PR: Title II Regional Chief Counsel Precedents
TN 60 (06-18)
A. PR 14–152 Arkansas State Law—Child Relationship and Dependency, NH L~
Date: August 19, 2014
1. Syllabus
Under the Act, a claimant is a number holder’s natural child if:
(1) he or she could inherit property through intestate succession as the number holder’s natural child;
(2) he or she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment;
(3) he or she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or
(4) the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died. In this case, the claimant does not qualify as the DNH’s natural child under tests two, three, or four, listed above. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, the claimant must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where the NH had his permanent home when he died.
Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, the child must prove paternity by clear and convincing evidence. The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Claimant and the claimant’s brother were half-biological siblings was a “home kit” DNA test. The DNA report does not comply with Arkansas law and there is no corroborating evidence concerning the claimants mother’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, the claimant has not presented clear and convincing evidence to establish paternity. Based on the evidence submitted, the claimant is not entitled to child’s insurance benefits on the DNH’s record.
1. Opinion
QUESTION PRESENTED
You have asked us to provide a legal opinion regarding whether the evidence in the claims file, including a home kit half-siblingship deoxyribonucleic acid (DNA) test report, is sufficient to establish a parent-child relationship between Larry, the deceased number holder (DNH), and Keirstyn
ANSWER
In our opinion, the evidence submitted does not establish that Keirstyn is entitled to child’s benefits on the DNH’s account. If Keirstyn submits additional relevant evidence, our office will evaluate the new evidence.
BACKGROUND
As we understand the facts, Keirstyn was born on January, to Anita (Anita). Keirstyn’s birth certificate does not identify a father. Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy was her father. Keirstyn’s Numident record lists Stacy as her father. The DNH died in Arkansas on August XX, 2009.
On October XX, 2013, Kristina (Kristina), Keirstyn’s guardian, filed a surviving child’s benefit claim on Keirstyn’s behalf on the DNH’s record claiming that she is the DNH’s biological child. At the time of the application, Keirstyn was 14 years old. In support of establishing a biological parent-child relationship, Kristina submitted a certified half-siblingship DNA test report dated September XX, 2013, showing a 99.84 percent probability that Carl (Carl) and Keirstyn were half-biological siblings. A Certificate of Live Birth from the State of Illinois shows that Carl was born on January, and lists the DNH as his father. Carl stated that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young. Thus, Kristina’s claim is that Carl and Keirstyn are half-siblings and that the DNH is their father.
The agency developed the case to determine whether Keirstyn might be the DNH’s child. In reviewing the case, the agency was concerned, among other things, because the DNA testing was the result of a home kit, the results of the DNA analysis stated that they were “non-legally binding,” and the “photo IDs for the persons submitting these samples were not verified by the witness.”
ANALYSIS
A. Requirements for Child’s Insurance Benefits under the Social Security Act
The Social Security Act (Act) provides that the child of an individual number holder who is entitled to old-age or disability benefits or who dies a fully or currently insured individual is entitled to surviving child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350(a)(1), 404.352(a). To be entitled to survivor’s benefits on an insured individual’s account, a child must show she:
(1) is that individual’s child,
(2) applies for benefits,
(3) is unmarried,
(4) is under the age of eighteen, and
(5) is dependent upon the individual in question.
See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Here, it is undisputed that Keirstyn applied for benefits, is unmarried, and is under the age of 18. Thus, our focus is only upon whether Keirstyn is the DNH’s child. See 42 U.S.C. §§ 402(d)(1), 416(e)(1); 20 C.F.R. § 404.354.
(1) she could inherit property through intestate succession as the number holder’s natural child;
(2) she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment;
(3) she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or
(4) the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died.
See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).
Keirstyn does not qualify as the DNH’s natural child under tests two, three, or four, listed above. According to the information that we received, Anita, Keirstyn’s mother, and the DNH were never married and did not participate in a ceremony that would have resulted in a valid marriage. Before his death, the DNH never acknowledged Keirstyn as his child in writing, no court decreed him to be her parent or ordered him to contribute to her support, and he never lived with Keirstyn or contributed to her support. Therefore, under the remaining test, one, to prove that she is eligible for child’s benefits on the DNH’s account, Keirstyn must show that she could inherit property through intestate succession as the DNH’s child under Arkansas law, where he had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).
B. Requirements for Inheritance as a Child Under Arkansas Intestate Succession Laws
Arkansas law states that a child is illegitimate when she is born to parents who are not married to each other. Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). Because the evidence does not show that Anita was married to the DNH when Keirstyn was born, Arkansas law considers Keirstyn an illegitimate child. See Ark. Code Ann. § 28-9-209(a)-(c) (identifying circumstances under which child should be considered legitimate).
