on the birth certificate as the child’s father;

(4) The mother and father intermarry prior to the child’s birth;

(5) The mother and putative father attempted to marry each other prior to the child’s birth by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid;

(6) The putative father is obligated to support the child under a written voluntary promise or by court order. See Ark. Code Ann. § 28-9-209(d)(1)-(6).

SSA will not apply a state inheritance law requirement, such as section 28-9-209,See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.075. In addition, agency regulations provide that if a state inheritance law requires a court determination of paternity, SSA will not require that the claimant obtain such a determination. See 20 C.F.R. § 404.355(b)(2). Instead, SSA will apply the same standard of proof that the state court would apply in making its own determination of paternity. See id. Consequently, for purposes of this analysis, SSA will not require an Arkansas court determination of paternity. Rather SSA will apply the standard of proof that an Arkansas court would apply in making a paternity determination, which is clear and convincing evidence. See id.; see also McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983) (implementing clear and convincing standard in paternity cases). Therefore, in order to inherit from the DNH, Keirstyn must prove her paternity by clear and convincing evidence.

C. The Evidence Does Not Satisfy the Clear and Convincing Evidence Standard

Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, she must prove paternity by clear and convincing evidence. McFadden, 647 S.W.2d at 432; see Ark. Stat. Ann. § 9-10-103(f) (permitting courts to issue a temporary child support order in cases involving paternity disputes if there is clear and convincing genetic evidence of paternity). Clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted.” Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988).

Arkansas courts consider DNA test reports in determining whether a child has provided clear and convincing evidence of paternity. See Ark. Code Ann. § 9-10-108; R~, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey v. Cox, No. 05-1415, 2006 WL 2687046, at *4, 6 (Ark. Ct. App. Sept. 20, 2006) (unpublished) (applying DNA evidence to satisfy clear and convincing standard). Section 9-10-108(a(6)(A) specifically provides that “[i]f the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony of the mother in regard to access during the probable period of conception, it shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut that proof.” Ark. Code Ann. § 9-10-108(a)(6)(A). In order for the DNA evidence to constitute prima facie proof of paternity, however, the test report must satisfy Arkansas statutory requirements for genetic testing. See Ark. Code Ann. § 9-10-108(a)(4),(5),(6) (setting out qualified expert, chain of custody, and percentage of probability requirements).

When a father, such as the DNH in this case, is deceased or unavailable, the trial court may order the mother and child to submit to scientific testing to determine whether paternity testing excludes the putative father as being the child’s biological father, and if the testing does not exclude the putative father, to establish the probability of paternity. See Ark. Code Ann. § 9-10-108(a)(3)(A). If the putative father is unavailable, an Arkansas court may consider DNA test reports from other paternal relatives, including the putative father’s other children’s. See Ark. Code Ann. § 9-10-108(a)(3)(B).

In this case, while the DNA evidence establishes a 99.84 percent probability that Keirstyn and Carl are half biological siblings, it does not comply with other Arkansas law requirements. Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). In addition, a written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him or her before a notary public may be introduced in evidence in paternity actions without calling an expert witness. Ark. Code Ann. § 9-10-108(a)(5)(A). If contested,R~, 785 S.W.2d at 245 (where the laboratory director signed the DNA report, but did not indicate that he performed the test or was a qualified expert, thus, court would not allow DNA report into evidence for lack of statutory foundation). Id. at 246.

The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Carl and Keirstyn were half-biological siblings was a “home kit” DNA test. Carl’s mother-in-law witnessed the extraction, packing, and mailing of the samples to the laboratory. The DNA report states that it is “Non-Legally Binding” and that “Photo ID’s for the persons submitting these samples were not verified by witness.” Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). A written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him. Here, like in R~, the laboratory director and laboratory manager signed the document, but neither of them indicated on the report that they performed the test or that they were qualified experts. Furthermore, the report does not contain the chain of custody affidavits from the testing laboratory as required by Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Thus, the DNA report does not constitute prima facie evidence of paternity under Arkansas law. Ark. Code Ann. § 9-10-108(a)(6)(a).

Moreover, the totality of the other evidence does not constitute clear and convincing evidence of the DNH’s paternity. See R~, 758 S.W.2d at 424 (clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted). The only other evidence submitted to support the paternity claim were: (1) Carl’s statement that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young; and, (2) that Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy Hodges was her father. This evidence does not establish proof “so clear, direct, weighty and convincing to come to a clear conviction, without hesitation” that the DNH is Keirstyn’s father. Id. As such, we find, under the evidence submitted, that Keirstyn is not entitled to child’s benefits on the DNH’s account.

