PR 01005.005: Arkansas

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~~Effective Dates: 09/09/2014 - Present~~
Effective Dates: 05/16/2018 - Present
TN 37 (09-14)
PR 01005.005 Arkansas
A. PR 14-152 Arkansas State Law—Child Relationship and Dependency, NH Larry, SSN ~)—REPLY
DATE: August 19, 2014
1. SYLLABUS
Under the Act, a claimant is a number holder’s natural child if: (1) he or she could inherit property through intestate succession as the number holder’s natural child; (2) he or she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) he or she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4)the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died. In this case, the claimant does not qualify as the DNH’s natural child under tests two, three, or four, listed above. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, the claimant must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where the NH had his permanent home when he died.
Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, the child must prove paternity by clear and convincing evidence. The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Claimant and the claimant’s brother were half-biological siblings was a “home kit” DNA test. The DNA report does not comply with Arkansas law and there is no corroborating evidence concerning the claimants mother’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, the claimant has not presented clear and convincing evidence to establish paternity. Based on the evidence submitted, the claimant is not entitled to child’s insurance benefits on the DNH’s record.
2. OPINION
QUESTION PRESENTED
You have asked us to provide a legal opinion regarding whether the evidence in the claims file, including a home kit half-siblingship deoxyribonucleic acid (DNA) test report, is sufficient to establish a parent-child relationship between Larry, the deceased number holder (DNH), and Keirstyn 1 (Keirstyn), the child claimant.
ANSWER
In our opinion, the evidence submitted does not establish that Keirstyn is entitled to child’s benefits on the DNH’s account. If Keirstyn submits additional relevant evidence, our office will evaluate the new evidence.
BACKGROUND
As we understand the facts, Keirstyn was born on January, to Anita (Anita). Keirstyn’s birth certificate does not identify a father. Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy was her father. Keirstyn’s Numident record lists Stacy as her father. The DNH died in Arkansas on August 7, 2009.
On October 11, 2013, Kristina (Kristina), Keirstyn’s guardian, filed a surviving child’s benefit claim on Keirstyn’s behalf on the DNH’s record claiming that she is the DNH’s biological child. At the time of the application, Keirstyn was 14 years old. In support of establishing a biological parent-child relationship, Kristina submitted a certified half-siblingship DNA test report dated September 12, 2013, showing a 99.84 percent probability that Carl (Carl) and Keirstyn were half-biological siblings. A Certificate of Live Birth from the State of Illinois shows that Carl was born on January, and lists the DNH as his father. Carl stated that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young. Thus, Kristina’s claim is that Carl and Keirstyn are half-siblings and that the DNH is their father.
The agency developed the case to determine whether Keirstyn might be the DNH’s child. In reviewing the case, the agency was concerned, among other things, because the DNA testing was the result of a home kit, the results of the DNA analysis stated that they were “non-legally binding,” and the “photo IDs for the persons submitting these samples were not verified by the witness.”
ANALYSIS
A. Requirements for Child’s Insurance Benefits under the Social Security Act
The Social Security Act (Act) provides that the child of an individual number holder who is entitled to old-age or disability benefits or who dies a fully or currently insured individual is entitled to surviving child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350(a)(1), 404.352(a). To be entitled to survivor’s benefits on an insured individual’s account, a child must show she: (1) is that individual’s child, (2) applies for benefits, (3) is unmarried, (4) is under the age of eighteen, and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Here, it is undisputed that Keirstyn applied for benefits, is unmarried, and is under the age of 18. Thus, our focus is only upon whether Keirstyn is the DNH’s child. 2 The term “child” includes a natural child. See 42 U.S.C. §§ 402(d)(1), 416(e)(1); 20 C.F.R. § 404.354.3 A claimant proves that she is a number holder’s natural child if:
The Social Security Act (Act) provides that the child of an individual number holder who is entitled to old-age or disability benefits or who dies a fully or currently insured individual is entitled to surviving child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350(a)(1), 404.352(a). To be entitled to survivor’s benefits on an insured individual’s account, a child must show she: (1) is that individual’s child, (2) applies for benefits, (3) is unmarried, (4) is under the age of eighteen, and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Here, it is undisputed that Keirstyn applied for benefits, is unmarried, and is under the age of 18. Thus, our focus is only upon whether Keirstyn is the DNH’s child. 2 The term “child” includes a natural child. See 42 U.S.C. §§ 402(d)(1), 416(e)(1); 20 C.F.R. § 404.354.3 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).
Keirstyn does not qualify as the DNH’s natural child under tests two, three, or four, listed above. According to the information that we received, Anita, Keirstyn’s mother, and the DNH were never married and did not participate in a ceremony that would have resulted in a valid marriage. Before his death, the DNH never acknowledged Keirstyn as his child in writing, no court decreed him to be her parent or ordered him to contribute to her support, and he never lived with Keirstyn or contributed to her support. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, Keirstyn must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where he had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).
* Requirements for Inheritance as a Child Under Arkansas Intestate Succession Laws
Arkansas law states that a child is illegitimate when she is born to parents who are not married to each other. Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). Because the evidence does not show that Anita was married to the DNH when Keirstyn was born, Arkansas law considers Keirstyn an illegitimate child. See Ark. Code Ann. § 28-9-209(a)-(c) (identifying circumstances under which child should be considered legitimate).
Under section 28-9-209(d) of the Arkansas Inheritance Code, an illegitimate child may inherit property from her father through intestate succession under Arkansas intestacy law when the child has commenced an action or a claim against her father’s estate within 180 days of her father’s death and the illegitimate child meets at least one of certain conditions:
~~(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section; 4~~
(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section; 4
~~(2) The man acknowledged in writing that he is the child’s father;~~
(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;~~
(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;~~
(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;
(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). 5 Here, Keirstyn 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 Keirstyn’s father, there is no evidence that the DNH ever acknowledged Keirstyn in writing, and his name does not appear on her birth certificate. The evidence does not show that the DNH and Anita ever married, attempted to marry or that the DNH promised or was ordered to support Keirstyn.
(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). 5 Here, Keirstyn 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 Keirstyn’s father, there is no evidence that the DNH ever acknowledged Keirstyn in writing, and his name does not appear on her birth certificate. The evidence does not show that the DNH and Anita ever married, attempted to marry or that the DNH promised or was ordered to support Keirstyn.