Under section 28-9-209(d) of the Arkansas Inheritance Code, an illegitimate child may inherit property from her father through intestate succession under Arkansas intestacy law when the child has commenced an action or a claim against her father’s estate within 180 days of her father’s death and the illegitimate child meets at least one of certain conditions:
(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section;
(2) The man acknowledged in writing that he is the child’s father;
(3) The man’s name appears with his written consent on the birth certificate as the child’s father;
(4) The mother and father intermarry prior to the child’s birth;
(5) The mother and putative father attempted to marry each other prior to the child’s birth by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid;
(6) The putative father is obligated to support the child under a written voluntary promise or by court order. See Ark. Code Ann. § 28-9-209(d)(1)-(6).
SSA will not apply a state inheritance law requirement, such as section 28-9-209,See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.075. In addition, agency regulations provide that if a state inheritance law requires a court determination of paternity, SSA will not require that the claimant obtain such a determination. See 20 C.F.R. § 404.355(b)(2). Instead, SSA will apply the same standard of proof that the state court would apply in making its own determination of paternity. See id. Consequently, for purposes of this analysis, SSA will not require an Arkansas court determination of paternity. Rather SSA will apply the standard of proof that an Arkansas court would apply in making a paternity determination, which is clear and convincing evidence. See id.; see also McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983) (implementing clear and convincing standard in paternity cases). Therefore, in order to inherit from the DNH, Keirstyn must prove her paternity by clear and convincing evidence.
C. The Evidence Does Not Satisfy the Clear and Convincing Evidence Standard
Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, she must prove paternity by clear and convincing evidence. McFadden, 647 S.W.2d at 432; see Ark. Stat. Ann. § 9-10-103(f) (permitting courts to issue a temporary child support order in cases involving paternity disputes if there is clear and convincing genetic evidence of paternity). Clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted.” Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988).
Arkansas courts consider DNA test reports in determining whether a child has provided clear and convincing evidence of paternity. See Ark. Code Ann. § 9-10-108; R~, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey v. Cox, No. 05-1415, 2006 WL 2687046, at *4, 6 (Ark. Ct. App. Sept. 20, 2006) (unpublished) (applying DNA evidence to satisfy clear and convincing standard). Section 9-10-108(a(6)(A) specifically provides that “[i]f the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony of the mother in regard to access during the probable period of conception, it shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut that proof.” Ark. Code Ann. § 9-10-108(a)(6)(A). In order for the DNA evidence to constitute prima facie proof of paternity, however, the test report must satisfy Arkansas statutory requirements for genetic testing. See Ark. Code Ann. § 9-10-108(a)(4),(5),(6) (setting out qualified expert, chain of custody, and percentage of probability requirements).
When a father, such as the DNH in this case, is deceased or unavailable, the trial court may order the mother and child to submit to scientific testing to determine whether paternity testing excludes the putative father as being the child’s biological father, and if the testing does not exclude the putative father, to establish the probability of paternity. See Ark. Code Ann. § 9-10-108(a)(3)(A). If the putative father is unavailable, an Arkansas court may consider DNA test reports from other paternal relatives, including the putative father’s other children’s. See Ark. Code Ann. § 9-10-108(a)(3)(B).
In this case, while the DNA evidence establishes a 99.84 percent probability that Keirstyn and Carl are half biological siblings, it does not comply with other Arkansas law requirements. Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). In addition, a written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him or her before a notary public may be introduced in evidence in paternity actions without calling an expert witness. Ark. Code Ann. § 9-10-108(a)(5)(A). If contested,R~, 785 S.W.2d at 245 (where the laboratory director signed the DNA report, but did not indicate that he performed the test or was a qualified expert, thus, court would not allow DNA report into evidence for lack of statutory foundation). Id. at 246.
The DNA test report dated September 12, 2013, showing a 99.84 percent probability that Carl and Keirstyn were half-biological siblings was a “home kit” DNA test. Carl’s mother-in-law witnessed the extraction, packing, and mailing of the samples to the laboratory. The DNA report states that it is “Non-Legally Binding” and that “Photo ID’s for the persons submitting these samples were not verified by witness.” Arkansas law requires that DNA tests “shall be made by a duly qualified expert or experts to be appointed by the court.” Ark. Code Ann. § 9-10-108(a)(4). A written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him. Here, like in R~, the laboratory director and laboratory manager signed the document, but neither of them indicated on the report that they performed the test or that they were qualified experts. Furthermore, the report does not contain the chain of custody affidavits from the testing laboratory as required by Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Thus, the DNA report does not constitute prima facie evidence of paternity under Arkansas law. Ark. Code Ann. § 9-10-108(a)(6)(a).
