TN 74 (06-18)

A. PR 18-086 Use of Number Holder’s Sister’s DNA Report to Establish Child Relationship

Date: July 21, 2015

1. Syllabus

If the putative father is unavailable or deceased, an Arkansas court may consider DNA test reports from other paternal relatives.

2. Opinion

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether E~ (E~) is entitled to surviving child’s benefits on T~’s, the deceased number holder’s (DNH), earnings record (account). Specifically, you have asked whether the evidence, consisting of a deoxyribonucleic acid (DNA) report from the DNH’s biological sister, is sufficient under Arkansas law to establish a parent-child relationship between the DNH and E~. You have also asked whether enough information exists to reopen a prior denial of a claim for surviving’s child benefits filed on E~’s behalf on the DNH’s account from March 2004.

ANSWER

For purposes of E~’s January 2015 application, the DNA report and other evidence provided is sufficient under Arkansas law to establish a parent-child relationship between the DNH and E~. However, the March 2004 claim should not be reopened because there is no evidence showing that the prior determination denying surviving child’s benefits resulted from fraud or similar fault, that it was a result of clerical error, or that it was “unmistakably certain” that the decision was incorrect based on the evidence in the agency’s possession at the time the determination was made.

BACKGROUND

E~ was born March XX, 2000 in Arkansas. Based on a certificate of live birth, the Social Security Administration’s (agency’s) records list G~ (G~) as E~’s mother but show no listed father. The DNH died January XX, 2004, while domiciled in Arkansas. It is our understanding that G~ and the DNH never married or attempted to marry, and that the DNH never acknowledged E~ as his child in writing. In addition, there is no court order decreeing the DNH to be E~’s father.

In March 2004, G~ filed a claim for surviving’s child benefits on E~’s behalf, which the agency denied for lack of evidence to establish paternity between the DNH and E~. The information provided shows that when the agency denied the March 2004 claim, the Field Office, located in F~, Arkansas, documented that the DNH admitted to his parents, relatives, and friends that he was E~’s father and that he contributed to her support every two weeks. However, while the Field Office obtained a copy of E~’s birth certificate, it does not list a father. Evidence submitted to the field office indicates that the DNH and E~ resided in the same household from E~’s March XX, 2000, birth through the DNH’s January XX, 2004 death; that the DNH and G~ had a relationship spanning about 13 years prior to his death; that the DNH and G~ had four other children together; all whom the DNH acknowledged to be his children in writing; and that G~ did not have a relationship with the DNH’s brother. However, the information we received did not show the extent to which the DNH lived with or contributed to E~’s support at the time the DNH died.¹ We have no information that G~ further appealed the March 2004 initial unfavorable determination.

On January XX, 2015, G~ filed a new surviving’s child benefits claim on E~’s behalf on the DNH’s account. In April 2015, G~ submitted to the agency a December 2014 DNA report with the DNH’s biological sister, B~. The DNA report contained samples from G~, E~, B~, and T2~, one of E~’s siblings. The DNA report showed a 99.77 percent probability that E~ and B~ are niece and aunt.

ANALYSIS

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

The Social Security Act (Act) provides that the child of an individual number holder who is entitled to old-age or disability benefits or who dies a fully or currently insured individual is entitled to surviving child’s insurance benefits beginning with the first month in which the child meets certain criteria. 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. §§ 404.350(a)(1), 404.352(a). To be entitled to surviving child’s benefits on an insured individual’s account, a child must show she: (1) is that individual’s child, (2) applies for benefits, (3) is unmarried, (4) is under the specified age limits (under age 18, age 18 or older and qualifies for benefits as a full time student, or age 18 or older and under a disability which began prior to age 22), and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). The term “child” includes a natural child. See 42 U.S.C. §§ 402(d)(1), 416(e)(1); 20 C.F.R. § 404.354.² Here, it is undisputed that E~ applied for benefits, is unmarried, and is under the age of 18. The agency will consider E~ to be dependent upon the DNH if she is the DNH’s natural child. See 20 C.F.R. § 404.361(a). Thus, our focus is only upon whether E~ is the DNH’s natural child.

A claimant proves that she is a number holder’s natural child if:

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

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

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

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

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

As discussed below, E~ may qualify as the DNH’s child under test one by showing that she could inherit property from the DNH through intestate succession under Arkansas law. However, E~ does not qualify as the DNH’s natural child under tests two or three, listed above. According to the information that we received, G~ and the DNH were never married and did not participate in a ceremony that would have resulted in a valid marriage. Before his death, the DNH never acknowledged E~ as his child in writing and no court decreed him to be her parent.

E~ may qualify as the DNH’s natural child under test four, as G~ stated in her application that the DNH supported E~ every two weeks and that she, E~, and the DNH lived together from the time of E~’s birth until the DNH’s death. Moreover G~ has presented DNA evidence in an attempt to establish the biological relationship. We examine whether under test one³ E~ could inherit property through intestate succession as the DNH’s child under Arkansas law, where he had his permanent home when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); 20 C.F.R. § 404.303 (defining permanent home as the true and fixed home (legal domicile) to which a person intends to return whenever he is absent).

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

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

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

(1) A court of competent jurisdiction has established the child’s paternity pursuant to subsection (a), (b), or (c) of this section;⁴

(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).⁵ Here, E~ did not commence any action or file a claim against the DNH’s estate within 180 days of his death. Furthermore, the evidence does not suggest that any of the conditions listed in section 28-9-209(d)(1) through (6) apply to this case. As stated above, no court properly found that the DNH was E~’s father, there is no evidence that the DNH ever acknowledged E~ in writing, and his name does not appear on her birth certificate. The evidence does not show that the DNH and G~ ever married, attempted to marry or that the DNH was ordered to support E~.

The agency will not apply a state inheritance law requirement, such as section 28-9-209, that an action to establish paternity must be taken with a specified period of time required from a number holder’s death or a child’s birth, or that an action must have been started or completed before the number holder’s death, if doing so would impose an absolute bar to the child’s ability to prove paternity.⁶ See 20 C.F.R. § 404.355(b)(2); POMS GN 00306.075. In addition, agency regulations provide that if a state inheritance law requires a court determination of paternity, the agency will not require that the claimant obtain such a determination. See 20 C.F.R. § 404.355(b)(2). Instead, the agency will apply the same standard of proof that the state court would apply in making its own determination of paternity. See id. Consequently, for purposes of this analysis, the agency will not require an Arkansas court determination of paternity. Rather the agency will apply the standard of proof that an Arkansas court would apply in making a paternity determination, which is clear and convincing evidence. See id.; see also McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983) (implementing clear and convincing standard in paternity cases). Therefore, in order to inherit from the DNH, E~ must prove the DNH’s paternity by clear and convincing evidence.

C. The DNA Report Satisfies the Clear and Convincing Evidence Standard under Arkansas Law

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

Arkansas courts consider DNA test reports in making paternity determinations, both as prima facie evidence of paternity as well as evidence to satisfy the clear and convincing standard of proof. See Ark. Code Ann. § 9-10-108; Ross, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey v. Cox, No. 05-1415, 2006 WL 2687046, at *4, 6 (Ark. Ct. App. Sept. 20, 2006) (unpublished) (applying DNA evidence to satisfy clear and convincing standard).

1. Prima Facie Proof of Paternity

Section 9-10-108(a)(6)(A) specifically provides that “[i]f the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony of the mother in regard to access during the probable period of conception, it shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut that proof.” Ark. Code Ann. § 9-10-108(a)(6)(A). Thus, there must be corroborating testimony from the mother and the DNA test results must meet a 95 percent threshold in order to constitute prima facie evidence. See id. In addition, in order for the DNA evidence to constitute prima facie proof of paternity, the test report must satisfy Arkansas statutory requirements for genetic testing. See Ark. Code Ann. § 9-10-108(a)(4),(5),(6) (setting out qualified expert, chain of custody, and percentage of probability requirements). Although Arkansas courts have not articulated what percentage DNA evidence satisfies the clear and convincing standard, one court has suggested that it might lie beneath the 95 percent standard of section 9-10-108(6)(A). See Keahey, 2006 WL 2687046, at *4-6 (holding that DNA evidence falling short of 95 percent threshold, coupled with other evidence, satisfied the clear and convincing standard).

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

In this case, DNA testing was performed on the mother (G~), E~, T2~ (one of E~’s alleged siblings), and B~ (the children’s alleged paternal aunt and the DNH’s sister). The DNA report stated that E~ and T2~ are “full siblings” and showed an “Avuncular Index” of 441 to 1, or a 99.77 percent “Probability of Relationship” that the DNH’s sister, B~, is the “paternal aunt of both E~ and T2~.” The DNA report states that the results “support the assertion that a brother of the alleged paternal aunt, B~, could be the biological father of the children, E~ and T2~.” While the DNA report does not test the DNH because he is deceased, the report complies with Ark. Code Ann. § 9-10-108(a)(3)(B) because it tests B~, a “paternal relative” of the DNH. And the report appears to meet the Arkansas statutory requirements for genetic testing because a notary public swore that a duly qualified expert from LabCorp conducted the test. See Ark. Code Ann. § 9-10-108(a)(4). Moreover, the record contains copies of affidavits establishing proper chain of custody. See Ark. Code Ann. § 9-10-108(a)(5)(B)(i). Thus, the DNA report satisfies Arkansas statutory requirements for genetic testing.

However, section 9-10-108 also requires the mother’s corroborating testimony as to access in order for DNA results to be prima facie evidence. See Ark. Code Ann. § 9-10-108(a)(6)(A). Here, G~ stated that she and the DNH resided in the same household from E~’s date of birth through the DNH’s date of death. Moreover, while the DNA report states that “a brother of the alleged paternal aunt, B~, could be the biological father of the children, E~ and T2~,” the DNH’s brother could not have fathered E~, as G~ reported that she did not have a relationship with the DNH’s brother. See Memorandum from Regional Chief Counsel, Dallas, to Ass’t Reg. Comm.—MOS, Dallas, Arkansas State Law Status of Child Based on Single Grandparentage Deoxyribonucleic Acid Test (NH W~), at p. 2 & n.3 (March 27, 2009) (explaining that mother must negate possibility that paternal siblings may have fathered child). Also, other evidence, such as G~’s statements that she and the DNH had four other children together, and that the DNH regularly contributed support to E~, weigh in favor of the DNH being E~’s biological father. See Keahey, 2006 WL 2687046, at *4-6 (other evidence establishing paternity).

2. Clear and Convincing Proof of Paternity

The totality of the other evidence constitutes clear and convincing evidence of the DNH’s paternity with respect to E~ under Arkansas law. See Ross, 758 S.W.2d at 424 (clear and convincing evidence is “proof so clear, direct, weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the matter asserted).⁷ As stated above, Arkansas courts consider DNA test reports in making paternity determinations, both as prima facie evidence of paternity as well as evidence to satisfy the clear and convincing standard of proof. See Ark. Code Ann. § 9-10-108; Ross, 785 S.W.2d at 245 (“genetic testing can, with a high degree of certainty, identify the father of a child and, thus, be viewed as conclusive by the fact-finder in paternity suits”); see also Keahey v. Cox, No. 05-1415, 2006 WL 2687046, at *4, 6 (Ark. Ct. App. Sept. 20, 2006) (unpublished) (applying DNA evidence to satisfy clear and convincing standard). Here, E~ has provided a DNA report that meets Arkansas’ statutory requirements for genetic testing and shows that E~ is likely the DNH’s natural child. E~ has also provided testimonial evidence that the DNH supported her, that G~ and the DNH’s brother did not have a relationship, and that G~ and the DNH had four other children together. Viewed in sum, this evidence constitutes clear and convincing evidence that the DNH was E~’s biological father.

D. The Agency Should Not Reopen the March 2004 Determination

The agency may reopen and revise a determination, which is otherwise final and binding, within 12 months of the date of the notice of the initial determination for any reason; within 4 years of the date of the notice of the initial determination if the agency finds good cause to reopen the case; or at any time for a number of specific reasons listed in the regulations, including if the determination was obtained by fraud or similar fault. 20 C.F.R. §§ 404.987, 404.988.

Because it has been longer than four years since the agency issued its March 2004 determination, we will examine whether any of the listed reasons in section 404.988(c) exist here. Most of the reasons provided for reopening here are clearly inapplicable to the present matter. However, we examine a couple of the reasons a little closer to see if they apply.

First, we look to whether the determination was obtained by fraud or similar fault. 20 C.F.R. § 404.988(c)(1). The POMS defines “fraud” as existing when a person, with intent to defraud, either makes or causes to be made a false statement or misrepresentation of a material fact for use in determining rights to Social Security benefits, or conceals or fails to disclose a material fact for use in determining rights to Social Security benefits. POMS GN 04020.010(A)(1). “Similar fault” exists when a person knowingly makes an incorrect or incomplete statement that is material to the agency’s determination to grant benefits, or knowingly, with no fraudulent intent, conceals information that is material to the determination. POMS GN 04020.010(A)(2). The determination of whether fraud or similar fault exists is a judgment decision and is based on the facts in the case. POMS GN 04020.010(B)(2).

Here, there is no persuasive evidence that E~ intended to defraud or conceal evidence from the agency during her March 2004 claim for surviving child’s benefits. You indicate that the Field Office documented in March 2004 that the DNH and E~ resided in the same household from E~’s date of birth through the DNH’s date of death; that the DNH and G~ had a relationship spanning about 13 years; that they had four other children together; and that G~ did not have a relationship with the DNH’s brother. While you state that it appears that the Field Office failed to develop this information to determine if clear and convincing evidence may have existed to establish the DNH as E~’s father, there is nothing to suggest that E~ intended to mislead, defraud, or conceal evidence during the claims process. Furthermore, because the March 2004 claims file was destroyed in March 2011, any further analysis of those records is impossible. In sum, there is no evidence showing that the March 2004 denial resulted from fraud or similar fault.

Moreover, section 404.988(c)(8) also provides that the agency may reopen a determination at any time if it was fully or partially unfavorable to a party, but only to correct a clerical error or an error that appeared on the face of the evidence that was considered when the determination was made. 20 C.F.R. § 404.988(c)(8). The agency’s POMS further explain what is meant by clerical error, and error on the face of the evidence. See POMS GN 04010.010, 04010.020.

