QUESTION PRESENTED
This memorandum is in response to your request for a legal opinion on whether E~ (E~)
is entitled to surviving child’s benefits on T~’s, the deceased number holder’s (DNH),
earnings record (account). Specifically, you have asked whether the evidence, consisting
of a deoxyribonucleic acid (DNA) report from the DNH’s biological sister, is sufficient
under Arkansas law to establish a parent-child relationship between the DNH and E~.
You have also asked whether enough information exists to reopen a prior denial of
a claim for surviving’s child benefits filed on E~’s behalf on the DNH’s account from
March 2004.
ANSWER
For purposes of E~’s January 2015 application, the DNA report and other evidence provided
is sufficient under Arkansas law to establish a parent-child relationship between
the DNH and E~. However, the March 2004 claim should not be reopened because there
is no evidence showing that the prior determination denying surviving child’s benefits
resulted from fraud or similar fault, that it was a result of clerical error, or that
it was “unmistakably certain” that the decision was incorrect based on the evidence
in the agency’s possession at the time the determination was made.
BACKGROUND
E~ was born March XX, 2000 in Arkansas. Based on a certificate of live birth, the
Social Security Administration’s (agency’s) records list G~ (G~) as E~’s mother but
show no listed father. The DNH died January XX, 2004, while domiciled in Arkansas.
It is our understanding that G~ and the DNH never married or attempted to marry, and
that the DNH never acknowledged E~ as his child in writing. In addition, there is
no court order decreeing the DNH to be E~’s father.
In March 2004, G~ filed a claim for surviving’s child benefits on E~’s behalf, which
the agency denied for lack of evidence to establish paternity between the DNH and
E~. The information provided shows that when the agency denied the March 2004 claim,
the Field Office, located in F~, Arkansas, documented that the DNH admitted to his
parents, relatives, and friends that he was E~’s father and that he contributed to
her support every two weeks. However, while the Field Office obtained a copy of E~’s
birth certificate, it does not list a father. Evidence submitted to the field office
indicates that the DNH and E~ resided in the same household from E~’s March XX, 2000,
birth through the DNH’s January XX, 2004 death; that the DNH and G~ had a relationship
spanning about 13 years prior to his death; that the DNH and G~ had four other children
together; all whom the DNH acknowledged to be his children in writing; and that G~
did not have a relationship with the DNH’s brother. However, the information we received
did not show the extent to which the DNH lived with or contributed to E~’s support
at the time the DNH died.[12] We have no information that G~ further appealed the March 2004 initial unfavorable
determination.
On January XX, 2015, G~ filed a new surviving’s child benefits claim on E~’s behalf
on the DNH’s account. In April 2015, G~ submitted to the agency a December 2014 DNA
report with the DNH’s biological sister, B~. The DNA report contained samples from
G~, E~, B~, and T2~, one of E~’s siblings. The DNA report showed a 99.77 percent probability
that E~ and B~ are niece and aunt.
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 surviving child’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 specified age
limits (under age 18, age 18 or older and qualifies for benefits as a full time student,
or age 18 or older and under a disability which began prior to age 22), 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). The term “child” includes a
natural child. See 42 U.S.C. §§ 402(d)(1), 416(e)(1); 20 C.F.R. § 404.354.[13] Here, it is undisputed that E~ applied for benefits, is unmarried, and is under the
age of 18. The agency will consider E~ to be dependent upon the DNH if she is the
DNH’s natural child. See 20 C.F.R. § 404.361(a). Thus, our focus is only upon whether E~ is the DNH’s natural
child.
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).
As discussed below, E~ may qualify as the DNH’s child under test one by showing that
she could inherit property from the DNH through intestate succession under Arkansas
law. However, E~ does not qualify as the DNH’s natural child under tests two or three,
listed above. According to the information that we received, G~ 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 E~ as his child in writing
and no court decreed him to be her parent.
E~ may qualify as the DNH’s natural child under test four, as G~ stated in her application
that the DNH supported E~ every two weeks and that she, E~, and the DNH lived together
from the time of E~’s birth until the DNH’s death. Moreover G~ has presented DNA evidence
in an attempt to establish the biological relationship. We examine whether under test
one[14] E~ 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 G~ was
married to the DNH when E~ was born, Arkansas law considers E~ 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;[15]
(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).[16] Here, E~ 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 E~’s father, there is no evidence
that the DNH ever acknowledged E~ in writing, and his name does not appear on her
birth certificate. The evidence does not show that the DNH and G~ ever married, attempted
to marry or that the DNH was ordered to support E~.
