The number holder (NH) was domiciled in West Virginia when he died, therefore, we look to the West Virginia law to determine whether the claimants could inherit from the NH as his children. The West Virginia intestate law broadly provides that a child may inherit from the parent if a parent-child relationship exists between them. In this case, the claimants may only inherit from the NH if their parent-child relationship survived the termination of parental rights of the NH. According to the West Virginia law, a parent-child relationship does not survive the termination of parental rights. We believe that the West Virginia law would not recognize a parent-child relationship between the NH and the claimants following the termination of the NH’s parental rights, and thus does not allow the claimants to inherit from the NH through intestacy. Therefore, we believe that the claimants are not entitled to surviving child’s insurance benefits on NH’s record.

QUESTION PRESENTED

You asked us to determine if claimants, minors A~ and S~, would be able to inherit from C~ (NH) pursuant to West Virginia intestacy law, and thus entitled to surviving child’s insurance benefits on the record of the NH when the NH’s parental rights were terminated with respect to the claimants prior to his death?

CONCLUSION

We believe that West Virginia law would not recognize a parent-child relationship between the NH and the claimant following the termination of the NH’s parental rights, and thus does not allow the claimants to inherit from the NH through intestacy. Therefore, we believe that the claimants are not entitled to surviving child’s insurance benefits on NH’s record.

BACKGROUND

On January XX, 2011, the Circuit Court of C~ County, West Virginia issued a final Dispositional Hearing Order (Order) permanently terminating the parental rights of NH with respect to the claimants. The NH’s parental rights were involuntarily terminated pursuant to West Virginia’s Child Welfare Act on the grounds of abuse and neglect. Although the Order appears to continue the NH’s child support obligations to his other biological children with a different biological mother, the Order does not continue the NH’s child support obligations to the claimants. The Order also awards physical and legal care, custody, and control of the claimants to their biological mother, J~. On August XX, 2016, the NH died in his state of domicile, West Virginia.

On September XX, 2016, the claimants’ biological mother, J~, filed an application on the record of the NH for surviving child’s benefits on behalf of the claimants. The claimants were not adopted by a third party during the NH’s lifetime.

DISCUSSION

To qualify for child’s insurance benefits on the earnings record of an insured individual who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d);

20 C.F.R. § 404.350(a)(1). A claimant can qualify as the insured individual’s natural child if the claimant could inherit from the insured individual as his child. See Act § 216(h)(2)(A);

20 C.F.R. § 404.355(a)(1), (b). To determine if a claimant could inherit from the insured individual, the Social Security Administration applies the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because NH was domiciled in West Virginia when he died, we look to West Virginia law to determine whether the claimants could inherit from the NH as his children. Act § 216(h)(2)(A); 20 C.F.R. § 404.355 (b)(4).

Neither the West Virginia’s intestacy code nor cases interpreting the code specifically address whether a child may inherit from a parent following the termination of parental rights where the child is not subsequently adopted.^[1] West Virginia intestate law more broadly provides that a child may inherit from his parent if a parent-child relationship exists between them. See W. Va. Code § 42-1-3a (1995) (permitting a decedent’s descendants to inherit from the decedent through intestate succession); W. Va. Code § 42-1-1(5) (defining as descendant of an individual as all his descendants with the relationship of a parent and child as defined by the code); W. Va. Code § 42-1-1(26) (defining a parent as “any person entitled to take, or who would be entitled to take if the child died without a will.”).^[2] Thus, here, the claimants may only inherit from the NH if their parent-child relationship survived the termination of parental rights of the NH.

Under West Virginia law, a parent-child relationship does not survive the termination of parental rights. See In re Cesar L., 221 W. Va. 249 (2007) (finding a biological mother who voluntarily relinquished her parental rights lacked standing to contest a child’s disposition order in an abuse and neglect proceeding); In re A.H., No. 12-462, 2012 WL 4069567 (Sept. 7, 2012) (finding a biological father whose rights were involuntarily terminated lacked standing to contest a child’s disposition order in an abuse and neglect proceeding).

In re Cesar, the Supreme Court of Appeals of West Virginia (the state’s highest court) held that “a final order terminating a person’s parental right, as a result of either an involuntary termination or voluntary replenishment, completely severs the parent-child relationship, and as a consequence of such order of termination, the law no longer recognizes such person as a “parent” with regard to the child(ren) involved in the particular termination proceeding.” Id. at 258-59 (further stating that termination of parental rights “relieves such person of all the rights and privileges, as well as duties and obligations, considered to be ‘parental rights’” and “the person who formerly possessed such parental rights loses his his/hers status as the child’s parent”) (emphasis added); In re A.H., 2012 WL 4069567 at *3-4 (applying In re Cesar to cases involving involuntary termination of parental rights). Although In re Cesar addresses a parent’s standing to contest a dispositional order in an abuse and neglect case, we believe that West Virginia’s Supreme Court of Appeals would extend its broad and sweeping holding that the termination of parental rights completely severs the parent-child relationship to matters involving intestate succession.

Thus, we believe that the statutes and cases referenced herein dictate that the termination of parental rights severs the parent-child relationship such that the child no longer has the right to inherit from that parent under West Virginia intestacy law. Thus, we believe that the claimants are not entitled to surviving child’s insurance benefits on NH’s record.

The number holder (NH) filed for child benefits on behalf of the Claimant while domiciled in West Virginia; therefore, we look to the West Virginia Intestacy law to determine if the Claimant is entitled to child’s benefits on the NH’s record. The Claimant currently receives benefits on the record of the deceased wage earner (W/E), C~. DNA findings of 99.96 percent supported that the claimant is the child of the deceased W/E. The Agency cannot say for certain whether or not a West Virginia court would find that all of the factors are present to allow genetic blood test results to be introduced into evidence to rebut the presumption of the NH’s paternity. However, given the circumstances in this case, we believe that a court would likely allow the blood test results into evidence to rebut the presumption of legitimacy. We believe the parent/child relationship has not been established between the NH and the Claimant and the Claimant is not the child of the NH for purposes of entitlement to Title II benefits on the NH’s record.

