The number holder (NH) was an Ohio resident at the time of his death; therefore, the Ohio law controls this matter. Under the Ohio intestacy law, the right to inherit is based on whether paternity can be established. The NH is presumed to be the claimant’s natural father under Ohio law, but there is clear and convincing evidence to rebut this presumption. We conclude the presumption of paternity would be rebutted and the child would not be able to establish inheritance rights under the Ohio law. The claimant should not be considered the NH’s child for purposes of child’s benefits.

You asked whether, for purposes of child’s benefits, a child would be considered the son of a deceased numberholder when a marital presumption of paternity applies but the child’s mother admits that the numberholder was not the biological father, his name does not appear on the child’s birth certificate, and the divorce decree between the numberholder and the mother does not list the child as the issue of their marriage. The numberholder was an Ohio resident at the time of his death, and, therefore, Ohio law controls this matter. For the reasons discussed below, we conclude that there is clear and convincing evidence that the numberholder was not the child’s biological father and, thus, the presumption of paternity would be rebutted and the child would not be able to establish inheritance rights under Ohio law.

FACTS

L~ has filed a claim on behalf of her son, M~, requesting surviving child’s benefits on the Social Security record of R~. M~ was born on March XX, 2000—three days after L~ and R~’s divorce was finalized on February XX, 2000.

Though M~ was conceived before the couple officially divorced, L~ and R~ had been separated since December 1996, and L~ admits that R~ was not the biological father and that she conceived M~ with another man while still legally married to R~. R~ is not listed as M~’s father on his birth certificate, and M~ was not identified as a child of the marriage in R~ and L~’s divorce decree. There is no evidence that M~ had any relationship with, or received any support from, R~ before R~’s death or that he inherited anything from R~’s estate after his death.

L~ previously filed a surviving child’s claim on R~’s Social Security record on July XX, 2008. Because L~ admitted that R~ was not M~’s biological father, the agency denied her claim. The agency evaluated her prior claim under Michigan law, but should have applied Ohio law because R~ was a resident of Ohio at the time of his death.

ANALYSIS

Section 202(d) of the Social Security Act provides for the payment of benefits to the child of an insured numberholder who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that, when determining whether an applicant is the child of a numberholder, the agency will apply the law that would be applied to determine the inheritance of intestate personal property by the courts of the state where the numberholder was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(b)(4). Here, the numberholder was domiciled in Ohio at the time of his death. If M~ could inherit the numberholder’s property under Ohio’s intestate succession laws, therefore, he is the numberholder’s child for the purpose of eligibility for surviving child’s benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

Under Ohio intestacy law, the right to inherit is based on whether paternity can be established. See Ohio Rev. Code Ann. §§ 2105.06, 2105.17, 3111.01. A man is presumed to be the natural father of a child if he and the child’s mother are or have been married and the child is born during the marriage or within 300 days after the marriage is terminated by, among other things, divorce or dissolution. Ohio Rev. Code Ann. § 3111.03(A)(1). This presumption may be rebutted, however, with clear and convincing evidence. Ohio Rev. Code Ann. § 3111.03(B). “Clear and convincing evidence is that level of proof that would cause the trier of fact to develop a firm belief or conviction as to the facts sought to be proven.” In re Leitch, No. 13-01-11, 2001 WL 1338961, at *3 (Ohio Ct. App. Oct. 31, 2001). The Supreme Court of Ohio has held that “clear and convincing evidence sufficient to overcome the presumption of paternity contained in § 3111.03(A)(1) may be adduced through any or all of the enumerated methods prescribed by § 3111.10, including the submission of genetic test results.” Hulett v. Hulett, 544 N.E.2d 257, 294 (Ohio 1989).

Here, we conclude that there is clear and convincing evidence to rebut the presumption that R~ is M~’s natural father. First, though it was presumably against her interest to do so, L~ has admitted repeatedly, in relation to both of the claims she filed with the agency, that R~ is not M~’s biological father and that M~’s natural father is a man with whom she had an affair before her divorce from R~ was finalized. Ohio courts consider a party’s statements and admissions about paternity as relevant rebuttal evidence. See Thompson v. Thompson, No. 94CA859, 1995 WL 481480, at *4 (Ohio Ct. App. Aug. 10, 1995) (noting that appellant conceded in his appellate brief that he was not the biological father and that this, along with other evidence, established that appellant was not the natural father even though he acted in loco parentis for nine years, no one else had been established as the natural father, and the trial court determined it was in the best interests of the child to place her with appellant after his divorce from the child’s mother); Swingle v. Swingle, No. 88AP-852, 1989 WL 110995, at *3 (Ohio Ct. App. Sept. 26, 1989) (finding that presumed father rebutted presumption of paternity when he and child’s mother stipulated that they had not had sexual intercourse during the period of conception and two blood tests showed conflicting results about whether presumed father could be excluded as the child’s biological father).

Second, R~ is not named as the father on M~’s birth certificate, nor is M~ listed as a child of the marriage in R~ and L~’s divorce decree. These are two additional pieces of evidence that Ohio courts consider in paternity actions. See, e.g., Crago v. Kinzie, 733 N.E.2d 1219, 1223 (Ohio Ct. C.P. 2000) (holding that man, who identified himself as natural father on birth certificates of two children born to his girlfriend, could not disestablish himself as biological father by bringing claim and requesting genetic testing many years later), Nwabara v. Willacy, 733 N.E.2d 267, 272 (Ohio Ct. App. 1999) (rejecting alleged natural father’s argument that ex-husband, who was child’s presumed father, should be made party to paternity suit because divorce decree between mother and ex-husband noted mother was then pregnant and ex-husband was not biological father of child); Garrison v. Smith, 561 N.E.2d 1041, 1041-42 (Ohio Ct. App. 1988) (noting that there was not sufficient evidence to overcome presumption that first husband was child’s father when second husband, whom the mother alleged was the natural father, was not named as child’s father on birth certificate, child was not mentioned in divorce decree between mother and second husband, there was no evidence child was financially supported by second husband, and second husband had not taken steps to acknowledge child as his own or ensure she could inherit from him); Collett v. Cogar, No. 1301, 1987 WL 7586, at *5 (Ohio Ct. App. Mar. 6, 1987) (noting that, on remand, mother’s affidavit stating that presumed father was not the child’s natural father and divorce decree reflecting that the child was not the issue of the marriage should be considered as rebuttal evidence to presumption of paternity and raised material issue of fact sufficient to defeat summary judgment).

Finally, based on the facts provided, it does not appear that R~ did anything to establish a parent-child relationship with M~ during R~’s lifetime, acknowledge him as a son, or support him financially. Ohio courts will also consider whether the alleged or presumed father took affirmative steps to establish his paternity of the child. See Bratten v. Henry, No. 63952, 1993 WL 4753, at *6-7 (Ohio Ct. App. Jan. 7, 1993) (finding that even though child was born during marriage and listed in divorce decree as child of marriage, there was clear and convincing evidence to rebut presumption of ex-husband’s paternity when alleged natural father was listed as father on application for child’s birth registration, which included sworn statements that he was child’s father, and alleged natural father took affirmative steps to establish parent-child relationship and confer right to inheritance on child). In fact, here, other than the presumption of paternity, there appears to be no evidence to contradict L~’s admissions or the other evidence confirming that R~ is not M~’s natural father.

One case that is particularly instructive is H.N.H. v. H.M.F., No. 84642, 2005 WL 927004 (Ohio Ct. App. Apr. 21, 2005). In H.N.H., the biological father had an affair with the child’s mother while she was married to another man, who, in turn, would have been the presumed father under Ohio law. Id. ¶ 2. When the child was born, all three parties agreed that the husband would be listed as the father on the child’s birth certificate and that the biological father would not be responsible for supporting the child. Id. The child was raised by the husband, and the biological father never had any contact with the child. Id. Years later, the mother filed a claim for child support against the biological father, explaining that “she waited to seek support until [the child] was of an age to understand and benefit from a relationship with [the biological] father,” and genetic tests confirmed that he was, in fact, the child’s natural father—not the husband. Id. ¶ 4. The biological father appealed, arguing, in part, that the court erred by disestablishing the parent-child relationship between the mother’s husband, who was the presumed father, and the child. Id. ¶ 7. The appellate court disagreed, emphasizing that the parties all acknowledged that the husband was not the biological father and noting that if the biological father had wanted to prevent a later action for support, he should have signed the child’s birth certificate and then consented to the husband’s adoption of the child, which would have legally severed the relationship with the biological father. Id. ¶ 9. While the H.N.H. case also involved evidence of genetic testing that confirmed what all the parties already had acknowledged, the case suggests that admissions that the presumed father is not the natural father—particularly when reiterated by both the mother and the presumed father—can rebut the presumption of paternity. Though we do not know in this case whether M~’s biological father has informally acknowledged paternity, the facts are similar to H.N.H. in that L~ admits R~ was not M~’s biological father and R~’s tacit agreement with this is reflected by the fact that he was not named as the father on M~’s birth certificate, M~ was not listed as a child of the marriage in the divorce decree, and there is no evidence that R~ ever sought to establish a relationship with M~ or support him in any way before R~’s death.

You pointed out that POMS PR § 01115.039 cited an Ohio case that indicated a stipulation, affidavit, or similar party statement regarding paternity is not necessarily sufficient to overcome a presumption of paternity. See POMS PR § 01115.039L; see also Nelson v. Nelson, 460 N.E.2d 653 (Ohio Ct. App. 1983). But the Nelson case is distinguishable. In Nelson, a divorce decree granted the husband temporary custody of two children born during the marriage. Id. at 654. The husband, who had always known he was not the biological father of one of the children, then sought permanent custody of both children, but the mother objected. Id. The trial court determined that, even though the husband was not the biological father of one child, the husband still maintained the legal rights and obligations of a parent because the child was born during the marriage and the husband considered the child as his own. Id. at 653. While both husband and wife stipulated that the husband was not the child’s biological father and the husband stated the same in an affidavit he filed with the court, the court held this was not enough to overcome the presumption of paternity under § 3111.03(A). Id. at 654-55. Factoring heavily into the court’s decision, however, was the fact that the husband continued to act as the child’s father for 12 years and that the child did not know the husband was not his biological father—the court did not wish to disturb that well-established relationship between parent and child, which the husband had nurtured for so many years. Id. at 654-55. Specifically, the court noted that “[d]ue to the length of time that defendant considered the oldest child to be his son and the natural mother’s concomitant assent thereto, both parties are effectively estopped from denying parentage by stipulation.” Id.

The Nelson court did not hold, however, that stipulations, admissions, or affidavits could never be sufficient to rebut the presumption of paternity. The court merely refused to allow the parties’ stipulation that the presumed father was not the natural father to outweigh and disrupt the close 12 year relationship the husband had with his son. Here, there is no evidence that R~ had any relationship with M~ or that he supported M~ in any way. Unlike in Nelson, this is not a case where a court would be reluctant to let a stipulation defeat the presumed father’s wishes to care for and take custody of the child with whom he had a long-standing, parent-child relationship.

For these reasons, we conclude that M~ would not be able to establish inheritance rights from R~ under Ohio law and, thus, should not be considered R~’s child for purposes of child’s benefits.

CONCLUSION

As discussed above, though R~ is presumed to be M~’s natural father under Ohio law, there is clear and convincing evidence to rebut this presumption, including L~’s admission that R~ is not M~’s biological father, R~ was not named as the father on M~’s birth certificate, and M~ was not identified as a child of R~ and L~’s marriage in their divorce decree. Thus, M~ would not have inheritance rights with respect to R~ and, therefore, should not be considered his child for benefit purposes.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Catherine L. Gibbons

Assistant Regional Counsel

Although the paternity determination in this case was not made by an Ohio court, under the Ohio Parentage act, an Ohio court that is determining a parent-child relationship "shall give full faith and credit to a parentage determination made under the laws of this state or another state, regardless of whether the parentage determination was made pursuant to a voluntary acknowledgement of paternity, an administrative procedure, or a court proceeding."

As long as the Tennessee court order is consistent with that state's laws and was genuinely contested by parties with opposing interests, the claimant's may be entitled to child's benefits on the deceased number holder's record.

The relationship is effective as of the month of death since the right to inherit under the Ohio Parentage Act relates back to the death of the parent.

I. INTRODUCTION

You asked us whether a parent-child relationship can be established between S~, the deceased wage earner who died in Ohio, and two minor claimants, M~ (M~) and S2~ (S2~), who reside in Tennessee. You further asked if a relationship is established, what is the effective date of benefit entitlement. For the reasons stated below, we conclude that a parent-child relationship can be established between S~ and the claimants M~ and S2~. However, if you find that the paternity order issued in Tennessee was not actually contested, you may want to do some additional development to rule out other family members as potential fathers of the children. We further conclude that, assuming the Agency accepts the orders of paternity, entitlement to child's benefits would begin in December 2004, the first month covered by the application in which all other requirements for entitlement were also met.

BACKGROUND

S~ was born on March XX, 1956. M~ was born on August XX, 1994. S2~ was born on January XX, 1993. M~ and S2~ have different mothers. S~ died on December XX, 2004, while domiciled in Ohio. Applications for child's insurance benefits on behalf of M~ and S2~ were filed on December XX, 2004. On June XX, 2006, the Circuit Court of Franklin County, Tennessee, issued orders declaring that S~ was the father of M~ and S2~. The court orders were based on the testimony of T~, S~' sister who obtained custody of M~ in 1997; P~, S2~'s mother; and S~'s two brothers, S3~ and C~. In each paternity action, the administrator of S~'s estate was named as the defendant, and the administrator appeared at the paternity hearing in each case.

T~ testified at the paternity hearing that S~ called her shortly after M~ was born and informed her that he was M~'s father. She also testified that M~ physically resembled S~. P~ testified that she and S~ were having a sexual relationship during the time S2~ was conceived and that there was no other possible father. She also testified that S2~ physically resembled S~. Both S3~ and C~ testified that their brother, S~, acknowledged that he was the father of M~ and S2~ on numerous occasions prior to his death. S2~ and C~ also testified that they had no objection to the court finding that S~ was the father of M~ and S2~. DNA testing performed on M~, S2~ and S3~ and C~ revealed a 99.99% probability that both M~ and S2~ were paternally related to S2~ and C~. The court declared S~ to be M~ and S2~'s father for purposes of inheritance and support "by clear and convincing proof."

In addition, affidavits from S2~'s mother and S3~ and C~ were submitted with the applications for child's benefits. These affidavits also state that S~ was the father of M~ and S2~. Also, S~'s funeral program lists M~ and S2~ as his children. However, no father is listed on either child's birth certificate, and, when he applied for disability insurance benefits, S~ stated that he had no children.

DISCUSSION

The Social Security Act (the Act) provides for the payment of insurance benefits to a child of an individual who dies fully or currently insured if the child filed an application for Child's Insurance Benefits (CIB), was unmarried and under the age of eighteen at the time of application, and was dependent upon such individual at the time of his death. 42 U.S.C. § 402(d)(1). On December XX, 2004, when the CIB applications were filed, M~ and S2~ were ten and eleven years old, respectively, and presumably unmarried. If they can establish that they are the natural children of S~, they will be considered to have been dependent on him. See, 20 C.F.R. § 404.361(a).

M~ and S2~ must also meet the definition of "child" under the Act. The Act provides a number of ways for a claimant to meet the definition of "child" for benefit purposes. See 42 U.S.C. §§ 416(e), 416(h)(2)-(3). A claimant can be deemed to be the deceased wage earner's child upon proof that, prior to the wage earner's death, one of the following conditions was met: (1) the wage earner acknowledged in writing that the claimant was his child; (2) a court decreed the wage earner to be the claimant's father; or (3) a court ordered the wage earner to contribute to the claimant's support because the claimant was the wage earner's child. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100(B)(1). Additionally, a claimant is also deemed to be the deceased wage earner's child if the child meets two requirements: (1) he shows by evidence satisfactory to the Commissioner of Social Security that the wage earner is the child's father, and (2) the wage earner was either living with the child or contributing to the child's support at the time of death. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100(B)(2). We have no evidence that, before his death, S~ acknowledged in writing that either M~ or S2~ was his child, was decreed to be M~ or S2~'s father, or was ordered to pay for support. Nor was S~ living with M~ or S2~ or contributing to their support at the time he died. Therefore, none of these definitions apply in this case.

M~ and S2~ could still be entitled to child's benefits as a natural child of S~ if it can be established that they could inherit property from him under state intestacy laws. If, under State law, a claimant can take intestate personal property as the deceased wage earner's child, he is considered the wage earner's child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); POMS GN 00306.001 (C)(1)(a). The Commissioner applies the law that would determine the devolution of intestate personal property by the courts of the State where the wage earner was domiciled at death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). S~ was domiciled in Ohio when he died; therefore, Ohio intestacy laws apply to determine whether M~ and S2~ could inherit from him as his children.