POMS GN 04010.010 explains that a “clerical error” is a mistake the agency made. See POMS GN 04010.010(A). The agency may correct its own clerical error in instances where it miscalculates benefit payments or “clerically” pays the wrong amount. See id. at (B)(1), (2). Examples of clerical errors include instances where the agency makes an addition error in computing a beneficiary’s retirement benefit and lists the incorrect amount on the award form, or when the agency calculates the correct benefit amount, but pays an incorrect amount. Id. The facts in this matter, however, do not appear to fall within these examples or otherwise meet the definition of “clerical error” as contemplated by the POMS. Accordingly, the Field Office’s apparent failure to develop the evidence in E~’s March 2004 claim did not constitute a “clerical error” under POMS GN 04010.010.

Finally, POMS GN 04010.020 provides that the agency may reopen a prior claim at any time if the determination was unfavorable to the claimant and it is “unmistakably certain” that the decision was incorrect based on the evidence in the agency’s possession at the time the determination was made. See POMS GN 04010.020(A), (B) (examples of an error on the face of the evidence include: relying on the wrong person’s medical report or earnings record to make an incorrect determination; benefits in a cessation case were terminated as of the month the disability ceased, rather than as of the close of the second month following the month the disability ceased; and before a claim was finally adjudicated, the claimant submitted to the Field Office a medical report or additional earnings which would have resulted in a different conclusion, but such report or earnings were not associated with the claim file until after the initial determination was made). The POMS explains that a determination that was reasonable on the basis of the evidence in the file or on the law and instructions existing at the time of the determination, will not be reopened merely for the following reasons: a shift in the weight of the evidence, a different inference is now drawn from the evidence, a different rule of law would now be applied, the statute or regulations have been amended (unless the amendment specifically provides for reopening). See POMS GN 04010.020(C). In this case, for similar reasons, reopening is not warranted. Specifically, because the agency has destroyed the March 2004 file and the accompanying evidence, it is not possible to determine with unmistakable certainty that the agency incorrectly decided the claim based on the evidence it had at the time the determination was made. Accordingly, the evidence presented does not support reopening the March 2004 claim.

CONCLUSION

The DNA report and other evidence provided constitutes sufficient evidence under Arkansas law to establish a parent-child relationship between the DNH and E~, and thus, to find that E~ is the DNH’s child under the Act for entitlement to surviving child’s benefits on the DNH’s account for purposes of the January 2015 application. However, the March 2004 claim should not be reopened because there is no evidence showing that the determination resulted from fraud or similar fault, no evidence of a clerical error, and no evidence that it was “unmistakably certain” that the decision was incorrect based on the evidence in the agency’s possession at the time the determination was made.

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~⁸ (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-PR-XX-XXX-X, entered an Amended Final Order of Adoption confirming the adoption of L~ to D~ and S4~ (S4~).⁹ 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~e 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.¹⁰ The evidence submitted also includes a Client Identification and Consent Form, which bears the caption, “Chain of Custody Documentation,” that April, an employee of Cartersville Drug & Alcohol Testing, completed on May XX, 2013, certifying that she collected a deoxyribonucleic acid (DNA) sample from D2~ (D2~),¹¹ 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 D2~ (maiden name, H~) L~ as his mother, while an amended birth certificate, issued December XX, 1998, identifies D~¹² 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 S2~ 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.¹³ The term “child” includes a natural child. See 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.354.¹⁴ 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).¹⁵ 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 S2~ 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;¹⁶

(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)¹⁷

(“[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 S2~ 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 00306.075.¹⁸ 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. S2~ 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 D2~’s grandchild. However, the evidence does not exclude the possibility that D2~ 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 S2~ 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. ¹⁹ 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 S2~ 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.²⁰ 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). S2~ 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 S2~ 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, S2~, 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 S2~ during the probable time of conception and regarding whether the DNH had other biological, maternal and paternal, male siblings who had access to S2~ 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 S2~ and D2~, which our office will evaluate to determine if L~ is the DNH’s child.

C. PR 11-075 Arkansas State Law – Status of Children (NH Jerry SSN ~)

Date: March 17, 2011

1. Syllabus

The evidence provided by the claimant's mother does not constitute clear and convincing evidence to establish a child relationship under Arkansas state law. Therefore, Jeremy is not entitled to child’s benefits on the number holder’s account.

2. Opinion

The purpose of this memorandum is to respond to your request for a legal opinion on whether a verbal acknowledgment by a number holder is sufficient evidence under Arkansas state law to establish a child relationship to the number holder. If this evidence is sufficient to establish a child relationship, you then asked whether the parent-child relationship operates prospectively only from the date the agency initially denied the application for benefits. In our opinion, the evidence provided does not constitute clear and convincing evidence to establish a child relationship under Arkansas state law. Consequently, the child is not entitled to child’s benefits on the number holder’s account. We do not express an opinion on whether the parent-child relationship is established prospectively or retroactively because, as noted above, our opinion is that the evidence does not meet the evidentiary standard required to establish a parent-child relationship.

BACKGROUND

As we understand the facts, Pamela gave birth to Jeremy on September . The agency awarded Title II disability insurance benefits to Jeremy’s purported father, Jerry (number holder), effective July 2006. On December XX, 2009, the number holder died while domiciled in Arkansas.

In May 2010, Pamela filed an application for child’s insurance benefits on Jeremy’s behalf on the number holder’s account, claiming that the number holder was Jeremy’s father. In support of her application, Pamela provided a statement that she and the number holder lived together in 1996 and 1997, around the time of Jeremy’s conception. However, the number holder never acknowledged Jeremy as his son in writing, and no court timely issued an order for child support or an order establishing paternity. Moreover, the number holder did not live with or support the child to establish dependency. Pamela also stated that the number holder was not listed as Jeremy’s father on Jeremy’s birth certificate, but stated that, to her knowledge, the number holder never denied being Jeremy’s father.

The field office denied Pamela’s claim under 42 U.S.C. § 216(h)(3) because the evidence Pamela provided did not meet the provisions to establish a child relationship under that provision of the statute. In August 2010, Pamela filed a request for reconsideration, requesting that the agency further consider statements friends and family members provided that the number holder was Jeremy’s father.

Pamela provided a statement from Billy, the number holder’s cousin, who asserted that the number holder orally acknowledged Jeremy as his biological son, that the number holder and Pamela lived together at the time of conception, and that the estate considered Jeremy the number holder’s son for inheritance purposes and he would receive 33.3 percent of the number holder’s estate after all debts were satisfied. Pamela provided a statement from her sister, Patsy, who stated that the number holder orally acknowledged that Jeremy was his son, visited Pamela after Jeremy was born, and gave Pamela $100.00 for his care. Patsy stated that she witnessed the number holder’s father give Pamela $100.00 on two occasions and represent that the money was from the number holder. Patsy indicated that the number holder visited Jeremy to tell him that his “grandpa” – the number holder’s father – had passed away. Pamela also provided a statement from Ken, a friend of Pamela, who stated that the number holder orally acknowledged that Jeremy was his son, and that Pamela and the number holder lived together around the time of Jeremy’s conception.

Finally, Pamela provided a copy of an unsigned Petition To Approve Grant of Easement and Sale of Right of Way, in which Jerry, as administrator of the number holder’s estate, requested that the number holder’s estate grant the City of Fayetteville a permanent easement in return for monetary compensation. The affidavit specifies Jeremy, listed as the number holder’s son, as an interested party in the sale.

DISCUSSION

To be eligible for surviving child’s benefits on the account of an insured individual, a child must: (1) be that individual’s child for purposes of the Social Security Act (Act), (2) file for benefits, (3) be unmarried, (4) be either under the age of 18 or under age 19 and a full-time elementary or secondary school student, and (5) be dependent on the individual in question. 42 U.S.C. § 402(d)(1)(A)-(C). In this case, elements two, three, and four are satisfied. Additionally, if Jeremy is considered to be the number holder’s child, the agency will consider him to be dependent on the number holder, thus satisfying the fifth element. 20 C.F.R. § 404.361(a). Accordingly, the only remaining criterion Jeremy must establish is that he is the number holder’s child under the first element.

Under the Act, a child can establish a parent-child relationship with a number holder if the laws of the state in which the number holder was domiciled when he died allow the child to inherit from the number holder through intestate succession. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (b)(4). The Act provides two other methods for establishing a parent-child relationship, which are not applicable to this situation. See 42 U.S.C. §§ 416(h)(2)(B), 416(h)(3)(C).

Because the number holder died while domiciled in Arkansas, we look to Arkansas law to determine whether Jeremy would be entitled to inherit from him.

Arkansas intestate succession law provides that an illegitimate child or his descendants may inherit real or personal property from his father provided that an action is commenced or a claim is asserted against the father’s estate in a court of competent jurisdiction within 180 days of the father’s death and at least one of the following conditions is satisfied: (1) a court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of section 28-9-209 of the Arkansas Code, which requires that the parties in question marry or conceive a child through artificial insemination; (2) the man has made a written acknowledgment 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 birth of the child by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid; or (6) the putative father is obligated to support the child under a written voluntary promise or by court order. Ark. Code Ann. § 28-9-209(d)(1)-(6).

Although the facts do not indicate that Jeremy timely commenced an action against his father’s estate in a court of competent jurisdiction, the evidence provided does not satisfy the conditions to allow Jeremy to inherit the number holder’s real or personal property under Arkansas intestate succession law, notwithstanding the statutory time requirement. A court cannot establish the number holder’s parent relationship or determine legitimacy to Jeremy under section 28-9-209(a), (b), or (c) of the Arkansas Code because, although the number holder and Pamela lived together around the time of Jeremy’s conception, they were never married, and there is no evidence indicating Jeremy was conceived following artificial insemination. See Ark. Code Ann. § 28-9-209(a)-(c). There is also no evidence showing that the number holder ever acknowledged in writing that he was Jeremy’s father. In addition, Jeremy’s birth certificate does not name the number holder as Jeremy’s father. Moreover, there is no evidence establishing that Pamela and the number holder married prior to Jeremy’s birth or that they attempted to marry in apparent compliance with the law, but that their marriage would be considered invalid. Also, the number holder was not obligated to support Jeremy under a written voluntary promise or by court order. Accordingly, none of the statutory requirements that would allow Jeremy to inherit the number holder’s personal property are satisfied under Arkansas intestate succession law.

We have also specifically reviewed the additional evidence submitted by Pamela’s sister and family friend to determine whether it alone would satisfy the clear and convincing evidentiary standard under Arkansas state law to establish inheritance rights. These written statements assert that the number holder orally acknowledged Jeremy as his son. However, these statements do not rise to the level of clear and convincing evidence. Indeed, in Eldridge v. Sullivan, the Eighth Circuit noted that similar evidence would not meet the clear and convincing standard. See E~, 980 F.2d 499, 500-501 (8th Cir. 1992). Specifically, in E~, an applicant who sought child’s insurance benefits for her children offered statements from her friends and family asserting that the deceased number holder was the children’s father. See E~, 980 F.2d at 499. The Eighth Circuit noted that these statements were “self-serving and unpersuasive and [failed] to establish paternity by clear and convincing evidence.” See E~, 980 F.2d at 501.

The applicant also offered statements from her physician and priest, who stated that, at the time of her children’s birth, the applicant named the number holder as the children’s father. See E~, 980 F.2d at 501. While noting that this evidence was “the most reliable” evidence submitted, the Court concluded that it was no more than hearsay, uncorroborated by any objective measure of trustworthiness, and would not be considered “substantial enough to clearly convince a factfinder that the evidence is true.” See id. at 501. In the instant matter, where Pamela has provided statements from her friends and family asserting that the number holder orally acknowledged Jeremy as his son, such evidence is similarly uncorroborated by any objective measure of trustworthiness. Rather, such evidence would require a court of competent jurisdiction to simply believe that the number holder made such statements without any additional evidentiary support. Consequently, the holding in E~ would guide a court of competent jurisdiction to a similar holding, and one unfavorable to Jeremy.

We considered that Jerry, the executor of the number holder’s estate, provided a written statement that the estate considered Jeremy the number holder’s son and heir and that Jeremy would be entitled to one-third of any proceeds from the number holder’s estate. However, the Arkansas Court of Appeals has held that “the intent by a decedent or by a sibling to recognize an out-of-wedlock child as a rightful heir does not change the statutory requirements imposed on an out-of-wedlock child seeking to be declared a rightful heir.” Mayo v. Estate of Wofford, 2008 WL 1961482 at *2 (Ark. App. May 7, 2008) (citing Raspberry v. Ivory, 998 S.W.2d 431 (Ark. App. 1999)). Accordingly, Jerry’s statement of intent to treat Jeremy as a rightful heir of his cousin does not enable Jeremy to meet the statutory requirements to establish inheritance rights under Arkansas state law.

We also considered the Petition To Approve Grant of Easement and Sale of Right of Way, which lists Jeremy as the number holder’s son and an interested party in the estate’s sale of an easement to the City of Fayetteville. Assuming that the probate court approved this petition and issued an order authorizing the estate to sell the easement and allot a portion of the proceedings to Jeremy, the agency would not be bound by such an order. Under Social Security Ruling 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 trial court is consistent with the law enunciated by the highest court in the state. See Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973); Social Security Ruling 83-37c, 1983 WL 31272 (adopting G~ as agency policy). Relevant to the instant matter, we note that: 1) this issue does not derive from a claim for Social Security benefits that has been previously determined by a state court of competent jurisdiction, as there is no indication that this matter has been heard by any Arkansas court; 2) this issue was not genuinely contested before a state court by parties with opposing interests, as all potential heirs to the estate agreed to waive their right to a hearing before the probate court; and 3) this probate matter would not fall within the general category of domestic relations law, as it only addresses the division of the number holder’s estate and assets. Accordingly, even if a probate court issued an order approving the Petition To Approve Grant of Easement and Sale of Right of Way and awarded a portion of the proceeds to Jeremy, such an order would not be binding on the agency.

Finally, we reviewed other cases where Arkansas courts concluded that an illegitimate child had established clear and convincing evidence of paternity. However, we were unable to find a factual scenario similar to the instant matter in which the Arkansas courts concluded similar evidence was sufficient. In the most similar case, Lewis v. Petty, the decedent’s illegitimate daughter established clear, cogent, and convincing proof of paternity when statements indicated that he made gifts of money to her, paid a medical bill, purchased her clothing and shoes, identified her children as his grandchildren, and the administrator of estate testified that he considered her the decedent’s daughter and his cousin and thought it was appropriate that she share in the estate. See 613 S.W.2d 585, 586-587 (Ark. 1981). Although those facts are somewhat similar to the facts in this matter, in L~, the decedent was listed as the illegitimate daughter’s father on her birth certificate – a specific requirement of Arkansas law and one not present in this case. See id. at 586; Ark. Code Ann. § 28-9-209. As such, relevant case law does not provide an interpretation of Arkansas law that would permit Jeremy to inherit from the number holder. Therefore, we conclude that the evidence provided does not constitute clear and convincing evidence to establish a child relationship under Arkansas state law. Consequently, Jeremy is not entitled to child’s benefits on the number holder’s account.