SSA will not apply a state inheritance law requirement, such as section 28-9-209,6 that an action to establish paternity must be taken with a specified period of time required from a numberholder’s death or a child’s birth, or that an action must have been started or completed before the number holder’s death, if doing so would impose an absolute bar to the child’s ability to prove paternity. 7 See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.075. In addition, agency regulations provide that if a state inheritance law requires a court determination of paternity, SSA will not require that the claimant obtain such a determination. See 20 C.F.R. § 404.355(b)(2). Instead, SSA will apply the same standard of proof that the state court would apply in making its own determination of paternity. See id. Consequently, for purposes of this analysis, SSA will not require an Arkansas court determination of paternity. Rather SSA will apply the standard of proof that an Arkansas court would apply in making a paternity determination, which is clear and convincing evidence. See id.; see also McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983) (implementing clear and convincing standard in paternity cases). Therefore, in order to inherit from the DNH, Keirstyn must prove her paternity by clear and convincing evidence.
C. The Evidence Does Not Satisfy the Clear and Convincing Evidence Standard
Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, she must prove paternity by clear and convincing evidence. McFadden, 647 S.W.2d at 432; see Ark. Stat. Ann. § 9-10-103(f) (permitting courts to issue a temporary child support order in cases involving paternity disputes if there is clear and convincing genetic evidence of paternity). Clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted.” Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988).
Arkansas courts consider DNA test reports in determining whether a child has provided clear and convincing evidence of paternity. See Ark. Code Ann. § 9-10-108; R~, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey v. Cox, No. 05-1415, 2006 WL 2687046, at *4, 6 (Ark. Ct. App. Sept. 20, 2006) (unpublished) (applying DNA evidence to satisfy clear and convincing standard). Section 9-10-108(a(6)(A) specifically provides that “[i]f the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony of the mother in regard to access during the probable period of conception, it shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut that proof.” Ark. Code Ann. § 9-10-108(a)(6)(A). In order for the DNA evidence to constitute prima facie proof of paternity, however, the test report must satisfy Arkansas statutory requirements for genetic testing. See Ark. Code Ann. § 9-10-108(a)(4),(5),(6) (setting out qualified expert, chain of custody, and percentage of probability requirements).
When a father, such as the DNH in this case, is deceased or unavailable, the trial court may order the mother and child to submit to scientific testing to determine whether paternity testing excludes the putative father as being the child’s biological father, and if the testing does not exclude the putative father, to establish the probability of paternity. See Ark. Code Ann. § 9-10-108(a)(3)(A). If the putative father is unavailable, an Arkansas court may consider DNA test reports from other paternal relatives, including the putative father’s other children’s. See Ark. Code Ann. § 9-10-108(a)(3)(B).
In this case, while the DNA evidence establishes a 99.84 percent probability that Keirstyn and Carl are half biological siblings, it does not comply with other Arkansas law requirements. Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). In addition, a written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him or her before a notary public may be introduced in evidence in paternity actions without calling an expert witness. Ark. Code Ann. § 9-10-108(a)(5)(A). If contested,8 documentation of the chain of custody samples taken from test subjects in paternity testing shall be verified by affidavit of one person witnessing the procedure or extraction, packaging, and mailing of the samples and by one person signing for the samples at the place where the samples are subject to the testing procedure. Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Submission of the affidavits along with the submission of the test results shall be competent evidence to establish the chain of custody of these specimens. Ark. Code Ann. § 9-10-108(a)(5)(B)(ii). Arkansas courts have held that in light of the fact that 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, the courts have held that strict adherence to the statutory prerequisites is not unreasonable. R~, 785 S.W.2d at 245 (where the laboratory director signed the DNA report, but did not indicate that he performed the test or was a qualified expert, thus, court would not allow DNA report into evidence for lack of statutory foundation). Id. at 246.
The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Carl and Keirstyn were half-biological siblings was a “home kit” DNA test. Carl’s mother-in-law witnessed the extraction, packing, and mailing of the samples to the laboratory. The DNA report states that it is “Non-Legally Binding” and that “Photo ID’s for the persons submitting these samples were not verified by witness.” Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). A written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him. Here, like in R~, the laboratory director and laboratory manager signed the document, but neither of them indicated on the report that they performed the test or that they were qualified experts. Furthermore, the report does not contain the chain of custody affidavits from the testing laboratory as required by Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Thus, the DNA report does not constitute prima facie evidence of paternity under Arkansas law. Ark. Code Ann. § 9-10-108(a)(6)(a).
Moreover, the totality of the other evidence does not constitute clear and convincing evidence of the DNH’s paternity. See R~, 758 S.W.2d at 424 (clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted). The only other evidence submitted to support the paternity claim were: (1) Carl’s statement that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young; and, (2) that Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy Hodges was her father. This evidence does not establish proof “so clear, direct, weighty and convincing to come to a clear conviction, without hesitation” that the DNH is Keirstyn’s father. Id. As such, we find, under the evidence submitted, that Keirstyn is not entitled to child’s benefits on the DNH’s account.
While the record arguably contains some supplemental testimony supporting the claim that the DNH is Keirstyn’s father, 9 Keirstyn’s statement may be insufficient. Section 9-10-108(a)(6)(A) clearly contemplates that the child’s biological mother will provide evidence regarding “access” during the period of conception. Ark. Code Ann. § 9-10-108(a)(6)(A). Anita has not provided evidence of access to the DNH during the probable period of Keirstyn’s conception. Therefore, the evidence provided does not satisfy the clear and convincing standard under Arkansas law.
CONCLUSION
Based on the evidence submitted, as the record is currently composed, Keirstyn is not entitled to child’s insurance benefits on the DNH’s record. The DNA report does not comply with Arkansas law and there is no corrobating evidence concerning Anita’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, Keirstyn has not presented clear and convincing evidence to establish paternity. If Keirstyn submits additional relevant information, our office will evaluate the additional evidence.
Michael McGaughran
Regional Chief Counsel
By : ___________
Brock C. Cima
Assistant Regional Counsel
~~B. PR 12-022 Arkansas State Law – Status of Child Relationship (NH Eric : SSN ~) – REPLY~~
~~DATE: November 15, 2011~~
~~1. SYLLABUS~~
~~In our opinion, Ehryca is not entitled to child’s insurance benefits on the number holder’s account.~~
We analyzed the Arkansas court order, the half-sibling DNA test report, and the two witness statements and determined that each, individually, did not amount to clear and convincing evidence under Arkansas law to establish that the number holder is Ehryca’s father. Therefore, Tamera has not provided evidence satisfactory showing that Ehryca is the number holder’s natural child.