Under Ohio intestacy law, children born out of wedlock can inherit as if born in lawful wedlock. See OH ST § 2105.17. An out-of-wedlock child can establish a parent-child relationship pursuant to the Ohio Parentage Act. See OH ST § 3111 et seq.; POMS GN 00306.595(B). Under the Ohio Parentage Act, the claimant may bring a parentage action to determine the existence of a parent-child relationship and to obtain a declaration of parentage. See OH ST § 3111.04. Although there is conflicting case law, Ohio cases have found that parentage actions may be brought even when the putative father is deceased. See In re Estate of Hicks, 629 N.E. 2d 1086, 1088 (1993). The Ohio Parentage Act provides for judicial determination of paternity and allows any evidence relevant to the issue of paternity to be presented, including genetic testing results. See OH ST § 3111.10(C).

On June XX, 2006, about a year and a half after S~'s death, the Circuit Court of Franklin County, Tennessee decreed that S~ was the biological father of M~ and S2~ "by clear and convincing proof" "for the purposes of inheritance, support and any other lawful purpose." Although the paternity determination was not made by an Ohio court, under the Ohio Parentage act, an Ohio court that is determining a parent-child relationship "shall give full faith and credit to a parentage determination made under the laws of this state or another state, regardless of whether the parentage determination was made pursuant to a voluntary acknowledgement of paternity, an administrative procedure, or a court proceeding." Ohio Revised Code § 3111.02(B). Thus, Ohio courts would likely give decisive effect to the Tennessee paternity judgment in an heirship proceeding.

We note, however, that SSA is not necessarily bound by a state court decision of paternity. See POMS GN 00306.001(C)(3). Social Security Ruling (SSR) 83-37c, which adopts the holding in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), explains that the Commissioner must accept a state court determination of paternity where the following prerequisites are found: 1) an issue in a claim for social security benefits previously has been determined by a state trial court of competent jurisdiction; 2) such issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within general category of domestic relations; and 4) resolution by the state trial court is consistent with the law enunciated by the highest court in the state.

We sought assistance from the Office of the General Counsel (OGC), Region IV, to determine whether the Tennessee court's paternity order was consistent with Tennessee law. They informed us that, for purposes of intestate succession in Tennessee, a person born out of wedlock is a child of the father if the paternity is established by adjudication before the death of the father or is established thereafter by clear and convincing proof. See TENN. CODE. ANN. § 31-2-105(a)(2) (2007); see also POMS GN 00306.635; Bilbrey v. Smithers, 937 S.W.2d 803, 808 (Tenn. 1996). Because SSA decides a claimant's paternity by using the standard of proof that the State would use as the basis for a determination of paternity, clear and convincing proof is the standard to be used in this case. The Tennessee Supreme Court has explained that to be "clear and convincing," evidence "must produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Fruge v. Doe, 952 S.W.2d 408, 412 n.2 (Tenn. 1997). "Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992).

In this case, there has been a paternity adjudication by the Circuit Court of Franklin, Tennessee. OGC Region IV informed us that there is no reason to believe that this order is inconsistent with Tennessee law or that the court did not use the proper standard of clear and convincing proof when determining paternity in this matter. The court considered the oral testimony of M~'s custodial guardian, S2~'s mother, and S~'s brothers. And, OGC Region IV informed us that there is nothing in Tennessee law that states that this evidence should have been found "inadmissible" or that the court cannot rely on such evidence to establish paternity after the death of the father. In McDowell v. Boyd, No. 01A01-9509-CH-00413, 1997 WL 749470 (Tenn. Ct. App. 1997), a case involving a posthumous paternity dispute, the court indicated that parentage may be proved using several different types of evidence. In addition to direct evidence of paternity through blood tests, the courts may consider: (1) the declarations and conduct of the child's biological mother, (2) acknowledgment by the father, (3) family resemblance, and (4) evidence concerning access, opportunity and capacity to have children. Id. at *2. This is the same type of evidence used by the court to determine that S~ was the biological father of M~ and S2~. We also note that the court did not call into the question the credibility of any of the witnesses. Given the precedent in McDowell, Region IV concluded that he court's consideration of the evidence was appropriate and that the court's orders finding that S~ was the father of M~ and S2~ are consistent with Tennessee law.

The court also considered the DNA tests revealed a 99.99% probability that M~ and S2~ were paternally related to S~'s brothers. The Tennessee statute provides that a rebuttable presumption of the paternity of an individual is established by blood, genetic, or DNA testing showing a statistical probability of that individual at 95% or greater. TENN. CODE ANN. § 24-7-112(b)(2)(B); see also GN 00306.635. A nearly conclusive presumption of paternity is established if blood, genetic, or DNA testing show that the statistical probability of paternity is 99% or greater. TENN. CODE ANN. § 24-7-112(b)(2)(C). Tennessee law does not distinguish between establishing paternity for legitimation purposes, child support purposes, or intestate succession purposes. Specifically, Tennessee's domestic relations law states that "[t]ests for parentage in actions arising pursuant to this part or in any actions to determine parentage shall be conducted pursuant to § 24-7-112," which covers paternity tests. TENN. CODE. ANN. § 36-2-309(a) (emphasis added).

There is no statute or case law that specifically addresses the acceptability of the results from a DNA test conducted on a relative; however, OCG Region IV previously opined that the Tennessee courts would treat DNA test results from a child and the number holder's parents as probative and would accept such tests that revealed a 99.99% probability of grandparentship along with other evidence as clear and convincing proof of paternity. See POMS PR 01115.047A. Therefore, we believe that the Tennessee court was correct to accept the DNA test results in this case along with the other evidence presented as clear and convincing proof of paternity. The evidence submitted could be used by SSA to establish clear and convincing evidence of paternity between S~ and M~ and S2~ under Tennessee law.

While the court orders appear consistent with state laws, it is not entirely clear whether these matters were genuinely contested before the state court by parties with opposing interests as required by Gray, 474 F.2d at 1373. Although S~'s estate was named as defendant in both actions, and although the administrator of his estate was present at the hearings in both cases, it is not clear that the estate, or any other party, contested the findings of paternity. Nor is it clear that the estate had any opposing interest or that there were any significant assets in the estate that might prompt some opposition to a finding of paternity. If SSA finds that the paternity actions were not genuinely contested, the Agency need not accept the paternity judgment based on the holding in Gray v. Richardson. However, the Agency could still find that M~ and S2~ are entitled to child's benefits based on Ohio's intestate inheritance law if paternity could be shown by clear and convincing evidence. See POMS GN 00306.595(D); see also Memorandum from Regional Chief Counsel, Chicago, to Ass't Reg. Comm.-PCO, Southeastern Program Service Center, Child's Claim on the Account of Jack B. B~, at 3 (November 15, 1999) (we believe that the clear and convincing evidence standard of proof should be applied in posthumous paternity cases based on Ohio court's suggestion that it would require a heightened standard of proof in Brookbank v. Gray, 658 N.E.2d 724, 727, 729 (Ohio 1996)).

There are good reasons here to question the court's judgment. For instance, S~ denied that he had any children when he filed an application for disability insurance benefits. In addition, the DNA test conducted on S~'s brothers indicated that there was a 99.99% chance the putative father was paternally related to the brothers, but did not rule out the possibility that S~'s brothers or other male relative could be the natural father of M~ and/or S2~. Finally, S3~ and C~ did not state that they did not have sexual intercourse with the mother of M~ or the mother of S2~. If SSA does not believe the evidence currently establishes clear and convincing proof, the Agency could attempt to obtain additional information in order to make this factual determination. See POMS GN 01010.410(A)(1) (discussing need to make a reasonable effort to obtain evidence necessary to determine entitlement). For instance, you could verify whether S~ had other brothers or male relatives besides S3~ and C~ who could be the father of M~ and/or S2~. In addition, you could obtain statements from knowledgeable persons about whether S3~ or C~, or any other male relative of S~, had sexual intercourse with the childrens' mothers around the time of conception. If such evidence is secured and appears to establish by clear and convincing evidence that no other relative of S~ is likely to be the father, then pursuant to 42 U.S.C. § 416(h)(2)(A), M~ and S2~ would be considered S~'s children under the Act.

You also asked us to identify the appropriate date of entitlement, assuming paternity is established. Entitlement to child's benefits, if the insured is deceased, begins the first month covered by the application in which all other requirements for entitlement are also met. See 20 C.F.R. § 404.352(a). Once paternity is established, the right to inherit relates back to the date of the parent's death. See National City Bank of Cleveland v. Ford, 36 Ohio Misc. 60, 66 (1973). Accordingly, December 2004 would be the earliest date of entitlement. Accordingly, if all requirements were met in December 2004, when the CIB applications were filed, M~ and S2~ may be entitled to benefits as of the date of S~'s death.

IV. CONCLUSION

We conclude that the Tennessee court orders of parentage are consistent with Tennessee law. However, it is not entirely clear that the matters were genuinely contested by parties with opposing interests. If the Agency finds that the matters were not genuinely contested, the Agency would not be bound by the court orders, but could find that the claimants are S~'s children if there is clear and convincing evidence. We note that the current evidence could be used by SSA to establish clear and convincing proof of parentage and that Ohio courts would allow consideration of valid DNA tests of a sibling as evidence concerning paternity. However, it may be advisable to obtain additional documentation in order to rule out any likelihood that another brother or male relative could have fathered M~ or S2~. If the Agency finds that S~ is the father of M~ and S2~, they would be entitled to CIB as of December 2004.

Donna L. C~

CHIEF COUNSEL, REGION V

By: Anne K. K~

Assistant Regional Counsel

A posthumous court judgment, based on DNA results showing a 99.95% probability that the NH was the biological father of the child claimant, gives the claimant inheritance rights under Ohio law.

I. INTRODUCTION

This is in response to your inquiry regarding whether a posthumous paternity judgement entered by an Ohio juvenile court gives the claimant inheritance rights under section 216(h)(2)(A) of the Social Security Act (Act) as a "child" for purposes of child's insurance benefits. For the reasons stated below, the claimant does qualify as a "child" for child's insurance benefits.

II. FACTS

Wage earner S~ (Mr. S~), who was domiciled in Ohio, died on June XX, 1996, in a car accident. The claimant, Courtney ~ (Courtney), was born on January XX, 1996. On September XX, 1996, Courtney's mother, F~ (Ms. F~), applied for child's insurance benefits (CIB) on behalf of Courtney on the account of the deceased wage earner, Mr. S~. The CIB application was denied pursuant to section 216 of the Act because Ms. F~ did not provide evidence to show that Mr. S~ was the biological father of Courtney. See 42 U.S.C. 416(h)(3)(C). Ms. F~ sought no further administrative review of the initial determination, and this became the final decision of the Commissioner.

On September XX, 1997, an Ohio juvenile court entered judgment finding Mr. S~ to be the biological father of Courtney based on DNA testing that established a 99.50% probability that Mr. S~ was the biological father of Courtney.

On November XX, 1997, Ms. F~ filed a new claim for CIB on behalf of Courtney on the account of the deceased wage earner, Mr. S~.

The file indicates that two other children, Chelsea and Blake S~, were collecting CIB on the account of Mr. S~.

III. ANALYSIS

Courtney is entitled to CIB on Mr. S~'s account if she shows that she was his "child" under the Act. In this case, Courtney is only entitled to CIB on Mr. S~'s account if, under Ohio intestate succession laws, she is eligible to inherit as one of Mr. S~'s children. See 42 U.S.C. § 416(h)(2)(A). In order to prove that Courtney was a "child" within the meaning of the intestate succession laws, Courtney must prove that she was a legitimate child of Mr. S~. See ORC § 2105.06; In re Estate of Hicks, 629 N.E.2d 1086, 1089 (Ohio App. 1993).

Under the new regulations, where a state inheritance law requires a court determination of paternity, we may decide the paternity by using the standard of proof that the State court would use as a basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2). The Parentage Act, which the Ohio legislature enacted in 1982, has been interpreted by the Ohio courts as providing a basis for a child born out of wedlock to inherit in intestacy. See ORC Chapter 3111; See In re Estate of Hicks, 629 N.E.2d at 1088; Alexander v. Alexander, 537 N.E. 2d 1310, 1313-14 (Ohio App. 1988). Here, the Ohio Parentage Act provides the only basis upon which Courtney could show that she is a "child" to prove her right to inherit under the intestate succession laws.

In order to establish a parent-child relationship under the Parentage Act, the claimant must bring a parentage action and obtain a declaration of parentage in the juvenile court. ORC § 3111.04. The juvenile court has original jurisdiction over an action brought under the Parentage Act, including where the alleged father is deceased. ORC § 3111.06(A). The Parentage Act provides for a judicial determination of paternity by the juvenile court and allows any evidence relevant to the issue of paternity to be presented, including genetic testing results, which must be weighted according to the statistical probability of the alleged father's paternity. ORC § 3111.10(C). Under the Parentage Act, a man is presumed to be the natural father of a child where genetic tests indicate a probability of 95% or greater that the man is the biological father of the child, absent a rebuttal of clear and convincing evidence to the contrary. ORC § 3111.03(A)(6), (B); POMS GN 00306.080.

Here, DNA results showed a 99.95% probability that Mr. S~ was the biological father of Courtney. The evidence clearly satisfies the requirement for the presumption, and the file does not contain clear and convincing evidence to rebut this presumption. Therefore, we could conclude that Courtney was the legitimate child of Mr. S~ under the Parentage Act.

Because we find that Courtney was a legitimate child under the Parentage Act, Courtney could inherit as a "child" under ORC 2105.06, the Ohio intestate statute. Therefore, Courtney is entitled to CIB on Mr. S~'s account. See 42 U.S.C. § 416(h)(2)(A).

You also inquired whether we need to evaluate these cases on an individual basis. In a prior memorandum, we indicated that we prefer evaluating these cases on an individual basis because Ohio law was influx with regard to whether paternity could be established posthumously. Gary R. T~, ~, RA V (larson) to Director, P-RSI/SSI Branch (August 31, 1995). However, in light of the new regulations, we may decide the issue of paternity, including posthumous findings of paternity, by using the standard of proof that the State court would use as the basis for a determination of paternity. Therefore, we do not need to evaluate these cases on an individual basis.

IV. CONCLUSION

Courtney is entitled to CIB on Mr. S~'s account because under Ohio intestate succession laws, she is eligible to inherit as one of Mr. S~'s children. See 42 U.S.C. § 416(h)(2)(A). In addition, in light of the new regulations, we are not required to evaluate these cases on an individual basis.

THOMAS W. C~

CHIEF COUNSEL, REGION V

By: Depak S~

Assistant Regional Counsel

A posthumous Juvenile Court finding of paternity that is consistent with Gray v. Richardson confers inheritance rights on the child claimant under Ohio law.

This is in response to your October 1, 1996, request for an opinion as to whether a posthumous paternity judgment by an Ohio court gives the claimant inheritance rights and thus entitles her to Social Security benefits. For reasons stated below, we believe the claimant does qualify as a "child" for Social Security benefits.

BACKGROUND

The claimant, Gabrielle A. D~, was born on May XX, 1991. On March XX, 1995, claimant's mother, Kimberley D. D~, filed applications for lump-sum death payments and child's insurance benefits based on the earnings record of Mark J. S~ who died on December XX, 1994. Mr. S~ did not acknowledge in writing that Gabrielle was his child, nor was any court order to that effect issued before his death. Mr. S~ orally acknowledged Gabrielle to be his child, but was not living with her or contributing to her support at the time he died.

After Mr. S~'s death, Kimberley D~ filed a complaint against his estate in the Juvenile Division of the Common Pleas Court of Montgomery County, Ohio. The court's finding, filed June XX, 1995, declared Mr. S~ to be the natural father of Gabrielle D~.

Your office now inquires whether the court's posthumous finding of paternity is sufficient to confer inheritance rights on Gabrielle and thus entitles her to Social Security benefits.

DISCUSSION

The Social Security Act allows an individual to demonstrate that he is the "child" of an insured wage earner in several ways. For purposes of this case, the relevant test for demonstrating that an individual is the "child" of an insured wage earner is the eligibility to inherit property under the intestate succession laws of the state in which the insured wage earner resided. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.354./

The right of Gabrielle to Social Security benefits is controlled by the Ohio law of intestate succession of personal property. Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973). The Ohio law determining intestate succession is set out in Ohio Rev.Code § 2105.06 and 2105.11./ Under Ohio Rev.Code § 2105.17, children born out of wedlock are capable of inheriting or transmitting inheritance from and to their mother as if they were born in natural wedlock. Children who are born out of wedlock cannot inherit through their natural father unless their father, pursuant to Ohio Rev.Code § 2105.18, applies for and is granted an acknowledgment of paternity by the probate court of the county in which he resides.