Moreover, the totality of the other evidence does not constitute clear and convincing evidence of the DNH’s paternity. See R~, 758 S.W.2d at 424 (clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted). The only other evidence submitted to support the paternity claim were: (1) Carl’s statement that he thought Keirstyn might be the DNH’s child because of her appearance and because Carl was around Keirstyn when Keirstyn was young; and, (2) that Anita told Keirstyn that she was not sure whether the DNH or a man named Stacy Hodges was her father. This evidence does not establish proof “so clear, direct, weighty and convincing to come to a clear conviction, without hesitation” that the DNH is Keirstyn’s father. Id. As such, we find, under the evidence submitted, that Keirstyn is not entitled to child’s benefits on the DNH’s account.
While the record arguably contains some supplemental testimony supporting the claim that the DNH is Keirstyn’s father.
CONCLUSION
Based on the evidence submitted, as the record is currently composed, Keirstyn is not entitled to child’s insurance benefits on the DNH’s record. The DNA report does not comply with Arkansas law and there is no corrobating evidence concerning Anita’s access to the DNH at the time of conception. As such, the evidence does not constitute prima facie proof of paternity under Arkansas law. In addition, Keirstyn has not presented clear and convincing evidence to establish paternity. If Keirstyn submits additional relevant information, our office will evaluate the additional evidence.
1. The original birth certificate identifies the child as Keirstyn. Keirstyn and her permanent guardian, Kristina J~, petitioned for a change of name, which the Circuit Court of Phillips County, Arkansas granted on January 23, 2013, thereby changing her name from Keirstyn to Keirstyn J~.
2. The agency will consider Keirstyn to be dependent upon the DNH if she is the DNH’s natural child. See 20 C.F.R. § 404.361(a).
3. We recognize that the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” Program Operations Manual System (POMS) GN 00306.001(D). To qualify as a child of an insured individual under section 216(e) of the Act, the applicant must be the natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child of the insured individual. See 42 U.S.C. § 416(e); see also 20 C.F.R. §§ 404.354 – 404.359. Here, the claim is that Keirstyn is the DNH’s natural child. There is no claim or evidence of adoption or status as a stepchild. Thus, our focus is only upon whether Keirstyn is the DNH’s natural child.
4. Subsections (a)-(c) apply to a child’s legitimacy due to parents participating in a marriage ceremony, parents subsequently marrying, or a child’s conception following artificial insemination. See Ark. Code Ann. § 28-9-209(d)(1)-(6). However, those circumstances are not applicable to the facts of this case.
5. The Arkansas Supreme Court recently construed section 28-9-209(d) and held that an illegitimate child must both commence an action or file a claim against the putative father’s estate and also fully satisfy one of the six conditions establishing paternity within 180 days of the putative father’s death. See Bell v. McDonald, --- S.W.3d ----, 2014 Ark. 75, 2014 WL 662054, at *6-9 (Ark. Feb. 20, 2014). In Bell, the claimant had filed a claim against the estate and commenced a paternity action within 180 days, but she had not completed the paternity action within the 180 days and therefore, did not have order establishing that a court of competent jurisdiction had established the paternity of the child. See id. at *1-3. The Court noted that five of the six statutory conditions could only be satisfied prior to the putative father’s death, and that the remaining condition (a court order that has established paternity of the child) had to have also been commenced and completed within 180 days. See id. at *7.
6. Because we conclude herein that Keirstyn has not shown under Arkansas law that she is entitled to benefits on the DNH’s account, we do not further address the applicability of section 28-9-209.
7. The preamble to the 1998 amendment to 20 C.F.R. § 404.355 substantiates this interpretation. See 63 Fed. Reg. 57590, 57593 (Oct. 28, 1998) (recognizing that “[m]any State laws impose time limits within which someone must act to establish paternity for purposes of intestate succession. Such time limits are intended to provide for an orderly and expeditious settlement of estates. Since this is not the purpose of Social Security benefits for children . . . we will not apply a State’s time limits within which a child’s relationship must be established when we determine the child’s status under section 216(h)(2)(A). Not applying time limits is consistent with our belief that such a policy on applying State inheritance laws will best service the interests of children Congress sought to protect when it enacted section 216(h)(2)(A).”).
8. Agency policy is that all actions to establish paternity are considered contested actions and require affidavits to document the chain of custody from a person witnessing the extraction, packing, and mailing of the samples to the testing laboratory and a person signing for the samples at the testing laboratory. POMS GN 00306.425.
9. As noted above, the agency developed the case to determine whether Keirstyn might be the DNH’s child. In response, Keirstyn stated that her mother told her that her father was either the DNH or Stacy .