~~2. OPINION~~
~~QUESTION PRESENTED~~
Whether Ehryca may be entitled to Social Security child’s insurance benefits on the earnings record of Eric (the deceased number holder). Specifically, you have asked whether an Arkansas circuit court order establishing paternity and a sibling deoxyribonucleic acid (DNA) test report establish that Ehryca is the number holder’s natural child under Arkansas law or under the Social Security Act (Act).
~~ANSWER~~
~~In our opinion, Ehryca is not entitled to child’s insurance benefits on the number holder’s account.~~
~~BACKGROUND~~
As we understand the facts, the number holder was born in June. The number holder and Leola married on May 1, 1984. The number holder died on January 4, 1996, while residing in Arkansas. The agency granted survivor benefits to Leola, as the surviving spouse, and to several children of the marriage, including Eric .
In May, Tamera gave birth to Ehryca. Since 2002, Tamera has filed multiple child’s insurance benefits claims on Ehryca’s behalf, alleging that the number holder is Ehryca’s biological father. The agency has denied all claims. On June 28, 2011, Tamera filed a new claim, on Ehryca’s behalf, and she submitted an Arkansas court order establishing paternity, dated June 27, 2011. The court order states that prior to his death, the number holder acknowledged paternity of Ehryca, and that a sibling DNA test report showed an 88.9 percent probability of half-siblingship between Ehryca and Eric , the number holder’s natural, legitimate child with Leola . The court order further states that the number holder is Ehryca’s natural father; that Ehryca was born out of wedlock to Tamera; that Ehryca established inheritance rights under social security law; and that the number holder had a continuing obligation to support Ehryca. In addition to the court order, Tamera submitted the sibling DNA test report showing an 88.9 percent probability of half-siblingship between Ehryca and Eric . Tamera also submitted two statements (Form SSA-795) from a friend and a relative indicating that the number holder and Tamera were friends and that the number holder provided some financial assistance to Tamera.
~~ANALYSIS~~
The Act provides that an individual’s child who dies a fully or currently insured individual (insured) is entitled to child’s insurance benefits, beginning with the first month in which the child meets the criteria for child’s insurance benefits. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(1). In the case of a deceased insured’s child, the child must meet the following criteria: (1) the child must have filed an application for child’s insurance benefits; (2) the child is the insured’s child; (3) the child is dependent on the insured; and (4) the child is under age 18, or 18 years old or older and had a disability that began before the child became 22 years old, or the child is 18 years or older and qualified for benefits as a full-time student. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). The term “child” includes a natural child. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354.
In June, when Ehryca was fifteen years old, Tamera filed, on Ehryca’s behalf, an application for child’s insurance benefits. If Ehryca is the number holder’s child under the Act, the regulations consider Ehryca to be the number holder’s dependent. See 20 C.F.R. § 404.361(a). Thus, we must determine whether the agency may regard Ehryca, who was born over 4 months after the number holder’s death, as the number holder’s child under the Act.
~~Under 42 U.S.C. § 416(h)(2) and (3), Ehryca must prove one of the following to show that she is the number holder’s child:~~
~~(1) Ehryca could inherit property through intestate succession as the number holder’s child; (42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(a)(1))~~
(2) Ehryca is the number holder’s natural child, and the number holder and Tamera participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (42 U.S.C. § 416(h)(2)(B), 20 C.F.R. § 404.355(a)(2))
~~(3) Ehryca is the number holder’s natural child, and:~~
~~a. the number holder acknowledged this in writing;~~
~~b. a court decreed the number holder to be Ehryca’s parent; or~~
c. a court ordered the number holder to contribute to Ehryca’s support because she is the number holder’s child; (42 U.S.C. § 416(h)(3)(C)(i), 20 C.F.R. § 404.355(a)(3)) or (4) Ehryca has other evidence satisfactory to the Commissioner showing that the number holder was her natural parent and was either living with her or contributing to her support when the number holder died. (42 U.S.C. § 416(h)(3)(C)(ii), 20 C.F.R. § 404.355(a)(4))See 42 U.S.C. § 416(h)(2)(A)-(B), (3)(C)(i)-(ii); 20 C.F.R. § 404.355(a)(1)-(4). Since the number holder is deceased, the acknowledgment, court decree, or court order must have been made or issued before his death. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3).
We first look at whether Ehryca could inherit the number holder’s property as his natural child under state intestacy laws pursuant to 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). The agency will consider Ehryca to be the number holder’s natural child if she could inherit property from the number holder’s estate under the state’s intestacy laws in which the number holder resided when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). The number holder resided in Arkansas when he died. Thus, we must determine whether Ehryca could inherit property from the number holder under Arkansas intestacy law.
Arkansas law states that a child who is born at the time that his parents are not married to each other is an “illegitimate child.” Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). Tamera was never married to the number holder. Thus, Arkansas law considers Ehryca an illegitimate child.
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 the following conditions:
~~(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section; 10~~
~~(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). Thus, to prove that she could inherit the number holder’s property under Arkansas intestacy law, Ehryca must prove that she filed a claim against the number holder’s estate within 180 days of the number holder’s death and that she met at least one of the above-listed six conditions. 11
In the instant case, there is no evidence that Tamera filed an inheritance claim on Ehryca’s behalf against the number holder’s estate within the 180-day statutory period. See Ark. Code Ann. § 28-9-209(d). “The 180-day period is a condition qualifying the right of action, and not a mere limitation on the remedy. . . . If it is not asserted within the permitted period, it ceases to exist and cannot be claimed or enforced in any form.” Rasberry v. Ivory, 998 S.W.2d 431, 433 (Ark. App. 1999) (internal citations omitted). Thus, because there is no evidence that Tamera filed a timely claim against the estate, Ehryca has not proved that she would be entitled to inherit from the number holder under Arkansas intestacy law. 12
Furthermore, in addition to not meeting the 180-day statutory period, Ehryca cannot prove that she satisfied at least one of the six conditions that Arkansas intestacy law requires from an illegitimate child to inherit property. See Ark. Code Ann. § 28-9-209(d)(1)-(6). To meet the first condition, Ehryca must prove that a court of competent jurisdiction established the number holder’s paternity to her. 13 Although Ehryca has obtained an Arkansas court order dated June 27, 2011, establishing the number holder’s paternity, this order is dated more than 15 years after the number holder’s death. Thus, Ehryca cannot prove that she filed an inheritance claim within the 180-day statutory period and that she met the condition that a court of competent jurisdiction had established the number holder’s paternity to her. See Ark. Code Ann. § 28-9-209(d)(1).