CONCLUSION

In summary, the evidence provided does not constitute clear and convincing evidence to establish a child relationship under Arkansas state law. Consequently, Jeremy is not entitled to child’s benefits on the number holder’s account.

D. PR 09-146 Arkansas State Law Status of Child Based on Written Acknowledgment (NH J~)

Date: July 31, 2009

1. Syllabus

In Arkansas, the number holder's written acknowledgment is sufficient evidence to establish that the claimant is the number holder's child under State law. Because acknowledgment does not legitimize the child in Arkansas, the first month of entitlement to benefits can be no earlier than the month of the acknowledgment.

2. Opinion

The purpose of this memorandum is to respond to your request for an opinion on whether a written acknowledgment by a number holder is sufficient evidence under Arkansas law to establish a child relationship to a number holder. Although the Social Security Administration (agency) awarded child's benefits in this case under section 216(h)(3)(B) of the Social Security Act (Act), you specifically asked whether a child relationship can be established under section 216(h)(2)(A) under Arkansas intestacy law. In addition, the Chicago Regional Office asked whether, considering the child was domiciled in Illinois at the time the child's application was filed, Arkansas would look to Illinois law to determine the child's right to inherit. In our opinion, the written acknowledgment is sufficient evidence to establish that the child is the number holder's child under Arkansas law, and the child would be entitled to inherit personal property from the number holder. We also believe that Arkansas would look to its own law, not Illinois law, to make this determination. Further, we believe that the child met the requirements for entitlement to child's benefits as of the date of the written acknowledgment, the date he established inheritance rights under Arkansas law.

As we understand the facts, Marshall gave birth to Charles on May, in Illinois. The agency awarded Title II disability benefits to the purported father, James (number holder), who is currently domiciled in Arkansas, effective September 2006. The number holder did not list any children on his application for benefits.

On May 5, 2008, Marshall protectively filed an application for Title XVI supplemental security income on Charles' behalf, which the agency denied. On September 19, 2008, Marshall filed an application for Title II Social Security child's benefits for Charles on the number holder's account. On September 20, 2008, in connection with Marshall's Title II application, the number holder signed Form SSA-795, Statement of Claimant or Other Person, in which he acknowledged that Charles was his son. The number holder stated that he and Marshall had a relationship in Illinois in 1995 when Charles would have been conceived but that he and Marshall were never married and never lived together. The number holder moved to Arkansas in 2001 and had not seen the child, who still resides in Illinois, in three years. The number holder also stated that he was not at Charles' birth, so his name was probably not on the birth certificate, no paternity tests had been performed, and he had not been ordered to pay child support. He did, however, voluntarily send money for the child's support when he was working.

In October 2008 and December 2008, the number holder's sister and Marshall's uncle also submitted separate Form SSA-795s stating that the number holder had acknowledged that he was Charles' father. In April 2009, based on the number holder's acknowledgment and the statements from the sister and Marshall's uncle, the agency awarded Charles Title II Social Security child's benefits beginning in September 2008, the date the number holder signed Form SSA-795, under section 216(h)(3)(B) of the Act.

The child of an individual entitled to old-age or disability benefits is entitled to child's benefits when he files for benefits, is under age 18, and was dependent on the disabled individual at the time of the application. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). Under section 216(h)(3)(B) of the Act, a written acknowledgment that an applicant is the child of an insured individual is sufficient to establish that the applicant is a child of the insured individual irrespective of intestate succession. 42 U.S.C. § 416(h)(3)(B); 20 C.F.R. § 404.355(a)(3). In this case, the agency awarded Title II child's benefits beginning in September 2008 based on the number holder's September 20, 2008, written acknowledgment.

The Act also provides that to determine whether an applicant is the child of a number holder, the Commissioner shall apply the law that would be applied to determine the devolution of intestate personal property by the courts of the state in which the number holder was domiciled. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). The applicant may be eligible for benefits as the number holder's natural child if the applicant could inherit the number holder's personal property under state intestacy law. Id.; 20 C.F.R. § 404.355(a)(1). If the number holder is living, as in this case, the agency looks to the laws of the state where the number holder has his permanent home when the application is filed. Id.; 20 C.F.R. §§ 404.355(b)(1), (3). Because the number holder was domiciled in Arkansas at the time Marshall filed the application on Charles' behalf, we look to Arkansas law to determine whether Charles would be entitled to inherit from him.

Arkansas intestate succession law provides that an illegitimate child may inherit personal property from his father if the man made a written acknowledgment that he is the father of the child. Ark. Code Ann. § 28-9-209(d)(2). In this case, on September 20, 2008, the number holder submitted a written statement that Charles was his son. Based on the number holder's written acknowledgment, we believe that an Arkansas court would find that the number holder was Charles' father, and Charles would be entitled to inherit personal property from the number holder.

The Chicago Regional Office also asked whether, considering that Charles was born in Illinois, was domiciled in Illinois at the time of his application, and the number holder lived in Illinois at the time of Charles' birth, Arkansas would look to Illinois law to determine the child's right to inherit. The Chicago Regional Office indicated that, under Illinois law, Charles would be entitled to receive retroactive benefits based on the protective filing date of May 5, 2008, from his first application.

Because the number holder was domiciled in Arkansas at the time Marshall filed the application on Charles' behalf, Arkansas law, not Illinois law, is utilized to determine whether Charles would be entitled to inherit from him. The Arkansas intestate succession statute provides the methods for determining when an illegitimate child may inherit personal property from his father and does not indicate that it would apply other states' laws to make this determination. See Ark. Code Ann. § 28-9-209. Hence, under Arkansas law, Arkansas would apply Arkansas intestacy law.

With regard to the first possible month of entitlement, agency policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. Social Security Ruling 85-17. Although Arkansas law allows an illegitimate child to inherit from his father once the man has made a written acknowledgment that he is the father of the child, the law does not legitimate the child. Ark. Code. Ann. § 28-9-209(d). Therefore, under Arkansas law, Charles obtained inheritance rights based on the written acknowledgment but he was not legitimated.

Social Security regulations provide that a claimant who files an application for benefits before the first month he meets the requirements for entitlement may receive benefits from the first month he meets all the requirements. 20 C.F.R. §§ 404.352(a)(2), 404.620(a)(1). We believe that Charles met the requirements for entitlement when he established inheritance rights under Arkansas law as of the date of the written acknowledgment dated September 20, 2008. Because the written acknowledgment established inheritance rights, but did not legitimate the child, benefits should be prospective only from that date and not retroactive.

In conclusion, we believe that the number holder's September 2008 written acknowledgment is sufficient evidence to establish that the child is the number holder's child under Arkansas law. We also believe that Arkansas would look to its own law to determine the child's right to inherit from the number holder. Further, the first possible month of entitlement occurred in September 2008 when the number holder acknowledged the child, and benefits should be prospective only from the September 2008 date of acknowledgment.

E. PR 09-077 Arkansas State Law Status of Child Based on Single Grandparentage Deoxyribonucleic Acid Test (NH W~)

Date: March 27, 2009

1. Syllabus

An Arkansas court would accept DNA testing showing a 98.48 percent probability that the son of the number holder's mother had fathered the claimant as long as that testing were accompanied by a statement from the claimant's mother attesting that the number holder had access during the period of conception.

2. Opinion

The purpose of this memorandum is to respond to your request for an opinion on whether a single grandparentage deoxyribonucleic acid (DNA) test report may be used to establish a child relationship to a number holder. In our opinion, the single grandparentage DNA test report is sufficient evidence to establish that the child is the number holder's biological child, provided that the applicant submits to the Social Security Administration (agency) a statement that the number holder had access to her during the probable time of conception.

As we understand the facts, Veronica gave birth to Cecelia on November. The purported father, Wendell (number holder), died while domiciled in Arkansas on October XX, 1993. At the time of Cecelia's conception and birth and the number holder's death, the number holder did not live with or support Veronica, nor were they married.

In 1994 and 2004, Veronica filed for child's benefits on Cecelia's behalf with the agency on the number holder's account. The agency denied both claims due to a lack of evidence to establish a child relationship to the number holder, and Veronica did not appeal. On January 26, 2009, Veronica filed a third application for child's benefits for Cecelia on the number holder's account. With the third application, Veronica submitted a DNA test report dated January 5, 2009, which indicated a 98.48 percent probability that the son of the number holder's mother, Celia, was the biological father of Cecelia. This report was based on DNA testing of Veronica, Cecelia, and Celia. The number holder's father, Lee, died in 2006. Veronica reported that Celia and the number holder's father, Lee, had another son.

Under the Social Security Act (Act), a child can establish a parent-child relationship with a number holder if the laws of the state in which the number holder was domiciled when he died allow the child to inherit from the number holder through intestate succession. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (b)(4). Because the number holder died while domiciled in Arkansas, we look to Arkansas law to determine whether Cecelia would be entitled to inherit from him.

An illegitimate child may inherit property from her father, provided that a court of competent jurisdiction has established the paternity of the child or the putative father is obligated to support the child by court order. See Ark. Stat. Ann. § 28-9-209(d)(1). Arkansas law provides that a person who claims to be the illegitimate child of a deceased person must prove paternity by clear and convincing evidence. See Lewis v. Petty, 613 S.W.2d 585, 586 (Ark. 1981). 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).

The Arkansas statute governing scientific testing of paternity allows a court to consider the results of scientific testing that establish a 95 percent or more probability of inclusion to establish paternity. Ark. Code. Ann. § 9-10-108(a)(6)(A). When a putative father is deceased, a court can order a paternal relative of the putative father, if available and willing, to participate in DNA testing. Id. at § 9-10-108(a)(3)(A), (B). The statute does not require that both paternal relatives be tested, only that "a paternal relative" be tested. Id. at § 9-10-108(a)(3)(B). In this case, the number holder's father, Wendell, died in 2006 and thus, only the number holder's mother, Celia, was available for DNA testing. Nonetheless, under Arkansas law, the DNA testing of the number holder's mother alone complied with the statute's requirements. The results of genetic testing showed that a son of the number holder's mother had a 98.48 percent probability of paternity. Veronica reported that Celia and Wendell had another son, but Veronica submitted a statement attesting that she had no access to the number holder's brother during or around the time that she conceived Cecelia.

Although the genetic testing in this case revealed a 98.48 percent probability of paternity, the statute also requires corroborating testimony from the mother that the number holder had access to her during the probable period of conception. See Ark. Code. Ann. § 9-10-108(a)(6)(A) (if DNA testing establishes ". . . a 95 percent or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony from 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 such proof"). Here, Veronica did not submit a statement attesting that the number holder had access to her during the probable time of conception, and no other information submitted with the application shows that the number holder had such access. Based on this lack of evidence, we do not believe that an Arkansas court would find that Veronica has clearly and convincingly shown that the number holder was Cecelia's father.

We recommend that the agency obtain a statement from Veronica regarding whether the number holder had access to her during the probable time of conception. If Veronica presents satisfactory evidence attesting that the number holder had access to her during the probable period of conception, then we conclude, under Arkansas law, that the single grandparentage DNA test report, along with the corroborating statement concerning access, is sufficient evidence to establish that the child is entitled to inherit from the number holder.

F. PR 08-038 Arkansas State Law - Use of Grandparentage Screening Report to Establish Child Relationship (NH Nicholas SSN ~) - REPLY

Date: December 17, 2007

1. Syllabus

In Arkansas, a grandparentage DNA report may establish a child relationship to the purported father when the child's mother provides corroborating testimony that she had no access to the number holder's brothers during or around the time that she conceived the child.

2. Opinion

You have requested an opinion regarding whether a grandparentage deoxyribonucleic acid (DNA) test report may establish a child relationship to a purported father under Arkansas law when the purported father had brothers. We believe that a grandparentage DNA report may establish a child relationship to the purported father when the child's mother provides corroborating testimony that she had no access to the number holder's brothers during or around the time that she conceived the child.

As we understand the facts, Kimberly gave birth to Ny'Kivus in Arkansas on December. The purported father, Nicholas (number holder), died while domiciled in Arkansas in April 2002. At the time of Ny'Kivus' conception and birth and the number holder's death, the number holder was married to someone other than Kimberly. Nonetheless, Kimberly stated that she and the number holder dated on and off for a period of eight years. At the time the number holder died, Kimberly did not know she was pregnant with Ny'Kivus. Ny'Kivus' birth certificate does not name a father.

On June 25, 2003, Kimberly filed for child's benefits with the Social Security Administration (Agency) on the number holder's account. The Agency denied Kimberly's claim, and she did not appeal. On July 18, 2007, Kimberly filed a second application for child's benefits for Ny'Kivus on the number holder's account. With the second application, Kimberly submitted a DNA test report dated May 11, 2006, which indicated a 99.99 percent probability that the number holder's parents, Lavern and Rudolph , are Ny'Kivus' paternal grandparents. This report was based on DNA testing of Kimberly Ny'Kivus, and Larvern/,Rudolph. Kimberly’s reported that Larvern/Rudolph have two other sons.

Under the Social Security Act (Act), a child can establish a parent-child relationship with a number holder if the laws of the state in which the number holder was domiciled when he died allow the child to inherit from the number holder through intestate succession. 42 U.S.C. § 416(h)(2)(A). Because the number holder died while domiciled in Arkansas, we look to Arkansas law to determine whether Ny'Kivus would be entitled to inherit from him.

In Arkansas, DNA test results establishing a 95 percent or more probability of inclusion that a putative father is the child's biological father along with corroborating testimony from the mother regarding access between the two constitutes a prima facie case of establishment of paternity. Ark. Code. Ann. § 9-10-108(a)(6)(A). In earlier opinions, we determined that grandparentage DNA testing can establish a number holder's paternity under Arkansas law. See Arkansas State Law Use of Grandparentage Screening Report to Establish Child Relationship (L~ - December 31, 2006). Because the number holder had two brothers, the Agency must rule out the possibility that one of the brothers fathered Ny'Kivus. As we have opined in the past, a statement from Kimberly that she had no access to the brothers during or around the time that she conceived Ny'Kivus will constitute sufficient evidence for you to find that Ny'Kivus is entitled to inherit from the number holder. See Arkansas State Law Use of Sibling Report to Establish Relationship (Youngblood - August 22, 2007); Using Results of DNA Test After the Number Holder's Death to Establish Inheritance Rights for A Child in Oklahoma (Brown - September 9, 2003); Using Results of DNA Test After the Number Holder's Death to Establish Inheritance Rights (Falling - May 29, 2002); Texas Law Using DNA Testing to Establish Child Relationship (Eastburn - March 22, 2002).