B. PR 14-130 Arkansas State Law—Child Relationship and Dependency, Deceased NH
Date: July 1, 2014
1. Syllabus
The number holder (NH) was domiciled in Arkansas at the time of his death; therefore, we look to the Arkansas law to determine if the claimant could inherit from the NH. Under the Arkansas law, an illegitimate child may inherit from the NH when the child has commenced an action or a claim against the NH’s estate within 180 days of the NH’s death and meets at least one of six required conditions under the Arkansas law. In this case, the claimant’s mother did not provide clear and convincing evidence that the claimant is the NH’s child. The claimant is not entitled to child’s benefits on the NH’s record. However, if the field office obtains additional evidence from the claimant’s mother, we will evaluate the new evidence to determine if the claimant is the NH’s child.
2. Opinion
QUESTION PRESENTED
You have asked us to provide a legal opinion regarding whether the evidence in the claims file is sufficient to establish a parent-child relationship between S~, the purported biological father and the deceased number holder (DNH), and L~1 (L~), the child claimant.
ANSWER
In our opinion, the record currently available does not contain clear and convincing evidence that the DNH is L~’s father. Consequently, L~ is not entitled to benefits on the DNH’s account at this time. If the agency receives additional evidence, we will evaluate the new evidence.
BACKGROUND
L~ was born on December, to S2~ (S2~). The birth certificate lists L~’s surname as G~, rather than L~, but does not identify a father. D~ (D~), L~’s adoptive mother and the DNH’s stepmother, explained that S2~ was angry with the DNH at the time of L~’s birth and thus used the surname (G~) of the individual with whom she was living at that time. S2~ and the DNH were never married. The DNH died on August XX, 2010.
On October XX, 2012, a probate judge for the Circuit Court of S3~ County, Arkansas, in case No. 63-XX-XX-XXX-X, entered an Amended Final Order of Adoption confirming the adoption of L~ to D~ and S4~ (S4~). 2 S2~, L~’s birth mother, completed and executed a form entitled Relinquishment and Termination with Power to Consent to Adoption (Relinquishment and Termination) in favor of D~ and S4~. The Relinquishment and Termination stated that L~’s father was “S~, the late son of S4~ and D~.” The court specifically found that D~ and S4~ were L~’s paternal grandparents, and that L~’s biological father’s consent was unnecessary because he was deceased. The Amended Final Order of Adoption confirming the adoption of L~ to D~ and S4~ directs that this “substituted” birth certificate “shall issue showing the adoptive parents as the child’s parents.” An amended birth certificate, filed November XX, 2012, as part of the adoption process, lists D~ as L~’s adoptive mother and S4~ as her adoptive father. 3 The evidence submitted also includes a Client Identification and Consent Form, which bears the caption, “Chain of Custody Documentation,” that A~, an employee of Cartersville Drug & Alcohol Testing, completed on May XX, 2013, certifying that she collected a deoxyribonucleic acid (DNA) sample from D2 (D2~), 4 L~’s purported biological paternal grandmother (the DNH’s biological mother), on April XX, 2013, which she transmitted to DNA Diagnostics Center (DDC). DDC’s test report appears to cover both paternal grandparents; however, the evidence submitted includes DNA chain of custody documentation for D2~, but not for S4~. DDC’s DNA test report states that the probability of grandparentage between D2~ and L~ is 99.95%. The DNH’s original birth certificate lists D3~ (maiden name, H~) L~ as his mother, while an amended birth certificate, issued December XX, 1998, identifies D~ 5 as his mother.
The agency developed the case to determine whether L~ might be the child of a potential male sibling of the DNH. In response, D~ provided a statement (referenced above in connection with L~’s original surname) in which she indicated that the DNH had a paternal half-brother, J~ (J~), who was S4~’s, but not D2~’s, biological son, and two step-brothers. D~ indicated that S3~ never “dated” J~.
ANALYSIS
A. The Agency Applies State Intestacy Laws to Determine Status as a Child.
To be entitled to survivor’s benefits on an insured individual’s account, a child must show she (1) is that individual’s child for purposes of the Act, (2) files for benefits, (3) is unmarried, (4) is under the age of eighteen, and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Here, our focus is only upon whether L~ is the DNH’s child. 6 The term “child” includes a natural child. See 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354. 7 L~ would be entitled to benefits as the DNH’s child if the evidence shows that state law would determine her to be the DNH’s child for purposes of intestate succession. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a). 8 The agency applies the intestacy laws of the state in which the DNH had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, we look to whether L~ could inherit the NH’s property under Arkansas law, the state where the DNH maintained his primary domicile at the time of his death. See 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).