Ehryca also cannot prove that in addition to the 180-day statutory period, she satisfied at least one of the five remaining conditions that Arkansas intestacy law requires from an illegitimate child to inherit property. See Ark. Code Ann. § 28-9-209(d)(2)-(6). Ehryca has not presented any evidence showing that the number holder acknowledged in writing that he was her father; that the number holder consented in writing to have his name appear as the father in Ehryca’s birth certificate; or that Tamera and the number holder intermarried 14 prior to her birth. See Ark. Code Ann. § 28-9-209(d)(2)-(4). Ehryca also cannot prove that her mother and the number holder attempted to marry each other prior to her birth because the number holder was married to Leola when he died. See Ark. Code Ann. § 28-9-209(d)(5). Further, Ehryca cannot prove that the number holder was under a court obligation to support her within the 180-day statutory period, which expired on July 2, 1996. See Ark. Code Ann. § 28-9-209(d)(6). As previously noted, on June 27, 2011, the Arkansas court issued an order establishing the number holder’s paternity to Ehryca that included a provision finding that the number holder was under a continuing legal obligation to support Ehryca. However, the Arkansas court issued the order 15 years after the number holder’s death, which was years after the 180-day statutory period expired on July 2, 1996. Furthermore, because the number holder died years before the Arkansas court issued the order, the number holder was never under a court obligation to support Ehryca. Thus, Ehryca cannot prove that she filed an inheritance claim within the 180-day statutory period and met the condition that the number holder had a court ordered obligation to pay for her support. See Ark. Code Ann. § 28-9-209(d)(6).
The Arkansas Supreme Court stated that the sole purpose for Ark. Code Ann. § 28-9-209 is to determine intestate succession. Matter of Estate of F.C., 900 S.W.2d 200, 201 (Ark. 1995). Ehryca has not proved that she complied with section 28-9-209. Because Ehryca cannot prove that she could inherit the number holder’s property under Arkansas intestacy law, she is not entitled to benefits under 42 U.S.C. § 416(h)(2)(A) and 20 C.F.R. § 404.355(a)(1).
We next look at whether Ehryca proved that she is the number holder’s child under section 42 U.S.C. § 416(h)(2)(B). See also 20 C.F.R. § 404.355(a)(2). The number holder and Tamera never participated in a marriage ceremony. Thus, Ehryca did not prove that she is entitled to benefits under 42 U.S.C. § 416(h)(2)(B), 20 C.F.R. § 404.355(a)(2).
We then look at whether Ehryca proved that she is the number holder’s child under section 42 U.S.C. § 416(h)(3)(C)(i). See also 20 C.F.R. § 404.355(a)(3). Section 416(h)(3)(C)(i)(I) provides that the agency will deem that an applicant who is daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the insured individual’s child under state intestacy laws pursuant to section 416(h)(2), is the deceased individual’s child when the insured individual acknowledged in writing before his death that the applicant was his daughter. In L~, the Eighth Circuit held that Congress intended that a claimant invoking one of the alternative means of establishing entitlement under section 416(h)(3)(C) must prove, as an ultimate fact, that the wage earner was the child’s natural parent. 15 Luke v. Bowen, 878 F.2d 974, 979 (8th Cir. 1989).
The number holder never acknowledged in writing that Ehryca was his natural child because Ehryca was born after the number holder’s death. See 42 U.S.C. § 416(h)(3)(C)(i)(I); 20 C.F.R. § 404.355(a)(3). Further, prior to the number holder’s death, a court did not issue an order finding that the number holder was Ehryca’s father or order him to contribute to Ehryca’s support. See 42 U.S.C. § 416(h)(3)(C)(i)(II)-(III); 20 C.F.R. § 404.355(a)(3). Notably, Tamera submitted to the agency, on Ehryca’s behalf, an Arkansas court order dated June 27, 2011, that established the number holder’s paternity to Ehryca and that the number holder was under a continuing obligation to support Ehryca. However, as previously noted, to determine whether Ehryca is eligible for benefits as the number holder’s natural child, the court must have issued the court order prior to the number holder’s death in 1996. See 42 U.S.C. § 416(h)(3)(i); 20 C.F.R. § 404.355(a)(3). In this case, the Arkansas court order established the number holder’s paternity to Ehryca more than 15 years after the number holder’s death. See 42 U.S.C. § 416(h)(3)(C)(i)(I); 20 C.F.R. § 404.355(a)(3). Thus, Ehryca did not prove that she is entitled to child’s insurance benefits under 42 U.S.C. § 416(h)(3)(i), 20 C.F.R. § 404.355(a)(3).
We last look at whether Ehryca proved that she is the number holder’s child under section 42 U.S.C. § 416(h)(3)(C)(ii). See also 20 C.F.R. § 404.355(a)(4). The agency will consider Ehryca to be the number holder’s natural child if she presents evidence satisfactory to the Commissioner showing that she is the number holder’s natural child. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4). The agency will apply the same standard of proof that a state court would apply and thereby make its own determination of paternity. See 20 C.F.R. § 404.355(b)(2). 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 v. Griffith, 647 S.W.2d 432 (Ark. 1983); see also Ark. Stat. Ann. 9-10-103(f) (where paternity is disputed, a court may issue a temporary child support order 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). In Ehryca’s case, Arkansas courts would apply the clear and convincing standard of proof because this is a case where the number holder’s death has deprived his estate of its most valuable witness. M~, 647 S.W.2d at 432.
In this case, as previously noted, to prove that the number holder was Ehryca’s father, Tamera submitted to the agency, on Ehryca’s behalf: (1) an Arkansas court order establishing the number holder’s paternity to Ehryca; (2) a sibling DNA test report showing an 88.9 percent likelihood that Ehryca and a number holder’s natural child, Eric, were half siblings and that they shared the same biological father; and, (3) two statements stating that the number holder and Tamera were friends and that the number holder provided some financial assistance to Tamera.
While we examine the significance of each document, we must also analyze the totality of this evidence to determine if the totality amounts to clear and convincing evidence that an Arkansas court would accept as proof that the number holder is Ehryca’s father. M~, 647 S.W.2d at 432.
We first examine whether the court order establishing the number holder’s paternity to Ehryca provides clear and convincing evidence that Ehryca is the number holder’s natural child. Under Social Security Ruling (SSR) 83-37c, the agency is not bound by a state court order unless: 1) an issue in a claim for Social Security benefits previously has been determined by a state court of competent jurisdiction; 2) the issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the state court is consistent with the law enunciated by the highest in the State. See Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973); SSR 83-37c, 1983 WL 31272 (adopting G~ as agency policy).