The agency will not apply a state inheritance law requirement, such as section 28-9-209,
that an action to establish paternity must be taken with a specified period of time
required from a number holder’s death or a child’s birth, or that an action must have
been started or completed before the number holder’s death, if doing so would impose
an absolute bar to the child’s ability to prove paternity.[17] 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, 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, 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, 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, E~ must prove the DNH’s paternity
by clear and convincing evidence.
C. The DNA Report Satisfies the Clear and Convincing Evidence Standard under Arkansas
Law
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 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 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).
1. Prima Facie Proof of Paternity
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). 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. See Ark. Code Ann. § 9-10-108(a)(4),(5),(6) (setting out qualified expert, chain of custody,
and percentage of probability requirements). Although Arkansas courts have not articulated
what percentage DNA evidence satisfies the clear and convincing standard, one court
has suggested that it might lie beneath the 95 percent standard of section 9-10-108(6)(A).
See Keahey, 2006 WL 2687046, at *4-6 (holding that DNA evidence falling short of 95 percent
threshold, coupled with other evidence, satisfied the clear and convincing standard).
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. See Ark. Code Ann. § 9-10-108(a)(3)(B).
In this case, DNA testing was performed on the mother (G~), E~, T2~ (one of E~’s alleged
siblings), and B~ (the children’s alleged paternal aunt and the DNH’s sister). The
DNA report stated that E~ and T2~ are “full siblings” and showed an “Avuncular Index”
of 441 to 1, or a 99.77 percent “Probability of Relationship” that the DNH’s sister,
B~, is the “paternal aunt of both E~ and T2~.” The DNA report states that the results
“support the assertion that a brother of the alleged paternal aunt, B~, could be the
biological father of the children, E~ and T2~.” While the DNA report does not test
the DNH because he is deceased, the report complies with Ark. Code Ann. § 9-10-108(a)(3)(B)
because it tests B~, a “paternal relative” of the DNH. And the report appears to meet
the Arkansas statutory requirements for genetic testing because a notary public swore
that a duly qualified expert from LabCorp conducted the test. See Ark. Code Ann. § 9-10-108(a)(4). Moreover, the record contains copies of affidavits
establishing proper chain of custody. See
Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Thus, the DNA report satisfies Arkansas statutory
requirements for genetic testing.
However, 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, G~ stated that she and the DNH resided in
the same household from E~’s date of birth through the DNH’s date of death. Moreover,
while the DNA report states that “a brother of the alleged paternal aunt, B~, could
be the biological father of the children, E~ and T2~,” the DNH’s brother could not
have fathered E~, as G~ reported that she did not have a relationship with the DNH’s
brother. 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 W~), at p. 2 & n.3 (March 27, 2009) (explaining that mother must negate possibility that
paternal siblings may have fathered child). Also, other evidence, such as G~’s statements
that she and the DNH had four other children together, and that the DNH regularly
contributed support to E~, weigh in favor of the DNH being E~’s biological father.
See Keahey, 2006 WL 2687046, at *4-6 (other evidence establishing paternity).
2. Clear and Convincing Proof of Paternity
The totality of the other evidence constitutes clear and convincing evidence of the
DNH’s paternity with respect to E~ 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).[18] 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 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). Here, E~ has provided
a DNA report that meets Arkansas’ statutory requirements for genetic testing and shows
that E~ is likely the DNH’s natural child. E~ has also provided testimonial evidence
that the DNH supported her, that G~ and the DNH’s brother did not have a relationship,
and that G~ and the DNH had four other children together. Viewed in sum, this evidence
constitutes clear and convincing evidence that the DNH was E~’s biological father.
D. The Agency Should Not Reopen the March 2004 Determination
The agency may reopen and revise a determination, which is otherwise final and binding,
within 12 months of the date of the notice of the initial determination for any reason;
within 4 years of the date of the notice of the initial determination if the agency
finds good cause to reopen the case; or at any time for a number of specific reasons
listed in the regulations, including if the determination was obtained by fraud or
similar fault. 20 C.F.R. §§ 404.987, 404.988.
Because it has been longer than four years since the agency issued its March 2004
determination, we will examine whether any of the listed reasons in section 404.988(c)
exist here. Most of the reasons provided for reopening here are clearly inapplicable
to the present matter. However, we examine a couple of the reasons a little closer
to see if they apply.
First, we look to whether the determination was obtained by fraud or similar fault.