Arkansas law states that a child who is born at the time that her parents are not married to each other is an “illegitimate child.” Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). The evidence does not show that S3~ was married to the DNH. Thus, Arkansas law considers L~ an illegitimate child. See Ark. Code Ann. § 28-9-209(a)-(c) (identifying circumstances under which child should be considered legitimate).
Under section 28-9-209(d) of the Arkansas Inheritance Code, an illegitimate child may inherit property from her father through intestate succession under Arkansas intestacy law when the child has commenced an action or a claim against her father’s estate within 180 days of her father’s death and the illegitimate child meets at least one of certain conditions:
A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section;9
(2) The man acknowledged in writing that he is the child’s father;
(3) The man’s name appears with his written consent on the birth certificate as the child’s father;
(4) The mother and father intermarry prior to the child’s birth;
(5) The mother and putative father attempted to marry each other prior to the child’s birth by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; (6) The putative father is obligated to support the child under a written voluntary promise or by court order. See Ark. Code Ann. § 28-9-209(d)(1)-(6). The Arkansas Supreme Court very recently construed section 28-9-209(d) and held that an illegitimate child must both commence an action or file a claim against the putative father’s estate and also fully satisfy one of the six conditions establishing paternity within 180 days of the putative father’s death. See Bell v. McDonald, --- S.W.3d ----, 2014 Ark. 75, 2014 WL 662054, at *6-9 (Ark. Feb. 20, 2014) 10 (“[W]e find under a plain reading of the language in the statute that one of the six conditions must have been satisfied and an action commenced or a claim asserted against the estate prior to the expiration of the 180-day time period.”). Here, L~ did not commence any action or file a claim against the DNH’s estate within 180 days of his death. Furthermore, the evidence does not suggest that any of the conditions listed in section 28-9-209(d)(1) through (6) apply to this case. As stated above, no court properly found that the DNH was L~’s father, there is no evidence that the DNH ever acknowledged L~ in writing, and his name does not appear on her birth certificate. The evidence does not show that the DNH and S3~ ever married, or attempted to marry. Finally, the record does not include any promise or order of support with respect to the DNH and L~.
SSA will not apply a state inheritance law requirement, such as the 180-day requirement of section 28-9-209, that an action to establish paternity must be taken with a specified period of time required from a numberholder’s death or a child’s birth, or that an action must have been started or completed before the numberholder’s death, if doing so would impose an absolute bar to the child’s ability to prove paternity. See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.075.11 In addition, agency regulations provide that if a state inheritance law requires a court determination of paternity, SSA will not require that the claimant obtain such a determination. See 20 C.F.R. § 404.355(b)(2). Instead, SSA will apply the same standard of proof that the state court would apply in making its own determination of paternity. See id. Consequently, for purposes of this analysis, SSA does not require an Arkansas court determination of paternity, but applies the standard of proof that an Arkansas court would apply in making a paternity determination, which is clear and convincing evidence. See id.; see also McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983) (implementing clear and convincing standard in paternity cases).
Arkansas law provides that when a child alleges that she is a deceased person’s illegitimate offspring and, on that basis, claims the right to share in his or her estate, she must prove paternity by clear and convincing evidence. M~, 647 S.W.2d at 432; see also Ark. Stat. Ann. § 9-10-103(f) (permitting courts to issue a temporary child support order in cases involving paternity disputes if there is clear and convincing genetic evidence of paternity). Clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted.” Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988).
Furthermore, Arkansas courts consider DNA test reports in making paternity determinations, both as prima facie evidence of paternity and as evidence to satisfy the clear and convincing standard of proof. See Ark. Code Ann. § 9-10-108(a)(6)(A); R~, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey v. Cox, No. 05-1415, 2006 WL 2687046, at *4, 6 (Ark. Ct. App. Sept. 20, 2006) (unpublished) (applying DNA evidence to satisfy clear and convincing standard). Courts will not determine that the evidence constitutes prima facie proof of paternity unless the DNA evidence, along with corroborating testimony, shows a 95% or greater probability that the child is the offspring of the purported father. See Ark. Code Ann. § 9-10-108(a)(6)(A). Although Arkansas courts have not articulated what at percentage DNA evidence satisfies the clear and convincing standard, one court has suggested that it might lie beneath the 95 percent standard that section 9-10-108(6)(A) delineates. See K~, 2006 WL 2687046 at *4-6 (holding that DNA evidence falling short of 95% threshold, coupled with other evidence, satisfied clear and convincing standard).