Under the facts presented, it appears that the June 2011 Arkansas court order establishing paternity does not meet the first, second, or fourth G~ prongs. With regard to the first prong, the case involved domestic relations and never concerned a claim for Social Security benefits. With regard to the second prong, there is no evidence showing that parties with opposing interests were joined in the case.
In addition to not meeting the first and second G~ prongs, the June 2011 Arkansas court order establishing paternity does not meet the fourth prong because it is inconsistent with the laws enunciated by the Arkansas’ highest court. See G~, 474 F.2d at 1373. First, the Arkansas court order found that the number holder had acknowledged Ehryca’s paternity. However, under Arkansas law, the mother and the father must execute an affidavit acknowledging paternity or must execute a similar document during the child’s minority. See Bean v. Office of Child Support Enforcement, 9 S.W.3d 520, 524-525 (Ark. 2000) (citing to Ark. Code. Ann. §§ 9-10-120, 20-18-409 (acknowledgment of paternity, and paternity affidavits)). There is no evidence that the number holder and Tamera executed an acknowledgment of paternity. Further, considering that the number holder died 15 years prior to the date the Arkansas court issued the order and that the number holder died months prior to Ehryca’s birth, there cannot be any evidence to support a finding that the number holder and Tamera executed an affidavit acknowledging paternity during Ehryca’s minority. Second, the Arkansas court order is inconsistent with Arkansas law regarding the requirement that DNA testing results must show a 95 percent probability of inclusion that the putative father is the child’s biological father to establish a prima facie case of paternity. Roe v. State, 804 S.W.2d 708 (Ark. 1991) (citing to Ark. Code. Ann. § 9-10-108 (scientific testing for paternity)). The Arkansas circuit court found that the sibling DNA test report showed an 88.9 percent probability that Ehryca and Eric, the number holder’s natural, legitimate child, were half siblings and shared the same biological father. Thus, the Arkansas court order based on sibling DNA test results of 88.9 percent is inconsistent with the requirements to establish a prima facie case of paternity under Arkansas law. See Ark. Code. Ann. § 9-10-108 (a)(6).
In sum, the June 2011 Arkansas circuit court order establishing paternity does not meet all the G~ prongs. See G~, 474 F.2d at 1373; SSR 83-37c. Thus, we conclude that the agency does not have to accept the Arkansas circuit court order as proof that Ehryca is the number holder’s natural child.
We next examine whether the sibling DNA test report provides clear and convincing evidence supporting the number holder’s paternity to Ehryca. One piece of evidence that Arkansas courts will consider when making a paternity determination is a DNA test report. See R~, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”). Under Arkansas law, when the father 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). In addition, to establish or rule out paternity, an Arkansas court may include paternal relatives within its order for paternity testing, if the paternal relative is available and willing to participate in paternity testing. See Ark. Code Ann. § 9-10-108(a)(3)(B). Under Arkansas law, if the results of the DNA testing establish a 95 percent or more probability of inclusion that the putative father is a child’s biological father, the mother’s corroborating testimony concerning access to the putative father during the probable period of conception “shall constitute a prima facie case of establishment of paternity.” Ark. Code. Ann. § 9-10-108 (a)(6)(A). Because an Arkansas court would not find that the DNA test results in this case established the number holder’s paternity, we conclude that the agency does not have to accept these test results as proof that Ehryca is the number holder’s natural child.
We last examine the statements from a friend and a relative indicating that the number holder and Tamera were friends and that the number holder provided some financial assistance to Tamera. These statements are conclusory and merely show that the number holder and Tamera knew each other. The agency does not have to accept these statements as proof that Ehryca is the number holder’s natural child.
In sum, we analyzed the Arkansas court order, the half-sibling DNA test report, and the two witness statements and determined that each, individually, did not amount to clear and convincing evidence under Arkansas law to establish that the number holder is Ehryca’s father. We also do not believe that the totality of this evidence amounts to “proof so clear, direct, weighty and convincing as to enable” a fact finder to come to a clear conviction, without hesitation, that the number holder is Ehryca’s father. See R~, 758 S.W.2d at 424. Therefore, Tamera has not provided evidence satisfactory to the Commissioner showing that Ehryca is the number holder’s natural child under 42 U.S.C. § 416(h)(3)(C)(ii), 20 C.F.R. § 404.355(a)(4).
In summary, Elizabeth has not established that Elizabeth is entitled to benefits under 42 U.S.C. §416(h)(2) because Elizabeth has not proven that she could inherit from the number holder under Arkansas intestacy law. Elizabeth also is not entitled to benefits under sections 416(h)(3)(C)(i) or (ii) because she has not established that she is the number holder’s natural child.
~~CONCLUSION~~
~~In our opinion, Ehryca is not entitled to child’s insurance benefits on the number holder’s account.~~
~~Michael McGaughran~~
~~Regional Chief Counsel~~
~~By : ___________~~
~~Una McGeehan~~
~~Assistant Regional Counsel~~
C. PR 12-018 Arkansas State Law Status of Child (NH David SSN ~)– REPLY
B. PR 12-018 Arkansas State Law Status of Child (NH David SSN ~)– REPLY
DATE: November 15, 2011
1. SYLLABUS
An opinion was requested whether under Arkansas law the number holder is a child’s natural parent when information and statements indicate that the number holder might not be the child’s natural parent. It was determined that the child is not entitled to benefits on the number holder’s account.
Elizabeth did not established that Elizabeth is entitled to benefits under 42 U.S.C. §416(h)(2) because Elizabeth has not proven that she could inherit from the number holder under Arkansas intestacy law. Elizabeth also is not entitled to benefits under sections 416(h)(3)(C)(i) or (ii) because she has not established that she is the number holder’s natural child.
2. OPINION
This memorandum is in response to your request for an opinion whether under Arkansas law the number holder is a child’s natural parent when information and statements indicate that the number holder might not be the child’s natural parent. It is our opinion that the child is not entitled to benefits on the number holder’s account.