QUESTION PRESENTED

In West Virginia, which follows the Lord Mansfield Rule, is a parent/child relationship established between K~ and I~, when genetic testing results rebut the presumption that K~ is I~’s father?

ANSWER

In a case of first impression, the West Virginia Supreme Court has held that a husband could rely upon blood test results to rebut the presumption of legitimacy that arises when a child is conceived or born during a marriage where the equities surrounding the particular facts and circumstances of the case warrant admission of blood test results. Michael K.T. v. Tina L.T., 387 S.E. 2d 866, 870-71 (W. Va. 1989). Therefore, the Lord Mansfield Rule does not categorically preclude the introduction of blood test results to disprove paternity. We cannot say for certain whether or not a West Virginia court would find that all of the factors are present to allow genetic blood test results to be introduced into evidence to rebut the presumption of K~’s paternity. However, given the circumstances in this case, we believe that a court may likely allow the blood test results into evidence to rebut the presumption of legitimacy. We thus believe that I~ is most likely not the child of K~ for purposes of entitlement to Title II benefits on K~’s record.

BACKGROUND

You provided the following information. I~’s maternal grandmother, P~, filed for child’s benefits for I~ on the record of C~ on January XX, 2011. P~ submitted a report of genetic testing results that indicated a 99.96 percent probability of paternity of C~ and a combined paternity index of 2,505. I~ was awarded benefits on the record of C~ with an entitlement date of December 2010, based on the genetic testing results.

On October XX, 2016, the NH filed for child’s benefits on behalf of I~. I~ was born on July XX, 2000, in West Virginia to M~, who was married at the time of I~’s birth to the NH. The NH and M~ were separated at the time of the NH’s application. I~’s numident record lists the NH as the father. The NH signed a statement on November XX, 2016, indicating that he was married to and living with I~’s mother at the time of I~’s birth.

You correctly noted that POMS GN 00306.010 provides that West Virginia recognizes the Lord Mansfield Rule, which bars the mother of the child and her legal husband at the time the child was conceived or born from giving testimony that might prove that the child is illegitimate. You note that neither M~ nor K~ have given a statement to prove illegitimacy, and that P~, who is not a biological parent, filed the initial application for child’s benefits on the record of C~.

DISCUSSION

Section 202(d)(1) of the Social Security Act (Act) provides that every child of an individual who dies fully or currently insured under the Act is entitled to child’s insurance benefits if the child has applied for such benefits, is unmarried, under the age of 18, and was dependent upon the insured individual at the time of the insured’s death. A child is deemed dependent if he was living with or supported by the wage earner at the time of his death, or is the legitimate child of the wage earner. Act at § 202(d)(3).

The Act looks to state intestacy law when there is a question regarding the legitimacy of the child, and provides that a child may be deemed to be legitimate (and, therefore, deemed dependent and entitled to benefits) if he can establish that he would be entitled to inherit personal property from the wage earner under the intestacy laws of the wage earner’s state of domicile at his death. Act, § 416(h)(2)(A).

West Virginia Code § 42-1-5 provides that a child can establish paternity when the putative father (insured) is deceased by “clear and convincing” evidence, which is defined as the degree of proof which will produce in the mind of the adjudicator a firm belief or conviction of paternity. Undisputed genetic blood or tissue results that show a statistical probability of paternity of 98 per cent or greater is clear and convincing evidence of paternity.

Therefore, the DNA results in this case would support a finding of paternity for C~, and that I~ would be able to inherit from C~.

However, we now turn to the conflict created by the application of K~ for child’s benefits based on the presumption that I~ is his child because he was born during the marriage of K~ to I~’s mother. West Virginia follows the Lord Mansfield Rule, which would prevent K~ or his estranged wife, M~, from testifying against the paternity of K~. See Young v. Prichard, 542 S.E.2d 925, 929 (W.Va. 2000). However, we note that the presumption of legitimacy may be rebutted with clear and satisfactory evidence of non-access of the husband, impotency, or sterility. State ex rel J.L.K v. R.A.I,. 294 S.Ed. 2d 142, 146, n. 9 (W.Va. 1982). See POMS GN 00306.025 (stating generally that the presumption of legitimacy may be rebutted by sterility or absence of the husband during the entire period of possible conception and, in some states, by blood/genetic tests).

Therefore, we now consider whether courts in West Virginia would permit the introduction of blood/genetic test evidence to overcome the presumption of paternity when a child is born during a marriage. Our research indicates that in a case of first impression, the Supreme Court of West Virginia held in Michael K.T. v. Tina L.T., 387 S.E. 2d 866, 870-71 (W. Va. 1989), that a husband could introduce blood test results to rebut the presumption of legitimacy that arises when a child is conceived or born during a marriage where the equities surrounding the particular facts and circumstances of the case warrant admission of blood test results. Id. The court noted that a trial court should refuse to admit blood test evidence that would disprove paternity when the individual attempting to disestablish paternity has held himself out to be the father of the child for a sufficient period of time such that the disproof of paternity would result in undeniable harm to the child. In other words, blood test results may be admitted if no harm would come to the child. However, the court required that a guardian ad litem be appointed to represent the child, and an in camera hearing should be held in order for the court to make a preliminary determination whether the equities surrounding the particular facts and circumstances of the case warrant admission of blood test results. The court identified the facts that must be considered at an in camera hearing as follows:

1. 1. 

   The length of time following when the putative father first was placed on notice that he might be the biological father before he acted to contest paternity;

2. 2. 

   The length of time during which the individual desiring to challenge paternity assumed the role of father to the child;

3. 3. 

   The facts surrounding the putative father’s discovery of nonpaternity;

4. 4. 

   The nature of the father/child relationship;

5. 5. 

   The age of the child;

6. 6. 