While the record arguably contains some supplemental testimony supporting the claim that the DNH is Keirstyn’s father.

CONCLUSION

Based on the evidence submitted, as the record is currently composed, Keirstyn is not entitled to child’s insurance benefits on the DNH’s record. The DNA report does not comply with Arkansas law and there is no corrobating evidence concerning Anita’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, Keirstyn has not presented clear and convincing evidence to establish paternity. If Keirstyn submits additional relevant information, our office will evaluate the additional evidence.

1. The original birth certificate identifies the child as Keirstyn. Keirstyn and her permanent guardian, Kristina J~, petitioned for a change of name, which the Circuit Court of Phillips County, Arkansas granted on January 23, 2013, thereby changing her name from Keirstyn to Keirstyn J~.

2. The agency will consider Keirstyn to be dependent upon the DNH if she is the DNH’s natural child. See 20 C.F.R. § 404.361(a).

3. We recognize that the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” Program Operations Manual System (POMS) GN 00306.001(D). To qualify as a child of an insured individual under section 216(e) of the Act, the applicant must be the natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child of the insured individual. See 42 U.S.C. § 416(e); see also 20 C.F.R. §§ 404.354 – 404.359. Here, the claim is that Keirstyn is the DNH’s natural child. There is no claim or evidence of adoption or status as a stepchild. Thus, our focus is only upon whether Keirstyn is the DNH’s natural child.

4. Subsections (a)-(c) apply to a child’s legitimacy due to parents participating in a marriage ceremony, parents subsequently marrying, or a child’s conception following artificial insemination. See Ark. Code Ann. § 28-9-209(d)(1)-(6). However, those circumstances are not applicable to the facts of this case.

5. The Arkansas Supreme Court recently construed section 28-9-209(d) and held that an illegitimate child must both commence an action or file a claim against the putative father’s estate and also fully satisfy one of the six conditions establishing paternity within 180 days of the putative father’s death. See Bell v. McDonald, --- S.W.3d ----, 2014 Ark. 75, 2014 WL 662054, at *6-9 (Ark. Feb. 20, 2014). In Bell, the claimant had filed a claim against the estate and commenced a paternity action within 180 days, but she had not completed the paternity action within the 180 days and therefore, did not have order establishing that a court of competent jurisdiction had established the paternity of the child. See id. at *1-3. The Court noted that five of the six statutory conditions could only be satisfied prior to the putative father’s death, and that the remaining condition (a court order that has established paternity of the child) had to have also been commenced and completed within 180 days. See id. at *7.

6. Because we conclude herein that Keirstyn has not shown under Arkansas law that she is entitled to benefits on the DNH’s account, we do not further address the applicability of section 28-9-209.

7. The preamble to the 1998 amendment to 20 C.F.R. § 404.355 substantiates this interpretation. See 63 Fed. Reg. 57590, 57593 (Oct. 28, 1998) (recognizing that “[m]any State laws impose time limits within which someone must act to establish paternity for purposes of intestate succession. Such time limits are intended to provide for an orderly and expeditious settlement of estates. Since this is not the purpose of Social Security benefits for children . . . we will not apply a State’s time limits within which a child’s relationship must be established when we determine the child’s status under section 216(h)(2)(A). Not applying time limits is consistent with our belief that such a policy on applying State inheritance laws will best service the interests of children Congress sought to protect when it enacted section 216(h)(2)(A).”).

8. Agency policy is that all actions to establish paternity are considered contested actions and require affidavits to document the chain of custody from a person witnessing the extraction, packing, and mailing of the samples to the testing laboratory and a person signing for the samples at the testing laboratory. POMS GN 00306.425.

9. As noted above, the agency developed the case to determine whether Keirstyn might be the DNH’s child. In response, Keirstyn stated that her mother told her that her father was either the DNH or Stacy .

C. PR 14-130 Arkansas State Law—Child Relationship and Dependency, Deceased NH

Date: July 1, 2014

1. Syllabus

The number holder (NH) was domiciled in Arkansas at the time of his death; therefore, we look to the Arkansas law to determine if the claimant could inherit from the NH. Under the Arkansas law, an illegitimate child may inherit from the NH when the child has commenced an action or a claim against the NH’s estate within 180 days of the NH’s death and meets at least one of six required conditions under the Arkansas law. In this case, the claimant’s mother did not provide clear and convincing evidence that the claimant is the NH’s child. The claimant is not entitled to child’s benefits on the NH’s record. However, if the field office obtains additional evidence from the claimant’s mother, we will evaluate the new evidence to determine if the claimant is the NH’s child.