As we understand the facts, David (number holder) died on June 21, 2011, while domiciled in Arkansas. In April, Elizabeth was born to Jerri . In June 22, 2011, Elizabeth filed for child’s insurance benefits on Elizabeth’s behalf on the number holder’s account. In support of the application, Elizabeth indicated that at the time of his death, the number holder was married to Jody, but that they had separated. Elizabeth stated that she had been married four times previously, with her most recent marriage to Harold ending in divorce in July 2000. According to the divorce decree, Harold and Elizabeth had no children during their marriage. Elizabeth stated that the number holder moved in with her in 2000 shortly after she divorced Harold , though Elizabeth did not remember the exact month, and that they lived together until his death in June 2011. The record does not contain a copy of Elizabeth’s original birth certificate and Elizabeth stated that the number holder did not sign anything indicating he was Elizabeth’s father until April 19, 2011, when he signed a written acknowledgment of paternity. The number holder also had Elizabeth’s birth certificate amended to name himself as her father as of May 25, 2011.
In addition, the record contains the following documents that provide information pertinent to Elizabeth’s application for child’s benefits:
* A Statement of Claimant or Other Person dated June 30, 2011, in which Elizabeth listed herself as the number holder’s girlfriend and stated that she did not know who Elizabeth’s father was, but that she was already pregnant with Elizabeth when she met the number holder. According to Elizabeth, the number holder wanted to help raise Elizabeth and bought Elizabeth clothes, food and other things she needed. Elizabeth stated that the number holder never signed any documents stating he was Elizabeth’s father prior to April 19, 2011, the date he acknowledged paternity. In addition, Elizabeth stated that the number holder never paid any of Elizabeth’s doctor or hospital bills, and he did not sign anything for the child’s school indicating that he was her father.
* A Child Relationship Statement dated June 30, 2011, in which Elizabeth endorsed the following three indicia (out of a possible 11) that the number holder was Elizabeth’s biological father: (1) the number holder listed Elizabeth as a dependent on his tax return; (2) the number holder made regular and substantial contributions to Elizabeth’s support; and (3) the number holder signed an affidavit acknowledging that he was Elizabeth’s father.
To be entitled to child’s benefits on an insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 42 U.S.C. § 416(e); 20 C.F.R. § 404.350(a)(1)-(5). A child who is not deemed to be the insured person’s child under 42 U.S.C. 416(h)(2)(A) shall nevertheless be deemed to be the insured person’s child if: (1) before the insured person died, he acknowledged in writing that the child is his, was decreed by a court to be the child s parent, or was ordered by a court to provide child support because the child is his; or (2) satisfactory evidence shows that the insured person is the childs parent and was living with or contributing to the support of the child when the application for Social Security benefits was filed. 42 U.S.C. 416(h)(3)(C)(i)-(ii); 20 C.F.R. 404.355(a)(1)-(4).
We first look to entitlement under section 416(h)(2)(A). To determine whether an applicant is a deceased number holder’s child, the agency looks to whether the child can inherit from the number holder under the intestacy laws of the state in which the number holder had his permanent home at the time of death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). In this case, Arkansas law controls because Arkansas was the number holder’s permanent home when he died. Thus, Elizabeth’s eligibility for child’s benefits on the deceased number holder’s account depends upon whether she could inherit property under Arkansas intestacy laws as the number holder’s child. See 20 C.F.R. § 404.355(b)(1)
Arkansas law states that a child who is born at the time that his parents are not married to each other is an “illegitimate child.” Wilmon v. Hunter, 761 S.W. 924, 925 (Ark. 1988). Elizabeth was never married to the number holder, and was not married to anyone at the time of Elizabeth’s birth. Thus, Arkansas law considers Elizabeth to be an illegitimate child.
Under Arkansas law, an illegitimate child, such as Elizabeth, can inherit real or personal property from her father if she satisfies certain conditions and if she commences an action against the father’s estate in a court of competent jurisdiction within 180 days of his death 16 .Ark. Code Ann. § 28-9-209(d). The law provides that in order for an illegitimate child to inherit property from her father, she must meet one of the following conditions:
Under Arkansas law, an illegitimate child, such as Elizabeth, can inherit real or personal property from her father if she satisfies certain conditions and if she commences an action against the father’s estate in a court of competent jurisdiction within 180 days of his death 10 .Ark. Code Ann. § 28-9-209(d). The law provides that in order for an illegitimate child to inherit property from her father, she must meet one of the following conditions:
* A court of competent jurisdiction has established the child’s paternity or has determined the child’s legitimacy;
* The man has made a written acknowledgment that he is the child’s father;
* The man’s name appears with his written consent on the birth certificate as the child’s father;
* The mother and father intermarry prior to the child’s birth;
* 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;
* The putative father is obligated to support the child under a written voluntary promise or by court order.
In analyzing whether an illegitimate child can inherit under Ark. Code Ann. 28-9-209, Arkansas courts require proof of paternity by clear and convincing evidence. See Lewis v. Petty, 613 S.W.2d 585, 586 (Ark. 1981). Arkansas courts have defined clear and convincing evidence as evidence so clear, direct, weighty, and convincing as to enable the fact finder to come to a clear conviction without hesitation of the matter asserted. Reed v. Reed, 749 S.W.2d 335, 337 (1988). In addition, an alleged heir has the burden of establishing his or her relationship to the decedent. Edgar v. Dickens, 320 S.W.2d 761, 764 (1959).
With regard to the first prong of section 28-9-209(d)(1), Elizabeth does not meet this condition because a court has neither determined Elizabeth’s legitimacy nor established the number holder’s paternity. Elizabeth satisfies the second prong of section 28-9-209(d)(2) because the number holder made a written acknowledgment on April 19, 2011, that he was her father. In addition, Elizabeth satisfies the third prong of section 28-9-209(d)(3) because as of May 25, 2011, the number holder is listed as her father on Elizabeth’s amended birth certificate.
Elizabeth does not satisfy any of the remaining conditions under the fourth, fifth or sixth prongs of section 28-9-209(d)(4)-(6) because Elizabeth and the number holder did not intermarry prior to Elizabeth’s birth, did not attempt to marry prior to her birth in apparent compliance with the law, and no court found the number holder obligated to support Elizabeth.
Even though Elizabeth has met the second and third conditions under Ark. Code Ann. 28-9-209(d)(2) &(3), we do not believe an Arkansas court would find that the evidence Elizabeth provided, including the amended birth certificate and written acknowledgment, would amount to clear and convincing evidence. Courts have held that paternity must be proven by clear and convincing evidence, which is defined as “that which instantly tilts the scales in the affirmative when weighed against evidence in opposition and clearly convinces the fact finder that the evidence is true.” Sherrill v. Bowen, 835 F.2d 166, 168 (8th Cir. 1987); see also R~, 749 S.W.2d at 337 (noting that clear and convincing evidence is evidence that is so clear, direct, weighty, and convincing as to enable the fact finder to come to a clear conviction without hesitation of the matter asserted).