   The harm which may result to the child if paternity were successfully disproved;

7. 7. 

   The extent to which the passage of time reduced the changes of establishing paternity and a child support obligation in favor of the child; and

8. 8. 

   All other factors which may affect the equities involved in the potential disruption of the parent/child relationship or the chances of undeniable harm to the child.

Michael K.T. v. Tina L.T., 387 S.E. 2d at 872.

In permitting the introduction of evidence to disprove paternity, the court noted that when Lord Mansfield adopted his rule to protect the legitimacy of children born in wedlock, DNA evidence did not yet exist and the social purpose of the rule—to prevent parents from imposing the stigma of illegitimacy on children born in their marriage—has diminished in today’s society where there are so many non-traditional households (e.g. single parents, step-parents, etc. Michael K.T. v. Tina L.T., 387 S.E. 2d 866, 869-70.

We note that in a case following Michael K.T. v. Tina L.T., the Supreme Court of West Virginia refused to overturn a paternity finding entered four years earlier because the individual attempting to disestablish paternity had held himself out to be the father of the child for a sufficient period of time such that disproof of paternity would result in undeniable harm to the child. In re the Marriage/Children of Betty L.W., v. William E.W., 559 S.E.2d 77 (W.D. Va. 2002) (finding eleven years a sufficient period of time).

Although we may not have enough information in I~’s case to determine if a court would find that sufficient factors and equities were satisfied to admit blood test evidence, and that it was not against I~’s best interests to find that K~ is not his father for purposes of entitlement to child’s benefits on his record, we note that the presumption created by the Lord Mansfield Rule may be rebutted by blood test results if the child will not be harmed.

On the limited facts that you have provided in this case, we cannot say with certainty that the Lord Mansfield Rule would be set aside, but we can speculate that due to I~’s present age of 16, and the fact that he has been receiving Title II benefits on the record of his biological father, C~, since December of 2010, a West Virginia court may likely find that I~ would not be harmed by a finding that K~ was not his biological father. Therefore, we believe that a parent/child relationship has most likely not been established between K~ and I~ for the purposes of I~’s receipt of Title II benefits on K~’s record.

Nora Koch

Regional Chief Counsel

By: Patricia M. Smith

Assistant Regional Counsel

We believe that a West Virginia court would not find that clear and convincing evidence of paternity exists such that Matthew would inherit from the NH under the intestacy statute.

Also, based on the reluctance of the Supreme Court of Appeals of West Virginia to admit blood tests to disprove paternity, we believe that the court would not do so in this case. This is especially true here where the Report from LabCorp noted only that the son of the grandparents “could” be Matthew’s biological father. We conclude that no parent-child relationship existed between the NH and Matthew under West Virginia law, and therefore, Matthew is not entitled to benefits on the NH’s record.

QUESTION PRESENTED

On June 13, 2011, you requested an opinion as to whether a parent-child relationship existed between the deceased number holder (“NH”) and Matthew K. F~ where DNA test results indicate that the parents of the NH were the grandparents of Matthew F~. You also asked whether Matthew would be entitled to benefits on the NH’s record.

SHORT ANSWER

Although DNA testing indicated that the parents of the NH were the grandparents of Matthew, we believe that a court would not find that a parent-child relationship existed between the NH and Matthew under the West Virginia intestacy laws. As discussed more fully below, the evidence shows that Matthew’s mother and the NH were not cohabitating at the time of Matthew’s conception, Matthew’s mother listed Kevin F~ as Matthew’s father on his birth certificate, and that Kevin F~ signed an acknowledgment of his paternity of Matthew. Further, the courts are reluctant under West Virginia law to overturn an acknowledgement of paternity absent a showing of fraud, duress, or material mistake of fact. Because a court would not find that a parent-child relationship existed between Matthew and the NH, Matthew would not be entitled to benefits on the NH’s record.

BACKGROUND

NH’s Marriage to Christina M~ and the Birth of Matthew

According to the information you provided, the NH and Christina M~ (hereinafter “Matthew’s mother”) were married on October XX, 19xx, and Matthew F~ was born on

March XX, 20xx. Although the NH and Matthew’s mother were married at the time of Matthew’s birth, the final divorce order provides that the NH and Matthew’s mother last cohabitated together on or about March 20xx, a year before Matthew’s birth. Kevin F~ is listed as Matthew’s father on his birth certificate, which was filed with the West Virginia Division of Health on April 10, 20xx. The information supplied for Matthew’s numident also lists Kevin F~ as Matthew’s father. Kevin F~ and Matthew’s mother signed and had notarized a Declaration of Paternity Affidavit (hereinafter “paternity acknowledgement”) on April 1, 20xx, which lists Kevin F~ as Matthew’s father.

NH’s Divorce

The NH and Matthew’s mother divorced on June XX, 20xx. The final divorce decree stated that no children were born of the marriage, but that Matthew’s mother gave birth to “Matthew K. F~ age one year, of whom the biological father is Kevin D. F~, as evidenced by the attached paternity affidavit.” Divorce Decree at ¶ 7. Matthew’s mother married Kevin F~ on November XX, 20xx, and her name is now Christina F~.

NH’s Death and Matthew’s Application for Benefits

The NH died on April XX, 20xx, while living in West Virginia. After the NH died, Matthew’s mother filed an application for surviving child benefits on behalf of Matthew under the NH’s record on October 27, 2010. Matthew’s mother stated that Kevin F~ is Matthew’s step-father.

Relationship Reports

A Relationship Report (hereinafter “Report”) from LabCorp. According to its website, LabCorp is accredited by the American Association of Blood Banks (AABB) as well as several other organizations showed a 99.99% probability that the NH’s parents, Ada P~ and Delmas P~, were the grandparents of Matthew. Based on the results, LabCorp concluded that the NH’s parents could not be excluded as biological grandparents of Matthew. The Report noted that “[t]his study supports the assertion that a son of the grandparents could be the biological father of the child.” It was signed by the director of the laboratory under penalty of perjury. There is no other evidence in the file, such as affidavits or statements regarding whether the NH had any siblings and whether or not any siblings were tested and excluded as Matthew’s father.