The Ohio Parentage Act, however, provides for equality for all children regardless of the marital status of their parents. Ohio Rev.Code § 3111 et seq.. Under Chapter 3111, an action may be brought in juvenile court, to which the natural mother and alleged natural father shall be made parties, in order to permit the juvenile court to determine "the existence or nonexistence of the father and child relationship." See Ohio Rev.Code §§ 3111.04-08. In addition, the Ohio Parentage Act, in prescribing where an action may be brought, suggests that an action for establishing parentage may be brought even "if the alleged father is deceased." Ohio Rev.Code § 3111.06(A). The Act provides that the decision of the court "is determinative for all purposes." Ohio Rev.Code § 3111.13.

Although the Commissioner is not bound by the decision of a State trial court in a proceeding to which she was not a party, she is not free to ignore an adjudication of a state trial court where it is fair and consistent with the law as enunciated by the highest court in the state. Gray v. Richardson, 474 F.2d at 1373. We have previously opined that the Ohio appellate courts would allow a parent-child relationship to be established posthumously under the Ohio Parentage Act, and that judgment could thereafter be relied upon for purposes of intestate succession. See Jeffrey L~ E~, ~, RA V (Lee) to ARC POS (12/1/95); Gary T~, ~, RA V (Larson) to Director, POS-SRI/SSI Branch (11/13/95); Freddie M~, ~, RA V (Dorn) to Director, WPSC (8/1/85). The Supreme Court of Ohio has addressed this issue in a recent decision, Brookbank v. Gray, 658 N.E.2d 724 (Ohio 1996). In Brookbank, a wrongful death action, the Court expressly held that paternity can be established under the Ohio Parentage Act after the death of the putative father. Id. at 730./

CONCLUSION

For these reasons, based upon the June 7, 1995, order, we believe Gabrielle A. D~ is the child and heir of the deceased wage earner, Mark J. S~. As such, she is potentially entitled to take intestate property of the deceased wage earner, and qualifies as his "child" for Social Security benefits.

The file folder is returned herewith.

Thomas W. C~

Regional Chief Counsel

By: Edward P. S~



Assistant Regional Counsel

DNA test results establishing a 99.92% probability of the child's half-siblingship with the NH's natural legitimate child, as well as a statement from the child's mother, in the absence of any contradictory evidence, would constitute clear and convincing evidence to rebut the presumption of validity under Ohio law and establish the NH as the child's father.

You have requested a legal opinion as to whether evidence presented to SSA was sufficient to rebut the presumption of legitimacy and establish the right to inherit under Ohio law. We believe that the evidence presented is sufficient to rebut the presumption established under Ohio law, and that the child, Ryan B~, would be entitled to benefits based on the account of the NH, Dale H. S~.

Ryan B~ was conceived and born during the marriage of his mother, Gail B~, to Michael B~. Under the Ohio Parentage Act, a man is presumed to be the natural father of a child where the man and the child's mother are or have been married to each other, and the child is born during the marriage or within three hundred days after the marriage ends by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement. Ohio Rev. Code Ann. § 3111.03(A)(1) (West 2002). Therefore, as you noted, Michael B~ is presumed to be the natural father of Ryan. This presumption of paternity can only be rebutted by clear and convincing evidence, which includes genetic testing. Ohio Rev. Code Ann. § 3111.03(C) (West 2002). The question, therefore, is whether the evidence presented, consisting of DNA testing establishing a 99.92% probability of half-siblingship with a known natural child of the NH, as well as a statement from the child's mother, would satisfy the Ohio standard for “clear and convincing evidence.” Under Ohio law, clear and convincing evidence requires more certainty on the part of the fact-finder than a “preponderance of the evidence” standard (more than 50%), but less certainty than the “beyond a reasonable doubt” standard. See POMS GN 00306.595.

Prior to 2000, the Ohio Parentage Act presumed a man to be the natural father of a child where genetic tests indicated a probability of 99% or greater that the man was the biological father of the child. Ohio Rev. Code Ann. § 3111.03(A)(5) (West 1999). Effective March 22, 2001, the Ohio legislature repealed Section 3111.03(A)(5), and Ohio courts no longer apply a presumption based on DNA test results. Under the current statute, a state court may use genetic testing to determine the existence of a parent-child relationship. Ohio Rev. Code Ann. § 3111.09(a)(1)(b) (West 2002). The Ohio Parentage Act further defines the types of evidence which may be considered in determining paternity. A court may use genetic test results, “weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity” as well as “all other evidence relevant to the issue of paternity of the child.” Ohio Rev. Code. Ann. § 3111.10 (West 2002). Each of these provisions, however, presupposes that the putative father will undergo genetic testing. The statute is silent as to the probative value of genetic testing of other relatives. Furthermore, neither the Ohio legislature nor the courts have articulated the standard of proof necessary to establish paternity where the putative father is deceased. Based on holdings in other cases, it appears that a court would use a “clear and convincing” standard. See Brookbank v. Gray, 658 N.E.2d 724, 727, 729 (Ohio 1996).

We believe that the portions of the Act which refer directly to genetic testing would not be applicable to this case. However, the DNA test performed on the putative half-sibling would constitute “other evidence” which may be considered in determining whether a father and child relationship existed between the wage earner and child. The DNA Siblingship Test Report, prepared by DNA Diagnostics Center, indicates that testing was performed on Ryan B~, Gail B~, Ryan's mother, and Rusty D. S~, the natural, legitimate child of the NH. According to this report, “the probability of half-siblingship is 99.9%. The likelihood that they share the same biological father is 1,300 to 1 [99.92%].”

We believe that the evidence presented here would meet the “clear and convincing” standard required by Ohio law. The statement from the child's mother that the NH is the father of Ryan would be of limited probative value. However, combined with the DNA testing, and in the absence of any contradictory evidence, we believe that it provides further proof of a parent-child relationship. Together, the DNA test results and the mother's testimony would seem to provide clear and convincing evidence sufficient to overcome the presumption of legitimacy and establish NH as Ryan's father. We therefore conclude that sufficient evidence has been presented to establish that Ryan B~ is the child of the NH, Dale T. S~, for purposes of entitlement to benefits.

Mary A. S~

Regional Chief Counsel

By: Michael S. F~

Assistant Regional Counsel

To establish a presumption, the Ohio Parentage Act requires genetic tests to include the alleged natural father. DNA test results performed on grandparents would constitute other evidence which may be considered in determining whether a father and child relationship existed between the NH and child. Given that a probability of 99% creates a presumption, test results of grandparents where the probability equals or exceeds that figure are sufficient to establish a parent-child relationship by clear and convincing evidence.

DNA test results performed on grandparents which show the probability of the NH's paternity, not just the grandparent's relationship, make it unnecessary to exclude fatherhood by any other paternal family member.

The right to inherit under the Ohio Parentage Act relates back to the death of the parent.

I. INTRODUCTION

This is in response to your inquiry regarding whether Terry W. H~ III can establish that he is entitled to child's insurance benefits on the account of Terry W. H~, Jr. ("the wage earner") based on genetic test results on Terry W. H~ III and parents of Terry W. H~ Jr. For the reasons stated below, we conclude that these genetic test results should be sufficient to show by clear and convincing evidence that Terry W. H~, III, is the child of the wage earner and is entitled to benefits on the account of the deceased wage earner.

II. FACTS

On November XX, 1998, Terry W. H~, Jr., aged 18, died in a car accident. His certificate of death lists as his parents Terry W. H~ and Christine A~ D~ H~ and states that he was never married.

On June XX, 1999, Cassie J~ C~ (hereinafter "the mother"), gave birth to a son she named Terry W. H~, III (hereinafter "the child"). The child's birth certificate lists no father's name.

Genetic testing, dated January XX, 2000, conducted on the child and on Terry H~, Sr., and Christine H~, as the alleged grandparents of the child, showed a 99.98% probability that the wage earner, the H~'s son, was the father of the child.

On January 10, 2000, the Carroll County Child Support Enforcement Agency issued an administrative order, finding that the wage earner was the natural father of the child. The order provides that, if not challenged by an action in juvenile court within 30 days, the order is final, enforceable by a court, and may not be challenged.

On March 15, 2000, the mother filed applications for Child's Insurance Benefits (CIB) and a Lump Sum Death Payment on behalf of the child. No evidence was submitted, or could be elicited, as to whether the wage earner was living with or contributing to the support of the mother when he died.

III. ANALYSIS

The child is entitled to CIB on the wage earner's account if he is able to show that he is the wage earner's "child" as that term is defined in the Social Security Act. 42 U.S.C. § 402(d). In this case, the child may be entitled to CIB on the wage earner's account if, under Ohio intestate succession laws, he is eligible to inherit as the wage earner's child. See 42 U.S.C. § 416(h)(2)(A). In order to prove that the child was the wage earner's "child" within the meaning of the intestate succession laws, the child must prove that he was the wage earner's child under the Ohio Parentage Act. See ORC § 3111.01.

In order to establish a parent-child relationship under the Ohio Parentage Act, a person must generally first request an administrative determination of the existence or nonexistence of a parent and child relationship from the county child support agency. ORC § 3111.22(A). After obtaining such an administrative determination, the mother, father, or legal guardian of the child in question may bring a parentage action and obtain a declaration of parentage, or object to the administrative order, in the juvenile court. ORC §§ 3111.04, 3111.22(D). The Ohio Parentage Act provides for a judicial determination of paternity by the juvenile court, or if the alleged father is deceased, in the appropriate probate court. ORC §§ 3111.06(A), 3111.22 (A)(2). Any evidence relevant to the issue of paternity to be presented, including genetic testing results. ORC § 3111.10(C).

Although the file contains the Administrative Order establishing the parent-child relationship, it does not contain a judicial determination of paternity by an Ohio juvenile court. The Administrative Order itself may be sufficient to establish that the child was the wage earner's child within the meaning of the Ohio Parentage Act, if it was not timely challenged in Juvenile Court by the wage earner's personal representative. See ORC §§ 3111.02(B), 3111.03(B)(3), 3111.22(D). The POMS acknowledges "a final and enforceable determination finding the existence of a father-child relationship under the Ohio Parentage Act that is based on the results of genetic testing is not a presumption but is controlling."

Whether the Administrative Order is sufficient, standing alone, however, is not outcome determinative. On October 28, 1998, SSA published new regulations, setting out how SSA will apply state law in determining a child relationship. See 20 C.F.R. § 404.355 (2000). Under the new regulations, where a state inheritance law requires a court determination of paternity, SSA will not require the claimant to obtain such a determination but will decide the paternity question by using the standard of proof that the state court would use as a basis for a determination of paternity. Id.

The standard of proof for actions under the Ohio Parentage Act when the father is living is usually a preponderance of the evidence. Filkins v. Cales, 619 N.E.2d 1156, 1158 (Ohio App. 1993). Although the Ohio courts have not determined what standard of proof applies to a posthumous determination of paternity, the Ohio Supreme Court, in Brookbank v. Gray, 658 N.E.2d 724, 727, 729 (Ohio 1996), suggested it would require a heightened standard of proof. We believe that the clear and convincing evidence standard of proof should be applied in posthumous paternity cases. See Memorandum from Regional Chief Counsel, Chicago, to Ass't Reg. Comm.-PCO, Southeastern Program Service Center, Child's Claim on the Account of Jack B. B~, at 3 (November 15, 1999); see also POMS GN 00306.080 ("After a putative father's death, paternity may be established by clear and convincing evidence, under the Ohio Parentage Act."). Clear and convincing evidence requires more certainty on the part of the fact-finder than a "preponderance of the evidence" standard (more than 50%), but less certainty than the "beyond a reasonable doubt" standard." POMS GN 00306.080.

Under the Ohio Parentage Act, a man is presumed to be the natural father of a child where genetic tests indicate a probability of 99% or greater that the man is the biological father of the child. ORC § 3111.03(A)(5); POMS GN 00306.080. In order to establish the presumption, the Ohio Parentage Act requires genetic tests to include the alleged natural father. See e.g., ORC 3111.22(C)(procedures for administrative determination of parent-child relationship include testing of mother, child, and alleged father, but include no procedures for testing other family members). Because the wage earner's parent were tested in his stead, it seems that the child cannot take advantage of this presumption.

The DNA test results performed on the grandparents would, however, constitute other evidence which may be considered in determining whether a father and child relationship existed between the wage earner and child. See ORC 3111.10 (C), (E)(admitting both genetic test results not limited to tests on the father and any other relevant evidence); POMS GN 00306.080 ("In addition to the [presumptions of paternity found under ORC § 3111.03], the SSA adjudicator may consider other facts to determine whether a parent-child relationship has been established [by clear and convincing evidence]").

Here, DNA test results showed a 99.98% probability that the wage earner "is the father of the minor child." The Child Enforcement Agency's Administrative officer found that this was sufficient evidence to show that the wage earner was the natural father of the child and ordered that a father-child relationship existed between the wage earner and the child. We have been unable to locate any Ohio case dealing with genetic testing of family members to determine how the Ohio courts might deal with this evidence. The code section on admissible evidence requires the court to consider genetic test results to be "weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity." ORC 3111.10(C). Even in the context of DNA test results and a probability of 99% being required to raise a presumption, 99.98% probability that the wage earner was the father of the child seems to be a very high probability. We believe that SSA should accept these results as sufficient to establish the existence of a father-child relationship by clear and convincing evidence.

In another recent opinion, we advised that genetic testing of grandparents alone could not establish paternity under Michigan law, because the test results in that case indicated only the very high probability that the child was biologically linked to the grandparents. Memorandum from Assistant Regional Counsel, Chicago, to Assistant Regional Commissioner, MOS, Billy J. L~, (February 14, 2001). In that circumstance, we advised that evidence should be gathered to exclude the possibility that another son of the grandparents could have fathered the child. Because the genetic test results in this case show a 99.98% probability of the wage earner's paternity, not just the grandparent's relationship, we believe that excluding fatherhood by any other family member of the wage earner is unnecessary.

You also asked that if paternity is established, what would be the appropriate entitlement date. Because paternity established under the Ohio Parentage Act would allow the child to inherit from the wage earner, and because the right to inherit relates back to the death of the parent, the child's entitlement should relate back to the date of his birth (which, in this case ,was a few months after the wage earner's death).

IV. CONCLUSION

We believe that Terry W. H~ III should be considered the "child" of the wage earner under 42 U.S.C. § 416 (h)(2)(A) because the genetic testing establishes paternity by clear and convincing evidence. We further conclude that the child's status would relate back to the date of his birth.

In order to establish a presumption of paternity, Ohio requires genetic tests to include the alleged natural father. Otherwise, in posthumous paternity cases, the standard of proof is clear and convincing evidence. Absent any other proof, genetic test results that establish full siblingship and find that it is "extremely likely" that the siblings have the same biological father are clear and convincing evidence of paternity between the alleged father and the claimant sibling if there is clear and convincing evidence of paternity between the alleged father and the other sibling.

NOTE: The opinion holds that a child is a child for inheritance purposes as of the deceased's date of death. However, since the Ohio provision under scrutiny is a legitimating provision, if SSA were to establish a period of disability for the NH and the retroactive life of the child's application included months prior to the NH's death, the child could be entitled to life benefits.

I. INTRODUCTION

This is in response to your inquiry regarding whether genetic siblingship test results could be used to establish paternity in order to provide claimant inheritance rights under section 216(h)(2)(A) of the Social Security Act (Act) as a "child" for purposes of Child's Insurance Benefits (CIB). For the reasons stated below, we conclude that the genetic siblingship test results could be used to determine whether Ada N. G~ was entitled to benefits on the account of the deceased wage earner, Mr. Joseph L. M~. We further conclude that there may be sufficient evidence to show paternity, by clear and convincing evidence, under Ohio law.

II. FACTS

Wage earner Joseph M~ (Mr. M~), who was domiciled in Ohio, died on December XX, 1984. The claimant, Ada N. G~ (Ada), was born nearly nine months later, on September XX, 1985. On April XX, 2000, Ada's mother, Janice J. G~ (Ms. G~), applied for CIB on behalf of Ada on the account of the deceased wage earner, Mr. M~.

On Ada's CIB application, Ms. G~ indicated that she was not able to contact Mr. M~'s family regarding paternity. Ms. G~ also noted that she was living with Mr. M~ at the time he died and she was supporting him at that time. It does not appear that they were married.

Jomeka M~ (Jomeka) is also the daughter of Ms. G~ and is entitled to CIB on the account of the deceased wage earner, Mr. M~. Jomeka was born on November XX, 1983. Ms. G~ indicated on Ada's CIB application that Mr. M~ signed Jomeka's birth certificate as her father.