Rather, we believe that an Arkansas court would give more weight to the June 2011 “Statement of Claimant or Other Person” in which Elizabeth indicated against her own interest that she was pregnant with Elizabeth before she met the number holder. In Luke for Luke v. Bowen, 868 F.2d 974, 978 (8th Cir. 1989), the Arkansas Supreme Court found that even though a deceased wage earner signed a statement that he was a child’s father during the time he lived with the child’s mother, this evidence was rebutted by clear and convincing evidence that the deceased wage earner had a vasectomy, and could not have fathered the child. As such, the father’s statement alone was insufficient to confer status of child for inheritance purposes. Id.
The present case is analogous to L~. Here, the number holder signed an acknowledgment of paternity prior to his death, the number holder’s name appears on Elizabeth’s amended birth certificate as of May 25, 2011, and he claimed her on his tax return. However, we believe that Elizabeth’s statement against her own interest that she became pregnant with Elizabeth prior to meeting the number holder outweighs the above evidence. See Eldridge for Eldridge v. Sullivan, 980 F.2d 499, 501 (8th Cir. 1992) (finding that statement submitted by applicant was self-serving, unpersuasive, and failed to establish paternity by clear and convincing evidence). Because Elizabeth admitted that the number holder could not be Elizabeth’s father, we believe that an Arkansas court would conclude that Elizabeth was not the number holder’s child for purposes of inheritance. See 42 U.S.C. § 416(h)(2)(A).
Finally, we look to whether Elizabeth would be entitled to child’s benefits under 42 U.S.C. §416(h)(3)(C). Section 416(h)(3)(C)(i)(I) provides that the agency will deem that an applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the insured individual’s child under state intestacy laws pursuant to section 416(h)(2), is the deceased individual’s child when the insured individual acknowledged in writing before his death that the applicant was his or her son or daughter. In L~, the Eighth Circuit held that Congress intended that a claimant invoking one of the alternative means of establishing entitlement under section 416(h)(3)(C) must prove, as an ultimate fact, that the wage earner was the child’s natural parent. 17 .L~ 878 F.2d at 979 (citing McMillan by McMillan v. Heckler, 759 F.2d 1147, 1153 (4th Cir. 1985)).
Finally, we look to whether Elizabeth would be entitled to child’s benefits under 42 U.S.C. §416(h)(3)(C). Section 416(h)(3)(C)(i)(I) provides that the agency will deem that an applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the insured individual’s child under state intestacy laws pursuant to section 416(h)(2), is the deceased individual’s child when the insured individual acknowledged in writing before his death that the applicant was his or her son or daughter. In L~, the Eighth Circuit held that Congress intended that a claimant invoking one of the alternative means of establishing entitlement under section 416(h)(3)(C) must prove, as an ultimate fact, that the wage earner was the child’s natural parent. 11 .L~ 878 F.2d at 979 (citing McMillan by McMillan v. Heckler, 759 F.2d 1147, 1153 (4th Cir. 1985)).
Here, while the number holder signed a written acknowledgment of paternity, Elizabeth has not proven that she is the number holder’s natural child. Elizabeth stated that she was already pregnant with Elizabeth when she met the number holder, and did not know who Elizabeth’s father was. Because of this admission by her mother, Elizabeth cannot conclusively prove that she was the number holder’s natural child. Thus, Elizabeth is not entitled to benefits under section 416(h)(3)(C)(i)(I). 18
Here, while the number holder signed a written acknowledgment of paternity, Elizabeth has not proven that she is the number holder’s natural child. Elizabeth stated that she was already pregnant with Elizabeth when she met the number holder, and did not know who Elizabeth’s father was. Because of this admission by her mother, Elizabeth cannot conclusively prove that she was the number holder’s natural child. Thus, Elizabeth is not entitled to benefits under section 416(h)(3)(C)(i)(I). 12
We also look to whether Elizabeth could prove entitlement under § 416(h)(3)(C)(ii), which entitles an applicant, who is an illegitimate child, to benefits on a deceased insured’s account if the applicant shows by evidence satisfactory to the Commissioner of Social Security that the individual was the applicant’s father, and that the insured individual was living with or contributing to the applicant’s support at the time of the insured individual’s death. The Eighth Circuit has held that an applicant seeking entitlement under section 416(h)(3)(C)(ii) must prove that the number holder was her natural parent. Sherrill for Sherrill v. Bowen, 835 F.2d 166, 169 (8th Cir. 1987).
Again, as noted above, Elizabeth has not established that the number holder was her natural father. Elizabeth made a statement against her own interest that she was pregnant when she met the number holder. In addition, Elizabeth provided an acknowledgment of paternity signed 10 years after Elizabeth’s birth, even though Elizabeth stated that the number holder lived with her prior to and after Elizabeth’s birth. Further, Elizabeth endorsed only 3 indicia out of a possible 11 on the Child Relationship Statement that Elizabeth was the number holder’s child. Therefore, Elizabeth has not met the requirement under section 416(h)(3)(C)(ii) to show by evidence satisfactory to the Commissioner that the deceased number holder was her father. Because Elizabeth has not established that the number holder was her father, she does not meet the threshold requirement under section 416(h)(3)(C)(ii) to show by evidence satisfactory to the Commissioner that the number holder was her father.
In summary, Elizabeth has not established that Elizabeth is entitled to benefits under 42 U.S.C. §416(h)(2) because Elizabeth has not proven that she could inherit from the number holder under Arkansas intestacy law. Elizabeth also is not entitled to benefits under sections 416(h)(3)(C)(i) or (ii) because she has not established that she is the number holder’s natural child.
As such, the facts do not support a conclusion that Elizabeth is entitled to benefits on the number holder’s account.
Michael McGaughran
Regional Chief Counsel
By : ___________
Una McGeehan
Assistant Regional Counsel
Footnotes:
[1]
The original birth certificate identifies the child as Keirstyn. Keirstyn and her permanent guardian, Kristina J~, petitioned for a change of name, which the Circuit Court of Phillips County, Arkansas granted on January 23, 2013, thereby changing her name from Keirstyn to Keirstyn J~.
[2]
The agency will consider Keirstyn to be dependent upon the DNH if she is the DNH’s natural child. See 20 C.F.R. § 404.361(a).