G. PR 07-198 Arkansas State Law Use of Sibling Screening Report to Establish Child Relationship (NH Deon, SSN ~) - REPLY

Date: August 22, 2007

1. Syllabus

When a putative father is deceased, an Arkansas court may order that the mother and child submit to scientific testing to determine whether that putative father can be excluded as being the biological father of the child and to establish the probability of paternity if the testing does not exclude the putative father. In addition, an Arkansas court may include paternal relatives within its order for paternity testing. Thus, we believe that an Arkansas court would consider a sibling DNA test establishing a 99.8 percent probability that an established child of the number holder and our claimant are full siblings along with other evidence in order to establish the number holder's paternity.

The claimant can receive Social Security survivor benefits on the number holder's account as of March 5, 2007, the date of the DNA report.

2. Opinion

You have asked us to provide a legal opinion regarding whether Cortez may be entitled to Social Security survivor benefits on the earnings record of Deon (the deceased number holder). Specifically, you have asked whether a sibling deoxyribonucleic acid (DNA) test report is sufficient to establish that Cortez is the number holder's child under Arkansas law. We believe that the sibling DNA test report is sufficient to establish that Cortez is the number holder's child under Arkansas law. He is entitled to benefits on the number holder's account as of the date of the DNA test report establishing paternity.

As we understand the facts, the number holder was born January. He died on September XX, 2002, while residing in Arkansas. He never married. In September 2002, Shonna filed claims for child survivor's benefits on the number holder's account on behalf of her biological children, Cortez (born August), Deon. (born August ), and Shanikqua (born April). The Social Security Administration (Agency) allowed Deon. and Shanikqua's claims, but denied Cortez's claim because Shonna‘s provided no evidence that the number holder was Cortez's father.

In March 2007, Shonna filed a new claim for child's survivor benefits on the number holder's account on behalf of Cortez. With this new claim, Shonna submitted a sibling screening report. The March 5, 2007, report showed the probability of full-siblingship between Cortez and Deon. as 99.8 percent and that the likelihood that they shared the same biological mother and father as 6,505 to one. Shonna also submitted four statements from friends and relatives indicating that the number holder acknowledged that Cortez was his son and that the number holder supported him.

A child may be eligible for Social Security survivor benefits if he is the child of a number holder who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.355. To show that he is the number holder's child, the child must prove one of the following:

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

(2) he is the number holder's natural child and:

a) the number holder has acknowledged this in writing,

b) a court has decreed the number holder to be the child's parent, or

c) a court has ordered the number holder to contribute to the child's support because the child is the number holder's child;

(3) the number holder was the child's natural parent and was either living with the child or contributing to his support when the number holder died; or (4) the child could inherit property through intestate succession as the number holder's child.

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

Here, Cortez cannot prove the first three elements mentioned above. First, the number holder and Shonna never participated in a marriage ceremony. Second, the number holder never acknowledged in writing that Cortez was his natural child, no court ever decreed him to be his parent, and no court ever ordered him to contribute to his support. Third, there is no indication that the number holder was living with Cortez or contributing to his support when he died. Consequently, to prove that he is eligible for benefits on the number holder's account, Cortez must show that he could inherit property through intestate succession as the number holder's child. Arkansas law controls because the number holder had his permanent home in Arkansas when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

Under Arkansas law, in pertinent part, an illegitimate child may inherit property from his father through intestate succession if the child has commenced an action or a claim against his father's estate within 180 days of his father's death and a court of competent jurisdiction has established the child's paternity. See Ark. Code Ann. § 28-9-209(d)(1) (West 2007). Agency regulations, however, provide 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. See 20 C.F.R. § 404.355(b)(2). Moreover, if state law requires a court determination of paternity, the Commissioner will not require the child to obtain such a determination.

See id. Instead, the Agency will apply the same standard of proof that a state court would apply and thereby make its own determination of paternity.

See id.

Arkansas law provides that when a child alleges that he is the illegitimate offspring of a deceased man and, on that basis, claims the right to share in his estate, he 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) (West 2007) (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).

Arkansas courts consider DNA test reports when they make paternity determinations. See Ross v. Moore, 785 S.W.2d 243, 245 (Ark. Ct. App. 1990) ("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 that the mother and child submit to scientific testing to determine whether the putative father can be excluded as being the biological father of the child and to establish the probability of paternity if the testing does not exclude the putative father. See Ark. Code Ann. § 9-10-108(a)(3)(A) (West 2007). In addition, an Arkansas court may include paternal relatives within its order for paternity testing. See Ark. Code Ann. § 9-10-108(a)(3)(B) (West 2007). Thus, we believe that an Arkansas court would consider the DNA test in this case to establish the number holder's paternity.

Under Arkansas law, if the results of the paternity test establish a 95 percent or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony of the mother concerning access during the probable period of conception, "it shall constitute a prima facie case of establishment of paternity." Ark. Code. Ann. § 9-10-108 (a)(6)(A) (West 2007). The DNA test report in this case showed the probability of full-siblingship between Cortez and Deon . as 99.8 percent. In addition, Shonna's assertion that the number holder is the father presumes that he had access to her during the probable time of Cortez's conception. And the statements that Shonna submitted are additional evidence to show that the number holder acknowledged Cortez as his son. Given these facts, we believe that an Arkansas court would find that Shonna has clearly and convincingly shown that the number holder was Cortez's father.

With regard to the first possible month of entitlement, Agency policy provides that an act that gives inheritance rights is generally effective only from the date of that act, while an act that legitimates generally is effective retroactive to the birth of the child. Social Security Ruling 85-17. Arkansas law allows an illegitimate child to inherit from her father once paternity has been established, even if the child is not legitimate. Ark. Code Ann. § 28-9-209(d) (West 2007). In this case, the act that gives Cortez inheritance rights is the March 5, 2007, DNA laboratory report.

The regulations provide that if the number holder is deceased, his children are entitled to benefits beginning the first month covered by the application in which they meet all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The requirements for entitlement to child's benefits include proof that the child (a) is the insured person's child, (b) is dependent on the insured, (c) applied for benefits, (d) is unmarried, and (e) under the age of 18. 20 C.F.R. § 404.350(a)(1). Cortez did not meet all the requirements for entitlement until the March 5, 2007, DNA laboratory report showed the probability of full-siblingship between Cortez and Deon as 99.8 percent and the likelihood that they shared the same biological mother and father as 6,505 to one. Thus, the first date that Cortez could be entitled to child's benefits on the number holder's account is March 5, 2007.

In sum, we conclude that the DNA test reports and the additional evidence that Shonna submitted are sufficient to establish that Cortez is the number holder's child under Arkansas law. As such, Cortez can receive Social Security survivor benefits on the number holder's account as of March 5, 2007.

H. PR 07-121 Arkansas State Law Use of Half-Sibling Screening Report to Establish Child Relationship (NH Brent, SSN ~) - REPLY

Date: April 25, 2007

1. Syllabus

In Arkansas, DNA testing showing only an 84.5 percent probability of half siblingship between our claimant and a child already established as the deceased number holder's son, combined with the claimant's mother's statement that the deceased had "access" at the time of conception, is not sufficient to establish the parent-child relationship by the clear and convincing standard.

2. Opinion

You have asked us to provide a legal opinion regarding whether Brentley may be entitled to Social Security survivor benefits on the earnings record of Brent (the deceased number holder). Specifically, you have asked whether two half-sibling deoxyribonucleic acid (DNA) test reports are sufficient to establish that Brentley is the number holder's child under Arkansas law. We believe that the half-sibling DNA test reports are not sufficient to establish that Brentley is the number holder's child under Arkansas law. Consequently, she is not entitled to benefits on his account.

As we understand the facts, the number holder was born in March. He died on December XX, 2004, while residing in Arkansas. He was divorced and had no surviving spouse.

In January 2005, claims for Social Security survivor benefits were filed on behalf of five children on the number holder's account. Cody was one of these children. Rebecca, Cody's mother, provided a DNA test report that showed a 99.95% probability that the number holder was Cody's biological father. Accordingly, the Agency determined that Cody was entitled to Social Security survivor benefits on the number holder's account.

Brentley was born in July. Her mother, Cherilyn, reportedly knew that she was pregnant with Brentley when the number holder died. According to Cherilyn, the only other people who were aware of her pregnancy during the number holder's lifetime were the number holder and one or two of Cherilyn's friends. The number holder never formally acknowledged that he was Brentley's father.

In August 2005, Cherilyn filed a claim for Social Security survivor benefits on behalf of Brentley on the number holder's account. Cherilyn and the number holder were never married, but Cherilyn alleged that she lived with the number holder from approximately July 2003 until his death in December 2004. She claimed that he was Brentley's father and listed him as such on Brentley's birth certificate. Because Cherilyn did not provide acceptable evidence of the number holder's paternity, however, the Agency denied her claim in September 2005.

In February 2006, Cherilyn protectively filed a second application for benefits on behalf of Brentley on the number holder's account. This time, she provided two DNA test reports, the purpose of which was to help the Agency determine whether Brentley and Cody are paternal half-siblings (i.e., whether they have the same father). These reports are relevant because, as mentioned above, DNA testing has already shown that Cody is the number holder's biological child. If further testing were to show that Cody and Brentley have the same father, then Brentley would also qualify for Social Security survivor benefits as the number holder's child.

The first report, which involved DNA samples from Cherilyn, Brentley, and Cody, showed a probability of half-siblinghood of 66.67%. The data reflected in this report are inconclusive regarding the question of whether Brentley and Cody are half-siblings. The second report, which involved DNA samples from Cherilyn, Rebecca, Brentley, and Cody, showed a probability of half-siblinghood of 84.5%. The data reflected in this report are also inconclusive regarding the question of whether Brentley and Cody are half-siblings. Ms. W~ never provided additional evidence to the Agency, other than her own uncorroborated claim that the number holder was Brentley's father. In April 2006, the Agency denied the second application that Cherilyn filed on Brentley's behalf.

A child claimant may be eligible for Social Security survivor benefits if she is the child of a worker who died fully or currently insured. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.355. To show that she is the worker's child, the claimant must prove one of the following: (1) she is the worker's natural child, and the worker and the claimant's other parent participated in a ceremony that would have resulted in a valid marriage, except for a legal impediment; (2) she is the worker's natural child and the worker has acknowledged this in writing, a court has decreed the worker to be the claimant's parent, or a court has ordered the worker to contribute to the claimant's support because the claimant is the worker's child; (3) the worker was the claimant's natural parent and was either living with the claimant or contributing to her support when the worker died; or (4) the claimant could inherit property through intestate succession as the worker's child. See 42 U.S.C. §§ 416(h)(2)(A)-(B), 416(h)(3); 20 C.F.R. § 404.355(a)(1)-(4).

Here, Brentley cannot prove the first three things mentioned above. First, the number holder and Cherilyn never participated in a marriage ceremony. Second, the number holder never acknowledged in writing that Brentley was his natural child, no court ever decreed him to be her parent, and no court ever ordered him to contribute to her support. Third, the number holder was neither living with Brentley nor contributing to her support when he died. Consequently, to prove that she is eligible for Social Security survivor benefits on the number holder's account, Brentley must show that she could inherit property through intestate succession as the number holder's child. Arkansas law controls because the number holder had his permanent home in Arkansas when he died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

Under Arkansas law, an illegitimate child may inherit property from her father through intestate succession if a court has established her paternity within 180 days of her father's death. See Ark. Code Ann. § 28-9-209(d) (West 2007). Agency regulations, however, provide 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. See 20 C.F.R. § 404.355(b)(2). Moreover, if state law requires a court determination of paternity, the Commissioner will not require the child to obtain such a determination. See id. Instead, the Agency will apply the same standard of proof that a state court would apply and thereby make its own determination of paternity. See id.

Arkansas law provides that when a child alleges that she is the illegitimate offspring of a deceased man and, on that basis, claims the right to share in his estate, she must prove paternity by clear and convincing evidence. McFadden v. Griffith, 647 S.W.2d 432 (Ark. 1983). 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). An Arkansas court would apply the same standard of proof in this case, where the number holder's death has deprived his estate of its most valuable witness. See M~, 647 S.W.2d at 432.

Arkansas courts consider DNA test reports when they make paternity determinations. See Ross v. Moore, 785 S.W.2d 243, 245 (Ark. Ct. App. 1990) ("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"). Indeed, under Arkansas law, the following evidence constitutes a prima facie case of establishment of paternity: (1) testimony from the mother confirming that the putative father had "access" to her during the probable period of conception; and (2) results of DNA testing that demonstrate a 95% or greater probability of paternity. See Ark. Code Ann. § 9-10-108(a)(6)(A) (West 2007).

Here, Cherilyn indicates that the number holder had "access" to her during the probable period of conception. The DNA test results, however, demonstrate an 84.5% probability of paternity, which is considerably less than the 95% probability required to establish paternity in Arkansas. Because the DNA test results do not satisfy the express requirements of section 9-10-108(a)(6)(A), Cherilyn has not established even a prima facie case of paternity. Moreover, aside from her own unsupported allegation that the number holder had access to her during the probable period of conception, Cherilyn has provided no further evidence to substantiate the claim that she filed on Brentley's behalf. Given these facts, an Arkansas court would not find that Cherilyn has clearly and convincingly shown that the number holder was Brentley's father.

In sum, we conclude that the half-sibling DNA test reports are not sufficient to establish that Brentley is the number holder's child under Arkansas law. Until Cherilyn produces evidence that satisfies the requirements of Arkansas law and shows that Brentley is the number holder's child, Brentley cannot receive Social Security survivor benefits on his account.

I. PR 07-037 Arkansas State Law Use of Grandparentage Screening Report to Establish Child Relationship (NH B~)

Date: December 31, 2006

1. Syllabus

The Arkansas statute governing scientific testing of paternity allows testing on the paternal grandparents when a putative father is deceased and allows a court to consider the results of scientific testing that establish a 95 percent or more probability of inclusion to establish paternity. Such testing constitutes clear and convincing evidence as required by statute.