When the father, such as the DNH in this case, is deceased or unavailable, the trial court may order the mother and child to submit to scientific testing to determine whether paternity testing excludes the putative father as being the child’s biological father, and if the testing does not exclude the putative father, to establish the probability of paternity. See Ark. Code Ann. § 9-10-108(a)(3)(A). If the putative father is unavailable, an Arkansas court may consider other paternal relatives’ DNA evidence. See Ark. Code Ann. § 9-10-108(a)(3)(B). If the results of the DNA testing establish a 95% or more probability of inclusion that the putative father is a child’s biological father, and the mother’s corroborating testimony establishes that she had access to the putative father during the probable period of conception, such evidence “shall constitute a prima facie case of establishment of paternity,” thus shifting the burden of proof to the adverse party to disprove paternity. Ark. Code Ann. § 9-10-108(a)(6)(A).
Arkansas is silent regarding whether supplemental testimony suffices as prima facie proof of paternity in cases which both the mother and father are deceased or otherwise unavailable. See Ark. Code Ann. § 9-10-108(a)(6)(b) (permitting supplemental testimony from other witnesses where mother is unavailable and father furnished DNA sample). In this case, the DNH, the putative father, is obviously unable to provide testimony. S3~ is also apparently unavailable, as she has relinquished her parental rights and not participated in the application process. D~ submitted scientific DNA testing from samples taken from D2~, the DNH’s biological mother, and L~’s purported biological paternal grandmother. The DNA evidence establishes a 99.95% chance that L~ is D3~’s grandchild. However, the evidence does not exclude the possibility that D3~ had a male child, other than the DNH, who could be L~’s father. In other words, the evidence does not exclude the possibility that D2~ had another biological son (in addition to the DNH) that S3~ had access to during the period of L~’s conception.
We conclude that the evidence provided does not show, either by the prima facie method established by the Arkansas paternity testing statute, or by the clear and convincing evidence standard that the Arkansas courts historically employed, that L~ is the DNH’s child. 12 The Arkansas paternity statute does not permit a prima facie inference of paternity under the facts of this case because the record lacks corroborative testimony from S3~ regarding whether she had access to the DNH or any currently unknown maternal, male siblings (other biological sons D2~ may have had) at the time of L~’s conception. See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm.—MOS, Dallas, Arkansas State Law Status of Child Based on Single Grandparentage Deoxyribonucleic Acid Test (NH Wendell), at p. 2 & n.3 (March 27, 2009) (explaining that mother must negate possibility that paternal siblings may have fathered child).
We acknowledge that the record arguably contains some evidence negating the possibility that L~ is the child of a brother of the DNH.13 However, D~’s statements regarding the DNH’s half-brother and step-brothers may be insufficient. At the threshold, § 9-10-108(a)(6)(A) clearly contemplates that the child’s biological mother will provide evidence regarding “access” during the period of conception. Ark. Code Ann. § 9-10-108(a)(6)(A). S3~ has not provided evidence of access to the DNH during the probable period of L~’s conception. Furthermore, assuming a court could legitimately consider D~’s statements pursuant to § 9-10-108(a)(6)(B), D2~ (the DNH’s biological mother), not D~ (the DNH’s stepmother), would be the best source of information regarding the DNH’s biological, maternal, male siblings, and S3~ would be the best source of whether she had access to the DNH or to any of the DNH’s brothers during the period of L~’s conception.
Given the lack of corroborating evidence concerning the conception, birth, and history of the child, we do not think that the clear and convincing standard of proof has been satisfied here, where there is no evidence from the child’s biological mother, S3~, regarding access and where D2~ has not provided information regarding whether she gave birth to any other male children. If the claimant submits additional relevant evidence regarding whether the DNH had access to S3~ during the probable time of conception and regarding whether the DNH had other biological, maternal and paternal, male siblings who had access to S3~ during the relevant period?, our office will, at that time, evaluate the additional evidence.
CONCLUSION
In summary, we conclude that the record, as currently composed, does not contain prima facie or clear and convincing evidence that L~ is the DNH’s child. Therefore, at this time, L~ is not entitled to child’s insurance benefits on the DNH’s record. We recommend, however, that SSA obtain additional evidence from S3~ and D2~, which our office will evaluate to determine if L~ is the DNH’s child.
Footnotes:
The original birth certificate and your request for legal advice identify the child claimant as L~. The Amended Final Order of Adoption and the amended birth certificate, generated as a result of L~’s adoption, identify her as L~. We follow the usage of the more recent legal documents with regard to her full name.
S4~ is the father of S~, the DNH.