To establish a father and child relationship between Mr. M~ and Ada, Ms. G~ submitted genetic test results dated March 16, 2000, which showed that the probability of full-siblingship between Jomeka and Ada was 99.4 percent. The test results also showed that the likelihood that Jomeka and Ada shared the same biological mother and father was 158 to 1. According to an explanation of test results provided by the laboratory that administered the genetic tests, the odds that Ada and Jomeka have the same biological father is "extremely likely."

Ada's birth certificate does not provide any information regarding the identity of her father.

III. ANALYSIS

Ada is entitled to CIB on Mr. M~'s account if she is able to show that she is his "child" as that term is defined in the Social Security Act. 42 U.S.C. § 402(d). In this case, Ada may be entitled to CIB on Mr. M~'s account if, under Ohio intestate succession laws, she is eligible to inherit as one of Mr. M~'s children. See 42 U.S.C. § 416(h)(2)(A). In order to prove that Ada was Mr. M~'s "child" within the meaning of the intestate succession laws, Ada must prove that she was his child under the Ohio Parentage Act. See ORC § 3111.01.

In order to establish a parent-child relationship under the Ohio Parentage Act, the claimant must bring a parentage action and obtain a declaration of parentage in the juvenile court. ORC § 3111.04. The juvenile court has original jurisdiction over an action brought under the Ohio Parentage Act, including actions where the alleged father is deceased. ORC § 3111.06(A). The Ohio Parentage Act provides for a judicial determination of paternity by the juvenile court and allows any evidence relevant to the issue of paternity to be presented, including genetic testing results. ORC § 3111.10(C).

The file does not contain a judicial determination of paternity by an Ohio juvenile court. However, on October 28, 1998, SSA published new regulations, setting out how SSA will apply state law in determining a child relationship. See 20 C.F.R. § 404.355 (2000). Under the new regulations, where a state inheritance law requires a court determination of paternity, SSA will not require the claimant to obtain such a determination but will decide the paternity question by using the standard of proof that the state court would use as a basis for a determination of paternity. Id.

The standard of proof for actions under the Ohio Parentage Act when the father is living is usually a preponderance of the evidence. Filkins v. Cales, 619 N.E.2d 1156, 1158 (Ohio App. 1993). Although the Ohio courts have not determined what standard of proof applies to a posthumous determination of paternity, the Ohio Supreme Court, in Brookbank v. Gray, 658 N.E.2d 724, 727, 729 (Ohio 1996), suggested it would require a heightened standard of proof. We believe that the clear and convincing evidence standard of proof should be applied in posthumous paternity cases. See Memorandum from Regional Chief Counsel, Chicago, to Ass't Reg. Comm.-PCO, Southeastern Program Service Center, Child's Claim on the Account of Jack B. B~, at 3 (November 15, 1999); see also POMS GN 00306.080 ("After a putative father's death, paternity may be established by clear and convincing evidence, under the Ohio Parentage Act."). Clear and convincing evidence requires more certainty on the part of the fact-finder than a "preponderance of the evidence" standard (more than 50%), but less certainty than the "beyond a reasonable doubt" standard." POMS GN 00306.080.

The evidence in this case does not establish a presumption of paternity under ORC § 3111.03. Under the Ohio Parentage Act, a man is presumed to be the natural father of a child where genetic tests indicate a probability of 95% or greater that the man is the biological father of the child, absent clear and convincing evidence to the contrary. ORC § 3111.03(A)(6), (B); POMS GN 00306.080. In order to establish the presumption, the Ohio Parentage Act requires genetic tests to include the alleged natural father. For example, ORC § 3111.03(A)(6) provides that a court may order that genetic tests be conducted or the natural mother and alleged natural father voluntarily agree to genetic testing to determine the father and child relationship and the results of these genetic tests be used to determine the existence of that relationship. Additionally, ORC § 3111.09(A) provides that the court may order the child's mother, the child, the alleged father, and any other defendant to submit to genetic testing. In the absence of this type of evidence, Ada cannot establish a presumption of paternity under ORC § 3111.03(A)(6).

The DNA test results would, however, constitute other evidence which may be considered in determining whether a father and child relationship existed between Mr. M~ and Ada. See ORC 3111.10(E)("All other evidence relevant to the issue of paternity of the child."); POMS GN 00306.080 ("In addition to the [presumptions of paternity found under ORC § 3111.03], the SSA adjudicator may consider other facts to determine whether a parent-child relationship has been established [by clear and convincing evidence]").

Here, DNA test results showed a 99.40% probability of full-siblingship between Jomeka and Ada and the likelihood that Jomeka and Ada had the same biological parents as 158 to 1. Thus, according to the laboratory that administered the tests, it is "extremely likely" that Jomeka and Ada have the same father. Assuming Mr. M~ is Jomeka's father, it is extremely likely that Mr. M~ is Ada's father as well.

We understand that Jomeka is already considered the child of Mr. M~ for purposes of CIB. However, it is not clear from the information you sent us how Jomeka's paternity was established. If the evidence used to establish paternity for Jomeka was by a preponderance of the evidence, then the DNA tests showing full-siblingship with Ada may not be sufficient to establish paternity for Ada by clear and convincing evidence. See Memorandum from Regional Chief Counsel, Chicago, to Ass't Reg. Comm.-POS, Chicago, Use of Genetic Testing to Establish Paternity in Ohio After the Death of the Alleged Father-Wage Earner: Clarence P. D~, at 6 (March 25, 1996). However, if Jomeka submitted clear and convincing evidence that Mr. M~ was her father, this evidence with the DNA evidence, would probably be sufficient to show that Mr. M~ is Ada's father.

The only evidence in the file relating to the relationship between Jomeka and Mr. M~ is Ms. G~'s statement on Ada's CIB application that Mr. M~ signed Jomeka's birth certificate as her father. The file, however, does not contain any documentation to support Ms. G~'s assertion. If Jomeka's birth certificate shows that Mr. M~ signed the birth certificate as her father, then, under Ohio law that existed at the time of Mr. M~'s death, he would have been presumed to be the father of Jomeka. See ORC § 3111.03(A)(4)(A man is presumed to be the natural father of a child under any of the following circumstances...."The man, with his consent, signs the child's birth certificate."). See In re Smith, 474 N.E.2d 632, 637 (Ohio App. 1984)("Under the Uniform Parentage Act, the "informant" on the birth certificate is presumed to be the natural father."). This evidence, along with the DNA full-siblingship test results, would be sufficient to show that Mr. M~ is Ada's father and Ada would be entitled to CIB on Mr. M~'s account.

You also asked that if paternity is established what would be the appropriate date for entitlement. For purposes of entitlement to CIB, Ada would be considered the child of Mr. M~ for purposes of inheritance as of the date of his death. See The National City Bank of Cleveland v. Ford, 36 Ohio Misc. 60, 66 (1973) ("An heir becomes an heir at the time of death of the ancestor in question.").

IV. CONCLUSION

Under the new regulations, SSA may determine the paternity claim by using the standard of proof delineated above, clear and convincing evidence. 20 C.F.R. § 404.355(b)(2). You should review the birth certificate of Jomeka to determine whether Mr. M~ signed it. Jomeka's birth certificate signed by Mr. M~ along with the DNA test results would be clear and convincing evidence that Mr. M~ is Ada's father, and she would be entitled to CIB on Mr. M~'s account.

In Ohio, the standard of proof for posthumous paternity actions is clear and convincing evidence.

You have requested our assistance in determining the standard of proof applicable to posthumous adjudications of paternity under the Ohio Parentage Act. Charley T. C~, ~, ARC (Hovland) to RA V (4/30/93) (your reference S2D5521). The relevant facts, as well as our analysis, are as follows.

Background

On November 8, 1989, Mary H~ gave birth to a baby boy, whom she apparently named Johnathon H~. Following the death of the wage earner, Charley C~, Ms. H~ and the wage earner's parents proceeded to juvenile court and received a court finding that the wage earner was the father of Ms. H~' child. This paternity finding was based upon the testimony of Ms. H~, as well Mr. and Mrs. C~'s testimony that the wage earner had acknowledged the child as his prior to the wage earner's death. As a result of this finding, the child's birth certificate was changed to show the wage earner as the father, and the child's name was changed to Winford C~ T~ C~. The court records were then sealed.

Ms. H~ thereafter applied for child's benefits on Winford's behalf, presenting the birth certificate without informing SSA that the certificate had been amended posthumously. Based upon the birth certificate, SSA granted Winford child's benefits on the wage earner's account. The wage earner's former wife, whose child was adversely affected by this determination, challenged Winford's entitlement. She alleged that Winford was actually the child of John H~, the man who shot and killed the wage earner in February 1990. The wage earner's parents, however, continued to support Ms. H~' claim that the wage earner was Winford's father. SSA weighed the evidence and granted Winford's claim at the reconsideration level. This determination became final in 1990.

In December 1992, the wage earner's mother contacted SSA and stated that she believed Ms. H~ had deceived the wage earner and his parents into believing that he was Winford's father. Information elicited during the investigation and trial of John H~ suggested that, at best, Ms. H~ was uncertain who was Winford's father. Mr. H~ consistently referred to Winford as his son, and Ms. H~ admitted that she lived with John H~ during most of the time of possible conception. Ms. H~ also stated, however, that she was away from John H~ for a period of time, during which she saw the wage earner. She later reestablished her relationship with Mr. H~, staying with him through the birth of her child and apparently naming the child after him. In January 1990, however, she left Mr. H~ and resumed her relationship with the wage earner until his death in February 1990. During Mr. H~'s trial, Ms. H~ initially stated that the wage earner was Winford's father, but later stated that it was possible that Mr. H~ was the father because he had raped her during the possible time of conception.

Discussion

Based upon the new evidence that has been presented in this case, you are considering whether to reopen and revise the decision finding Winford entitled to child's benefits on the wage earner's account. You note that, in the absence of a binding court order under Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973), SSA evaluates conflicting evidence of paternity by applying the standard of proof applicable under state law. You have requested our comments regarding the standard of proof that would be applied in posthumous adjudications of paternity in the state of Ohio.

The Ohio Parentage Act is silent on the standard of proof. Ohio Revised Code § 3111.01 et seq. In general, Ohio courts have held that one seeking to establish paternity must do so by a preponderance of the evidence. See Grove v. Mattison, 572 N.E. 2d 731 (Ohio App. 1988); McMullen v. Muir, 517 N.E. 2d 1381 (Ohio App. 1986) (citing Domigan v. Gillette, 479 N.E. 2d 291 (Ohio App. 1984)). The cases we have been able to locate, however, deal solely with the standard to be applied in cases where the putative father is alive. As we discuss below, the best interpretation of Ohio law suggests that a much stricter standard of proof would be required when paternity is sought to be proved posthumously./

As we noted in our memorandum of November 11, 1992, Ohio law is in flux on the issue of whether or not posthumous adjudications of paternity are permissible in the first place. Robin L~, SSN ~, RA V (Larson) to Director, P-RSI/SSI Branch (11/11/92) at 3. Some Ohio appellate courts have flatly refused to permit posthumous adjudications of paternity. Garrison v. Smith, 561 N.E.2d 1041, 1042-43 (Ohio App. 1988); Beck v. Joliff, 489 N.E.2d 825, 829 (Ohio App. 1984). Most importantly, the one appellate court that endorsed posthumous adjudications, did so in circumstances where problems of proof had been virtually eliminated. Alexander v. Alexander, 537 N.E.2d 1310, 1313-14 (Ohio App. 1988). In Alexander, the court began by taking judicial notice of the accuracy of DNA testing, and then permitted the putative father's body to be exhumed so that a DNA test could be performed. Alexander, 537 N.E. 2d at 1311. The court engaged in a lengthy discussion of the conventional reasons for prohibiting children born out of wedlock from proving paternity for purposes of inheritance. Id. at 1312-14. The court noted that the decisions centered around the difficulty with proving paternity after the father was deceased. Id. The court went on to state:

Science has developed a means to irrefutably prove the identity of an illegitimate child's father. No longer are we dependent upon fallible testimony, nor are we concerned that the decedent cannot be present to defend himself. The accuracy and infallibility of the DNA test are nothing short of remarkable . . . The problems of proof which have been the basis of denying inheritance rights to illegitimate children have been removed by the advent of this new genetic testing. Therefore, this court can no longer be a participant in denying the opportunity to an illegitimate child to prove his paternity so that he may rightfully share in his father's estate.

Alexander, 537 N.E. 2d at 1314.

The Alexander court made it very clear that it was diverging from the majority practice of refusing posthumous adjudications of paternity because the evidence sought to be obtained, a DNA test, would be virtually irrefutable. We were faced with a similar situation when we offered our opinion in Robin Letso. There we noted that: (1) the blood tests that had been taken revealed a high probability of paternity; (2) chain of custody and accuracy problems were less likely in that case than in many posthumous cases because the blood was drawn before the wage earner's death rather than post-mortem; and (3) the mother had attempted to resolve the paternity question during the wage earner's lifetime, mitigating against allegations of fraud and suggesting that she was willing to give the wage earner an opportunity to contest the action. Robin L~, SSN ~, RA V (Larson) to Director, P-RSI/SSI Branch (11/11/92) at 5. Consequently, we generously interpreted Ohio law as permitting paternity to be proved posthumously. Our opinion, as well as the case upon which we relied, clearly involved circumstances where the evidence was so strong as to virtually eliminate questions of proof.

In contrast, the present case presents precisely the type of situation that led most Ohio courts, and courts in many other jurisdictions, to refuse to permit posthumous adjudications of paternity. See Alexander, 537 N.E. 2d at 1312-14. Ms. H~ admits that she had intercourse with both the wage earner and Mr. H~ during the possible time of conception and that she is unable to ascertain which man is actually the father of her child. She apparently told each man respectively that he was the father of her child. She made no attempt to prove paternity before the wage earner's death, or even to obtain blood tests from Mr. H~ to rule out the possibility that he is the father. In fact, she apparently named the child after Mr. H~ and changed the child's name after the wage earner's death, when she and Mr. H~ were no longer in a relationship. Although she may have taken these actions in the best interests of her child, the fact remains that the evidence presented in this case makes it equally likely that either man is the father of Winford.

Given the reluctance of some Ohio courts to permit posthumous adjudications of paternity in any circumstance, and given the reasoning upon which the Alexander court relied, we think that Ohio courts would permit posthumous adjudications of paternity only where issues of proof were virtually non-existent.

In other words, the courts would likely apply a much stricter standard of proof, such as clear and convincing evidence, than the standard endorsed in cases where the putative father is alive.

Conclusion

For the foregoing reasons we conclude that the best interpretation of Ohio law would require those attempting to prove paternity posthumously to do so by a heightened standard, such as by clear and convincing evidence. Should the Ohio courts ultimately take a position contrary to that espoused in this opinion, we would re-evaluate our position.

Under the Ohio Parentage Act, Ohio would permit State juvenile courts to issue posthumous judgments of paternity which the probate courts must recognize in effectuating intestate devolution of property.

You have requested our assistance in determining whether Christopher P. A~ is entitled to child's insurance benefits on Robin L~'s account. Specifically, you inquired whether SSA may accept an Ohio court finding of paternity entered after Robin's death as sufficient to establish Christopher's entitlement to benefits under section 216(h)(3) of the Social Security Act, 42 U.S.C. § 416(h)(3). We conclude that section 416(h)(3) does not permit SSA to accept a court order entered after the death of the numberholder as proof of the parent-child relationship. Christopher may still be entitled to benefits, however, if he is entitled to inherit from Robin's estate under Ohio intestacy law.

See 42 U.S.C. § 416(h)(2)(a). Although you did not initially request that we address this issue, you indicated in a phone conversation with the undersigned on November 5 that an opinion on this issue could prove helpful. After reviewing the relevant case law, we conclude that the trend in Ohio is to permit the state juvenile courts to enter posthumous judgments of paternity, and that these judgments must be recognized by the probate courts in effectuating intestate devolution of property. It is our opinion that Christopher would be entitled to inherit under Ohio intestacy law and, consequently, is entitled to benefits.

Background

On February XX, 1982, Susan I. A~ gave birth to Christopher P. A~. On August XX, 1988, the Defiance County Child Support Enforcement Agency received the results of a paternity test based upon blood samples taken from Robin, Christopher, and Susan on August XX, 1988. The test results revealed a 99.71 percent probability that Robin was Christopher's father. Despite the test results, Robin refused to agree to support the child. On October XX, 1988, Susan filed a complaint with the Juvenile Division of the Court of Common Pleas in Defiance county alleging that Robin was Christopher's father and that he owed a duty of support. Shortly thereafter, Robin disappeared and his body was not discovered until October XX, 1991. The death certificate indicated a date of death of October XX, 1988.