2. Opinion

The purpose of this memorandum is to respond to your request for an opinion on whether a grandparentage deoxyribonucleic acid (DNA) test report may be used to establish a child relationship to a purported father. We believe the grandparentage DNA test report is sufficient evidence to establish that the child is the purported father's biological child.

Savannah was born in Oregon in September, to Angel. No father is named on her birth certificate. On May 20, 2005, Angel filed for surviving child's benefits for Savannah on the account of Benjamin (the number holder) who died in February 2005, while domiciled in Arkansas. The Social Security Administration (Agency) denied Angel's claim, and she did not appeal. On May 2, 2006, Angel filed a second application for surviving child's benefits for Savannah on the number holder's account. With the second application, Angel submitted a DNA test report, which indicated a 99.98 percent probability that the biological son of the paternal grandparents, Carole and Frederick, is Savannah's father. This report was based on DNA testing of Angel, Savannah, Carole, and Frederick, but not on the number holder. Carole stated that the number holder was her only son. Angel stated that she and the number holder never married, but lived together from November 2, 1997, to January 25, 1998, and that they conceived Savannah during this time.

A child can establish eligibility to benefits on a number holder's account in several ways. First, she is eligible if she is entitled to inherit property from the insured person through intestate succession under the laws of the state in which the insured person was domiciled when he died. See 42 U.S.C. § 416(h)(2)(A). Second, if a child is not a number holder's child for purposes of intestate succession, she could establish eligibility as the number holder's natural child if the number holder acknowledged paternity in writing, was decreed by a court to be her father, or was ordered by a court to pay child support. See 42 U.S.C. § 16(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3). Third, she could establish eligibility by showing that a number holder is her natural father by other evidence, such as that she was living with him or that he was contributing to her support. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4). The facts that you presented do not indicate that the number holder acknowledged paternity of Savannah in writing, was decreed by a court to be her father, was ordered by a court to pay child support, lived with her, or contributed to her support. Thus, in order to establish entitlement to benefits on the number holder's account, she must be entitled to inherit property from the number holder under the laws of the state in which the number holder was domiciled when he died. Because the number holder was domiciled in Arkansas at the time of his death, we look to Arkansas law to determine whether Savannah would be entitled to inherit from the number holder. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (b)(4).

An illegitimate child may inherit property from her father, provided that a court of competent jurisdiction has established the paternity of the child or the putative father is obligated to support the child by court order. See Ark. Stat. Ann. § 28-9-209(d)(1). Under Arkansas law, a person who claims to be the illegitimate child of a deceased person must prove paternity by clear and convincing evidence. See Lewis v. Petty, 613 S.W.2d 585 (Ark. 1981).

The Arkansas statute governing scientific testing of paternity allows testing on the paternal grandparents when a putative father is deceased and allows a court to consider the results of scientific testing that establish a 95 percent or more probability of inclusion to establish paternity. See Ark. Code. Ann. § 9-10-108(a)(3)(B) (when a putative father is deceased, a court can order a paternal relative of the putative father, if available and willing, to participate in DNA testing). In this case, the results of genetic testing shows that a biological son of the number holder's parents is estimated to have a probability of paternity of 99.9%. Again, Carole stated that she had no other biological sons.

Other evidence also establishes that the number holder is Savannah's father. For example, Angel submitted a statement that the number holder had access to her during the probable time of conception. See Ark. Code. Ann. § 9-10-108(a)(6)(A) (if DNA typing establishes "… a 95 percent or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony from 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 such proof").

Based upon the evidence you presented, we conclude that, under Arkansas law, the grandparentage report may be used to establish the number holder's paternity.

J. PR 06-177 Arkansas State Law Evidence Requirements to Rebut the Presumption of Paternity of Child (NH B~)

Date: June 29, 2006

1. Syllabus

Under Arkansas law in a case where the number holder signed paternity papers for the children because he was told by the mother that he was the father, subsequent DNA testing showing a 0.0% probability of a parent child relationship is new and material evidence sufficient to rebut the earlier determination the children are the number holder's biological children.

2. Opinion

The purpose of this memorandum is to respond to your request for an opinion on whether a deoxyribonucleic acid (DNA) test that excludes paternity of the father/number holder named on the birth certificate is new and material evidence allowing for the reopening of a prior initial determination that children were eligible for child's benefits on the account of the number holder. The number holder was named as the children's father on their birth certificates. We believe that the DNA test report is sufficient evidence to rebut the presumption that the children are the number holder's biological children. As such, the Agency may reopen the decision that the children are entitled to benefits on the account of the number holder.

Billy (the number holder) is domiciled in Arkansas. Jalquela and Jalquala (the children) were born in January to Angela in Tennessee. The number holder signed paternity papers at the hospital where the children were born because he had been told by Angela that he was their father. The children's birth certificates list the number holder as the father. On August 14, 2001, the number holder filed for Title II disability benefits. While the number holder initially reported that he had no children on his application, a handwritten correction initialed by the number holder indicates that he had three children. In February 2002, Diane, the children's maternal aunt and legal guardian, applied for child's insurance benefits on their behalf on the record of the number holder, and the applications were granted with a date of entitlement of January 2002.

In 2002, the number holder began proceedings to gain custody of the children, after which Diane informed the number holder that he was not their biological father. He then underwent DNA testing. On December 8, 2003, a DNA Parentage Test Report showed that there was 0% probability that the number holder was the children's biological father. In February 2005, the number holder submitted the DNA reports to the Agency in an attempt to stop the children's benefits, but the number holder has taken no steps to have the children's birth certificates amended to show that he is not their biological father.

The child of an individual entitled to old-age or disability benefits is entitled to child's insurance benefits when she has filed for benefits, is under age 18, and was dependent on the disabled individual at the time of the application. See 42 U.S.C. § 402(d)(1); 20 C.F.R. §404.350(a). To determine entitlement as a number holder's child, the Agency first applies the law that would determine devolution of intestate personal property by the courts of the state where the number holder was domiciled at the time the application was filed on behalf of the child. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). If, under state law, a child could take intestate personal property as a number holder's child, she is considered the number holder's child for Social Security benefits purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

If a child is not a number holder's child for purposes of intestate succession, however, she could still establish eligibility as the number holder's natural child if the number holder acknowledged paternity in writing, was decreed by a court to be her father, or was ordered by a court to pay child support. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3). The child could also establish by other evidence that a number holder is her natural father, such as that she was living with him or that he was contributing to her support. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

Because the number holder is domiciled in Arkansas, we first look to Arkansas intestacy laws to determine whether the children would be entitled to inherit from the number holder. Under Arkansas law, a child may inherit property from a man if the man's name appears on the child's birth certificate with his written consent. See Ark. Stat. Ann. § 28-9-209(d). The appearance of the name of the father with his consent on the certificate of birth constitutes a prima facie case of establishment of paternity and the right to inherit property. Once the prima facie case is established, the burden of proof shifts to the putative father to rebut the prima facie case. See Ark. Stat. Ann. § 9-10-108(b).

There is no indication that paternity proceedings have been filed in this case by the number holder to rebut the presumption of paternity. Under Agency regulations, however, even if applicable state inheritance laws require a court determination of paternity, the Agency will not require that a claimant actually obtain such a determination, but will decide the child's paternity by using the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2). While a putative father is living, the legal standard to establish paternity is by a preponderance of the evidence. See Bain v. State, 937 S.W.2d 670, 674 (Ark. Ct. App. 1997). A finding is "against the preponderance of the evidence when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made." Hollinger v. Hollinger, S.W.2d 105, 112 (1999).

Accordingly, we must determine whether the evidence is sufficient to rebut the presumption of paternity by a preponderance of the evidence. Under Arkansas law, when a man is adjudicated as the father of a child without the benefit of scientific paternity testing and, as a result, is ordered to pay child support, he is entitled to one paternity test upon filing a motion challenging the adjudication or acknowledgement of paternity. See Ark. Stat. Ann. § 9-10-115(e)(1)(A). If the scientific test excludes the adjudicated father or the man deemed to be the father pursuant to an acknowledgement of paternity as the biological father of the child, the court will set aside the previous finding or establishment of paternity and relieve him of any future obligation of support and the child will be unable to inherit the man's property through state intestacy laws. See Ark. Stat. Ann. § 9-10-115(f)(1). Further, if the man's name appears on the child's birth certificate, the court will order that the child's birth certificate be amended to delete the name of the putative father. See Ark. Stat. Ann. § 9-10-115(f)(2).

In this case, the number holder obtained a DNA test report, which shows that he is not the children's biological father. The DNA test report rebuts the prima facie establishment of paternity and, as such, the children could not inherit from him through the laws of intestacy. See Ark.Code Ann. § 9-10-115(f).

Although we believe that the children would not inherit property from the number holder under Arkansas intestacy laws, we must look to section 216(h)(3)(B) of the Act to determine whether they could still establish eligibility as the number holder's children. Again, they could establish eligibility if the number holder acknowledged paternity in writing, was decreed by a court to be her father, or was ordered by a court to pay child support. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3).

While the evidence submitted shows that the number holder signed the children's birth certificates and that he signed voluntary acknowledgement of paternity papers, this does not necessarily establish that they are entitled to benefits on his account. The U. S. Court of Appeals for the Eighth Circuit held that a child must first establish a biological relationship before receiving benefits on a deceased number holder's account under 216(h)(3)(C)(i)(I), which is the equivalent to section 216(h)(3)(B)(i)(I) when the number holder is still alive. See Luke v. Bowen, 868 F.2d 974, 978 (8th Cir. 1989). Because the instant DNA report shows that the number holder is not the children's father, his signing of the birth certificates and his acknowledgment of paternity at the time of their birth are not dispositive. And because the DNA report shows conclusively that the number holder is not the children's father, the children are not entitled to benefits on his account.

The children could also establish by other evidence that the number holder is their natural father, such as evidence showing that they were living with him or that he was contributing to their support. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4). Agency regulations define what amounts to contributions of support for child's benefits. See 20 C.F.R. §§ 404.360, 404.366. Although the number holder stated that he had provided support for the children, he did not submit any documentary evidence to support the claim. The standard used in the Act is that the evidence must be "satisfactory to the Commissioner." See 42 U.S. § 416(h)(3)(B)(ii). We find that the evidence presented does not establish that the number holder contributed to the children's support for purposes of entitlement to benefits on his account. Thus, the children are not entitled to benefits on the number holder's account under either section 216(h)(3)(B)(i) or (ii).

Because we conclude that the DNA test report is sufficient evidence to rebut the presumption that the children were the number holder's biological children, the Agency may reopen the decision that the children are entitled to benefits on the account of the number holder.

K. PR 06-119 Arkansas State Law Requirements to Rescind Voluntary Acknowledgment of Paternity (NH R~)

Date: April 25, 2006

1. Syllabus

In Arkansas, DNA testing excluding the number holder as the biological father of the child beneficiary is sufficient to set aside the prior determination of paternity by a preponderance of the evidence. The paternity had previously been established based on the number holder's acknowledgment.

If all SSA rules on reopening are met, the prior award of benefits to the child could be reopened based upon good cause.

2. Opinion

You have requested an opinion regarding whether the evidence in this case, including a deoxyribonucleic acid (DNA) test report, is sufficient to establish that Richard is not entitled to continued auxiliary childhood benefits on the retirement account of Robert, Jr. In our opinion, the evidence shows that Richard is not entitled to inherit property from Robert under the law of intestate succession in Arkansas. Consequently, Richard has failed to show that he is eligible for benefits on Robert's account. For the reasons stated below, the Social Security Administration (Agency) may re-open and deny Richard's application for auxiliary child benefits.

As we understand the facts, Robert is a resident of Arkansas. He began receiving Social Security retirement benefits in July 2000. In October, Crissy gave birth to Richard. Crissy and Robert were never married. Robert reportedly believed that he was Richard's father and signed a paternity statement in which he identified himself as such. Robert is also listed as the father on Richard's birth certificate.

In November 2004, Crissy filed a claim for auxiliary childhood benefits on behalf of Richard. She supported this claim with a copy of the paternity statement that Robert had signed. The Agency used the copy of the paternity statement Crissy provided to adjudicate the claim and began making payments. In June 2005, Crissy became Richard's representative payee. Approximately one month later, Robert requested scientific evidence to verify that he was Richard's biological father.

Robert obtained the scientific evidence that he requested, and a DNA test report, dated July XX, 2005, showed a zero percent probability that Robert was Richard's father. DNA Diagnostics Center in Fairfield, Ohio, tested genetic material from Mr. D~ and Richard. The DNA parentage test report revealed the following:

The alleged father [Robert] is excluded as the biological father of [Richard]. This conclusion is based on the non-matching alleles observed at the loci listed above with a PI [paternity index] equal to zero. The alleged father lacks the genetic markers that must be contributed to the child by the biological father. The probability of paternity is 0%.

Melissa, Ph.D., verified that the interpretation of the test results was correct as reported. Melissa subscribed and swore to the DNA test report before a notary public.

Under section 216(h)(3)(B) of the Social Security Act (Act), a written acknowledgment that a child applicant is a son (or daughter) of an insured individual is sufficient to establish that the applicant is a child of the insured individual irrespective of intestate succession. 42 U.S.C. § 416(h)(3)(B); 20 C.F.R. § 404.355(a)(3) (2005). In the alternative, Section 216(h)(3)(B) of the Act requires that the evidence showing that the insured individual is the father of the applicant be satisfactory to the Commissioner of Social Security. Id.

The Act also provides that to determine whether an applicant is the child of an insured individual, the Commissioner shall apply the law that would be applied to determine the devolution of intestate personal property by the courts of the State in which the insured individual is domiciled. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1). The applicant may be eligible for Social Security benefits as the insured's natural child if the applicant could inherit the insured's personal property under State intestacy law. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). If the insured is living, the Agency looks to the laws of the State where the insured has his or her permanent home when the application is filed. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1).

Arkansas intestate succession law provides that an illegitimate child or his descendants may inherit real or personal property from the father provided that at least one of the following conditions is satisfied:

(1) A court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child pursuant to subsection (a), (b), or (c) of § 28-9-209 of the Arkansas Code;

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

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

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

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

(6) the putative father is obligated to support the child under a written voluntary promise or by court order. Ark. Code Ann. § 28-9-209(d)(1)-(6) (2005).