[3]
We recognize that the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” Program Operations Manual System (POMS) GN 00306.001(D). To qualify as a child of an insured individual under section 216(e) of the Act, the applicant must be the natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child of the insured individual. See 42 U.S.C. § 416(e); see also 20 C.F.R. §§ 404.354 – 404.359. Here, the claim is that Keirstyn is the DNH’s natural child. There is no claim or evidence of adoption or status as a stepchild. Thus, our focus is only upon whether Keirstyn is the DNH’s natural child.
[4]
Subsections (a)-(c) apply to a child’s legitimacy due to parents participating in a marriage ceremony, parents subsequently marrying, or a child’s conception following artificial insemination. See Ark. Code Ann. § 28-9-209(d)(1)-(6). However, those circumstances are not applicable to the facts of this case.
[5]
The Arkansas Supreme Court recently construed section 28-9-209(d) and held that an illegitimate child must both commence an action or file a claim against the putative father’s estate and also fully satisfy one of the six conditions establishing paternity within 180 days of the putative father’s death. See Bell v. McDonald, --- S.W.3d ----, 2014 Ark. 75, 2014 WL 662054, at *6-9 (Ark. Feb. 20, 2014). In Bell, the claimant had filed a claim against the estate and commenced a paternity action within 180 days, but she had not completed the paternity action within the 180 days and therefore, did not have order establishing that a court of competent jurisdiction had established the paternity of the child. See id. at *1-3. The Court noted that five of the six statutory conditions could only be satisfied prior to the putative father’s death, and that the remaining condition (a court order that has established paternity of the child) had to have also been commenced and completed within 180 days. See id. at *7.
[6]
~~Because we conclude herein that Keirstyn has not shown under Arkansas law that she is entitled to benefits on the DNH’s account, we do not further address the applicability of section 28-9-209.~~
Because we conclude herein that Keirstyn has not shown under Arkansas law that she is entitled to benefits on the DNH’s account, we do not further address the applicability of section 28-9-209.
[7]
The preamble to the 1998 amendment to 20 C.F.R. § 404.355 substantiates this interpretation. See 63 Fed. Reg. 57590, 57593 (Oct. 28, 1998) (recognizing that “[m]any State laws impose time limits within which someone must act to establish paternity for purposes of intestate succession. Such time limits are intended to provide for an orderly and expeditious settlement of estates. Since this is not the purpose of Social Security benefits for children . . . we will not apply a State’s time limits within which a child’s relationship must be established when we determine the child’s status under section 216(h)(2)(A). Not applying time limits is consistent with our belief that such a policy on applying State inheritance laws will best service the interests of children Congress sought to protect when it enacted section 216(h)(2)(A).”).
[8]
Agency policy is that all actions to establish paternity are considered contested actions and require affidavits to document the chain of custody from a person witnessing the extraction, packing, and mailing of the samples to the testing laboratory and a person signing for the samples at the testing laboratory. POMS GN 00306.425.
Agency policy is that all actions to establish paternity are considered contested actions and require affidavits to document the chain of custody from a person witnessing the extraction, packing, and mailing of the samples to the testing laboratory and a person signing for the samples at the testing laboratory. POMS GN 00306.425.
[9]
As noted above, the agency developed the case to determine whether Keirstyn might be the DNH’s child. In response, Keirstyn stated that her mother told her that her father was either the DNH or Stacy .
As noted above, the agency developed the case to determine whether Keirstyn might be the DNH’s child. In response, Keirstyn stated that her mother told her that her father was either the DNH or Stacy .
[10]
Subsections (a)-(c) apply to a child’s legitimacy due to parents participating in marriage ceremony, parents subsequently marrying, or a child’s conception following artificial insemination. See Ark. Code Ann. § 28-9-209(d)(1)-(6). However, those circumstances are not applicable to the facts of this case.
~~[11]~~
Section 28-9-209(d) is a statute of limitations and not a requirement to establish paternity. Thus, the agency regulation stating that the Commissioner will not apply any State law that requires a court to establish paternity within a specified period of time after the number holder’s death does not apply to this case. See 20 C.F.R. § 404.355(b)(2).
~~[12]~~
The Arkansas Supreme Court held that the 180-day time limit is constitutional. See Boatman v. Dawkins, 743 S.W.2d 800, 801-802 (Ark. 1988) (interpreting Lalli v. Lalli, 439 U.S. 259 (1978) (statutes may differentiate between legitimate and illegitimate children as long as they serve a substantial state interest)). The Arkansas Supreme Court noted that the Arkansas statute had been rewritten to comply with the constitutional requirements set forth in Trimble v. Gordon, 430 U.S. 762 (1977) (addressing equal protection issues and legitimate state purposes). B~, 743 S.W.2d at 801. The Arkansas Supreme Court further noted that the time limit serves to prevent “spurious claims against intestate estates, and [results in] a prompt and accurate method of distributing an intestate’s property.” Id. citing L~, 439 U.S. 259. Therefore, the 180-day statute of limitations is constitutional.
~~[13]~~
As previously noted in Footnote 1, Ehryca could also meet the first condition if a court of competent jurisdiction had determined her legitimacy under subsections (a)-(c), but those subsections apply to circumstances not applicable to the facts in this case. See Ark. Code Ann. § 28-9-209(a)-(c) (parents participated in marriage ceremony; parents subsequently married; child conceived following artificial insemination).
~~[14]~~
~~Intermarry – to marry each other; to marry within a group. http://www.merriam-webster.com/dictionary/intermarry (last searched on September 29, 2011).~~
~~[15]~~
In Luke, the court uses the term “biological child,” but it cites to the regulation at 20 C.F.R. § 404.355(a)(3), that refers to the eligibility of a natural child to benefits where the deceased insured acknowledged the child in writing. It appears that the court uses the term biological child and natural child interchangeably. See L~, 868 F.2d at 978. ---------------
~~[16]~~
In this case, there is no evidence that Elizabeth met the requirement to file an inheritance claim against the number holder’s estate within 180 days of the number holder’s death. However, the time for Elizabeth to file such an action against the number holder’s estate has not yet expired.
~~[17]~~
[11]
In L~, the court uses the term “biological child,” but it cites to the regulation at 20 C.F.R. § 404.355(a)(3), that refers to the eligibility of a natural child to benefits where the deceased insured acknowledged the child in writing. It appears that the court uses the term biological child and natural child interchangeably. See L~, 868 F.2d at 978.
~~[18]~~
[12]
Elizabeth does not meet the requirements of section 416(h)(3)(C)(i)(II)-(III) because a court did not decree the number holder as Elizabeth’s father, and no court ordered the number holder to contribute to Elizabeth’s support because she was his daughter.

POMS Reference

PR 01005.005: Arkansas