Susan returned to court in March of 1992, and presented a settlement agreement that she had negotiated with the administratrix of Robin's estate. On April 1, 1992, the Juvenile Division of the Court of Common Pleas entered judgment in Susan's favor based upon the settlement agreement. The parties stipulated that the genetic testing established paternity and that Robin would have owed a duty of support to Christopher during his lifetime. Consequently, the court ordered that Christopher should be known as the child of Robin, that a new birth certificate should be issued, and that the Christopher should be an heir of Robin's estate. On April 9, 1992, Susan submitted this court order in conjunction with an application for child's benefits on Christopher's behalf.

Discussion

1. Section 216(h)(3)

Section 216(h)(3) permits a natural child to receive benefits on his father's account if a court decreed the numberholder to be the child's father or ordered the numberholder to contribute to the child's support. See also 20 C.F.R. § 404.355(c) (1992). When the numberholder is deceased, however, the court order or decree that the child wishes to rely upon must have been entered prior to the numberholder's death. 42 U.S.C. § 416(h)(3)(C); 20 C.F.R. § 404.355(c)(1992); Cf. Ronald V. R~, ~, RA V (Goeser) to Director, GLPSC (4/3/81). The statute and regulations precisely require that the order or decree be entered before the numberholder's death, i.e., that the proceedings be concluded, not simply that the court action be initiated prior to the numberholder's death. Id. This requirement presumably is based upon policy concerns, including the threat of fraud and the desire to offer the numberholder an opportunity to contest the action. Because the court order in this case was not entered until several years after Robin's death, Christopher cannot qualify for child's benefits under these "purely federal" requirements.

2. Section 216(h)(2)

Christopher is entitled to benefits, however, if he is eligible to inherit from Robin under the Ohio intestacy laws. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.354(b), 404.355(a)(1992).

Although the court here decreed Christopher to be an heir, the Secretary is not bound by the judgment unless the following factors are met: (1) the state court has jurisdiction; (2) the issue was genuinely contested 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. Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973); see also George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1990); S.S.R. 83-87c. We conclude that, because the issue was not genuinely contested but was instead resolved through a settlement agreement, the Secretary is not bound by the state court judgment. See Charles W. G~, ~, RA V (Hughes) to Director, P-RSI/SSI Branch (5/22/91). Thus, the Secretary should make an independent determination under Ohio intestacy law regarding Christopher's entitlement to inherit. After reviewing state law, we conclude that Christopher would be entitled to inherit under Ohio law and, consequently, is entitled to benefits pursuant to section 416(h)(2)(A).

The Ohio intestacy statute provides that a child born out of wedlock may inherit from his father if the father during his lifetime married the mother, filed a formal acknowledgment in probate court that the child was his, or designated the child as his heir at law. Ohio Revised Code §§ 2105.15, 2105.18 (1989). Until Ohio enacted its paternity statute in 1982, these three possibilities were the exclusive means by which a child born out of wedlock could inherit from his father. See Khout v. Secretary of Health and Human Services, 664 F.2d 120, 121 (6th Cir. 1981). The parentage statute, however, has been interpreted by the Ohio courts as providing a fourth method for a child born out of wedlock to inherit in intestacy. See Garrison v. Smith, 561 N.E.2d 1041, 1042-43 (Ohio App. 1988); Alexander v. Alexander, 537 N.E.2d 1310, 1313-14 (Ohio App. 1988); Beck v. Joliff, 489 N.E.2d 825, 829 (Ohio App. 1984). Once a child establishes the existence of a parent-child relationship pursuant to the provisions of the parentage statute, he is a "child" for purposes of intestate succession, and is entitled to inherit from his father without satisfying the requirements of sections 2105.15 or 2105.18. See Garrison, 561 N.E.2d at 1042-43; Sommerville v. Heckler, 615 F.Supp. 166, 169 (N.D. Ohio 1985); Nichole M. F~, ~, RA V (Hughes) to Director, RSI/SSI Branch (2/11/92). Thus, if Christopher can establish a parent-child relationship under the Ohio parentage act, he is entitled to inherit from Robin.

The parentage act recognizes the validity of blood testing to establish paternity, and a man is presumed to be the natural father of the child if such tests reveal a probability of 95 percent or greater that the relationship exists. Ohio Revised Code § 3111.03(A)(5) (1989). Accordingly, the test results in this case are sufficient, absent rebuttal, to conclusively establish a parent-child relationship under the parentage act. The only question then is whether the act permits the relationship to be established after the death of the putative father.

The Ohio law is in flux on this issue. Espousing general policy concerns, two Ohio appellate courts have stated that the relationship must be established prior to the alleged father's death, but the issue was not determinative of the outcome in those cases. See Garrison, 561 N.E.2d at 1043; Beck, 489 N.E.2d at 829. A third appellate court, on the other hand, noted that recent technological advances have removed problems of proof and have greatly reduced the likelihood that one would pursue a fraudulent claim. Alexander, 537 F.2d at 1314. The court reasoned that because the traditional rationale for denying equal treatment to children born out of wedlock was no longer legitimate, these children should be permitted to establish paternity after the death of the putative father. Id.; see also Sommerville, 615 F.Supp. at 167 (interpreting Ohio law as permitting probate court to enter a posthumous order under the parentage act). Additionally, section 3111.06(A) of the parentage act appears to contemplate paternity actions initiated after the death of the putative father. This section provides that "An action may be brought under those sections in the juvenile court of the county in which the child, the child's mother, or the alleged father resides or is found or, if the alleged father is deceased, of the county in which proceedings for the probate of his estate have been or can be commenced." Ohio Revised Code § 3111.06(A) (1989) (emphasis added).

Yet a fourth appellate court, citing the language of section 3111.06(A), held that the lower probate court had erred in dismissing the plaintiff's complaint on the grounds that a paternity action could not be brought after the death of the alleged father. Martin v. Davidson, No. 13840 (Ohio App. April 19, 1989) (LEXIS, States library, Ohio file). Noting that its decision conflicted with the ruling in Beck, 498 N.E.2d 825, the court certified the issue of posthumous paternity adjudications to the Ohio Supreme Court. The Ohio Supreme Court avoided the merits of the case, however, and dismissed the certification on the grounds that a probate court lacked jurisdiction to consider paternity actions. 559 N.E.2d 1348 (Ohio 1990). Note that this is not equivalent to holding that posthumous adjudications of paternity are impermissible under the parentage act. Rather, the case stands only for the proposition that a child wishing to adjudicate the issue of paternity must file the action in the Juvenile Division of the Court of Common Pleas, and not in the Probate Division. Unfortunately, a probate court entered the posthumous paternity findings in each of the appellate cases we have already discussed. Consequently, the decisions in this area have been effectively overruled by the Supreme Court's pronouncement that the probate courts were without jurisdiction to enter these judgments. It remains an open question, however, whether the juvenile division can enter a posthumous finding of paternity.

We were unable to locate a ruling by an Ohio court on the issue of whether or not the parentage act permits posthumous adjudications of paternity by the juvenile court. Perhaps the question has not arisen because the reason for bringing a paternity action after the death of the putative father would almost always be tied to inheritance issues. Consequently, the child would instinctively file the action in probate court rather than juvenile court. Since the Ohio Supreme Court's pronouncement in Martin, we would expect to begin seeing cases where children born out of wedlock obtain a paternity judgment from the juvenile court and then present the judgment to the probate court to be honored. As discussed above, supra at 3, the general consensus among the Ohio courts is that a child who establishes a relationship under the parentage act must be permitted to inherit under the intestacy act.

In our opinion, the decision in Martin is not fatal to all posthumous adjudications of paternity. The question of the juvenile court's capacity to enter posthumous orders of paternity clearly remains open, and the language of the parentage act seems to anticipate actions commenced after the putative father is deceased. Moreover, the lower courts' willingness to construe the parentage act as an adjunct to the intestacy act exhibits a concern for the disparate treatment that has been visited upon children born out of wedlock in the past, and the courts have been quick to note that few of the traditional reasons for requiring paternity actions during the putative father's lifetime remain valid. For example, the Ohio Supreme Court has used broad language similar to that employed by the Alexander court to endorse the use of blood tests, noting that the tests are accurate and reduce problems of proof. In Wright v. Oliver, 517 N.E.2d 883, 885 (Ohio 1988), the court evinced little sympathy for a putative father who alleged that he was materially prejudiced by delayed proceedings because three of his witnesses were no longer available. The court found that the absence of the witnesses did not significantly prejudice the defendant, noting that the highly reliable and accurate tests available drastically reduced the possibility that a defendant would be wrongly accused. Wright, 517 N.E.2d at 885. The court employed similar language in Hulett v. Hulett, 544 N.E.2d 257, 261 (Ohio 1989), and in Owens v. Bell, 451 N.E.2d 241, 245-46 (Ohio 1983), the court noted that the tests provided a "high degree of conclusiveness." Based upon the court's broad language, we recently suggested that the court would be more likely to permit posthumous adjudications of paternity than to assume the extreme position advocated by the Beck and Garrison courts. Nichole M. F~, supra, at 4 n.3.

Finally, the facts of this case make it even more likely that an Ohio court would find Christopher entitled to inherit. First, the test results reveal a high probability that Robin is indeed Christopher's father. Second, chain of custody and accuracy problems are less likely in this case than in many posthumous cases because the blood was drawn before Robin's death rather than post-mortem. Third, Susan's attempt to resolve the paternity question during Robin's lifetime mitigates against allegations of fraud and suggests she was willing to give him an opportunity to contest the action.

Given the sympathetic facts of this case and the Ohio courts' pronounced concern about the unfair treatment that children born out of wedlock have received in the past, it is our opinion that Christopher would be entitled to establish a parent-child relationship under the parentage act despite Robin's death. Because the evidence is sufficient to establish this relationship, Christopher would be entitled to inherit. Consequently, we conclude that Christopher is entitled to benefits on Robin's account pursuant to 42 U.S.C. § 416(h)(2)(a).

Should the Ohio Supreme Court ultimately take a position contrary to that espoused in this opinion, we would re-evaluate our position. The claims folder is returned herewith.

The Ohio Parentage Act provides that a man is presumed to be the father of a child if genetic testing has been performed on the mother, alleged father, and child, and the results of the genetic testing indicate a probability of 99% or greater that the alleged father is the biological father of the child. In this case, the genetic tests were performed on the claimant and two known children of the NH after the NH's death, and indicated a probability of paternity of 99.98%. Thus, the statutory presumption does not apply. Rather, the genetic tests are relevant, and probably strong, evidence of paternity and must be weighed with the other evidence in file to see if clear and convincing evidence supports a conclusion of paternity.

The Assistant Regional Commissioner in the Southeastern Program Service Center requested our assistance in determining whether DNA evidence obtained from Jackara B~ and two known children of Jack B~ could be used in determining paternity under the Ohio Parentage Act. After reviewing the relevant Ohio law, we concluded that the DNA evidence could be used to determine whether Jackara B~ is entitled to benefits on Jack B~'s account.

BACKGROUND

Jack B. B~ died on May 27, 1996. He was domiciled in Ohio at the time of his death. Jackara B~ (claimant) filed for children's insurance benefits (CIB) as a child of Jack B~ (deceased number holder) on October 15, 1988. Jackara B~ and two known children of Jack B~ underwent DNA testing that indicated that the probability that Jack B~ was Jackara B~'s father was 99.98%.

DISCUSSION

Whether Jackara B~ can be entitled to CIB on Jack B~'s account depends upon whether she can be considered Jack B~'s child under the Social Security Act (the Act). The Act provides that, in determining whether a claimant is the child of a deceased number holder, the Commissioner shall apply the law that determines devolution of intestate personal property in the wage earner's state of domicile at death. 42 U.S.C. § 416(h)(2)(A).

The Ohio statute that determines intestate succession uses the term "child" without defining that term. Ohio Rev. Code Ann. (ORC) § 2105.06 (1999). Ohio case law provides the term "child" means both legitimate and illegitimate children. See Green v. Woodard, 318 N.E.2d 397 (Ohio App. 1974). Ohio case law further provides that a child born out of wedlock can inherit from her biological father if:

1. the father later marries the mother and acknowledges the child as his; or

2. the father provides for the child by will; or

3. the father signs a formal, correctly completed acknowledgement pursuant to ORC § 5101.314. (This section provides that if a correctly completely formal acknowledgement becomes final, the child of the man who signed the acknowledgement is the his child "as though born to him in lawful wedlock."); or

4. the father adopts the child; or

5. the father designates the child as an heir at law under ORC § 2105.15; or

6. the parent-child relationship is established under ORC chapter 3111, the Ohio Parentage Act.

Garrison v. Smith, 561 N.E.2d 1041, 1042-43 (Ohio App. 1988); see also Hunter-Martin v. Winchester Transportation, Inc., 593 N.E.2d 383 (Ohio App. 1991) (same requirements stated in wrongful death action brought by child after death of alleged father).

In order to establish a parent-child relationship under ORC Chapter 3111, the claimant must bring a parentage action and obtain a declaration of parentage in the juvenile court. See ORC Chapter 3111; ORC § 2151.23. The standard of proof for parentage actions when the father is living is usually a preponderance of the evidence. ORC § 3111.08; see Filkins v. Cales, 619 N.E.2d 1156, 1158 (Ohio App. 1993). However, the Ohio courts have not concluded what standard of proof applies to a posthumous determination of paternity. Until recently, Ohio courts did not even recognize the right to bring a paternity action after the death of the alleged father. See Hunter-Martin, 593 N.E.2d at 385. More recently, the Ohio courts have recognized these types of actions; however, they noted the evidentiary dangers inherent in determining paternity after the death of an alleged father. See Brookbank v. Gray, 658 N.E.2d 724, 730 (Ohio 1996) (allowing paternity to be established through Ohio Parentage Act for wrongful death action); In re Estate of H~, 629 N.E.2d 1086, 1089 (Ohio App. 1993) (allowing paternity to be established through Ohio Parentage Act for inheritance action).

While Ohio has not stated that it would require clear and convincing evidence to prove posthumous paternity, the court's language suggests that it would require a heightened standard of proof. Brookbank, 658 N.E.2d at 727, 729. Therefore, we believe the clear and convincing evidence standard of proof should be apply in posthumous paternity cases.

The Ohio Parentage Act provides for a judicial determination of paternity by the juvenile court and allows any evidence relevant to the issue of paternity to be presented, including genetic testing results, which must be weighted according to the statistical probability of the alleged father's paternity. ORC § 3111.10. The Ohio Parentage Act provides that a man is presumed to be the father of a child if genetic testing has been performed on the mother, alleged father, and child, and the results of the genetic testing indicate a probability of 99% or greater that the alleged father is the biological father of the child. ORC §§ 3111.03(A)(5), 3111.22 (C)(2)(a). Here, however, the genetic tests were not performed on the alleged father. Thus, the statutory presumption does not apply. Rather the genetic tests are relevant, and probably strong, evidence of paternity and must be weighed with the other evidence in the file to see if clear and convincing evidence supports a conclusion of paternity.

Lastly, although the Ohio Parentage Act requires a judicial determination of parentage in order to entitle the claimant to inherit as a child under the intestacy laws, SSA's regulations provide that, if state law requires such an action, we will not require the claimant to bring the parentage action. 20 C.F.R. § 404.355(b)(2) (1999). Rather, SSA will determine the paternity claim by using the standard of proof delineated by relevant state law. 20 C.F.R. § 404.355(b)(2). Thus, you should review the file, including the DNA test results, and determine whether Jackara B~ has shown by clear and convincing evidence that she was the daughter of Jack B~.

Under the Ohio Parentage Act, there is a presumption that a putative father is the natural father if he signs a birth certificate as an informant. That presumption can be rebutted by clear and convincing evidence which includes the results of genetic testing. Genetic test results which excluded the NH as the father and were issued by a laboratory that is accredited by the American Association of Blood Banks and the American Society for Histocompatibility and Immunogenetics satisfies the standard for rebutting the presumption.

You have requested our opinion regarding whether or not new evidence received by the agency will allow reopening and revision to a denial a previously approved claim for child's benefits. For the following reasons, we conclude that reopening and revision to a denial are appropriate.

Kayla J~ was born July XX, 1990. The wage earner signed her birth certificate, which listed him as her father, but he never married her mother. On March XX, 1995, the wage earner died, domiciled in Ohio. Jennifer G~, Kayla's mother, filed an application for Child's Insurance Benefits (CIB) on March 10, 1995. On March 15, 1995, Kayla's claim was allowed under 42 U.S.C. § 416(h)(3). Thereafter, the wage earner's father submitted a report of genetic testing from Gene Proof Technologies, which excluded the wage earner as Kayla's father. Gene Proof Technologies is accredited by the American Association of Blood Banks and the American Society for Histocompatibility and Immunogenetics. The report from Gene Proof Technologies was addressed to an investigator with the Ohio Child Support Enforcement Agency.