However, our internet search discovered a summary of the NH’s obituary, which noted that he is survived by a brother (Dale P~) and two sisters. (last visited July 8, 2011).

 The summary also noted that the NH is survived by two sons, James and Devin, and made no mention of Matthew.

DISCUSSION

I. Relevant Provisions of the Social Security Act and the West Virginia Intestacy Statute

The Social Security Act and implementing regulations provide that surviving child’s benefits may be granted based on the earnings record of a fully insured individual if the child, as defined in section 216(e) of the Act, has 1) filed an application for child’s insurance benefits; 2) is unmarried at the time of application; 3) is under the age of eighteen; and 4) was “dependent” upon the insured. Section 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2011).

Section 216(e)(1) of the Act defines “child” as 1) the child or legally adopted child of an insured, or 2) a stepchild if, in the case of a deceased insured, he has been a stepchild for not less than nine months immediately preceding the day on which the insured died. 42 U.S.C. § 416(e)(1). The Act further provides in section 216(h)(2)(A), that in determining whether an applicant is the “child” of an insured individual, the Secretary “shall” apply the intestacy law of the state where the NH was domiciled at the time of his death in order to determine if the child can inherit personal property from an intestate NH. 42 U.S.C. § 416(h)(2)(A). Indeed, the Fourth Circuit Court of Appeals has recently recognized that the intestacy provision in section 216(h)(2)(A) of the Act is the “backbone” of all “child” status determinations under the Act. Schafer v. Astrue, 641 F.3d 49, 57 (4th Cir. 2011).

The relevant West Virginia intestacy statute provides that children born out of wedlock shall be capable of inheriting from their mother and father, if, prior to the death of the father, paternity shall be established by 1) acknowledgement that he is the child’s father; 2) adjudication on the merits pursuant to a paternity proceeding under W.Va. Code § 48-24-101; or 3) by order of a court of competent jurisdiction issued in another state. W.Va. Code § 42-1-5(b) (2011). If paternity has not been established prior to the death of the putative father, then the statute requires “clear and convincing” evidence of paternity after his death. W.Va. Code § 42-1-5(c) (2011).

Although the West Virginia intestacy provision is entitled “From whom children born out of wedlock inherit,” this is the relevant provision in this case because at the time of the NH’s death, as noted in Section II of this Memorandum, Kevin F~ was considered Matthew’s father for “all purposes,” and therefore, any presumption of legitimacy that arose during the marriage of the NH and Matthew’s mother was rebutted. Specifically, although there was an original presumption of legitimacy because Matthew was born during the marriage of the NH and Matthew’s mother, this presumption is rebuttable, and was rebutted by the divorce decree and the paternity acknowledgment executed by Kevin F~. See W.Va. Code § 16-5-10(f) (2011) (providing that the name of the most recent husband shall be entered on the birth certificate unless paternity has been determined by a court of competent jurisdiction); see also W.Va. Code § 16-5-10(h) (2011) (providing that a paternity acknowledgement legally establishes the man as the father for all purposes).

Clear and convincing evidence has been defined as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Moore v. Goode, 180 W.Va. 78, 83-84, 75 S.E.2d 549 (W.Va. 1988) (citing Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369

(W.Va. 1987)). If an individual cannot meet the intestacy requirements of § 216 (h)(2)(A), the Act also provides three alternative avenues to establish “child” status for survivorship benefits. First, an applicant can be deemed a “child” under the Act if his parents went through a marriage ceremony that turned out to be legally invalid. See 42 U.S.C. § 416(h)(2)(B). This situation is not applicable here because the NH and Matthew’s mother were legally married, and the divorce decree noted that the NH was not Matthew’s biological father.

Second, an applicant can be deemed a “child” under the Act where prior to the NH’s death:

1) the NH acknowledged paternity in writing; 2) the NH was decreed a parent by a court; or

3) the NH was ordered by a court to contribute to the support of the applicant. See 42 U.S.C.

§ 416(h)(3)(C)(i)(I)-(III). In this case, there is no evidence that the NH ever acknowledged paternity in writing. Further, there is actually a court adjudication (divorce decree) that finds that the NH is not Matthew’s father, and the NH has never been ordered by a court to contribute to the support of Matthew. Therefore, Matthew does not satisfy this second alternative avenue.

Third, an applicant can be deemed a “child” under the Act if the NH was living with or contributing to the support of the child at the time the NH died. See 42 U.S.C.

§ 416(h)(3)(C)(ii). In the instant matter, there is no evidence that the NH was living with or contributing to the support of Matthew. Therefore, with the facts provided, Matthew does not meet this third alternative for “child” status.

II. The NH Did Not Establish Paternity Prior to His Death Under the West Virginia

Intestacy Statute.

The facts of this case demonstrate that the NH did not acknowledge that he was Matthew’s father prior to his death as required by the West Virginia intestacy statute, W.Va. Code § 42-1-5(b). In fact, Kevin F~ is listed as Matthew’s father on Matthew’s birth certificate filed a month after his birth and in his numident record. Further, Mr. F~ executed an acknowledgement of paternity, and later married Matthew’s mother. According to West Virginia law, in order for a court to set aside a paternity acknowledgement after the expiration of sixty days, it must find by “clear and convincing evidence” that the paternity acknowledgement was executed under circumstances of fraud, duress, or material mistake of fact. See W.Va. Code § 16-5-10(h)(5)(E). You provided no evidence that Kevin F~ attempted to set aside his acknowledgement of paternity at any time.

In addition, the internet summary of the NH’s obituary noted above stated that he is survived by two sons, James and Devin, but did not mention Matthew. Moreover, there is no adjudication of the paternity of the NH by a court of West Virginia or any other state as required under the statute, W.Va. Code § 42-1-5(b). To the contrary, there is an adjudication that the NH is not Matthew’s father, as noted in the divorce decree.