2. Opinion

QUESTION PRESENTED

You have asked us to provide a legal opinion regarding whether the evidence in the claims file is sufficient to establish a parent-child relationship between S~, the purported biological father and the deceased number holder (DNH), and L~[12] (L~), the child claimant.

ANSWER

In our opinion, the record currently available does not contain clear and convincing evidence that the DNH is L~’s father. Consequently, L~ is not entitled to benefits on the DNH’s account at this time. If the agency receives additional evidence, we will evaluate the new evidence.

BACKGROUND

L~ was born on December, to S2~ (S2~). The birth certificate lists L~’s surname as G~, rather than L~, but does not identify a father. D~ (D~), L~’s adoptive mother and the DNH’s stepmother, explained that S2~ was angry with the DNH at the time of L~’s birth and thus used the surname (G~) of the individual with whom she was living at that time. S2~ and the DNH were never married. The DNH died on August XX, 2010.

On October XX, 2012, a probate judge for the Circuit Court of S3~ County, Arkansas, in case No. 63-XX-XX-XXX-X, entered an Amended Final Order of Adoption confirming the adoption of L~ to D~ and S4~ (S4~). [13] S2~, L~’s birth mother, completed and executed a form entitled Relinquishment and Termination with Power to Consent to Adoption (Relinquishment and Termination) in favor of D~ and S4~. The Relinquishment and Termination stated that L~’s father was “S~, the late son of S4~ and D~.” The court specifically found that D~ and S4~ were L~’s paternal grandparents, and that L~’s biological father’s consent was unnecessary because he was deceased. The Amended Final Order of Adoption confirming the adoption of L~ to D~ and S4~ directs that this “substituted” birth certificate “shall issue showing the adoptive parents as the child’s parents.” An amended birth certificate, filed November XX, 2012, as part of the adoption process, lists D~ as L~’s adoptive mother and S4~ as her adoptive father. [14] The evidence submitted also includes a Client Identification and Consent Form, which bears the caption, “Chain of Custody Documentation,” that A~, an employee of Cartersville Drug & Alcohol Testing, completed on May XX, 2013, certifying that she collected a deoxyribonucleic acid (DNA) sample from D2 (D2~), [15] L~’s purported biological paternal grandmother (the DNH’s biological mother), on April XX, 2013, which she transmitted to DNA Diagnostics Center (DDC). DDC’s test report appears to cover both paternal grandparents; however, the evidence submitted includes DNA chain of custody documentation for D2~, but not for S4~. DDC’s DNA test report states that the probability of grandparentage between D2~ and L~ is 99.95%. The DNH’s original birth certificate lists D3~ (maiden name, H~) L~ as his mother, while an amended birth certificate, issued December XX, 1998, identifies D~ [16] as his mother.

The agency developed the case to determine whether L~ might be the child of a potential male sibling of the DNH. In response, D~ provided a statement (referenced above in connection with L~’s original surname) in which she indicated that the DNH had a paternal half-brother, J~ (J~), who was S4~’s, but not D2~’s, biological son, and two step-brothers. D~ indicated that S3~ never “dated” J~.

ANALYSIS

A. The Agency Applies State Intestacy Laws to Determine Status as a Child.

To be entitled to survivor’s benefits on an insured individual’s account, a child must show she (1) is that individual’s child for purposes of the Act, (2) files for benefits, (3) is unmarried, (4) is under the age of eighteen, and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Here, our focus is only upon whether L~ is the DNH’s child. [17] The term “child” includes a natural child. See 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. [18] L~ would be entitled to benefits as the DNH’s child if the evidence shows that state law would determine her to be the DNH’s child for purposes of intestate succession. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a). [19] The agency applies the intestacy laws of the state in which the DNH had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, we look to whether L~ could inherit the NH’s property under Arkansas law, the state where the DNH maintained his primary domicile at the time of his death. See 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).

Arkansas law states that a child who is born at the time that her parents are not married to each other is an “illegitimate child.” Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). The evidence does not show that S3~ was married to the DNH. Thus, Arkansas law considers L~ an illegitimate child. See Ark. Code Ann. § 28-9-209(a)-(c) (identifying circumstances under which child should be considered legitimate).