The regulations allow for reopening for good cause within four years of the notice of initial determination on a claim. 20 C.F.R. § 404.988(b). Good cause exists if new and material evidence is furnished. 20 C.F.R. § 404.989(a)(1). Evidence is new and material if it was not a part of the claims file when the final determination was made, relates back to the date of the original determination, and shows facts which would result in a different conclusion from that originally reached had the evidence been introduced at the time of the determination. POMS GN 04010.030(A). The genetic testing here satisfies the requirements for reopening based on new and material evidence.

The genetic testing would result in the conclusion that Kayla is not entitled to benefits as the wage earner's child. As you suggested in your memorandum to us, this evidence would preclude the prior finding that Kayla is entitled as the "child" of the wage earner pursuant to 42 U.S.C. § 416(h)(3), since that statutory provision requires a biological relationship. See also 20 C.F.R. § 404.355(c); POMS GN 00306.100(A),(B).

Additionally, Kayla could not be entitled under 42 U.S.C. § 416(h)(2)(A), because Kayla would not be entitled to inherit from the wage earner under Ohio law. The Ohio intestacy statute provides that a child born out of wedlock may inherit from her father if the father during his lifetime married the mother, filed a formal acknowledgment in probate court that the child was his, or designated the child as his heir at law. Ohio Revised Code §§ 2105.15, 2105.18. Additionally, proof of paternity under the Parentage Act has been interpreted by the Ohio courts as providing a fourth method for a child born out of wedlock to inherit in intestacy. See Garrison v. Smith, 561 N.E.2d 1041, 1042-43 (Ohio App. 1988); Alexander v. Alexander, 537 N.E.2d 1310, 1313-14 (Ohio App. 1988); Beck v. Joliff, 489 N.E.2d 825, 829 (Ohio App. 1984). Kayla has presented no evidence that the wage earner married her mother, designated Kayla as an heir at law, or filed a formal acknowledgment in probate court. Additionally, although the Ohio Parentage Act provides for a presumption that a putative father is the natural father if he signs a birth certificate as an informant, that presumption can "be rebutted by clear and convincing evidence that includes the results of genetic testing." Ohio Revised Code § 3111.03(A)(4),(B). Given the test results here, we think an Ohio court would find the presumption rebutted and would enter an order declaring the non-existence of a parent-child relationship between the wage earner and Kayla. Consequently, Kayla could not inherit by resorting to the Parentage Act.

For the foregoing reasons, we conclude that reopening and revision to a denial of the prior award of CIB in this case is appropriate.

Under Ohio law, properly authenticated blood test results rebut the presumption of legitimacy.

This is with reference to your memorandum inquiring whether use of the divorce decree finding or the paternity test results is allowable under Ohio law to rebut a presumption of legitimacy.

The number-holder, Robert A. C~, married Stella C. H~ on April 6, 1970. On September 14, 1980, Stella gave birth to Jewel L. C~. Ten years later the marriage ended by divorce on August 1, 1990. In the divorce decree, the court found that according to the results of blood tests Jewel was not Robert's natural child. On September 17, 1990, SSA received a letter from Robert which stated his belief that Jewel was not his biological daughter.

Under Ohio law, there is a presumption of legitimacy for a child conceived during a lawful marriage. State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944). Yet this presumption may be rebutted by "clear and convincing evidence." The Walker case determined that proof of "no sexual relations between the husband and wife during the time in which the child must have been conceived" satisfies this standard. 58 N.E.2d at 776. Thirty-three years later the Ohio Court of Appeals in Garrett v. Garrett, 54 Ohio App.2d 25, 374 N.E.2d 654, 660 (1977) expanded the interpretation of the clear and convincing evidence standard to include expert testimony about blood-grouping stating:

We hold that in view of the inevitable conflict between the parties to the action, the direct interest each has in the outcome, and the normally clandestine nature of illicit sexual relations, there is a need for impartial testimony. Expert testimony about blood-grouping, if properly authenticated, fills that need. It may given great weight in determining whether the husband is to be excluded as the father of the child, and it may be sufficient in itself to meet the burden of clear and convincing evidence. The introduction of evidence tending to show lack of sexual access is not a prerequisite to the production of such scientific evidence. (Emphasis added).

In the present situation, the MNSs, Kidd, and HLA blood-grouping systems all excluded Robert as the father of Jewel. Dr. Kamala B~, the Director of HLA Laboratory, and Dr. Colin R. M~, Deputy Director of the Hoxworth Blood Center, subscribed to and validated these results. Although evidence that there was no sexual connection between Robert and Stella during the time when Jewel must have been conceived is lacking, these blood-grouping tests should be given great weight in determining whether Robert is to be excluded as the father of Jewel. Accordingly, we believe that the blood test results rebut the presumption of legitimacy and may be used by SSA to determine whether Stella is the natural child of Robert.

Where the facts fail to rebut by "clear and convincing" evidence the presumption under Ohio law that an individual is the father of a child, that child may be entitled for benefits on the deceased individual's account. (A~ , Robert J. - ~ - RAV [W~] to ARC, Progs. 07/28/88).

This is in response to your request for assistance in determining whether Sheila R. A~ is entitled to child's benefits on the account of the deceased wage earner, Robert J. A~ Specifically, you have asked whether the facts presently available fall short of the "clear and convincing evidence" required by Ohio law to rebut a presumption applicable under POMS GN 00306.135 (Ohio) that would establish that Robert should be considered the natural father of Sheila.

As we analyze the problem, Ohio law is only relevant insofar as Sheila could be entitled to child's benefits under Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A). Under that provision, the test for child's benefits is whether the claimant would be entitled to inherit from the deceased wage earner under the law of intestate succession of the State in which the wage earner was domiciled at the time of his death. Because we believe that Ohio law would permit Sheila to so inherit, we believe awarding child's benefits under that provision would be proper.

We also believe, however, that this case should also be analyzed under Section 216(h)(3)(C)(i)(I) of the Act, 42 U.S.C. § 416(h)(3)(C)(i)(I). That provision sets forth a federal test for entitlement to child's benefits that is independent of state law issues, and that on the facts of this case also would appear to entitle Sheila to child's benefits. Accordingly, we conclude that in addition to the outcome under Ohio law, Sheila should also be entitled to benefits under the alternative federal test of Section 216(h)(3)(C)(i)(I).

FACTS

From our review of the claims folder, the relevant facts may be summarized as follows: the child claimant, Sheila A~ ("Sheila"), was born February XX, 1980 at Denver, Colorado, to Debra M~ ("Debra"). At the time of Sheila's birth the wage earner Robert A~ ("Robert") was married to Laura A~. Robert secured a Colorado divorce dissolving this marriage on April XX, 1982.

On June XX, 1982, Robert submitted a notarized "Statement of Paternity" to the Colorado Bureau of Vital Statistics. On this standardized form Robert acknowledged in writing, as attested by a public notary, that he was the natural father of Sheila and requested that he be entered on the child's birth certificate as the father. Robert further requested that the child's surname be entered on the birth certificate as "A~" Robert also verified that he had "contracted a Common Law Marriage at Denver, Colorado with Debra K~ M~ , the mother of the child," on April XX, 1982. Debra also executed the same document on June XX, 1982 as attested by a notary, and verified that Robert was Sheila's natural father, that the child should bear the surname "A~" and that she had "contracted a Common Law Marriage at Denver, Colorado with Robert" on April XX, 1982.

Two days later on June 16, 1982, Debra executed another notarized statement inconsistent with her earlier statement. She now stated that Robert was not Sheila's natural father, and that she wished to "relieve Robert J~ A~ of the responsibility of Sheila R~ (M~ ) A~, and also her last name will be returned to M~, if we should dissolve our marriage." (emphasis added). This document was found among Robert's effects after his death and was never filed with any governmental office or agency.

Robert was diagnosed as having cancer. In August 1982 he, Debra, and Sheila moved to his parent's home in Ohio to permit Robert to obtain chemotherapy. At this time, Robert used the statement of paternity to establish that Sheila was his child for welfare purposes with the Wayne County, Ohio, Department of Welfare. Nine months later in May 1983 Debra and Sheila returned to Denver and Robert remained in Ohio. Debra has stated that this was done because Robert did not want them to see him dying. On March 30, 1986, Robert died of cancer in Akron, Ohio. On May 3, 1986 Debra filed the present claim for child's benefits on behalf of Sheila.

The file contains statements by Robert's parents denying that Sheila was the natural child of Robert, and denying that a common law marriage existed between Robert and Debra. They furnished to the SSA Debra's June 16, 1982 notarized statement denying Robert was the father which had been found among Robert's possessions. Debra has in the meanwhile continued to insist that Robert is Sheila's natural father. She stated that she executed the June 16, 1982 statement indicating otherwise because she and Robert thought that in the event of his death, Debra would have fewer financial problems if Sheila's last name remained M~

DISCUSSION

I. Entitlement Under Section 216(h)(2)(A) — Ohio Intestate Succession.

Prior to June 29, 1982, when Ohio adopted the Uniform Parentage Act, Ohio Rev. Code § 3111.01 et seq., a child born out of wedlock could inherit from his mother (Rev. Code 2105.17), but could inherit from his father only if the father took certain steps in his lifetime. These included adoption, making a valid will in the child's favor, designating the illegitimate child as his heir-at-law (Rev. Code 2105.15), or formally acknowledging paternity in the Probate Court with the consent of the mother (Rev. Code 2105.18). Under the Ohio scheme, there was no provision allowing for inheritance by illegitimates based upon a posthumous determination of paternity, or other proceedings instituted after the death of the father. The constitutionality of these provisions was upheld in White v. Randolph, 59 Ohio St.2d 6, 391 N.E.2d 333 (1979), appeal dismissed sub nom. Jackson v. White, 444 U.S. 1061 (1980) (dismissing for lack of substantial federal question).

The right of illegitimates to inherit in Ohio has now been significantly broadened by Ohio's adoption of the Uniform Parentage Act, which became effective on June 29, 1982, and governs this case. The Act sets forth the means by which the "parent and child relationship" can be established under Ohio law. It provides that a child, the child's mother, the putative father, or the personal representative of any of the foregoing parties, may bring an action in juvenile court to establish the existence of the parent and child relationship (Rev. Code 3111.01; 3111.04 - 3111.06). Once parentage has been proven pursuant to these provisions, a judgment establishing the "parent and child relationship" shall be entered by the Court that "is determinative for all purposes." (Rev. Code § 3111.13). The Act goes on to define the "parent and child relationship" as:

the legal relationship that exists between a child and the child's natural or adoptive parents and upon which those sections and any other provision of the Revised Code confer or impose rights, privileges, duties and obligations.

(Rev. Code § 3111.01(A)(emphasis added).

The Act also expressly provides that the "parent and child" relationship may be established pursuant to its provisions regardless of the parents' marital status:

the parent and child relationship extends equally to all children and all parents, regardless of the marital status of the parents.

(Rev. Code § 3111.01(B)(emphasis added).

These provisions have been authoritatively interpreted to mean that a judgment establishing the existence of a "parent and child" relationship under § 3111.01 et seq.. confers inheritance rights vis a' vis that parent and child, including cases where the judgment is obtained after the parent's death. E.g., Beck v. Jolliff, 22 Ohio App. 3d 84, 489 N.E. 2d 825 (1984).

Accordingly, establishment of a parent-child relationship pursuant to the Ohio Uniform Parentage Act, or the standards set forth therein, entitles a child-claimant to child's benefits under Section 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A), as several Ohio federal district courts have held. E.g., Michelle S~ v. Heckler, 1984 - 1985 CCH Unemployment Insurance Rptr., §16,240, pp. 2373-2379 (N.D. Ohio, 5/31/85) (District Judge D~); D~D~ v. Secretary/ of Health and Human Services, 1984 - 1985 CCH Unemployment Insurance Rptr., §15,906 (N.D. Ohio, 10/24/'84) (District Judge Aldrich). ^[1]

The issue in the instant case is therefore whether the evidence suffices to establish the "parent-child relationship" between Sheila and Robert under the standards set forth in Rev. Code § 3111.01 et seq. We believe that the evidence does meet that standard in light of the strong presumption set forth by Rev. Code § 3111.03(A)(3):

(A) A man is presumed to be the natural father of a child under any of the following circumstances: ....

(3) The man and the child's mother, after the child's birth, married or attempted to marry each other by a marriage solemnized in apparent compliance with the law of the state in which the marriage took place, and any of the following occur:.

(a) The man has acknowledged his paternity of the child in a writing sworn to before a notary public; (b) The man, with his consent, is named as the child's father on the child's birth certificate; (c) the man is required to support the child by a written voluntary promise or by a court order.

Rev. Code § 3111.03(A)(3) requires at least an attempted marriage

"in apparent compliance" with the law of the State where the marriage occurred. The relevant State law in this case is Colorado, where Robert and Debra allegedly contracted a common law marriage on April 27, 1982. The statute further provides that the "presumption arises under division (A)(3)" regardless of the actual "validity or invalidity of the marriage of the parents." (Rev. Code § 3111.03(B).

The facts of this case, together with the document Robert and Debra executed on June 14, 1982, and filed with the Colorado Department of Vital Statistics, appear to satisfy the requirements of Rev. Code § 3111.03(A)(3). The document, which was signed by each party, anti notarized, states that Debra and Robert "contracted a common law marriage" and that neither was "under any legal disability." This appears to satisfy the requirement under Colorado law that for a "common law marriage" to exist, there must simply be a "mutual consent or agreement of the parties to be husband and wife." People v. Lucero, 747 P. 2d 660, 663 (Colo. 1987). In addition to an agreement, however, there must also be "a mutual and open assumption of a marital relationship." Id.; accord, Clark v. Clark, 123 Colo. 285, 229 P.2d 142 (1951); Taylor v. Taylor, 10 Colo. App. 303, 50 P. 1049, 1049 (1897).

Nothing we have seen in the claims folder suggests that this additional requirement also is not met. From April to August 1982, Robert and Debra lived together in Colorado, and, after moving to Ohio continued to do so until May 1983. Moreover, Debra adopted Robert's surname as reflected in the June 14, 1982 document they mutually executed together, and both agreed to have Sheila use Robert's surname. Because this case involves an express agreement to be treated as man and wife ^[2] , together with other behavior which the Colorado courts have treated as indicia supportive of the existence of a common law marriage, including open cohabitation, and adoption of the man's surname by both the woman and child, see Lucero, supra, 747 P.2d at 664-665, a valid common law marriage likely existed under Colorado law. Even if this were not the case, moreover, we believe that the foregoing would still meet the lesser standard of Rev. Code § 3111.03(A)(3) which requires simply an attempted marriage "in apparent compliance" with the requirements of Colorado law.

In addition to the valid (or apparently valid) Colorado common law marriage, the other elements of § 3111.03(A)(3) are clearly satisfied. Robert acknowledged paternity in a writing sworn to before a public notary (§ 3111.03(A)(3)(a)), and with his consent had his name entered as the child's father on the child's birth certificate (Id. (A)(3)(b)).

Robert must accordingly be presumed to be Sheila's natural father under Rev. Code § 3111.03. This presumption, in turn, can only be rebutted by "clear and convincing evidence" (§ 3111.03(B)).

The meaning of this standard in the context of § 3111.03 has not been discussed at length by the Ohio courts. We believe that Ohio cases construing a similar presumption — that a child born during a marriage is presumed to be the natural child of the married couple — sheds some light, however, because this latter presumption also is rebuttable only by "clear and convincing" evidence. Moreover, Rev. Code § 3111.03(A)(1) now expressly addresses the situation formerly governed by Ohio common law of a child born to a couple during their marriage. The statutory presumption that under such circumstances the husband is the natural father is identical in wording to the statutory presumption applicable to this case by virtue of the Colorado common law marriage entered into after Sheila's birth (Compare Rev. Code § 3111.03(A)(1) with id.§3111.03(A)(3)). Both presumptions are rebuttable under the statute only by "clear and convincing evidence." (Rev. Code § 3111.03(B)). The meaning of "clear and convincing" evidence as construed by courts under Ohio common law under the circumstances now governed by Rev. Code § 3111.03(A)(1) is therefore likely to be probative as to the meaning of the identical phrase employed in the section of the statute, Rev. Code § 3111.03(A)(3), that governs this case.

Ohio cases make clear that "clear and convincing evidence" requires "more than a preponderance [of evidence] . . . as required in most civil cases." State v. Clark, 144 Ohio St. 305, 58 N.E.2d 773, 776 (1944). The evidence must be "clear and satisfactory," although not necessarily "conclusive." Id. at 776. Where the standard has been discussed in cases involving the presumption of paternity, the courts have stated that the "presumption is not to be rebutted by circumstances which only create doubt and suspicion." Id.