In sum, there is a West Virginia court order (divorce decree) which establishes the paternity of Kevin F~ pursuant to W.Va. Code § 16-5-10(f), as well as a paternity acknowledgement pursuant to W.Va. Code § 16-5-10(h). Under West Virginia’s statutory scheme, these facts are sufficient to establish Kevin F~ as Matthew’s father for “all purposes.” W.Va. Code

§ 16-5-10(h). Therefore, the NH did not establish paternity of Matthew prior to his death according to the provisions of W.Va. Code § 42-1-5(b).

Although Matthew’s paternity in relation to the NH was not established during the NH’s life, we now look to the provision of the intestacy statute that paternity after his death must be established by clear and convincing evidence. See W.Va. Code § 42-1-5(c).

III. The DNA Testing of the Grandparents After the NH’s Death is Not Clear and Convincing Evidence that Matthew Could Take Under the Intestacy Statute.

We believe that a West Virginia court would not find that clear and convincing evidence of paternity exists such that Matthew would inherit from the NH under the intestacy statute.

As an initial matter, the West Virginia courts and legislature have not addressed grandparent DNA in the context of paternity cases. Although the scientific reliability of blood and tissue evidence itself has been well established in West Virginia, the Supreme Court of Appeals of West Virginia has noted that genetic tests should not be a “trump card” when reviewing conflicting bases for paternity, and has found that courts must engage in a factual weighing process. State of West Virginia Dept. of Health and Human Resources, Child Support Enforcement Division v. Michael George K., 207 W.Va. 290, 296, 531 S.E.2d 669

(W.Va. 2000).

The court cautioned that blood test results do not necessarily rebut a legal presumption of paternity that arises from an acknowledgement of paternity. Michael G. K., 207 W.Va. at 296. The court stated, in interpreting the child support provision that permitted reliance on an acknowledgement of paternity pursuant to W.Va. Code § 16-5-10, that even if proof of fraud, duress, or material mistake of fact exists, the statute does not say that upon such proof the acknowledgment must be voided. Id. at 297-298. Rather, the ultimate decision should involve the consideration and weighing of all applicable preferences, presumptions, and equitable principles. Id. at 297-98. In Michael K.T. v. Tina L.T., the court found that a blood test that factually excluded the biological paternity of a man who was legally presumed the child’s father was not necessarily admissible to rebut the legal presumption where the person held himself out as the father for such a time that disproof of paternity would result in undeniable harm to the child.

See Michael K.T. v. Tina L.T., 182 W.Va. 399, 400, 387 S.E.2d 866 (1989).

In this case, we believe a court would consider the following factors in determining that there was not clear and convincing evidence of the NH’s paternity after his death: 1) the NH and Matthew’s mother last cohabitated together in March 20xx, Matthew was not born until a year later, and they were divorced in June 20xx; 2) the paternity acknowledgement that was executed by Kevin F~; 3) the divorce decree that finds that Kevin F~ is Matthew’s biological father; If Matthew’s mother were bringing suit on her own behalf, she would be barred by res judicata from asserting that the NH was the father of Matthew because of the divorce decree. See In re Marriage/Children of Betty L.W. v. William E.W., 212 W.Va. 1, 7, 569 S.E.2d 77 (2002) (noting that the adjudication of paternity which is expressed in a divorce order is res judicata as to the husband and wife in any subsequent proceeding, however res judicata would not preclude a support action filed by the child) (citing State ex rel. Dep’t of Health and Human Resources v. Pentasuglia, 193 W.Va. 621, 457 S.E.2d 644 (1995)).

4) Kevin F~ has held himself out for nine years as Matthew’s father; 5) the NH has a brother who has not been excluded as Matthew’s father; and 6) there is nothing on record that the NH ever acknowledged Matthew as his son prior to his death.

Based on the reluctance of the Supreme Court of Appeals of West Virginia to admit blood tests to disprove paternity, we believe that the court would not do so in this case. This is especially true here where the Report from LabCorp noted only that the son of the grandparents “could” be Matthew’s biological father. In addition, the NH has a brother who has not been excluded, and therefore, the grandparent DNA tests are not conclusive of paternity. Consequently, we believe that a court would not find that the grandparent DNA tests establish paternity after the NH’s death by clear and convincing evidence as required by the West Virginia intestacy statute.

CONCLUSION

Accordingly, we conclude that no parent-child relationship existed between the NH and Matthew under West Virginia law, and therefore, Matthew is not entitled to benefits on the NH’s record.

Eric P. K~

Regional Chief Counsel

By: Kimberly A. V~

Assistant Regional Counsel

Under West Virginia law, the mother's sworn statement that the deceased number holder lived with her off and on from 1983-on and continuously from 1992 until his death combined with a deed showing the number holder transferred his house to the mother prior to his death and statements of the mother's friends and neighbors are not enough to establish clear and convincing evidence of paternity when the number holder made no effort to acknowledge the children during his lifetime and there is conflicting evidence in file. Other evidence in file shows that he failed to list the children on tax returns, SSI applications or employment documents and listed the mother his friend on an insurance application. None of the number holder's relatives would cooperate with SSA's inquiries.

QUESTION PRESENTED

This is in response to your April 12, 2006 request for an opinion as to whether the material you provided constitutes clear and convincing evidence under West Virginia's intestacy laws that Jeanette J~ (DOB 3/XX/xx) and Sherry J~ (DOB 10/XX/xx) are the children of Harry P~ (the NH).

CONCLUSION

We have reviewed the information and material that you provided and have researched the relevant provisions of West Virginia law as it pertains to establishing paternity, including a review of several state court decisions. We conclude that, in this case, the evidence provided to us does not constitute clear and convincing evidence of paternity. Accordingly, Jeanette and Sherry J~ are not entitled to child's benefits under the NH's account.