When a man is adjudicated as the father of a child without the benefit of scientific paternity testing and as a result is ordered to pay child support, he is entitled to one paternity test upon filing a motion, challenging the adjudication or acknowledgment of paternity, in a court of competent jurisdiction. Ark. Code Ann. § 9-10-115(e)(1)(A). In a paternity action, if a party files a motion requesting scientific testing, the court will order that the putative father, mother, and child submit to scientific testing to determine whether or not the putative father can be excluded as the biological father. Id. at § 9-10-108(a)(1). In a paternity action, the scientific test results may be introduced as evidence, if the qualified expert certifies the scientific test results via an affidavit subscribed and sworn before a notary public. See id. at § 9-10-108(a)(5)(A). If the scientific test excludes the adjudicated father or man deemed to be the father (putative father) pursuant to an acknowledgment of paternity, and the court finds that he is not the biological father of the child, the court will set aside the previous finding or establishment of paternity and relieve the putative father of any future obligation. Id. at § 9-10-115(f)(1). If the court finds that the putative father is excluded as the biological father and the man's name appears on the child's birth certificate, the court shall order that the child's birth certificate be amended to delete the name of the putative father. Id. at § 9-10-115(f)(2).

Agency regulations provide that if applicable State inheritance laws require a court determination of paternity, the Agency will not require that a claimant actually obtain such a determination, but will decide the child's paternity by using the standard of proof that the state court would use as the basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2). While the putative father is living (as in this case), the legal standard in Arkansas is by a preponderance of the evidence. Erwin L.D. v. Myla Jean L., 847 S.W.2d 45, 47 (Ark. Ct. App. 1993).

The Agency may reopen and revise a determination or a decision made in a claimant's case. 20 C.F.R. § 404.987. The Agency may reopen a determination or decision within four years of the date of the notice of the initial determination if the Agency finds good cause to reopen the case. Id. at § 404.988(b). The Agency will find that there is good cause to reopen a determination or decision if new and material evidence is furnished, or the evidence that was considered in making the determination or decision clearly shows on its face that an error was made. Id. at § 404.989.

As previously discussed, under section 216(h)(3)(B) of the Act, a written acknowledgment that a child applicant is a son (or daughter) is sufficient to establish that the applicant is a child of the insured irrespective of intestate succession. 42 U.S.C. § 416(h)(3)(B); 20 C.F.R. § 355(a)(3). Alternatively, section 216(h)(3)(B) of the Act requires that the evidence showing that the insured individual is the father of the applicant should be satisfactory to the Commissioner of Social Security. Id. Consistent with the requirements of the statute, the Agency awarded Richard benefits based on Robert's written acknowledgment that he was Richard's father. However, subsequent scientific evidence showed the Agency that the Robert was not Richard's father. The new evidence does not comply with the alternative section of 216(h)(3)(B), which requires that the evidence showing the insured is the father of the applicant must be satisfactory to the Commissioner of Social Security, because the scientific evidence excluded Robert as Richard's biological father. Therefore, Richard currently does not meet the requirements for benefits under 42 U.S.C. § 416(h)(3)(B).

You request an opinion regarding whether any State court determination of paternity is required prior to reopening and denying Richard's application. As previously noted, the Agency may reopen Richard's case without any State court determination of paternity. The Agency regulations require only that the Agency decide Richard's paternity by using the same standard of proof that the State court would use as the basis for a determination of paternity. Robert's permanent home was in Arkansas when Crissy filed the claim for auxiliary childhood benefits on Richard's behalf. Therefore, the Agency must look at Arkansas law to determine whether Richard could inherit Robert's personal property under the Arkansas intestacy law.

Robert initially signed a statement of paternity acknowledging that he was Richard's father, without having scientific evidence to support his statement. Robert subsequently underwent DNA testing to verify his biological relationship to Richard.

The DNA Diagnostic Center in Fairfield, Ohio, tested genetic material from Robert and Richard and found that there was a zero percent probability that Robert was the biological father of Richard. Under Arkansas law, in a paternity action, the court orders the putative father, mother, and child submit to scientific paternity testing, including DNA testing, to determine whether or not the putative father can be excluded as being the biological father of the child. Ark. Code Ann. §§ 9-10-108 (a)(1). Arkansas law requires that a court appointed expert prepare the DNA test and the resulting report, and that submission of affidavits subscribed and sworn before a notary public, along with the submission of test results, be introduced in evidence in paternity actions without calling the expert as a witness. Id. at §§ 9-10-108 (a)(4)-(a)(5)(A). However, these requirements apply to paternity actions before a State court, not necessarily to voluntary actions by the parties outside of a judicial paternity proceeding.

In this case, Melissa signed, subscribed, and swore to the DNA test results before a notary public, consistent with the requirements of Arkansas law. There is no evidence that anyone objected to the testing, or that anyone objected to using the DNA Diagnostic Center, to conduct the DNA testing. Therefore, we conclude that the DNA laboratory report from DNA Diagnostic Center would substantially comply with Ark. Code Ann. § 9-10-108, and would be admissible under Arkansas law. See Bain v. State, 937 S.W.2d 670, 673 (Ark. Ct. App. 1997) (DNA laboratory report that substantially complied with state law was admissible to establish paternity).

Once the paternity testing excludes the man deemed to be the father pursuant to an acknowledgment of paternity as the biological father of the child, the court shall set aside the previous establishment of paternity and relieve him of any future obligation of support as of the date of the finding. Ark. Code Ann. § 9-10-115(f)(1). If the name of the man deemed to be the father pursuant to an acknowledgment of paternity appears on the birth certificate of the child, the court shall issue an order requiring the birth certificate to be amended to delete the man's name. Id. at § 9-10-115(f)(2).

Robert has not taken legal action to set aside the previous establishment of paternity and has not taken action to amend Richard's birth certificate to delete his name as Richard's father. However, Agency regulations provide that if applicable State inheritance laws require a court determination of paternity, the Agency will not require that a claimant actually obtain such a determination, but will decide the child's paternity by using the standard of proof that the State court would use as the basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2). Thus, the Agency can determine Richard's relationship to Robert without an actual court determination of paternity.

Since Robert is presently living, the legal standard to determine the paternity action is by a preponderance of the evidence. Erwin L.D, 847 S.W.2d at 47. We conclude that the results of DNA testing, which exclude Robert as being the biological father of Richard, meet the legal standard under Arkansas law required to set aside the previous establishment of paternity. Based on the DNA test results, Robert’s written acknowledgment of paternity would be set aside by the State court, and the State court would order that Richard's birth certificate be amended to delete Robert's name as being Richard's father. As a result, Richard does not meet any of the requirements to inherit Robert's personal property under the Arkansas intestacy law. Ark. Code Ann. § 29-9-209(d).

We conclude that the results of the DNA test provide the Agency with good cause to reopen Richard's case. Therefore, the Agency may reopen Richard's case, without any State court determination of paternity, to deny Richard's application for auxiliary child benefits.

L. PR 04-342 Arkansas State Law - Establishment of Paternity Based Upon Birth Certificate, NH M~

Date: September 23, 2004

1. Syllabus

In a case where the number holder was domiciled in Tennessee at the time of his death, but the birth certificate submitted to establish a relationship between the claimant and that number holder was issued in another state in which the claimant was still domiciled, Tennessee courts would defer to that other state's law under the doctrine of "most significant relationship".

In Arkansas, a claimant's birth certificate showing the deceased number holder as the father is not sufficient to establish acknowledgement of paternity without evidence that the number holder provided written consent for his name to be placed on the birth certificate as required by state law.

2. Opinion

The purpose of this memorandum is to respond to your request for a legal opinion regarding whether an Arkansas birth certificate listing the putative father's name is sufficient to establish evidence of paternity, absent written consent of the purported father to have his name to appear on the certificate as required by State law. According to information supplied with your request for an opinion, the number holder Maurice died on August XX, 2003, while domiciled in Tennessee. Three days prior to his death, on August XX, 2003, Maurice filed a claim for disability insurance benefits under Title II of the Social Security Act (the Act). 42 U.S.C. § 423(d)(1)(A). On that disability claim, Maurice acknowledged Demarcus as his only child. On September 22, 2003, a claim for child's insurance benefits under the Act was filed on behalf of Heaveney on Maurice's earning's record. According to a certified copy of the Arkansas birth certificate, Heaveney was born in West Memphis, Arkansas, on November. The birth certificate lists Evette as the child's mother, and Maurice as the child's father. Evette and Maurice never married.

Your request for an opinion states that the Arkansas birth certificate was the only evidence submitted to establish the child relationship. Apparently the claim was initially allowed. However, you have now requested a legal opinion given the fact that the Arkansas birth certificate does not list whether Maurice gave his written consent to have his name placed on the birth certificate as Heaveney's father. Based upon the reasons discussed herein, it is our opinion that no evidence has been provided with your request for a legal opinion demonstrating that Maurice gave his written consent to place his name on Heaveney's birth certificate as the putative father as required by State law. Therefore, the fact that Maurice‘s name appears on the birth certificate cannot by itself serve as written acknowledgement of paternity.

To be considered the insured person's natural child for purposes of entitlement to Social Security benefits under section 216(h)(2) of the Act one of the following conditions must be met: (1) the child would be entitled to inherit through intestate succession under the laws of the state in which the insured person was domiciled when he died; or (2) the parents of the child went through a marriage ceremony which did not create a valid marriage because of a legal impediment. 42 U.S.C. § 416(h)(2)(A) and (B). However, an applicant who is not deemed to be the child of the insured under section 216(h)(2) of the Act shall nevertheless be deemed to be the child of the insured under section 216(h)(3) of the Act if: (1) prior to the death of the insured individual, he acknowledged the child in writing, had been decreed by a court to be the father of the child, or had been ordered to contribute to the support of the child because of paternity; or (2) the insured person is shown by satisfactory evidence to be the father of the child and was living with the child or contributing to the child's support at the time such insured individual died. 42 U.S.C. §§ 416(h)(3)(C)(i) and (ii).

If the insured is deceased, the Social Security Administration will apply the law on inheritance rights in the state where the insured individual had his permanent home when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(b)(1) and (b)(4) (2004). In this case, the evidence indicates that the deceased number holder was domiciled in Tennessee; therefore, Tennessee intestacy law would normally apply. Id. However, on July 29, 2004, the Regional Office of the General Counsel in Atlanta issued a legal opinion where they concluded that under the "most significant relationship" doctrine, Tennessee courts would determine that the birth status of Heaveney, and whether Maurice‘s name was properly placed on the birth certificate, would be governed by Arkansas State law since both Maurice and Evette were living in Arkansas at the time of Heaveney's birth.

As our Office has previously concluded that, since February 19, 1981, under Arkansas law, if the mother was not married at the time of conception or birth, or anytime between conception and birth, the name of the father shall not be entered on the birth certificate without written consent of the mother and the person to be named as the father. See OGC legal opinion No. 99-163, entitled "Establishing Precedents for Using Information from Child's Birth Certificate as Written Acknowledgment or Proof of Court Order of Paternity," dated November 20, 2000 (reviewing prior Ark. Code Ann. § 20-18-401(e)(2)(1981) and Ark. Code Ann. § 20-18-401(f)(2) (Repl. 2000)). Additionally, we also stated that in any case where the paternity of the child is determined by a court of competent jurisdiction, the name of the father shall be entered on the birth certificate in accordance with the findings and order of the court. Id. A review of the relevant statute at issue shows no major changes from our prior November 2000 opinion.

The method to obtain consent of the mother and putative father is governed through the use of paternity affidavits. See Ark. Code Ann. § 20-18-408 (current through the end of the 2003 Second Extraordinary Sess). Under this statute, "[u]pon the birth of a child to a woman that was unmarried at the time of either conception or birth or between conception and birth, the person responsible under § 20-18-401 for providing birth registration information shall . . . provide an opportunity for the child's mother and natural father to complete an affidavit acknowledging paternity, to include such information as is required by the court to establish paternity and establish child support obligation, and to be filed with the Division of Vital Records of the Department of Health." Ark. Code Ann. § 20-18-408(1). However, prior to signing the affidavit, the mother and natural father must be provided written information explaining the implications of signing the affidavit and their resulting parental rights and responsibilities. Ark. Code Ann. § 20-18-408(2).

Our Office could only find one case which discussed the relevant Arkansas statutory section at issue. In 2001, the Arkansas Court of Appeals reversed a Chancery Court's decision to amended a divorce decree entered 14 months prior to reflect, in part, that the appellant was not the child's biological father when paternity was not even at issue in the original divorce proceeding. See Slusher v. Slusher,, 73 Ark.App. 303, 306-07, 43 S.W.3d 189, 191-92 (Ark.Ct.App. 2001). While the court reversed the case primarily because the lower court had amended the judgment outside of the permissible time period specified under the Arkansas rules of civil procedure; nevertheless, in a concurring opinion the honorable Judge Neal stated that:

In this state, if the mother of a child is not married at the time of either conception or birth, the name of the father is not to be entered on the child's birth certificate unless the mother and the putative father sign an affidavit of paternity. [citing to Ark. Code Ann. § 20-18-401(f)(2)]. Prior to signing the affidavit, the mother and natural father are given written information explaining the implications of signing the affidavit and their resulting parental rights and responsibilities. [citing to Ark. Code Ann. 20-18-408(2)]. Once the mother and the putative father execute an acknowledgement of paternity pursuant to section 20-18-408, the man executing the document is the father of the child for all intents and purposes and the acknowledgements, by operation of law, constitute a conclusive finding of paternity. Id.

Applying these principles to the facts of this case, it is our opinion that the proper State law procedure for placing Maurice‘s name on the birth certificate was not followed. Since Heaveney was born in Crittenden Memorial Hospital, it was the responsibility of hospital personnel to obtain the required consent through a paternity affidavit from both the mother and putative father before placing Maurice‘s name on the birth certificate. See Ark. Code Ann. §§ 20-18-401(b), 20-18-408. While State law provides that both the paternity affidavit and birth certificate are to be filed with the Division of Vital Records of the Department of Health, it seems likely that Crittenden Hospital personnel would have also kept a copy of such existing documentation. Id. However, no documentation supporting the existence of the paternity affidavit, thus establishing the putative father's consent to have his name placed on the birth certificate, has been provided. Therefore, the fact that Maurice‘s name appears on the birth certificate cannot by itself serve as written acknowledgement of paternity.

M. PR 04-289 (Arkansas) Arkansas State Law Acceptability of Evidence to Rebut the Presumption of Legitimacy, NH S~

Date: July 20, 2004

1. Syllabus

Under Arkansas law, where a child seeks to establish paternity that will also result in rebutting of the presumption of legitimacy, paternity, the evidence submitted must be clear and convincing. In this case, the evidence consists of DNA tests showing a 99.8 percent probability of the NH's paternity, voluntary statements from the child's mother and the NH acknowledging paternity, an uncontested divorce decree stating that no children were born of the mother's marriage, and the fact that no child support was ordered by the court. The clear and convincing evidence standard is met, and the child may be entitled based on the NH's record.