Under section 28-9-209(d) of the Arkansas Inheritance Code, an illegitimate child may inherit property from her father through intestate succession under Arkansas intestacy law when the child has commenced an action or a claim against her father’s estate within 180 days of her father’s death and the illegitimate child meets at least one of certain conditions:

A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section;[20]

(2) The man acknowledged in writing that he is the child’s father;

(3) The man’s name appears with his written consent on the birth certificate as the child’s father;

(4) The mother and father intermarry prior to the child’s birth;

(5) The mother and putative father attempted to marry each other prior to the child’s birth by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; (6) The putative father is obligated to support the child under a written voluntary promise or by court order. See Ark. Code Ann. § 28-9-209(d)(1)-(6). The Arkansas Supreme Court very recently construed section 28-9-209(d) and held that an illegitimate child must both commence an action or file a claim against the putative father’s estate and also fully satisfy one of the six conditions establishing paternity within 180 days of the putative father’s death. See Bell v. McDonald, --- S.W.3d ----, 2014 Ark. 75, 2014 WL 662054, at *6-9 (Ark. Feb. 20, 2014) [21] (“[W]e find under a plain reading of the language in the statute that one of the six conditions must have been satisfied and an action commenced or a claim asserted against the estate prior to the expiration of the 180-day time period.”). Here, L~ did not commence any action or file a claim against the DNH’s estate within 180 days of his death. Furthermore, the evidence does not suggest that any of the conditions listed in section 28-9-209(d)(1) through (6) apply to this case. As stated above, no court properly found that the DNH was L~’s father, there is no evidence that the DNH ever acknowledged L~ in writing, and his name does not appear on her birth certificate. The evidence does not show that the DNH and S3~ ever married, or attempted to marry. Finally, the record does not include any promise or order of support with respect to the DNH and L~.

SSA will not apply a state inheritance law requirement, such as the 180-day requirement of section 28-9-209, that an action to establish paternity must be taken with a specified period of time required from a numberholder’s death or a child’s birth, or that an action must have been started or completed before the numberholder’s death, if doing so would impose an absolute bar to the child’s ability to prove paternity. See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.075.[22] In addition, agency regulations provide that if a state inheritance law requires a court determination of paternity, SSA will not require that the claimant obtain such a determination. See 20 C.F.R. § 404.355(b)(2). Instead, SSA will apply the same standard of proof that the state court would apply in making its own determination of paternity. See id. Consequently, for purposes of this analysis, SSA does not require an Arkansas court determination of paternity, but applies the standard of proof that an Arkansas court would apply in making a paternity determination, which is clear and convincing evidence. See id.; see also McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983) (implementing clear and convincing standard in paternity cases).

Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, she must prove paternity by clear and convincing evidence. M~, 647 S.W.2d at 432; see also Ark. Stat. Ann. § 9-10-103(f) (permitting courts to issue a temporary child support order in cases involving paternity disputes if there is clear and convincing genetic evidence of paternity). Clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted.” Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988).

Furthermore, Arkansas courts consider DNA test reports in making paternity determinations, both as prima facie evidence of paternity and as evidence to satisfy the clear and convincing standard of proof. See Ark. Code Ann. § 9-10-108(a)(6)(A); R~, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey v. Cox, No. 05-1415, 2006 WL 2687046, at *4, 6 (Ark. Ct. App. Sept. 20, 2006) (unpublished) (applying DNA evidence to satisfy clear and convincing standard). Courts will not determine that the evidence constitutes prima facie proof of paternity unless the DNA evidence, along with corroborating testimony, shows a 95% or greater probability that the child is the offspring of the purported father. See Ark. Code Ann. § 9-10-108(a)(6)(A). Although Arkansas courts have not articulated what at percentage DNA evidence satisfies the clear and convincing standard, one court has suggested that it might lie beneath the 95 percent standard that section 9-10-108(6)(A) delineates. See K~, 2006 WL 2687046 at *4-6 (holding that DNA evidence falling short of 95% threshold, coupled with other evidence, satisfied clear and convincing standard).

When the father, such as the DNH in this case, is deceased or unavailable, the trial court may order the mother and child to submit to scientific testing to determine whether paternity testing excludes the putative father as being the child’s biological father, and if the testing does not exclude the putative father, to establish the probability of paternity. See Ark. Code Ann. § 9-10-108(a)(3)(A). If the putative father is unavailable, an Arkansas court may consider other paternal relatives’ DNA evidence. See Ark. Code Ann. § 9-10-108(a)(3)(B). If the results of the DNA testing establish a 95% or more probability of inclusion that the putative father is a child’s biological father, and the mother’s corroborating testimony establishes that she had access to the putative father during the probable period of conception, such evidence “shall constitute a prima facie case of establishment of paternity,” thus shifting the burden of proof to the adverse party to disprove paternity. Ark. Code Ann. § 9-10-108(a)(6)(A).