20 C.F.R. § 404.988(c)(1). The POMS defines “fraud” as existing when a person, with
intent to defraud, either makes or causes to be made a false statement or misrepresentation
of a material fact for use in determining rights to Social Security benefits, or conceals
or fails to disclose a material fact for use in determining rights to Social Security
benefits. POMS GN 04020.010(A)(1). “Similar fault” exists when a person knowingly
makes an incorrect or incomplete statement that is material to the agency’s determination
to grant benefits, or knowingly, with no fraudulent intent, conceals information that
is material to the determination. POMS GN 04020.010(A)(2). The determination of whether
fraud or similar fault exists is a judgment decision and is based on the facts in
the case. POMS GN 04020.010(B)(2).
Here, there is no persuasive evidence that E~ intended to defraud or conceal evidence
from the agency during her March 2004 claim for surviving child’s benefits. You indicate
that the Field Office documented in March 2004 that the DNH and E~ resided in the
same household from E~’s date of birth through the DNH’s date of death; that the DNH
and G~ had a relationship spanning about 13 years; that they had four other children
together; and that G~ did not have a relationship with the DNH’s brother. While you
state that it appears that the Field Office failed to develop this information to
determine if clear and convincing evidence may have existed to establish the DNH as
E~’s father, there is nothing to suggest that E~ intended to mislead, defraud, or
conceal evidence during the claims process. Furthermore, because the March 2004 claims
file was destroyed in March 2011, any further analysis of those records is impossible.
In sum, there is no evidence showing that the March 2004 denial resulted from fraud
or similar fault.
Moreover, section 404.988(c)(8) also provides that the agency may reopen a determination
at any time if it was fully or partially unfavorable to a party, but only to correct
a clerical error or an error that appeared on the face of the evidence that was considered
when the determination was made. 20 C.F.R. § 404.988(c)(8). The agency’s POMS further
explain what is meant by clerical error, and error on the face of the evidence. See POMS GN 04010.010, 04010.020.
POMS GN 04010.010 explains that a “clerical error” is a mistake the agency made. See
POMS GN 04010.010(A). The agency may correct its own clerical error in instances where it miscalculates
benefit payments or “clerically” pays the wrong amount. See id. at (B)(1), (2). Examples of clerical errors include instances where the agency makes
an addition error in computing a beneficiary’s retirement benefit and lists the incorrect
amount on the award form, or when the agency calculates the correct benefit amount,
but pays an incorrect amount. Id.
The facts in this matter, however, do not appear to fall within these examples or
otherwise meet the definition of “clerical error” as contemplated by the POMS. Accordingly,
the Field Office’s apparent failure to develop the evidence in E~’s March 2004 claim
did not constitute a “clerical error” under POMS GN 04010.010.
Finally, POMS GN 04010.020 provides that the agency may reopen a prior claim at any time if the determination
was unfavorable to the claimant and it is “unmistakably certain” that the decision
was incorrect based on the evidence in the agency’s possession at the time the determination
was made. See POMS GN 04010.020(A), (B) (examples of an error on the face of the evidence include: relying on the
wrong person’s medical report or earnings record to make an incorrect determination;
benefits in a cessation case were terminated as of the month the disability ceased,
rather than as of the close of the second month following the month the disability
ceased; and before a claim was finally adjudicated, the claimant submitted to the
Field Office a medical report or additional earnings which would have resulted in
a different conclusion, but such report or earnings were not associated with the claim
file until after the initial determination was made). The POMS explains that a determination
that was reasonable on the basis of the evidence in the file or on the law and instructions
existing at the time of the determination, will not be reopened merely for the following
reasons: a shift in the weight of the evidence, a different inference is now drawn
from the evidence, a different rule of law would now be applied, the statute or regulations
have been amended (unless the amendment specifically provides for reopening). See POMS GN 04010.020(C). In this case, for similar reasons, reopening is not warranted. Specifically,
because the agency has destroyed the March 2004 file and the accompanying evidence,
it is not possible to determine with unmistakable certainty that the agency incorrectly
decided the claim based on the evidence it had at the time the determination was made.
Accordingly, the evidence presented does not support reopening the March 2004 claim.
CONCLUSION
The DNA report and other evidence provided constitutes sufficient evidence under Arkansas
law to establish a parent-child relationship between the DNH and E~, and thus, to
find that E~ is the DNH’s child under the Act for entitlement to surviving child’s
benefits on the DNH’s account for purposes of the January 2015 application. However,
the March 2004 claim should not be reopened because there is no evidence showing that
the determination resulted from fraud or similar fault, no evidence of a clerical
error, and no evidence that it was “unmistakably certain” that the decision was incorrect
based on the evidence in the agency’s possession at the time the determination was
made.