FACTUAL BACKGROUND

The NH died in October 19xx. In May 2002, and again in January 2006, the children's mother, Virginia J~, filed claims for survivor benefits on their behalf. No decision was ever made on the earlier claim. The evidence related to this claim includes:

A statement from Ms. J~ in which she alleges that she and the NH lived together on and off since 1983 and continuously since about 1992. Records from the West Virginia welfare department for Ms. J~ from April 1997 show that Ms. J~ did not list the NH as a household member;

Statements from friends and neighbors indicating knowledge that the NH was the father of the children. One of the statements was completed by Thurman S~, Sr., who, according to welfare records, was listed as a member of Ms. J~' household since October 1997. Another one of the statements was completed by Shirley S~, Mr. S~'s wife. Thurman S~, Jr., was also listed as a member of Ms. J~' household since at least December 1999;

Printouts of Ms. J~' supplemental security income (SSI) claims from 1994 and 1996 reflecting that she lived with a spouse, parents, and/or children and others. Since the SSI claims were denied, more specific information about her living arrangement was not secured;

A deed showing that the NH transferred his house to Ms. J~ shortly before his death in October 19xx. A written statement from one of the NH's employers, Lloyd S~, dated 2002 indicating that the NH never listed the children as his own on any employment-related forms and did not speak of them as his children to his employer. An old insurance application showed Ms. J~ as a friend and the beneficiary of the policy. In addition, a report of contact from the same employer also dated 2002 indicates the employer knew the NH lived with Ms. J~ and her children, and that he didn't remember the NH ever referring to the girls as his daughters, but that everyone assumed that they were;

A report of contact with Ms. J~' attorney from 2002 indicating Ms. J~ set up a trust fund for the children with money the NH kept in a safe-deposit box and which he wanted left to them when he died.

The NH never acknowledged in writing that the children were his, nor did the NH ever list the children as dependents on his income tax returns. The NH worked for Lloyd S~ from 19xx to 19xx and for Braxton L~ from 19xx to 19xx. There is nothing in their records showing that the NH listed either Jeanette or Sherry J~ as his children. When the NH filed for SSI on his own behalf in August 1997, shortly before his death, he stated that he lived alone, and he did not list either Jeanette or Sherry J~ as his children on the application.

Because of "bad blood" between Ms. J~ and the NH's relatives, none of the relatives has been willing to supply statements regarding paternity.

DISCUSSION

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

If, as in this case, the child is illegitimate, he may nonetheless be deemed legitimate for purposes of the Act (and deemed dependent and entitled to benefits) if he can establish that he would be entitled to inherit personal property from the deceased wage earner under the intestacy laws of the wage earner's state of domicile at death under 42 U.S.C. § 416(h)(2)(A). The NH was domiciled in West Virginia at the time of his death. Accordingly, West Virginia law applies.

In West Virginia, prior to the death of the putative father, paternity must be established by: (1) acknowledgment that the person is the child's father; (2) adjudication on the merits; or (3) by order of a court of competent jurisdiction issued in another state. W. Va. Code § 42 1 5(b). After the death of the father, paternity must be established by "clear and convincing evidence." W. Va. Code § 42 1 5(c). Clear and convincing evidence has been defined as "that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Moore v. Goode, 375 S.E.2d 549, 554 55 (W. Va. 1988) (citing Wheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369, 374 (W. Va. 1987)).

In this case, we do not believe a West Virginia court would conclude that there is such evidence to establish "a firm belief or conviction" that the NH is the father of Jeanette and Sherry J~. In Farley v. Farley, 68 S.E.2d 353 (W. Va. 1951), the evidence showed that the mother had spent most of her time with the putative father for some five months before the baby was born and had no association with any other men. In addition, the mother was under sixteen at the time of the child's birth and her parents instigated a rape charge, which resulted in the putative father marrying the mother. There was also some evidence, oral and documentary, that indicated the decedent acknowledged paternity. Nevertheless, the Supreme Court of Appeals of West Virginia found that the evidence was sufficient to support a finding that paternity of the deceased was insufficiently shown.

We believe that the evidence here is less substantial than that in Farley, where paternity was not established. In this case, the NH during his lifetime never acknowledged in writing that Jeanette and Sherry J~ were his children. He never reported the children as dependents on his income tax returns, and he never named them as his children in applications for employment. Significantly, just a few months before his death, the NH did not list Jeanette and Sherry J~ as his children on his SSI application. He also stated on the application that he lived alone, which contradicts Ms. J~' statement that she and the NH lived together continuously since about 1992. Ms. J~' statement is also contradicted by records from the West Virginia welfare department from April 1997 which show that Ms. J~ did not list the NH as a household member.

Furthermore, the evidence Ms. J~ submitted to support the children's claim of paternity is, at best, equivocal. While the NH transferred the deed to his home to Ms. J~ shortly before his death, there is nothing to show that paternity of Jeanette or Sherry J~ was the motivation for the transfer. Similarly, while the NH named Sherry J~ the beneficiary of his life insurance policy, there is no evidence to indicate that paternity was the motivation for naming Ms. J~ the beneficiary.

Ms. J~ also submitted statements from friends and neighbors to support her claim of the NH's paternity. In Moore v. Goode, the Supreme Court of Appeals of West Virginia found that the decedent's alleged half-sister, who was born out of wedlock, failed to prove by clear and convincing evidence that the decedent's father was also her father. 375 S.E.2d at 564. The admissible evidence in that case consisted of the alleged half-sister's mother's testimony that the alleged half-sister was the daughter of the decedent's father, and the alleged half-sister's testimony of a similar statement from her grandmother. Id. We do not believe that a West Virginia court would find that the statements of Ms. J~' friends and neighbors constitute clear and convincing evidence of paternity. First, the motivation for at least two of these statements (from Thurman S~ and his wife, Shirley S~) is suspect because Ms. J~ had listed Thurman S~ as a member of her household on welfare benefits forms. Second, as previously discussed, while the other statements indicate knowledge that the NH was the father of Jeanette and Sherry J~, these statements are contradicted by the fact that the NH himself never claimed them as his children on employment forms, tax returns, or his application for SSI which was filed shortly before his death.