Arkansas is silent regarding whether supplemental testimony suffices as prima facie proof of paternity in cases which both the mother and father are deceased or otherwise unavailable. See Ark. Code Ann. § 9-10-108(a)(6)(b) (permitting supplemental testimony from other witnesses where mother is unavailable and father furnished DNA sample). In this case, the DNH, the putative father, is obviously unable to provide testimony. S3~ is also apparently unavailable, as she has relinquished her parental rights and not participated in the application process. D~ submitted scientific DNA testing from samples taken from D2~, the DNH’s biological mother, and L~’s purported biological paternal grandmother. The DNA evidence establishes a 99.95% chance that L~ is D3~’s grandchild. However, the evidence does not exclude the possibility that D3~ had a male child, other than the DNH, who could be L~’s father. In other words, the evidence does not exclude the possibility that D2~ had another biological son (in addition to the DNH) that S3~ had access to during the period of L~’s conception.

We conclude that the evidence provided does not show, either by the prima facie method established by the Arkansas paternity testing statute, or by the clear and convincing evidence standard that the Arkansas courts historically employed, that L~ is the DNH’s child. [23] The Arkansas paternity statute does not permit a prima facie inference of paternity under the facts of this case because the record lacks corroborative testimony from S3~ regarding whether she had access to the DNH or any currently unknown maternal, male siblings (other biological sons D2~ may have had) at the time of L~’s conception. See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm.—MOS, Dallas, Arkansas State Law Status of Child Based on Single Grandparentage Deoxyribonucleic Acid Test (NH Wendell), at p. 2 & n.3 (March 27, 2009) (explaining that mother must negate possibility that paternal siblings may have fathered child).

We acknowledge that the record arguably contains some evidence negating the possibility that L~ is the child of a brother of the DNH.[24] However, D~’s statements regarding the DNH’s half-brother and step-brothers may be insufficient. At the threshold, § 9-10-108(a)(6)(A) clearly contemplates that the child’s biological mother will provide evidence regarding “access” during the period of conception. Ark. Code Ann. § 9-10-108(a)(6)(A). S3~ has not provided evidence of access to the DNH during the probable period of L~’s conception. Furthermore, assuming a court could legitimately consider D~’s statements pursuant to § 9-10-108(a)(6)(B), D2~ (the DNH’s biological mother), not D~ (the DNH’s stepmother), would be the best source of information regarding the DNH’s biological, maternal, male siblings, and S3~ would be the best source of whether she had access to the DNH or to any of the DNH’s brothers during the period of L~’s conception.

Given the lack of corroborating evidence concerning the conception, birth, and history of the child, we do not think that the clear and convincing standard of proof has been satisfied here, where there is no evidence from the child’s biological mother, S3~, regarding access and where D2~ has not provided information regarding whether she gave birth to any other male children. If the claimant submits additional relevant evidence regarding whether the DNH had access to S3~ during the probable time of conception and regarding whether the DNH had other biological, maternal and paternal, male siblings who had access to S3~ during the relevant period?, our office will, at that time, evaluate the additional evidence.

CONCLUSION

In summary, we conclude that the record, as currently composed, does not contain prima facie or clear and convincing evidence that L~ is the DNH’s child. Therefore, at this time, L~ is not entitled to child’s insurance benefits on the DNH’s record. We recommend, however, that SSA obtain additional evidence from S3~ and D2~, which our office will evaluate to determine if L~ is the DNH’s child.


Footnotes:

[1]

Because the evidence is sufficient to establish a parent-child relationship under section 216(h)(2)(A) of the Act, we do not address your question in the alternative as to whether the Claimant has also established a parent-child relationship under section 216(h)(3) of the Act.

[2]

The NH’s obituary is available online at xx (last visited May 4, 2021)

[3]

The Applicant provided a copy of a Judgment of Dissolution filed on May xx, 2020, in case of Marriage of M~ v. A2~, No. xx, Superior Court of California, County of Fresno. The Judgment states that the marriage between the Applicant and M~ was terminated on May xx, 2020. Further, the Judgment identifies only one child born of their marriage: C2~ born July xx, 2011. A separate order regarding child custody and parenting time was entered in this case only as to C2~.

[4]

There does not appear to be any dispute that S~ is the NH’s biological child. You indicated that Social Security’s records reflect that S~ was born during the NH’s marriage to her mother. S~'s EAB Numident record lists the NH as her father. The NH’s obituary stated that he was survived by two daughters, S~ and A~. See xx (last visited May 4, 2021). S~ was also identified as his daughter and the informant for the NH’s Arkansas death certificate.

[5]

The child claimant must satisfy other criteria for his or her application for child’s insurance benefits that are outside the scope of this legal opinion request. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. We focus only on the requirement of a parent-child relationship between the claimant and the insured individual. See 20 C.F.R. § 404.350(a)(1).