The demanding nature of this standard is made clear by cases such as Nelson v. Nelson, 10 Ohio App.3d 36, 460 N.E.2d 653 (Ohio App. 1983). There a married couple had raised for twelve years a child born during their marriage. During divorce proceedings, however, the married couple stipulated that the husband was not the natural father of the child, and the husband also filed an uncontested affidavit stating that he was not the father. Citing the potential harm that would be worked by the illegitimation of a formerly legitimate child, as well as the evil of "open[ing] the door to, in effect, 'shop for a father,'" (460 N.E.2d at 655), the Court held such evidence insufficient to rebut the presumption that the husband was the natural father. As the Court stated (460 N.E.2d at 654-655):

The predominant rule at present is that, in order to rebut the presumption of legitimacy, there must be 'clear and convincing' evidence that the husband is not the father . The only evidence that the oldest child is illegitimate was the stipulation of the parties and defendant's affidavit .... In this case, a stipulation and affidavit to the contrary are insufficient as a matter of law to overcome the presumption that a child conceived or born during a marriage is legitimate.

Similarly, in Walkup v. Walkup, 31 Ohio App.3d 248, 511 N.E.2d 119 (Ohio App. 1986), the Court addressed the presumption under Rev. Code § 3111.03(A)(1) that a man is presumed to be the natural father of a child born during his marriage, and that the presumption can only be rebutted by "clear and convincing evidence" under § 3111.03(B). The defendant husband to avoid child-support payments contended he was not the father of a child born during his marriage. The evidence showed (1) that the child was born four years after the husband had undergone a vasectomy; (2) that the married couple had had sexual relations without utilizing contraception on an average of once per week for 3 1/2 years prior to the conception of the child, with no resulting pregnancy; and (3) that the wife had had sexual relations with a stranger to the marriage during the time the child was conceived. The Court held that this evidence failed to satisfy the "clear and convincing" standard required to rebut the presumption of paternity. Although plaintiff was shown to be sterile several years after the conception occurred, no contemporaneous sterility tests had been performed, and there was still the possibility that plaintiff was fertile at that time because "vasectomies sometimes fail and . . . their effect may be reversible." (511N.E.2d at 121). Accordingly, the husband "failed to prove by clear and convincing evidence that he was not the child's father" (Id.).

In light of these precedents, we believe the facts of this case fail to rebut by "clear and convincing" evidence the presumption under Rev. Code § 3111.03(A)(3) that Robert is Sheila's father. A notarized statement dated June 16, 1982 denies that Robert is the father, but Debra has now disavowed this statement and explained that it was made only to avoid financial or other problems in the event the marriage was dissolved, or that Robert died. Consistent with her earlier statement of June 14, 1982, Debra still insists that Robert is the father. It is also noteworthy that the June 16, 1982 statement was never publicly disclosed or utilized. In contrast, the June 14 statement identifying Robert as the father was publicly filed with the Colorado Bureau of Vital Statistics to properly legitimate the child, and have Robert listed as the father on the birth certificate. Most importantly, Robert represented that he was Sheila's father, and unlike Debra, never executed an affidavit contradicting his acknowledgement of paternity made on June 14, 1982. At best, the evidence therefore discloses a prior inconsistent statement by the mother which she has subsequently recanted and explained; numerous other statements by the mother confirming that Robert is the father which she insists remain correct; and consistent statements and conduct by Robert supporting the belief that he is the father. In light of the fact that uncontradicted affidavits by both the mother and putative father in Nelson, supra, and evidence of the husband's vasectomy, and the wife's extramarital affair in Walkup, supra, did not constitute "clear and convincing evidence" to rebut the presumption that the husband was the father of the child, we believe that Debra's ambiguous, and subsequently disavowed, denial that Robert was Sheila's father similarly falls short of the "clear and convincing evidence" needed to rebut the presumption applicable in this case.

Although Debra's affidavit creates some doubt and suspicion, the fact that it was recanted, and is inconsistent with much other evidence, falls short of "clear and convincing" proof that Robert is not the father. State v. Clark, supra, 58 N.E.2d at 776.

Sheila is accordingly entitled to child's Benefits pursuant to Rev. Code § 3111.03(A)(3) and 42 U.S.C. § 416(h)(2)(A). ^[3]

II. Entitlement Under Section 216(h)(3)(C)(i)(I) — Acknowledgment of Paternity In Writing

In addition to the foregoing, we also believe that, although presenting a closer question, Sheila should also be entitled to child's benefits under the alternative federal test of Section 216(n)(3)(C)(i)(I), 42 U.S.C. § 416(h)(3)(C)(i)(I). That provision provides that a claimant may receive child's benefits if (1) the claimant is the insured's natural child; and (2) the insured acknowledged in writing that the claimant is his child. (Id.; see also 20 C.F.R. § 404.355). We note that under this test, the concerns reflected in the claims folder regarding proof of dependency or the insured's contributing to the claimant's support are irrelevant because a child satisfying this test is automatically "deemed dependent" with no need for any further proof. 42 U.S.C. § 402(d)(3); Trammel v. Bowen, 819 F.2d 167, 168-169 (7th Cir. 1987).

There is no doubt that the written acknowledgment portion of the test is satisfied because the statute refers only to an acknowledgment by the insured, rendering Debra's written statements irrelevant with respect to this portion of the test. This leaves the question whether under the federal test Sheila should be found to have been the natural child of Robert. Because the federal tests set forth an alternative to the state law standards incorporated in 42 U.S.C. § 416(n)(2)(A), federal courts have held that proof of paternity under the alternative federal tests should be governed by a preponderance of the evidence standard.

E.g., Imani v. Heckler, 797 F.2d 508 (7th Cir. 1986) (rejecting use of state law under alternative federal test of 42 U.S.C. § 416(h)(3)(C)(ii) requiring evidence of paternity "satisfactory to the Secretary" coupled with proof that insured lived with, or contributed to support of, the child); accord, Mobley v. Secretary of Health and Human Services, No. C82-1842, Slip Op. p. 3 (N.D. Ohio April 24, 1984) ("normal preponderance of the evidence rule" applies to alternative federal test of 42 U.S.C. § 416(h)(3) (C)(ii)).

As the Seventh Circuit recently emphasized in a child's benefits case, Brown v. Bowen, No. 87-2501, Slip Op. p. 7 (May 12, 1988):

The preponderance standard is a more-likely-than-not rule, under which the trier of fact rules for the plaintiff if it thinks the chance greater than 0.5 that the plaintiff is in the right.

In this case, the evidence weighing against Robert's paternity is Debra's notarized statement of June 16, 1982. The weight of this evidence is significantly undermined by Debra's earlier notarized statement of June 14, 1982 that Robert is the father, as well as Debra's current statements to the same effect. Perhaps most importantly, Robert never waivered on this issue, and repeatedly stated that Sheila was his child, both in his filing with the Colorado Bureau of Vital Statistics, as well as with the Ohio Welfare Department. Moreover, Robert's and Debra's marriage very shortly after Robert's divorce from Laura supports the inference of Robert's prior involvement with Debra. Finally, Robert's actions to declare Sheila as his child appear inexplicable and without sufficient motive unless Sheila were in fact his child; Debra in contrast has explained at least somewhat plausibly that she executed the statement denying paternity to avoid legal complications in the event of Robert's death, or a divorce. In any event, whatever thinking or confusion produced the June 16, 1982 statement denying Robert's paternity, it is significant not only that Debra has now disavowed it, but that the statement was also never used and that the prior sworn representations filed with public offices, including the Colorado Bureau of Vital Statistics, were allowed to stand by both Robert and Debra.

In light of all the foregoing, we believe that, although the issue is close, the present evidence contained in the file is sufficient to establish Robert's paternity by a preponderance of the evidence, and that, at a minimum, such a finding would be reasonable based on these facts, if not absolutely compelled. Accordingly, Sheila should also be entitled to child's benefits under 42 U.S.C. § 416(h)(3)(C)(i)(I).

 

PARENT AND CHILD — FEDERAL DEFINITION OF "CHILD" — COURT DECREE OF PATERNITY — OHIO

In cases of individuals dying after June 29, 1982, the effective date of the Ohio Uniform Parentage Act, a posthumous determination of "parent and child relationship" confers inheritance rights even though the alleged father had never formally acknowledged his paternity during his lifetime or filed a declaration of heirship in probate court. (M~, Freddie T., ~ — RAV (Dorn), to ARC, 08/01/85.)

This responds to your request for our assistance in determining whether Brittany N. H~ is entitled to benefits as the child of Freddie M~ . We conclude, for the reasons discussed below, that Brittany is entitled to benefits.

The relevant facts may be briefly summarized: The claimant, Brittany N. H~, was born out of wedlock to Kathleen H. H~ on February XX, 1984. The wage earner, Freddie T. M~ died on June XX, 1984. Subsequently, Kathleen filed for child's benefits on Brittany's behalf. On August XX, 1984, Kathleen filed an action in Ohio state court against the wage earner's estate for the declaration of a "father and child relationship' under Ohio's Uniform Parentage Act (UPA), Ohio Rev. Code §§3111.O1 et seq Page 1982). l_/ Following a hearing on September 28, 1984, the referee ' entered Findings and Recommendations. According to this order, the wage earner's father, who as administrator of the estate waived counsel, testified that the wage earner had acknowledged that he was Brittany's father. Kathleen H~ testified that she met the wage earner in January, 1983 - four months prior to Brittany's conception - and had sexual relations with no other man from that date until the wage earner's death. She also testified that the wage earner did not pay for child support or the expenses of birth, but did purchase some clothes for the child. She stated that she and the wage earner had planned to get married after he obtained a divorce. According to Kathleen, the wage earner's family had accepted Brittany as his child. Finally, a witness who identified herself as a close friend of both the wage earner and' Kathleen testified that the wage earner admitted that he was Brittany s father and that Kathleen had not engaged in sexual relations with any other man since she met the wage earner.

After reciting the above testimony, the referee concluded:

The father/child relationship is hereby declared between Freddie M~ (now deceased) and Brittany N. H~ , date of birth February XX, 1984, with Brittany N. H~ to assume all her rights under the law as a legitimate blood descendent of Freddie M~ , for all purposes including inheritance and applicability of statutes, documents and instruments, whether executed before or after September XX, 1984, which do not expressly exclude Brittany N. H~ to assume The name of the minor child shall be changed to Brittany N. H~ -M~ and a new birth certificate shall be issued pursuant to ORC §3111.18.

The court subsequently adopted the referee's Findings and Recommendations in full.

The record does not indicate that, prior to his death, the wage earner acknowledged his paternity in writing, was living with or contributing to the claimant's support, had been decreed by a court to be her father, or had been ordered to contribute to her support because he was her father. Thus, the claimant is not entitled to benefits under Section 216(h)(3) of the Social Security Act, 42 U.S.C. §416(h)(3). However, we believe that based on the state court determination of a 'parent and child relationship,' Brittany is entitled to benefits pursuant to Section 216(h)(2)(A) of the Social Security Act, as the wage earner's heir under Ohio law. This office has previously concluded that the Ohio UPA allows posthumous determinations of paternity, thereby changing prior state law. Tony M~ ,~ RAV (Gilbert) to Director, IPB (Luscombe), 12/12/83; see also White v. Randolph, 3gl N.E.2d 333 (Ohio 1979), appeal dismissed for want of a substantial federal question sub nom. Jackson v. White, 444 U.S. 1061 (1980); Khout v. Secretary, 664 F.2d 120 (6th Cir. 1981); Lamont D. M~ ,RAV (Dorn) to ARC-Programs V (Washington), 6/9/82. We have so stated that in the cases of wage earners dying on or after June 29, 1982 (the effective date of the Ohio UPA), a determination of a 'parent and child relationship' under the Ohio UPA (including a posthumous determination) confers inheritance rights for purposes of entitlement under Section 216(h)(2)(A) of the Social Security Act, M~, supra; see also POMS GN 00306.135 (Ohio entry).

We conclude that the court order in this case satisfies the four criteria set forth in Gary v. Richardson, 474 F.2d 1370 (6th Cir. 19747 for acceptance by the Secretary. see also SSR 83-37c (adopting the Gray criteria). Although the third of those criteria requires that the issue has been genuinely contested by parties with opposing interests, we have stated elsewhere that SSA need not require a genuine contest where the deceased wage earner's family agrees that that the wage earner is the claimant's father. Larry G~ ,~ RAV (H~) to ARC-Programs V (Washington), 7/8/82. Here, the wage earner's father, as the administrator of the estate, waived counsel and admitted that the wage earner had acknowledged his paternity. Based on our review of the Ohio UPA and the limited reported case law under it, we also think that the state court determination of paternity was consistent with state law, thereby satisfying the fourth - and most important - G~ criteria.

Finally, your memorandum cites our recent opinion in Robert J. M~ , RAV (Dom) to ARC-Programs (Washington), 8/14/84. We concluded that the claimant in M~ , a posthumously born child, was entitled to benefits under the 'support test' of Section 216(h)(3)(c)(ii) of the Act. M~ , supra, pp. 5-7. We also briefly discussed the effect of a posthumous determination of paternity under the Ohio UPA for purposes of inheritance. M~, supra, pp.3-4. However, that discussion was unnecessary in light of the result in M~ To the extent that M~ may be read to suggest that a posthumous determination of paternity under the Ohio UPA does not confer inheritance rights unless the natural father during his lifetime had formally acknowledged his paternity or filed a declaration of heirship in probate court, we now overrule that conclusion as inconsistent with POMS GN 00306.135 and M~. Instead, we reaffirm that a posthumous determination of a 'parent and child relationship' under Ohio Rev. Code §3111.O1 et seq. itself confers rights of inheritance in all cases of wage earners dying on or after June 29, 1982.

We conclude that Brittany N. H~ is entitled to benefits as the child of the deceased wage earner, Freddie T. M~ . The claims folder is returned herewith.

DISTINCTIONS BETWEEN STATUTES OF LEGITIMATION AND INHERITANCE — OHIO

Where subsequent to the death of the alleged father the mother of the child petitions for a declaration of paternity with the concurrence of the mother of the alleged father and a Court renders a judgment of paternity, this does not give rise to inheritance rights under Ohio law. (M~, Robert J., ~ — RAV (Dorn), to ARC, Programs 08/14/84')

This responds to your request for assistance in determining whether John J. C~ is entitled to benefits as the child of the deceased wage earner, Robert J. M~. Specifically, you have asked whether a posthumous judgment of paternity gives an illegitimate child inheritance rights under Ohio law, thus entitling him to benefits under Section 216(h)(2)(A) of the Social Security Act. We answer this question in the negative, but conclude that the claimant is entitled to benefits under the alternate "federal" test of Section 216(h)(3)(c)(ii) of the Act.

Facts

The relevant facts may be briefly summarized: Lisa C~ , the claimant's mother, learned of her pregnancy on July 11, 1983 during a visit to a Planned Parenthood Clinic in Toledo, Ohio. According to Lisa, Lisa's mother, the wage earner's mother, and the wage earner's brother, Lisa had been dating the wage earner. At the time both Lisa and the wage earner were 17. Lisa states that she and the wage earner were planning to get married. This statement is confirmed by Lisa's mother and the wage earner's mother. Lisa's mother states that the wage earner had expressed his willingness to provide for the support of Lisa and her child. The wage earner had applied for Army enlistment, and according to Lisa's mother was going to bring Lisa and the expected child to his assigned base after the marriage. Lisa states that the wage earner gave her money to pay for the Planned Parenthood Clinic visit on July XX, 1983 ($5), and gave her money on July 26, 1983 to pay for a prenatal doctor's visit ($45) and medication ($7). The record contains a receipt, dated July 26, 1983, signed by a Dr. H.M. D~ indicating that $45 had been received from Tina C~ , the wage earner's mother. The record also contains a prescription record, dated July 26, 1983, listing Lisa C~ and Dr. D~ and indicating a payment of $7 for medication. The wage earner's mother states that although he regularly gave her money to meet her expenses, he told his mother in July, 1983 that he instead had given money to Lisa "to put away."

The wage earner died in an automobile accident on July XX, 1983, twenty days after Lisa's pregnancy had been confirmed. ^[4] The claimant was born on February XX, 1984 in Ohio. The wage earner had died domiciled in Ohio. Subsequently, the wage earner's parents and Lisa jointly filed a "complaint" in probate court to determine the paternity of John J. C~. The complaint was apparently uncontested, and on April 24, 1984 the probate court, following testimony by "all the parties in interest who were present," issued an order under Ohio Rev. Code §§3111.04 and 3111.06 stating that the wage earner was the child's father and directing a new birth certificate to be issued in the name of John J. M~ . The file contains statements by Lisa, Lisa's mother, the wage earner's mother, and the wage earner's brother all indicating that the wage earner had acknowledged prior to his death that he was the father of Lisa's unborn child. The file also contains a statement by an Army recruiter indicating that the wage earner had orally acknowledged his paternity. Because of his death, the wage earner never entered the Army and written records of his application were therefore destroyed.