CONCLUSION

As outlined above, our research shows that, in the circumstances of this case, the evidence submitted would not meet West Virginia's clear and convincing standard.

Donna L. C~

Regional Chief Counsel

By: Eda L. G~

Assistant Regional Counsel

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

QUESTION PRESENTED

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

CONCLUSION

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

FACTUAL BACKGROUND

Mable J~ and Randall D. J~ were married on April XX, 19xx. According to Mable, she and her husband lived together at all times after their marriage except for a four-day separation from December 26 to December 29, 2003. During the four day period, Mable had sexual relations with the Number Holder, a resident of S~, West Virginia. On September XX, 20xx, approximately nine months after sexual relations between Mable and the Number Holder, Mable gave birth to Calvin.

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

On October XX, 20xx, three weeks after Calvin's birth, the Number Holder was killed by a blunt force injury to his head in an altercation outside of his home.

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

DISCUSSION

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

Donna L. C~

Regional Chief Counsel

By: Stephen T. G~

Assistant Regional Counsel

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

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

QUESTION PRESENTED

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

CONCLUSION

Based on our review of the information you provided and our research of the applicable law, we conclude that a parent-child relationship has been established between Ronald P~ and Natalie T~. The effective date of the relationship is November 9, 19xx, and Natalie T~ is entitled to benefits retroactive to June XX, 2000.

BACKGROUND

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

Natalie was born on November XX, 19xx in J~ County, West Virginia. Ms. T~ and Mr. P~ were never married. In addition, neither Natalie's birth certificate nor her application for a social security number identified the name of her father. Further, Mr. P~ never advised the Social Security Administration that he had a child. However, a paternity test performed on February 22, 20xx showed a 99.99% statistical probability that Mr. P~ was Natalie's biological father. Moreover, the Circuit Court of J~ County, West Virginia, by Order entered June 6, 20xx, ruled that the paternity test results constituted clear and convincing evidence of paternity and declared that Mr. P~ was Natalie's biological father. The court further ordered that Natalie's birth certificate be amended so as to name Mr. P~ as her natural father. By Order entered August 13, 20xx, the Circuit Court of J~ County, West Virginia, directed Ms. T~ to apply for social security benefits on Natalie's behalf.

DISCUSSION

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

Under West Virginia law, paternity for inheritance purposes can be established prior to the death of the putative father by (1) the father's acknowledgment that he is the child's father; (2) an order of a court of West Virginia; or (3) an order of a court of competent jurisdiction in another state. W. Va. Code § 42-1-5. In addition, W. Va. Code § 48-24-103(A)(3), a provision which deals with family obligations, provides that undisputed blood test results which show a statistical probability of paternity of more than ninety-eight percent shall legally establish the man as the father of the child for all purposes. Undisputed test results are considered more than an expression of an opinion upon which a trier of fact may accept or reject; they are a statement of scientifically established fact and as a matter of law establish paternity. Mildred L.M. v. John O.F., 452 S.E.2d 436 (1994). Moreover, Natalie can establish a child-parent relationship with Mr. P~ based on the Circuit Court of J~ County's order entered June 6, 20xx which declared that the blood test results were clear and convincing evidence of paternity and ruled that Mr. P~ was Natalie's father.

With respect to the effective date of the parent-child relationship, the POMS indicate that the State of West Virginia considers a child legitimate from the date of birth, as opposed to the date of the legitimating act. POMS GN 00306.085. Thus, the effective date of the parent-child relationship is November XX, 19xx, Natalie's date of birth.

Lastly, you asked whether Natalie was entitled to retroactive benefits. The regulations provide that if the insured is living, the child is entitled to benefits beginning with the first month covered by their application throughout which the child meets all the other requirements for entitlement if the first month of entitlement is September 1981 or later. 20 C.F.R. § 404.352(a)(2)(i) (2001). As noted above, Natalie's parent-child relationship is effective November XX, 19xx, the date of her birth. Therefore, Natalie met the requirements for entitlement to child's benefits with the first month of her application, which was filed on June 22, 2001. The regulations further provide that a child may receive retroactive benefits for up to twelve months preceding the date of their application. 20 C.F.R. § 404.621(a)(1)(i) (2001); see also, POMS GN 00204.030. Therefore, because Natalie met all the requirements for entitlement to child's benefits throughout the twelve month period before her application was filed, Natalie is entitled to retroactive benefits to June 22, 2000.

Under West Virginia law, a child born out of wedlock may establish paternity and inherit from his putative father after the father's death. The law gives the court the discretion to establish paternity by clear and convincing evidence after the father's death. Because the court order legitimated the child, the effective date of the court action is the date of the child's birth.

QUESTIONS PRESENTED

You have requested our opinion as to whether a court order establishing paternity after the death of the number holder (NH) is "clear and convincing evidence" of paternity in West Virginia, and if so, what is the orders effective date. You specifically inquire: (1) whether a court action represents a legitimating act even though the deceased wage earner was not present to contest the decision and even though a blood test was not done; (2) if it does not, whether a court action confers inheritance rights for a child in a manner that is "clear and convincing" for SSA purposes; and (3) what is the effective date of the court order.

CONCLUSION

Under West Virginia Law, a child born out of wedlock may establish paternity and inherit from his putative father after the death of the father. In accordance with the Programs Operating Manual System (POMS), the child in this case, Nathanial L. F~, was legitimated by the court order which established that he was the natural child of the NH. Accordingly, the effective date of the court order is the date of the child s birth.