[6]

This opinion is consistent with our office’s prior legal opinions involving similar DNA evidence, statements, and a divorce decree used to rebut the presumption of legitimacy under Arkansas law. See POMS PR 01010.005(E) PR 04-289 Arkansas State Law Acceptability of Evidence to Rebut the Presumption of Legitimacy, NH Steven, SSN~ (July 20, 2004) (advising that the evidence – consisting of DNA testing showing a 99.8% probability of the NH’s paternity, voluntary statements from the child’s mother and the NH’s acknowledging of paternity, an uncontested divorce decree stating that no children were born of the mother’s marriage to the ex-husband, and the fact that no child support was ordered by the court as to the mother’s ex-husband – was clear and convincing evidence to rebut the presumption of the ex-husband’s legitimacy and to establish the NH’s paternity as to the child).

[7]

The agency does not apply State inheritance law requirements that an action to establish paternity must be initiated within a prescribed period of time, such as this one under Arkansas law requiring a child to commence a claim against the father’s estate within 180 days of the father’s death. See 20 C.F.R. § 404.355(b)(2); see also Bell v. McDonald, 432 S.W.3d 18, 22 (Ark. 2014) (holding that “the plain language of [section 28-9-209(d)] indicated that both requirements, the filing of the claim and the satisfaction of one of the conditions, must be satisfied within the 180-day time frame”).

[8]

Unlike other States in our Region, such as Texas, Oklahoma, and New Mexico, Arkansas has not adopted the Uniform Parentage Act, which has more extensive provisions regarding the establishment of parent-child relationships.

[9]

See POMS PR 01010.005(E) PR 04-289 Arkansas State Law Acceptability of Evidence to Rebut the Presumption of Legitimacy, NH Steven, SSN~ (July 20, 2004) (explaining that if the putative father is living, the standard of proof for establishing paternity is a preponderance of the evidence, and if the putative father is deceased, the standard of proof for establishing paternity is clear and convincing evidence; and further noting that the standard of proof for establishing paternity should not be confused with the clear and convincing standard of proof necessary to overcome the presumption of legitimacy for a child born during a marriage).

[10]

This opinion is consistent with prior legal opinions involving similar DNA evidence from paternal relatives under Arkansas law. See POMS PR 01115.005(B) PR 18-086 Use of NH’s Sister’s DNA Report to Establish Child Relationship (July 21, 2015) (advising that the DNA report from the deceased NH’s biological sister showing a 99.77% probability of relationship to the claimant, as well as other evidence, was clear and convincing evidence of the NH’s paternity as to the claimant), PR 01115.005(H) PR 07-198 Arkansas State Law Use of Sibling Screening Report to Establish Child Relationship, NH Deon~, SSN~ (Aug. 22, 2007) (advising that a sibling DNA test establishing a 99.8% probability that an established child of the NH and the claimant are full siblings, along with other evidence, was clear and convincing evidence of the NH’s paternity as to the claimant); see also POMS PR 01115.005(I) PR 07-121 Arkansas State Law Use of Half-Sibling Screening Report to Establish Child Relationship, NH Brent~, SSN~ (April 25, 2007) (advising that the claimant did not prove a parent-child relationship with the NH where the half-sibling DNA testing reports showed only a 66.67% and 84.5% probability of half-siblingship, which did not meet the statutory requirements under Arkansas law for genetic testing and no other evidence was provided).

[11]

This is our office’s long-standing interpretation of Arkansas law and agency policy as to the effective date of the parent-child relationship for an illegitimate child with inheritance rights. See POMS PR 01115.005(O) PR 00-068 Entitlement to Child’s Benefits Based on DNA Testing in Arkansas – O~ (Re-Issued based on new POMS provision) (Feb. 3, 1999) (applying POMS GN 00306.055(A)(3) and advising that the claimant, as an illegitimate child with inheritance rights under Arkansas law, could be awarded child’s benefits only from the date of the DNA testing report that established his paternity).

[12]

The original birth certificate and your request for legal advice identify the child claimant as L~. The Amended Final Order of Adoption and the amended birth certificate, generated as a result of L~’s adoption, identify her as L~. We follow the usage of the more recent legal documents with regard to her full name.

[13]

S4~ is the father of S~, the DNH.