With regard to D~ and S4~’s adoption of L~ and the impact on L~’s inheritance rights from the NH if she is considered the NH’s biological child, we note that Arkansas adoption law states that an adoption wholly severs the parent-child relationship between a child and her biological parents, including the child’s inheritance rights. See Ark. Code Ann. § 9-9-215(a)(1) (a final decree of adoption “relieve[s] the biological parents of the adopted individual of all parental rights and responsibilities,” and “terminate[s] all legal relationships between the adopted individual and his or her biological relatives, including his or her biological parents, so that the adopted individual thereafter is a stranger to his order former relatives for all purposes . . . includ[ing] inheritance”); see also Vice v. Andrews, 945 S.W.2d 914 (1997) (interpreting section 9-9-215 of the Arkansas Code as an expression of public policy favoring complete severance of the relationship between the adopted child and his or her biological family in order to further the best interests of the child); Wheeler v. Myers, 956 S.W.2d 863, 864-65 (Ark. 1997). L~’s right to inherit the DNH’s property, however, vested at the time of his death, which appears to have occurred prior to L~’s adoption by D~ and S4~, as the Amended Final Order of Adoption describes the DNH as L~’s father and states that the DNH is deceased. See Wheeler, 956 S.W.2d at 865 (a living person has no heirs; the right to inherit from a decedent is fixed and vested as of the date of the decedent’s death; upon a person’s death, the rights of his heirs become vested). Thus, this situation is distinguishable from adoptions that occur during the biological parent’s lifetime, which may, depending on state law, preclude an individual from the right to inherit from the biological parent, and as such, preclude the individual’s entitlement to child’s benefits on the biological parent’s account. See Program Operations Manual System (POMS) GN 00306.170 (containing the list of state laws on the right of an adopted child to inherit from the natural parent—for Arkansas, effective for adoptions on or after July 5, 1977, a child may not inherit unless the natural parent is spouse of adopting parent); GN 00306.165 (explaining that a natural or legally adopted child of the NH who was adopted by another person during the NH’s lifetime is the NH’s child for benefit purposes only if the adoption did not cut off the child’s inheritance rights in the NH’s estate under applicable state law, and the NH was living with or contributing to the child’s support at one of the dependency points) (emphasis added). Thus, D~ and S4~’s adoption is not determinative issue in this case as to L~’s eligibility for benefits as the DNH’s child.
The DNH’s biological mother is D2~. The evidence suggests that D2~ and D3~ are the same person, and that she is the DNH’s biological mother.
The amended birth certificate identifies D~ by her maiden name, D~.
Our opinion is limited to determining whether L~ is the DNH’s child. We have not been asked to provide on opinion on whether L~ meets the other requirements necessary for benefits and, thus, make no such findings with regard to these criteria. We note that the agency will consider L~ to be dependent upon the DNH if she is the DNH’s natural child. See 20 C.F.R. § 404.361(a).
We recognize that the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” POMS GN 00306.001(D). To qualify as a child of an insured individual under section 216(e) of the Act, the applicant must be the natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child of the insured individual. See 42 U.S.C. § 416(e); see also 20 C.F.R. §§ 404.354 – 404.359. Here, the claim is that L~ is the DNH’s natural child. There is no claim or evidence of adoption or status as a stepchild. Thus, our focus is only upon whether L~ is the DNH’s natural child.
A claimant proves that she is a number holder’s natural child if: (1) she could inherit property through intestate succession as the number holder’s natural child; (2) she is the number holder's natural child, and the number holder and the claimant’s other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (3) she is the number holder’s natural child and the number holder has acknowledged this in writing, a court has decreed the number holder to be the claimant’s parent, or a court has ordered the number holder to contribute to the claimant’s support because the claimant is the number holder’s child; or (4) the number holder and the claimant’s other parent have not married, but the claimant has evidence, other than the evidence described in (3) above, to show that the number holder is the claimant’s natural parent and was either living with the claimant or contributing to her support when he died. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4). Here, according to the information we received, S3~ and the DNH were never married and did not participate in a ceremony that would have resulted in a valid marriage but for a legal impediment. Thus, she is not a deemed child under 42 U.S.C. § 416(h)(2)(B). We also find that L~ cannot be the DNH’s deemed child under 42 U.S.C. § 416(h)(3)(C) because the evidence does not show that before his death, the DNH ever acknowledged L~ as his child in writing, that a court ever decreed her to be the DNH’s child or ordered the DNH to pay child support on her behalf, or that the DNH ever lived with or contributed to L~’s support.