FACTUAL BACKGROUND

The file indicates that the child was born in West Virginia on June XX, 19xx. In a statement dated October 19, 1994, Nathanial s mother, Crystal F~, alleged that she had a relationship with Michael W~, the NH, in September 1989, and that the NH was her only boyfriend at the time. According to Crystal, both the NHs mother and her mother were aware of the relationship. Crystal, who was underage at the time of pregnancy, further alleged that the NH requested that she get an abortion because he believed Crystal s mother, Anna Y. F~ (F~), would have him arrested. The relationship ended in October 1989.

The file indicates that the NHs mother, Janet M. W~ (W~), believed that Nathanial was the NHs child. Additionally, Crystal stated that the NHs mother wanted Nathanial s last name changed to W~ so that people would realize why he was of dark complexion. The NHs birth certificate indicates that his father is Chinese. According to the claims representative pictures of Nathanial showed that he has a dark complexion and could be of Chinese origin.

The NH, Michael W~, died domiciled in West Virginia on November XX, 19xx, five months after the birth of Nathanial.

On August 31, 1994, F~ who had actual physical custody of Nathanial, filed an application for child’s benefits for her grandchild, alleging that Nathanial was the illegitimate child of the NH. The application was denied because the child did not meet the requirements for entitlement under § 216(h)(2)(A) of the Social Security Act. The original application and proofs are not available because the folder was destroyed.

On March 16, 19xx, F~ filed a complaint to establish paternity against the estate of the NH in the Circuit Court of Pendleton County, West Virginia. The child’s mother, the NHs mother, and the NHs siblings, stood ready to submit to genetic paternity testing in the event the court felt it necessary. The court apparently found, however, that the testimony was enough to establish paternity. In an order dated June 9, 19xx, the court held that the NH was the natural father of Nathanial. As a result, the court ordered the West Virginia Division of Vital Statistics to issue an amended birth certificate for Nathanial with the NH listed as his natural father. The file contains the amended birth certificate.

F~ filed a second Social Security application for Nathanial on July 28, 1998, submitting the June 9, 19xx court order as evidence of paternity.

DISCUSSION

The regulations provide that a child may be entitled to child s benefits on the earnings record of an insured person (the NH) who has died. 20 C.F.R. § 404.350 (1998). To determine the relationship of the child to the deceased NH, the Agency looks to the State intestacy laws where the NH lived at the time of his death. Section 216(h)(2) of the Act; 20 C.F.R. § 404.354 (1998). Because the NH lived in West Virginia at the time of his death, the intestacy law of West Virginia is controlling.

According to West Virginia law, a child may establish paternity for purposes of intestacy after the death of his putative father. First, the courts recognized that the consequences of paternity continue after the father s death. State ex rel. Graves v. Daugherty, 266 S.E.2d 142, 145 n.2 (W. Va. 1980). Second, the courts held that identifying children as illegitimate is a suspect classification in West Virginia, and against the state s basic concept not to hold children responsible for the irresponsibility or wrongdoing of their parents. Adkins v. McEldowney, 280 S.E.2d 231, 232 (W. Va. 1981). Therefore, a child born out of wedlock may clearly inherit from his natural father, even following his death, and even though the NH was not able to acknowledge or contest his relationship to the child. Moore v. Goode, 375 S.E.2d 549, 555-56 n.9 (W. Va. 1988); Adkins, 280 S.E.2d at 233.

Adkins held, however, that until the West Virginia legislature provided statutory criteria by which children born out of wedlock could prove entitlement to inherit from their fathers, the lower courts in that state were directed to evaluate each case presented by such children on a case-by-case basis. Id.

As of this date, the legislature has not provided any such criteria. Thus, the standard of proof for establishing a claim for inheritance after the death of the NH would be the same as that for a claim of paternity and duty of support. Moore, 375 S.E.3d at 554-56.

Paternity and a duty of support may be established through a court proceeding. W. Va. Code § 48A-6-1(b). The statute allows the state or another proper party to intervene to determine and protect the respective personal rights of a child for whom paternity has not been lawfully established. W. Va. Code

§ 48A-6-1(b). In that proceeding, the child must establish through "clear and convincing evidence" that he is the child of the putative father. W. Va. Code § 48A-6-4. Once clear and convincing evidence has been established, the statute provides that an order or decree entered by the court in a paternity proceeding determines the filial relationship and resolves all claims arising from family rights and obligations. W. Va. Code

§ 48A-6-1(d). The statute further provides that the court has broad discretion to grant or deny the relief sought. W. Va. Code § 48A-6-1(c).

Thus, according to West Virginia law, a court action can represent a legitimating act even when the deceased NH is not present to contest the decision and even though a blood test was not done. First, the law gives the court the discretion to establish paternity by clear and convincing evidence after the death of the putative father. W. Va. Code § 48A-6-1. The testimonial evidence presented here was clear and convincing to the extent that the court did not order blood tests, where the parties were readily available. W. Va. Code § 48A-6-1.

Second, the law gives the court broad discretion in granting appropriate relief. The circuit court ordered that the child s birth certificate be amended to show that the NH was the child s natural father. According to West Virginia law, if the mother is not married, the identity of the father is withheld on a birth certificate, unless the putative father s written consent is obtained or unless paternity is determined by a court of competent jurisdiction. W. Va. Code § 16-5-12(e). Here, the relief granted by the circuit court confirms that it believed paternity was established.

Because the court’s order established paternity, it also legitimized Nathanial. The court order established that Nathanial was the biological child of the NH, thus conferring inheritance rights and all obligations and rights arising from that relationship. W. Va. Code § 48A-6-1 (d). Therefore, when the court declared Nathanial the natural child of the NH and ordered an amended birth certificate to reflect its decision, the court conferred more than just inheritance rights on Nathanial. See POMS GN 00306.075A, 00306.080 (giving our interpretation of West Virginia law, which confers more than inheritance rights to a child that establishes paternity). Because we believe the court action legitimated the child, we also believe that the effective date of the court action is the date of the child s birth. POMS GN 00306.085.