NOTE: POMS GN 00306.425 is being revised to reflect that in life cases, not involving the presumption of legitimacy, the standard of proof of paternity is a preponderance of the evidence.

2. Opinion

The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of Garrett to auxillary childhood benefits on the disability account of Steven under Title II of the Social Security Act (the Act). Steven has been entitled to disability insurance benefits under the Act since March 1998. Garrett was born in June, during the marriage of Lana and Roger. Roger is listed on Garrett's birth certificate as the father. They divorced in 1991. On March 28, 2003, Lana filed a childhood disability claim on behalf of Garrett claiming that he is the biological son of Steven. She also wanted to be selected as the representative payee for Garrett.

Evidence supporting Garrett's claim includes deoxyribonucleic acid (DNA) testing between the putative father and claimant establishing a 99.8 percent probability of Steven's parentage, voluntary statements from both Steven and Lana acknowledging that Garrett is their biological son, a 1991 uncontested divorce decree between Lana and Steven stating that no children were born of their marriage, and the fact no child support was ordered by the court. Specifically, you asked whether, under Arkansas law, this evidence is sufficient to rebut the presumption of legitimacy accorded to Garrett because he was born of the marriage between Lana and Steven. After reviewing the facts and the relevant law, as detailed more fully below, it is our opinion that this evidence is sufficient to overcome the presumption of Garrett's legitimacy by clear and convincing evidence, despite the fact that Steven was listed on Garrett's birth certificate as his father. Consequently, Garrett would be entitled to auxillary childhood benefits on the disability account of Steven.

If the insured is living, the Social Security Administration will apply the law of the State where the insured individual had his permanent home when the application for benefits was filed. 20 C.F.R. §§ 404.355(b)(1), (b)(3) (2003). In this case, the evidence indicates that the number holder is domiciled in Arkansas; therefore, Arkansas law applies. Id.

Arkansas recognizes that a child born during a marriage is presumed legitimate. Ark. Code Ann. § 16-43-901(d) (1987, current through 2003 Reg. Sess.). This is one of the most "powerful presumptions" in Arkansas law. See R.N. v. J.M. and B.M., 347 Ark. 203, 213, 61 S.W.3d 149, 155 (Ark. 2001). This presumption may only be overcome by clear and convincing evidence to the contrary. Ark. Code Ann. § 16-43-901(d). Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. See Black's Law Dictionary at 577 (7th ed. 1999). It is more than preponderance of the evidence and is the highest civil standard in the law. Id.

The trial court is required to consider foremost the interests of the child before taking any evidence to include ordering paternity tests or accepting testimony from the litigants due to the potential social consequences. See Ark. Code Ann. § 16-43-901(g)(2).²¹ The trial court may order the biological mother, her husband, the putative father, and the child to submit to scientific examinations or tests as provided under the Arkansas general paternity testing statute. See Ark. Code Ann. § 16-43-901(e)(1) (referencing Arkansas general paternity testing statute at § 9-10-108 (1987, current through 2003 Reg. Sess.)). ²² Additionally, the results of scientific testing or examination are admissible as provided under § 9-10-108 of the Arkansas Code. See Ark. Code Ann. § 16-43-901(e)(2).

Under the Arkansas general paternity testing statute, the results of a paternity test establishing a 95 percent or more probability of paternity, along with some corroborating testimony from the mother regarding "access" during the probable period of conception, as well as the birth and history of the child constitutes a prima facie case of establishment of paternity. See Ark. Code Ann. §§ 9-10-108(a)(6)(A)and(B). While the putative father is living, the legal standard to establish paternity under this statute is by a preponderance of the evidence and, by contrast, if the putative father is deceased the standard is by clear and convincing evidence (reference: our legal opinion No. 02-960, NH Lee , dated December 13, 2003). See McFadden v. Griffith, 647 S.W.2d 432, 432-33 (Ark. 1983); Ross v. Moore, 758 S.W.2d 423, 424 (Ark. Ct. App. 1988). After the prima facie case is met, the burden of proof shifts to the putative father to rebut the evidence. Id. In this case, the putative father has apparently accepted the validity of the evidence.

The standards for establishing paternity under the Arkansas general paternity statute should not be confused with the clear and convincing standard necessary to overcome the presumption of legitimacy for a child born during a marriage as found under § 16-43-901(d) of the Arkansas code. See R.N. v. J.M. and B.M., 347 Ark. at 214 (the Arkansas Supreme Court indicated that the clear and convincing standard applies in cases where the challenging party seeks to establish paternity that also results in the rebutting of the presumption of legitimacy). Therefore, in those cases where a putative father seeks to establish paternity that will also result in the rebutting of the presumption of legitimacy, he must prove his case by the higher clear and convincing standard. Id.

Applying these principles to the facts of this case, it is our opinion that the evidence is sufficient to overcome the presumption of Garrett's legitimacy by clear and convincing evidence, despite the fact that Steven was listed on Garrett's birth certificate as his father. In a DNA parentage report dated February 27, 2002, DNA Diagnostics Center determined that the probability Steven is Garrett's biological father was 99.8 percent. Additionally, in a signed but undated statement, Steven acknowledged that he was having an affair with Lana during the period of conception, and had voluntarily consented to the DNA parentage test "… to prove Garrett was actually my biological child."_²³ See SSA Form 795 ("Statement of Claimant or Other Person"). In a signed statement, Lana stated that she always believed that Garrett was the biological son of Steven as opposed to her ex-husband Steven See SSA Form 795 ("Statement of Claimant or Other Person" dated March 28, 2003).

SSA field office attempts to contact Roger have proven unsuccessful. See SSA Form 5002 ("Report of Contact" dated May 20, 2003). However, a review of the divorce documents between Lana and Steven revealed that while the initial December 14, 1990, complaint listed Garrett as their son, the final uncontested divorce decree dated January 22, 1991, stated that no children were born during their marriage. Furthermore, no child support was ordered by the court in the divorce decree. In our view, the uncontested divorce decree stating that no children were born during the marriage, as well as the fact no child support was ordered by the court, serves as Steven's constructive acknowledgement that Garrett was not his son.

The fact that Roger was listed on Garrett's birth certificate as his biological father is not determinative for our purposes. The general paternity testing statute in Arkansas states that the appearance of the name of the father with his consent on a birth certificate shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father (Steven) to rebut such in a proceeding for paternity establishment. See Ark. Stat. Ann § 9-10-108(b). Here the putative father has acknowledged, and DNA testing confirms, that he is the biological father of Garrett. We believe the previously discussed evidence supporting the conclusion that Garrett is Steven's biological son is sufficient to overcome the presumption of legitimacy by the clear and convincing standard. Such evidence would also be sufficient to overcome the prima facie case established by Roger's name having been listed as Garrett's father on the child's birth certificate. Id.

Additionally, we believe that Roger's name may have been placed on the birth certificate primarily as a record keeping or ministerial function. Under Arkansas law, if the mother is married at the time of either conception or birth, or between conception and birth, the husband's name "shall be" entered on the birth certificate as the father of the child unless (1) paternity has been determined otherwise by a court of competent jurisdiction, or (2) the mother, husband, and putative father all execute affidavits attesting to the proper parentage of the child. See Ark. Code Ann. § 20-18-401(f)(1)(A)and(B) (1987, current through 2003 Reg. Sess.). Furthermore, state law requires that the State Registrar of Vital Records issue a new birth certificate and seal the old one if a court of competent jurisdiction later determines the proper parentage of the child. See Ark. Code Ann. § 20-18-406.

Based upon the foregoing, it is our opinion that the evidence submitted with Garrett's auxillary claim for childhood benefits overcomes by clear and convincing evidence the presumption of legitimacy accorded to Garrett because he was born of the marriage between his mother and Roger. Evidence supporting Garrett's claim include:

(1) DNA testing between the putative father and claimant establishing a 99.8 percent probability of Steven's parentage;

(2) voluntary statements from both Steven and Lana acknowledging that Garrett is their son;

(3) the 1991 uncontested divorce decree between Lana and Roger that stated no children were born of their marriage; and

(4) the fact no child support was ordered by the court. Consequently, Garrett would be entitled to auxillary childhood benefits on the disability account of Steven.

N. PR 00-068 Entitlement to Child's Benefits Based on DNA Testing in Arkansas—O~ (Re-Issued based on new POMS provision)

Date:

1. Syllabus

SSA may rely on DNA blood test results done on the child, the deceased worker's mother, and the deceased worker's father, establishing a 99.97% probability that the worker was the father of the child, to find the child entitled to benefits based on the worker's record. The child can be awarded benefits only from the date of the DNA testing.

2. Opinion

We are responding to your request for our opinion as to the applicability of Arkansas' 180-day time limitation for establishing inheritance rights for an illegitimate child, and your question regarding retroactive award of benefits. Specifically, a child's mother has submitted results of DNA (deoxyribonucleic acid) blood testing done on the child, a deceased worker's mother, and the deceased worker's father. These test results established a 99.97% probability that the insured worker was the father of the child. For the reasons set forth below, we believe that the Social Security Administration (SSA) should decline to apply the Arkansas 180-day time limit and may rely on the DNA evidence to find the child entitled to benefits on the deceased worker's earnings record. Further, the child can be awarded benefits only from the date of the DNA testing which established his paternity.

The child in question, Gregory, was born on February. The insured worker, Otis, died on February XX, 1979, in Arkansas. Lillie, Gregory's mother, filed an application for surviving child's insurance benefits on behalf of Gregory on February 21, 1980, alleging that Gregory was the child of Otis . She submitted a statement from Gladys, Otis's mother. In this letter, Gladys stated that Lillie and Otis had dated for a long period of time and had planned to marry, and that Otis gave Lillie money during her pregnancy. SSA denied the claim on April 2, 1980. SSA reviewed the case for compliance with the agreed order in Boatman v. Schweiker in January 1982 and again denied the claim. Lillie filed a second application for benefits on March 22, 1991, alleging regular support from Otis. This claim was initially dismissed on June 13, 1991 as a duplicate of the prior claim, and the decision was upheld on reconsideration on July 19, 1991. An administrative law judge upheld the decision on April 24, 1992, and the Appeals Council issued a decision on July 16, 1993, that the evidence did not establish that Gregory was the child of Otis.

On November 16, 1996, with a protective filing date of February 29, 1996, Lillie submitted a new application for benefits on behalf of Gregory. With this application, she submitted a DNA test performed by Laboratory Corporation of America (LabCorp) of Burlington, North Carolina. LabCorp performed DNA testing of Gregory, his paternal grandmother, and his paternal grandfather on November 6, 1996. The test results concluded as follows:

The alleged paternal grandparents, Gladys and Roger, could not be excluded as the biological grandparents of the child, Gregory, since they share genetic markers. Using the genetic markers found in the testing of the alleged biological grandparents, their biological son is estimated to have a probability of paternity of 99.97%, as compared to an untested, unrelated man of the North American Black population.

For the reasons discussed below, we believe that SSA can rely on these DNA test results to find that Gregory is the child of Otis, and is therefore entitled to surviving child's insurance benefits on his account.

Section 216(h)(2)(A) of the Social Security Act (the Act) directs the Commissioner, when determining whether an applicant for surviving child's benefits is the child of a deceased worker who died fully insured, to apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. 42 U.S.C. §416(h)(2)(A). See also 63 Fed. Reg. 57590, 57593 (October 28, 1998) (to be codified at 20 C.F.R. §404.355(b)). Otis had his permanent home in the State of Arkansas at the time he died.

Under current Arkansas law, a child may inherit property from his natural father if:

(1) a legal action is commenced or a claim is asserted against the estate of the father in a court of competent jurisdiction within 180 days of the death of the father, and

(2) a court of competent jurisdiction has established the paternity of the child. Ark. Stat. Ann. §28-9-209. Scientific testing, including DNA and blood testing, in the form of a written report 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 a notarized affidavit, may be introduced in evidence in paternity actions without calling the expert as a witness. Ark. Stat. Ann. §9-10-108(5)(A). After 1981, if the tests establish a 95% or more probability of inclusion that the alleged father is the biological father of the child, after corroborating testimony concerning the conception of the child, the test constitutes prima facie proof of paternity, and the burden shifts to the alleged father or other party denying paternity to rebut such proof. Ark. Stat. Ann. §9-10-108(6). Thus, under Arkansas law, the DNA test showing a 99.97% probability that Otis was Gregory's father, together with Lillie's statements regarding Gregory's conception, constitutes prima facie proof of paternity which has not been rebutted.

SSA regulations state that an individual is eligible for benefits as the natural child of an insured worker if one of the following conditions is met:

(a) The individual could inherit the personal property of the insured worker as a natural child under State inheritance laws as discussed in 20 C.F.R. §404.355(b).

(b) The individual is the insured worker's natural child, and the insured worker and the individual's mother or father went through a marriage ceremony that would have been valid but for the existence of a legal impediment.

(c) The individual is the insured worker's natural child, and the insured worker has acknowledged the individual as such in writing, has been decreed by a court prior to the insured worker's death to be the individual's natural parent, or has been ordered to contribute to the support of the individual due to a parent/child relationship.

(d) The individual is able to produce other evidence that demonstrates that the insured worker is the individual's natural parent. In such a case, the individual must demonstrate that the insured worker was either living with the individual or contributing to his or her support at the time of application or when the insured worker died.

See 63 Fed. Reg. 57590, 57593 (October 28, 1998) (to be codified at 20 C.F.R. §404.355). SSA regulations direct the Agency to decline to apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker's death or the child's birth, or that an action to establish paternity must have been started or completed before the worker's death. 63 Fed. Reg. 57590, 57593 (to be codified at 20 C.F.R. §404.355(b)(2)). Although the revised regulations refer to "an action to establish paternity," it is clear from the preamble that the intent of this provision was to avoid the application of any State law which imposes a time limit on proof of an illegitimate child's status for purposes of inheritance rights. The preamble states:

Many 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 provide in these final regulations that 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 serve the interests of the children Congress sought to protect when it enacted section 216(h)(2)(A) of the Act.