[14]

With regard to D~ and S4~’s adoption of L~ and the impact on L~’s inheritance rights from the NH if she is considered the NH’s biological child, we note that Arkansas adoption law states that an adoption wholly severs the parent-child relationship between a child and her biological parents, including the child’s inheritance rights. See Ark. Code Ann. § 9-9-215(a)(1) (a final decree of adoption “relieve[s] the biological parents of the adopted individual of all parental rights and responsibilities,” and “terminate[s] all legal relationships between the adopted individual and his or her biological relatives, including his or her biological parents, so that the adopted individual thereafter is a stranger to his order former relatives for all purposes . . . includ[ing] inheritance”); see also Vice v. Andrews, 945 S.W.2d 914 (1997) (interpreting section 9-9-215 of the Arkansas Code as an expression of public policy favoring complete severance of the relationship between the adopted child and his or her biological family in order to further the best interests of the child); Wheeler v. Myers, 956 S.W.2d 863, 864-65 (Ark. 1997). L~’s right to inherit the DNH’s property, however, vested at the time of his death, which appears to have occurred prior to L~’s adoption by D~ and S4~, as the Amended Final Order of Adoption describes the DNH as L~’s father and states that the DNH is deceased. See Wheeler, 956 S.W.2d at 865 (a living person has no heirs; the right to inherit from a decedent is fixed and vested as of the date of the decedent’s death; upon a person’s death, the rights of his heirs become vested). Thus, this situation is distinguishable from adoptions that occur during the biological parent’s lifetime, which may, depending on state law, preclude an individual from the right to inherit from the biological parent, and as such, preclude the individual’s entitlement to child’s benefits on the biological parent’s account. See Program Operations Manual System (POMS) GN 00306.170 (containing the list of state laws on the right of an adopted child to inherit from the natural parent—for Arkansas, effective for adoptions on or after July 5, 1977, a child may not inherit unless the natural parent is spouse of adopting parent); GN 00306.165 (explaining that a natural or legally adopted child of the NH who was adopted by another person during the NH’s lifetime is the NH’s child for benefit purposes only if the adoption did not cut off the child’s inheritance rights in the NH’s estate under applicable state law, and the NH was living with or contributing to the child’s support at one of the dependency points) (emphasis added). Thus, D~ and S4~’s adoption is not determinative issue in this case as to L~’s eligibility for benefits as the DNH’s child.

[15]

The DNH’s biological mother is D2~. The evidence suggests that D2~ and D3~ are the same person, and that she is the DNH’s biological mother.

[16]

The amended birth certificate identifies D~ by her maiden name, D~.

[17]

Our opinion is limited to determining whether L~ is the DNH’s child. We have not been asked to provide on opinion on whether L~ meets the other requirements necessary for benefits and, thus, make no such findings with regard to these criteria. We note that the agency will consider L~ to be dependent upon the DNH if she is the DNH’s natural child. See 20 C.F.R. § 404.361(a).

[18]

We recognize that the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” POMS GN 00306.001(D). To qualify as a child of an insured individual under section 216(e) of the Act, the applicant must be the natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child of the insured individual. See 42 U.S.C. § 416(e); see also 20 C.F.R. §§ 404.354 – 404.359. Here, the claim is that L~ is the DNH’s natural child. There is no claim or evidence of adoption or status as a stepchild. Thus, our focus is only upon whether L~ is the DNH’s natural child.

[19]

A claimant proves that she is a number holder’s natural child if: (1) she could inherit property through intestate succession as the number holder’s natural child; (2) she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4). Here, according to the information we received, S3~ and the DNH were never married and did not participate in a ceremony that would have resulted in a valid marriage but for a legal impediment. Thus, she is not a deemed child under 42 U.S.C. § 416(h)(2)(B). We also find that L~ cannot be the DNH’s deemed child under 42 U.S.C. § 416(h)(3)(C) because the evidence does not show that before his death, the DNH ever acknowledged L~ as his child in writing, that a court ever decreed her to be the DNH’s child or ordered the DNH to pay child support on her behalf, or that the DNH ever lived with or contributed to L~’s support.