As to a court decree, we acknowledge that the probate court described L~ as the DNH’s child in its Amended Final Order of Adoption. However, this court order was not entered before the DNH’s death, as required for purposes of 42 U.S.C. § 416(h)(3)(C)(i)(II). Further, the context and document itself make clear that the court was not concerned with the issue of establishing the identity of L~’s biological father, but rather confirming D~ and S4~ as her adoptive parents. The probate court, in identifying the DNH as L~’s biological father, appears to have acted upon nothing more than the information S3~ provided in her Relinquishment and Termination. Such evidence would not be sufficient, under Arkansas law, to establish the DNH’s paternity of L~, an illegitimate child. See Ark. Stat. Ann. § 28-9-209. We also note that SSA is not bound by state court determinations that are not the result of contested litigation between parties with genuinely adverse interests or that are inconsistent with the law pronounced by the highest courts in the state. See Social Security Ruling (SSR) 83-37C (1983), available at 1983 WL 31272, at *3, adopting as agency policy, Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1974) (holding that SSA is not free to ignore a state trial court’s decision when the following criteria are met: (1) an issue in a claim for Social Security benefits previously has been determined or adjudicated by a state court of competent jurisdiction; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state).. In this case, the court’s Amended Final Order of Adoption does not bind the agency because, as noted, the issue of whether the DNH was L~’s biological father was not being litigated before the court in the adoption proceeding. In other words, parties with opposing interests did not genuinely contest this issue before the court, and the court did not determine or adjudicate the issue of the DNH’s parent-child relationship with L~. Instead, the court appears to have taken this information from S3~ at face value without question. Thus, the Amended Final Order of Adoption did nothing more than identify the DNH as L~’s biological father and made no explicit findings regarding a parent-child relationship, and did not explain why or on what basis the court recognized the DNH to be L~’s biological father. Therefore, SSA is not bound by this Amended Final Order of Adoption because the first two G~ criteria are not met. Accordingly, we find that L~ does not qualify as the DNH’s natural child under tests two, three, or four, and therefore, to prove that she is eligible for child’s benefits on the DNH’s account, L~ must show under test one that she could inherit property through intestate succession as the DNH’s child under Arkansas law. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).
The agency applies the intestacy laws of the state in which the DNH had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b). Thus, we look to whether L~ could inherit the NH’s property under Arkansas law, the state where the DNH maintained his primary domicile at the time of his death. See 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).
B. Application of Arkansas Intestate Succession Laws.
Arkansas law states that a child who is born at the time that her parents are not married to each other is an “illegitimate child.” Willmon v. Hunter, 761 S.W.2d 924, 360 (Ark. 1988). The evidence does not show that S3~ was married to the DNH. Thus, Arkansas law considers L~ an illegitimate child. See Ark. Code Ann. § 28-9-209(a)-(c) (identifying circumstances under which child should be considered legitimate).
Under section 28-9-209(d) of the Arkansas Inheritance Code, an illegitimate child may inherit property from her father through intestate succession under Arkansas intestacy law when the child has commenced an action or a claim against her father’s estate within 180 days of her father’s death and the illegitimate child meets at least one of certain conditions:
(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section
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.
In B~, the claimant had filed a claim against the estate and commenced a paternity action within 180 days, but she not completed the paternity action within the 180 days and therefore, did not have order establishing that a court of competent jurisdiction had established the paternity of the child. See id. at *1-3. The Court noted that five of the six statutory conditions could only be satisfied prior to the putative father’s death, and that the remaining condition (a court order that has established paternity of the child) had to have also been commenced and completed within 180 days. See id. at *7.
The preamble set forth in the Federal Register upon SSA’s promulgation of a 1998 amendment to 20 C.F.R. § 404.355 substantiates this interpretation. See 63 Fed. Reg. 57590, 57593 (Oct. 28, 1998) (recognizing that “[m]any State laws impose time limits within which someone must act to establish paternity for purposes of intestate succession. Such time limits are intended to provide for an orderly and expeditious settlement of estates. Since this is not the purpose of Social Security benefits for children . . . we will not apply a State’s time limits within which a child’s relationship must be established when we determine the child’s status under section 216(h)(2)(A). Not applying time limits is consistent with our belief that such a policy on applying State inheritance laws will best service the interests of children Congress sought to protect when it enacted section 216(h)(2)(A).”).
There is no need to address separately the use of the surname G~ on L~’s original birth certificate. No individual with the surname G~ has been identified as a potential father, on L~’s birth certificate or otherwise. See generally Ark. Code Ann. § 28-9-209(b)(3). Nor is there any evidence that S3~ was married to, as opposed to cohabitating with, any individual with the surname G~. See Ark. Code Ann. § 28-9-209(a).
As noted above, the agency developed the case to determine whether L~ might be the child of a potential male sibling of the DNH. In response, D~ (the DNH’s stepmother) provided a statement (in connection with L~’s original surname) in which she indicated that the DNH had a paternal half-brother, J~ (J~), who was S4~’s biological son, but that J~ was not D2~’s biological son, and that the DNH had two step-brothers. D~ indicated that S3~ never “dated” J~. Logically, neither the paternal half-brother nor the step-brothers could be L~’s father, as the DNA evidence establishes a 99.5% probability that L~ is descended from D2~, the DNH’s biological mother.