63 Fed. Reg. 57590, 57591 (October 28, 1998). It thus appears from the language in the preamble to revised 20 C.F.R. §404.355(b)(2) that the drafters' intent was to avoid SSA's application of any State law which imposes a time limit on illegitimate children relative to establishing inheritance rights. The admitted purpose of the Arkansas 180-day time limitation is to prevent spurious claims against intestate estates and to maintain a prompt and accurate method of distributing an intestate's property. Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800, 801 (1988). This is not the purpose of surviving child's insurance benefits under the Social Security Act. See Mathews v. Lucas, 427 U.S. 495, 507, 96 S.Ct. 2755, 2763, 49 L.Ed.2d 651 (1976) (child's insurance benefits are intended to replace support lost by a child when his or her parent dies). We believe that Gregory could be considered to be the natural child of Otis under the requirements of 42 U.S.C. §416(h)(2)(A) and 20 C.F.R. §§404.354 and 404.355, because, but for the Arkansas 180-day time limitation on establishing inheritance rights for an illegitimate child, Gregory could inherit Otis's personal property under Arkansas law.

An additional reason for awarding benefits to the claimant is that it is likely that the 180-day time limitation as applied in this case violates the United States Constitution. Pursuant to SSA policy and a recent Supreme Court decision, SSA is required to determine, at least in some circumstances, whether a State intestacy statute is constitutional before applying it to determine entitlement to Social Security benefits. See Lawrence v. Chater, U.S., § 116 S.Ct. 604, 133 L.Ed.2d 545 (1996). See also Mathews v. Lucas, 427 U.S. at 515 n.18, 96 S.Ct. at 2767 n.18, 49 L.Ed.2d 651; Cox v. Schweiker, 684 F.2d 310, 317 (5th Cir. Unit B 1982) (the structure and language of 42 U.S.C. 416(h)(2)(A) makes relevant the issue of the constitutionality of a particular state law). Thus, we conduct such a review below.

Laws which subject persons to different treatment based on legitimacy are given a standard of review that is more exacting than a rational relations test, but not as stringent as a strict scrutiny review. Trimble v. Gordon, 430 U.S. 762, 767, 97 S.Ct. 1459, 1463, 52 L.Ed.2d 31 (1977). The test is whether the discriminatory law bears "an evident and substantial relation to the particular state interests the state statute is designed to serve." Lalli v. Lalli, 439 U.S. 259, 266, 268, 99 S.Ct. 518, 523-24, 58 L.Ed.2d 503 (1978). See also Mills v. Habluetzel, 456 U.S. 91, 99-100, 102 S.Ct. 1549, 1554, 71 L.Ed.2d 770 (1982) (classification must be substantially related to a legitimate state interest). As noted above, while the Arkansas 180-day limitation may bear a rational relationship to the state interest it is designed to serve, e.g. preventing spurious claims and promptly distributing an intestate's property, it does not bear any rational relationship to the SSA's interest in replacing support lost by a child when a parent dies. See Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d at 801; Mathews v. Lucas, 427 U.S. at 507, 96 S.Ct. at 2763, 49 L.Ed.2d 651.

In M~, the Supreme Court held that the period of time during which an order of paternity will serve to establish a right to support must be of sufficient duration to present a reasonable opportunity for interested persons to assert their claims. 450 U.S. at 99-100, 102 S.Ct. at 1554-55. In the M~ decision, the Supreme Court stated that the factual differences between inheritance rights cases and support rights cases do not call for a variation in the general principle of equal protection. Id. at 99 n.5, 102 S.Ct. at 1555 n.5. In M~, the Supreme Court ultimately held that a Texas law requiring that a paternity action be brought before the child reaches one year old denied illegitimate children equal protection because it failed to provide them with an adequate opportunity to obtain support. Id. at 100, 102 S.Ct. at 1555, 71 L.Ed.2d 770. Addressing the state interest in preventing the prosecution of stale or fraudulent claims, the Court stated, "We can conceive of no evidence essential to paternity suits that invariably will be lost in only one year, nor is it evident that the passage of 12 months will appreciably increase the likelihood of fraudulent claims." Id. at 101, 102 S.Ct. at 1555, 71 L.Ed.2d 770. Subsequently, the Supreme Court held that a six-year statute of limitation for suits to establish paternity violated the Equal Protection Clause to the Constitution. Clark v. Jeter, 486 U.S. 456, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988).

In the J~ case, the Supreme Court reaffirmed the framework it had previously established for evaluating equal protection challenges to statutes of limitations that apply to suits to establish paternity, and thereby limit the ability of illegitimate children to obtain support:

First, the period for obtaining support . . . must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf. Second, any time limitation placed on that opportunity must be substantially related to the State's interest in avoiding the litigation of stale or fraudulent claims.

J~, 486 U.S. at 461-62, 108 S.Ct. at 1914 (citing M~). In J~, the Court held that Pennsylvania's six-year statute of limitations violated the Equal Protection Clause because even six years does not necessarily provide a reasonable opportunity to assert a claim on behalf of an illegitimate child. The Court noted that the difficulties to establishing paternity enumerated in Justice’s concurring opinion in M~, including the mother's relationship with the father of the child, the emotional strain of having an illegitimate child, and the desire to avoid community and family disapproval, may continue years after the child is born and are not likely to abate in six years. J~, 486 U.S. at 463, 108 S.Ct. at 1915, 100 L.Ed.2d 465. The Court concluded that it was questionable whether the six-year statute of limitations was reasonable, but grounded its decision on its finding that the six-year statute of limitations was not substantially related to Pennsylvania's interest in avoiding the litigation of stale or fraudulent claims. In so finding, the Court observed that the Pennsylvania Legislature had recently enacted a statute tolling most other civil actions during a child's minority, as had the Legislature at the time M~ was decided. J~, 486 U.S. at 464, 108 S.Ct. at 1915-16, 100 L.Ed.2d 465. Moreover, the inclusion in the Federal Child Support Enforcement Amendments of an 18-year statute of limitations for paternity and support actions is further evidence that a longer statute of limitations does not encourage the litigation of fraudulent claims. See 42 U.S.C. §666(a)(5) (1982 ed., Supp. IV). Indeed, the State of Arkansas permits a legal action to establish paternity to be brought at any time. Ark. Stat. Ann. §9-10-102(b).

Based on our review of relevant Supreme Court caselaw, we believe that the Arkansas statute's 180-day limitation for establishing inheritance rights for illegitimate children, as applied to determine entitlement to Social Security benefits, violates the Equal Protection Clause because it is not sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf, and it is not substantially related to the SSA's interest in replacing support lost by a child when his or her parent dies. In the claim at issue, Gregory was born in February. Otis died on February XX, 1979. Thus, under Ark. Stat. Ann. 28-9-209, any claim against Otis's estate by an illegitimate child was required to be brought by July 8, 1979, when Gregory was less than six months old. Based on the caselaw discussed above, we believe it is clear that a six-month time limitation is not sufficiently long in duration to present a reasonable opportunity to assert a claim on behalf of an illegitimate child. Therefore, SSA should decline to apply the 180-day limitation to the claim for surviving child's benefits filed on behalf of Gregory, and could rely on the DNA evidence to find Gregory entitled to benefits on the account of Otis .

You also asked us to provide an opinion as to whether Gregory could be awarded benefits back to his date of birth based on his initial application, or whether an award of benefits could be made only from the retroactive period of the most recent application filed on his behalf. A recently issued section of the Program Operations Manual System (POMS) states that a provision of State law conferring inheritance rights but not legitimacy, based on an adjudication of paternity, generally has effect only from the date of the piece of evidence which satisfies the applicable standard of proof, e.g. blood test results. See POMS GN 00306.055(A)(3). The DNA test results finding a 99.97% probability that Gregory is the child of Otis are dated November 6, 1996. Gregory's most recent application for surviving child's insurance benefits was filed on November 16, 1996, with a protective filing date of February 29, 1996. This POMS provision is consistent with Social Security regulations, which provide that a claimant who files an application for benefits before the first month he meets the requirements for entitlement may receive benefits from the first month he meets all the requirements. 20 C.F.R. §404.620(a)(1). Thus, if Gregory is found entitled to child's benefits, he can be awarded benefits only from November 6, 1996, the date of the DNA testing which established his paternity.

In conclusion, we believe that the intent of the revisions to 20 C.F.R. §404.355(b) found at 63 Fed. Reg. 57590 is to avoid SSA's application of State laws which impose a time limit on illegitimate children relative to establishing inheritance rights. Moreover, we believe that the Arkansas statute's 180-day limitation for establishing inheritance rights for illegitimate children, as applied to determine entitlement to Social Security benefits, violates the Equal Protection Clause. Therefore, SSA should decline to apply the 180-day limitation to the claim for surviving child's benefits filed on behalf of Gregory , and could rely on the DNA evidence to find Gregory entitled to benefits on the account of Otis . Further, it is our opinion that Gregory can be awarded benefits only from November 6, 1996, the date of the DNA testing which established his paternity.

Footnotes:

[1]

^. It appears that you also ask whether the agency could have deemed E~ to be the DNH’s child under section 216(h)(3)(C)(ii) of the Act. See 42 U.S.C. § 416(h)(3)(C)(ii) (the agency shall deem an applicant who is an insured individual’s son or daughter to be the insured individual’s child if in the case of a deceased individual, such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the applicant’s mother or father, and such insured individual was living with or contributing to the applicant’s support at the time such insured individual died); 20 C.F.R. § 404.355(a)(4); see also Program Operations Manual System (POMS) GN 00306.100(B)(2) (the NH is shown to be the child’s biological parent by other satisfactory evidence, and is living with the child or contributing to the child’s support when the NH died), GN 00306.125 (describing other satisfactory evidence to establish biological parentage for purposes of section 216(h)(3)(C)(ii)).

[2]

^. 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 E~ is the DNH’s natural child. There is no claim or evidence of adoption or status as a stepchild or grandchild. Thus, our focus is only upon whether E~ is the DNH’s natural child.

[3]

^. Because we find that E~ qualifies as the DNH’s child under test one, we do not consider test four.

[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 construed section 28-9-209(d) to mean 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, 432 S.W.3d 18, 21-24 (Ark. 2014) (emphasis added). But see footnote 5, the agency “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).” See 63 Fed. Reg. 57590, 57593 (Oct. 28, 1998) (Preamble to the 1998 amendment to 20 C.F.R. § 404.355).

[6]

^. With regard to Arkansas’s inheritance laws, when a child was conceived before the father’s death and is illegitimate, in accordance with 20 C.F.R. § 404.355(b)(2), we have advised that the agency should not apply Arkansas’s 180-day requirement of section 28-9-209(d) for purposes of establishing entitlement to child’s benefits under the Act because the child cannot otherwise inherit under Arkansas state inheritance law. See Memorandum from Regional Chief Counsel, Dallas, to Acting Director, Center for Program Support – MOS, Dallas, Arkansas State Law – Child Relationship and Dependency, NH S~ – REPLY, at p. 8 (July 1, 2014). This interpretation reflects a reasonable attempt to balance the State’s interest in the orderly, prompt, and final administration of estates against the agency’s interest that child’s insurance benefits are intended to replace support lost by a child when his or her parent dies. 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).”).

[7]

^. Furthermore, the DNA test results are significant here in terms of the relationship between E~ and T2~, her purported full sibling, because it is our understanding that the agency already found T2~ entitled to surviving child’s benefits as the DNH’s deemed child under section 216(h)(3)(C)(i)(I) based on the DNH’s written acknowledgment made before his death. Social Security Ruling (SSR) 06-02p explains that a claimant may qualify as a number holder’s child under section 216(h)(2)(A) of the Act if the claimant shows through DNA testing a high probability of a sibling relationship with another child (as section 216(h)(3) of the Act defines) of the number holder, and there is no reason to question the parent-child relationship between the other child and the number holder. For purposes of SSR 06-02p, T2~is the DNH’s known child. The evidence presented does not provide a reason to question the parent-child relationship between the DNH and T2~. Although the DNA testing was not a siblingship test, the DNA report states that E~ is a full sibling with T2~ and that there is a 99.77 percent “Probability of Relationship” that the DNH’s sister, B~, is the paternal aunt of both E~ and T2~. Thus, the DNA report supports a showing of siblingship between E~ and T~, a known child of the DNH, which further supports E~’s claim that she is the DNH’s natural child.

[8]

^{. .} 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.

[9]

^{. .} S4~ is the father of S~, the DNH.

[10]

^{. .} 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.

[11]

^{. .} 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.

[12]

^{. .} The amended birth certificate identifies D~ by her maiden name, T~.

[13]

^{. .} 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).

[14]

^{. .} 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.

[15]

^{. .} 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, S2~ 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 S2~ 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 S2~ 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 S2~ 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

[16]

^{. .} 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.

[17]

^{. .} In Bell, 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.

[18]

^{. .} 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).”).

[19]

^{. .} 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 S2~ was married to, as opposed to cohabitating with, any individual with the surname G~. See Ark. Code Ann. § 28-9-209(a).

[20]

^{. .} 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 S2~ 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.

[21]

^{. .} From 1915 until July 2, 1989, Arkansas followed the common-law Lord Mansfield's rule of evidence which prohibited a husband or wife at the time the child was conceived from giving testimony that might prove the child is illegitimate. See Ark. Code Ann. § 16-43-901 (abandoning the Lord Mansfield rule, approved on March 17, 1989, without an emergency clause and became effective 90 days later on July 2, 1989); see also R.N. v. J.M. and B.M., 347 Ark at 213 (Arkansas generally did away with Lord Mansfield rule with passage of § 16-43-901). The effect of this change was prospective, that is it applied to cases not yet adjudicated. Id.

[22]

^{. .} The Arkansas Supreme Court has addressed the interaction between the general paternity testing statute under § 9-10-108, which essentially mandates the trial court to order scientific testing based upon a motion by either party to the paternity action, and the greater latitude afforded the trial court for ordering such tests when a party is seeking to rebut the presumption of legitimacy of a child born during a marriage under § 16-43-901. See R.N. v. J.M. and B.M., 347 Ark. at 214. Both statutes authorize paternity testing, but as previously indicated, a trial court has broader discretion in taking evidence or ordering scientific tests when a party seeking to establish paternity also attempts to rebut the presumption of legitimacy of a child born during a marriage. Id. The court stated that both statutes can be read in harmony to recognize that the presumption of legitimacy of a child born during a marriage is a presumption to protect the child whose interests should be considered first and foremost. Id.

[23]

^{. . . .} Under section 216 (h)(3)(B) of the Act, a written acknowledgement that a child applicant is the son (or daughter) is sufficient to establish that the applicant is a child of the number holder. 42 U.S.C. § 416 (h)(3)(B); 20 C.F.R. § 355(a)(3) (2003).