As to a court decree, we acknowledge that the probate court described L~ as the DNH’s child in its Amended Final Order of Adoption. However, this court order was not entered before the DNH’s death, as required for purposes of 42 U.S.C. § 416(h)(3)(C)(i)(II). Further, the context and document itself make clear that the court was not concerned with the issue of establishing the identity of L~’s biological father, but rather confirming D~ and S4~ as her adoptive parents. The probate court, in identifying the DNH as L~’s biological father, appears to have acted upon nothing more than the information S3~ provided in her Relinquishment and Termination. Such evidence would not be sufficient, under Arkansas law, to establish the DNH’s paternity of L~, an illegitimate child. See Ark. Stat. Ann. § 28-9-209. We also note that SSA is not bound by state court determinations that are not the result of contested litigation between parties with genuinely adverse interests or that are inconsistent with the law pronounced by the highest courts in the state. See Social Security Ruling (SSR) 83-37C (1983), available at 1983 WL 31272, at *3, adopting as agency policy, Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1974) (holding that SSA is not free to ignore a state trial court’s decision when the following criteria are met: (1) an issue in a claim for Social Security benefits previously has been determined or adjudicated by a state court of competent jurisdiction; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state).. In this case, the court’s Amended Final Order of Adoption does not bind the agency because, as noted, the issue of whether the DNH was L~’s biological father was not being litigated before the court in the adoption proceeding. In other words, parties with opposing interests did not genuinely contest this issue before the court, and the court did not determine or adjudicate the issue of the DNH’s parent-child relationship with L~. Instead, the court appears to have taken this information from S3~ at face value without question. Thus, the Amended Final Order of Adoption did nothing more than identify the DNH as L~’s biological father and made no explicit findings regarding a parent-child relationship, and did not explain why or on what basis the court recognized the DNH to be L~’s biological father. Therefore, SSA is not bound by this Amended Final Order of Adoption because the first two G~ criteria are not met. Accordingly, we find that L~ does not qualify as the DNH’s natural child under tests two, three, or four, and therefore, to prove that she is eligible for child’s benefits on the DNH’s account, L~ must show under test one that she could inherit property through intestate succession as the DNH’s child under Arkansas law. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

The agency applies the intestacy laws of the state in which the DNH had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, we look to whether L~ could inherit the NH’s property under Arkansas law, the state where the DNH maintained his primary domicile at the time of his death. See 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).

  1. 1. 

    B. Application of Arkansas Intestate Succession Laws.

Arkansas law states that a child who is born at the time that her parents are not married to each other is an “illegitimate child.” Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). The evidence does not show that S3~ was married to the DNH. Thus, Arkansas law considers L~ an illegitimate child. See Ark. Code Ann. § 28-9-209(a)-(c) (identifying circumstances under which child should be considered legitimate).

Under section 28-9-209(d) of the Arkansas Inheritance Code, an illegitimate child may inherit property from her father through intestate succession under Arkansas intestacy law when the child has commenced an action or a claim against her father’s estate within 180 days of her father’s death and the illegitimate child meets at least one of certain conditions:

(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section

[20]

Subsections (a)-(c) apply to a child’s legitimacy due to parents participating in a marriage ceremony, parents subsequently marrying, or a child’s conception following artificial insemination. See Ark. Code Ann. § 28-9-209(d)(1)-(6). However, those circumstances are not applicable to the facts of this case.

[21]

In B~, the claimant had filed a claim against the estate and commenced a paternity action within 180 days, but she not completed the paternity action within the 180 days and therefore, did not have order establishing that a court of competent jurisdiction had established the paternity of the child. See id. at *1-3. The Court noted that five of the six statutory conditions could only be satisfied prior to the putative father’s death, and that the remaining condition (a court order that has established paternity of the child) had to have also been commenced and completed within 180 days. See id. at *7.

[22]

The preamble set forth in the Federal Register upon SSA’s promulgation of a 1998 amendment to 20 C.F.R. § 404.355 substantiates this interpretation. See 63 Fed. Reg. 57590, 57593 (Oct. 28, 1998) (recognizing that “[m]any State laws impose time limits within which someone must act to establish paternity for purposes of intestate succession. Such time limits are intended to provide for an orderly and expeditious settlement of estates. Since this is not the purpose of Social Security benefits for children . . . we will not apply a State’s time limits within which a child’s relationship must be established when we determine the child’s status under section 216(h)(2)(A). Not applying time limits is consistent with our belief that such a policy on applying State inheritance laws will best service the interests of children Congress sought to protect when it enacted section 216(h)(2)(A).”).

[23]

There is no need to address separately the use of the surname G~ on L~’s original birth certificate. No individual with the surname G~ has been identified as a potential father, on L~’s birth certificate or otherwise. See generally Ark. Code Ann. § 28-9-209(b)(3). Nor is there any evidence that S3~ was married to, as opposed to cohabitating with, any individual with the surname G~. See Ark. Code Ann. § 28-9-209(a).

[24]

As noted above, the agency developed the case to determine whether L~ might be the child of a potential male sibling of the DNH. In response, D~ (the DNH’s stepmother) provided a statement (in connection with L~’s original surname) in which she indicated that the DNH had a paternal half-brother, J~ (J~), who was S4~’s biological son, but that J~ was not D2~’s biological son, and that the DNH had two step-brothers. D~ indicated that S3~ never “dated” J~. Logically, neither the paternal half-brother nor the step-brothers could be L~’s father, as the DNA evidence establishes a 99.5% probability that L~ is descended from D2~, the DNH’s biological mother.


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PR 01105.005 - Arkansas - 06/02/2021
Batch run: 06/02/2021
Rev:06/02/2021