Discussion

Under Ohio Rev. Code §§2105.15 and 2105.18 (Page), an illegitimate child may inherit from his natural father if during his lifetime the father (1) marries the child's mother (2) formally acknowledges the child in probate court with the consent of the mother, or (3) formally designates the child as his heir-at-law in probate court. In Lamont D. M~ , ~ , RA V (Dorn) to Director, IPBV 6/9/82, we considered whether a probate court's post-humous determination of paternity made in a proceeding for the determination of heirship (Ohio Rev. Code §2123.01) met any of these requirements. We concluded that the posthumous determination of paternity did not meet any of the requirements of Ohio Rev. Code §§2105.15 and 2105.18. ^[5] We noted that the constitutionality of the Ohio statutory scheme governing inheritance by illegitimate children had been upheld in White v. Randolph, 391N.E.2d 333 (Ohio 1979), appeal dismissed for want of a substantial federal question sub nom. Jackson v. White, 444 U.S. 1061 (1980). We have attached a copy of the M~ opinion for your reference. The application of the Ohio statutory scheme to Title II cases was recently upheld in Young v. Heckier, No. C82-911 (N.D. Ohio 12/8/83), reprinted in 1A Unemployment Insurance Reporter (CCH) 15,370.

Our opinion in M~ would be dispositive of the state law issue in this case were it not for the enactment of new paternity action provisions by the Ohio legislature less than one month after our opinion. Prior to June 29, 1982, an unmarried mother could bring a "bastardy" action against a putative father under Ohio Rev. Code §§3111.01 et. seq. (Page 1978). Effective June 29, 1982, the Ohio legislature repealed these provisions and substituted provisions allowing a child, the child's mother, the putative father, or the personal representative of any of these parties to bring "an action to determine the existence or nonexistence of the father and child relationship." Ohio Rev. Code §§3111.01 et seq. (Page 1982 Supp.). Under the former paternity provisions, the accused father was adjudged the "reputed father" of the child and ordered to pay support. Ohio Rev. Code §3111.17 (Page 1979). Such proceedings were conducted only to determine a "reputed father" for purposes of obtaining support of the child, and a "reputed father" was not considered a "natural father" for purposes of legitimation under Ohio Rev. Code §2105.18. In re Minor of-Martin, 365 N.E.2d 892, 895-896 (Ohio App. 1977). In contrast, the new proceedings are conducted to establish (or to refute) the existence of a legal "parent and child" relationship between a natural father and his child that exists and confers rights and obligations regardless of the marital status of the child's parents; the judgment of a court determining the existence (or nonexistence) of a "parent and child" relationship "is determinative for all purposes." Ohio Rev. Code §§3111.01, 3111.02, 3111.04, 3111.13 (Page 1982 Supp.).

In the present case, the posthumous judgment of paternity was issued by the probate court under the new paternity action provisions. ^[6] The judgment that the wage earner was the claimant's natural father raises the issue of whether the claimant is thereby entitled to inherit from the wage earner under Ohio law, qualifying him for child's benefits under Section 216(h)(2)(A) of the Social Security Act. We have found no cases addressing the issue of whether a judgment establishing the existence of a "parent and child" relationship under §3111.01 et seq. confers inheritance rights. We think the issue is a close one. Section 3111.01 of the new provisions states that a "parent and child relationship" established under the statute confers "rights, privileges, duties, and obligations," although such rights and duties are not specified. Furthermore, as we have already noted, §3111.13 states that a judgment establishing the existence of a "parent and child" relationship is "determinative for all purposes." Most significant, §3111.05, in providing that an action may not be brought after the child reaches age 23, states that this limitation does not extend the time within which a "right of inheritance or a right to a succession" must be asserted under the probate laws. This latter provision suggests that a judgment determining the existence of a "parent and child relationship" may confer inheritance rights.

Nevertheless, unless and until an Ohio court holds to the contrary, we conclude that a posthumous judgment establishing the existence of a "parent and child" relationship in an action brought by a wage earner's personal representative ^[7] does not confer inheritance rights unless the wage earner during his lifetime has performed one of the acts specified in Ohio Rev. Code §§2105.15, 2105.18. In enacting the new paternity action provisions, the legislature did not amend the inheritance provisions of §§2105.15 and 2105.18. Those sections do not provide for inheritance by illegitimate children. based on a court determination of paternity under either the old or new paternity action provisions. Specifically, Section 2105.18 requires the natural father of a child born out of wedlock to either marry the mother or formally acknowledge his paternity in probate court. (Section 2105.15 also provides for inheritance if the natural father has filed a declaration of heirship in probate court.) Thus, even if a wage earner is determined to be a child's "natural father" under the new paternity action provisions, the state's intestate succession laws still require the "natural father" to perform one of the specified acts in order for the child to inherit from him. In our opinion, the provision of §3111.05 that the time for bringing a paternity action does not enlarge the time for asserting a right of inheritance in probate proceedings relates only to the time in which the "parent and child" relationship must be established in order to assert inheritance rights in a probate proceeding; proof of performance of one of the acts specified in §§2105.15 or 2105.18 is still required. We conclude that a posthumous judgment of paternity pursuant to the new paternity action provisions of Ohio Rev. Code §3111.01 et seq. does not confer inheritance rights unless the father has also during his lifetime married the mother, formally acknowledged paternity in probate court, or filed a declaration of heirship in probate court. ^[8]

However, we think that the claimant is entitled to benefits under Section 216(h)(3)(C)(ii) of the Social Security Act. That section provides that a claimant who is the son or daughter of a wage earner is entitled to benefits if "satisfactory" evidence of paternity exists and the wage earner was living with or contributing to the support of the claimant at the time of the wage earner's death. Such contributions must be "regular" and "large enough" to meet "an important part of [the claimant's] ordinary living costs" (such as food, shelter, or medical care). 20 C.F.R. §404.366(a)(2). In this case, there is "satisfactory" evidence of paternity. Your memorandum states that the support requirement was not met. We do not agree. In cases in which the wage earner died prior to the claimant's birth, the support requirement is met if the wage earner was living with or contributing to the support of the child's mother at the time of his death. POMS GN 00306.160B. In the present case, the wage earner learned of Lisa's pregnancy on July 11, 1984. On that day, according to Lisa, the wage earner gave her money to pay for her clinic visit. On July 26, 1983, according to Lisa, the wage earner gave her more money to pay for her first prenatal doctor's visit and for prescribed medication. According to the wage earner's mother, the wage earner told her before his death that he had given money to Lisa "to put away." On July XX, 1984 the wage earner died. We think that given the brief period between the date the wage earner learned of Lisa's pregnancy and the date of his death, these contributions were adequate to meet the statutory and regulatory support requirement.^[9]

In a series of recent decisions, the Court of Appeals for the Sixth Circuit (which includes Ohio) has held that the statute's support requirement may be met even if the deceased wage earner's contributions had been irregular and insubstantial, and had not been made for a significant period prior to his death. The Court held that such contributions could still be adequate in view of the wage earner's economic circumstances and the actual needs of the child (or the child's mother). childress v. Secretary, 679 F.2d 623 (6th Cir. 1982); Parker v. Schweiker, 673 F.2d 160 (6th Cir. 1982); Boyland v. Califano, 633 F.2d 430 (6th Cir. 1980). Recently, the district court for the Southern District of Ohio has applied these decisions in a posthumous child case by holding that the support requirement was met based on the wage earner's announced intention before his death to marry the claimant's mother. Morgan v. Schweiker, 558 F. Supp. 331 (S.D. Ohio 1983). The Social Security Administration has issued a ruling of nonacquiescence in the Sixth Circuit's Boyland decision (presumably applicable to the other decisions cited above). SSR 81-1c (C.B. 1981 p. 12) holds that a wage earner's contributions must be (1) made on a regular basis; (2) large enough to meet an important part of the child's living costs; and (3) made at the time of the wage earner's death.

We believe that the contributions made by the wage earner in this case fall within the purview of 20 C.F.R. §404.366(a)(2) and SSR 81-1c. Between July 11, 1983 and July 31, 1983, the wage earner made three contributions of more than a token amount to meet Lisa's medical and other living needs (see note 6, supra) The regulation provides for an exception to the "regular and substantial" support requirement in cases of "temporary interruptions caused by circumstances beyond the insured person's control, such as illness or unemployment." 20 C.F.R. §404.366(a)(2). In this case, the wage earner's contributions were as regular and substantial as possible until interrupted by his death. We conclude that the wage earner's contributions were as regular and substantial as possible given the brief opportunity he had to make such contributions before his death. We emphasize that our conclusion does not represent concurrence with the cited court decisions and is not inconsistent with SSA's stated nonacquiescence in those decisions. Specifically, we strongly disagree with the district court's decision in Morgan that the support requirement may be met based upon the wage earner's announced intention to marry the mother and care for both mother and child. This decision is not even required by the Sixth Circuit decisions upon which the court relied.

Nevertheless. we conclude here that the claimant is entitled to benefits under Section 216(h)(3)(C)(ii). The claims folder is enclosed herewith.

INHERITANCE — By Illegitimate Child

While it is possible for an illegitimate child Who was born after the death of his father to inherit from the father, one of the alternative conditions specifically provided for in the statute must be met i.e. the father during his lifetime marries the mother, files a formal acknowledgement with the Probate Court (with the consent of the mother) that the child is his; or designates the illegitimate child as his heir at law.

(M~ , Lamont D. DWE - ~ - RA V (Dorn) to ARC-GLPSC 6/9/82)

This is in reference to your request for our assistance in determining the appropriate month of entitlement of the claimant to child's insurance benefits. We find it unnecessary to resolve this issue since we have determined, for the reasons outlined below, that the claimant is not entitled to child's insurance benefits.

The relevant facts may be briefly summarized. The wage earner, Lamont D. M~ , died domiciled in Ohio on June XX, 1980. Dameon (or Damon) S~ was born on August XX, 1980 to Michelle S~ The only evidence ^[10] that the wage earner was Dameon's father is a "Report of Referee" filed on February 3, 1981 with the Probate Court in Summit County, Ohio. The report was made pursuant to a "Complaint for Determination of Heirship and Legitimization" filed on behalf of Dameon against the administrator of the wage earner's estate and the wage earner's other heirs under the provisions of Chapter 2123 of the Ohio statues. ^[11] The referee determined that the wage earner "acknowledged said unborn child [Dameon] to be his own offspring at all times" and that "said child is issue of decedent herein and Michele S~ " Accordingly, the referee concluded that Dameon should "be recognized as the true and legitimate child of decedent as though born to him in lawful wedlock ... and is entitled to participate in the distribution of the decedent's estate." The file does not indicate whether the Probate Court adopted the referee's recommendation.

The Great Lakes Program Service Center determined that the referee's report was a "properly executed declaration of heirship filed by the parent with the probate judge of the county." Ohio law does provide that an individual may designate an heir at law by filing a written declaration with the probate judge designating another individual "to stand toward him in the relation of an heir at law in the event of his death." Ohio Revised Code §2105.15 (Page). If the probate judge accepts such declaration, "the person designated will stand in the same relation, for all purposes, to such declarant as he could if a child born in lawful wedlock." Id. Therefore, if the wage earner had filed a declaration of heirship in accordance with the provisions of §2105.15 designating the unborn child as his heir at law, ^[12] Dameon would be entitled to child's benefits pursuant to the provisions of Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. §416(h)(2)(A). However, the referee's report does not constitute a designation of an heir at law filed by the wage earner but instead represents a posthumous determination by the prate court of the wage earner's paternity. We therefore disagree with the determination of the Great Lakes Program Service Center.

The question remains, however, whether the Secretary is bound by the referee's determination that Dameon is entitled to inherit from the wage earner, since Dameon's right to child's benefits is controlled by the Ohio law of intestate succession. This office has on two recent occasions addressed the issue of whether the Secretary is bound by such state court judgments. Eugene F~ , ~ , RA V (Hughes) to ARC-Programs V (Washington), 3/30/82; John C~, ~ , RA V (Abrams) to Acting Director, Insurance Programs Branch V, 7/21/81, We concluded that, consistent with the criteria set forth by the Sixth Circuit Court of Appeals in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) and in Dennis v. Railroad Retirement Board, 585 F.2d 151 (6th Cir. 1978), the Secretary is not bound by a state trial court decision on an issue involved in a claim for social security benefits unless (1) the issue was decided by a state court of competent jurisdiction, (2) the issue was genuinely contested 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.

We may assume that the referee's report was adopted by the Probate Court and that, as adopted, is consistent with the first three criteria set forth above. We find, however, that the referee's determination that Dameon is entitled to inherit from the wage earner is clearly inconsistent with Ohio law as enunciated by the Ohio Supreme Court. Assuming arguendo that the wage earner was the natural father of Dameon, Ohio law provides that an illegitimate child may inherit from his father only if the father during his lifetime marries the mother, files a formal acknowledgment in Probate Court (with the consent of the mother) that the child is his, or, as already noted, designates the illegitimate child as his heir at law. Ohio Revised Code §§2105.15, 2105.18 (Page). None of these criteria are met in the instant case. However, Ohio law does not allow an illegitimate child to inherit from his father based upon a posthumous determination of paternity by a probate court. The Ohio Supreme Court upheld the constitutionality of the above statutory scheme in White v. Randolph, 391 N.E. 2d 333 (Ohio 1979), appeal dismissed for want of a substantial federal question sub nom. Jackson v. White, 44

Prior to the decision of the Ohio Supreme Court in White, the Ohio appellate courts had split over the constitutionality of the statutory scheme prohibiting an illegitimate child from inheriting from his father unless the father had taken certain specified steps during his lifetime. In re Minor of Martin, 365 N.E. 2d 892 (Ohio App. 1977) (statutory scheme unconstitutional); Moore v. Dague, 345 N.E. 2d 449 (Ohio App. 1975) (statutory scheme constitutional); Green v. Woodard, 318 N.E. 2d 379 (Ohio App. 1974) (statutory scheme unconstitutional). The Ohio Supreme Court based its decision upholding the statutory scheme on the Supreme Court decisions in Trimble v. Gordon, 430 U.S. 762 (1977) and Lalli v. Lalli, 439 U.S. 259 (1978). We note that although a similar Michigan statute requiring either intermarriage or recorded acknowledgement by the father had been declared unconstitutional by the Michigan Supreme Court in Easely v. John Hancock Mutual Life Insurance Company, 271 N.W. 2d 513 (Mich. 1978), the latter decision was, as we observed in a prior opinion, questionable in light of the Lalli decision. John S~ , ~ RA V (Dorn) to Acting Reg. Rep. V (M~), 10/26/81. Here, although summary dispositions by the United States Supreme Court are ordinarily not precedential, the fact that the Supreme Court after Lalli dismissed the appeal of the Ohio Supreme Court decision in White v. Randolph "for want of a substantial federal question" strongly indicates that the Ohio statutory scheme is indeed valid.

Because the Ohio Supreme Court issued its decision in White v. Randolph in 1979, the referee's 1981 determination that Dameon was entitled to share in the wage earner's estate is clearly inconsistent with Ohio law as enunciated by the Ohio Supreme Court. While an Ohio probate court may determine that an individual is the legitimate child of a decedent and therefore entitled to share in the descendant's estate, it may do so only if the decedent had, during his lifetime, taken one of the steps specified by statute; it may not determine heirship based solely on a posthumous finding of paternity. Therefore, the Secretary is not bound by the referee's determination. Since Dameon is not deemed, under Ohio law, to be the wage earner's child for purposes of inheritance, and since Dameon does not meet any of the "purely federal" tests under Section 216(h)(3)(c), —^[13] he is not entitled to child's insurance benefits.

Finally, we note that in the instant case the wage earner died prior to the birth of the claimant. This office has recently addressed a similar situation in the context of Michigan state statutes requiring acts of legitimation to be performed during the natural father's lifetime. Jeffrey C~ , ~ RA V (Koven) to ARC-Programs V (Washington), 3/4/82. C~ involved a statute (enacted after the decision in Easels) providing that a child born out of wedlock could inherit from his father if (1) the father executed an acknowledgement recorded in the same manner as deeds, (2) the father and mother requested, and obtained, a corrected certificate or birth, or (3) the father and child are shown to have borne a "mutually acknowledged relationship of parent and child." We concluded that, in the absence of Michigan case law to the contrary, the Michigan courts could find a "mutually acknowledged relationship" in the case where the father died before the birth of the child. The pertinent Ohio statutory provisions do not require any acts on the part of the child and do not on their face preclude the father from performing any of the specified legitimating acts prior to the birth of the child. Ohio Revised Code §2105.18 (Page) provides that a child is considered legitimate where the father "before or after the birth" marries the mother, or where the father files a formal acknowledgement with the probate court of the county in which the child resides, the county in which the child was born, or the county in which the father resides. §2105.15 permits an individual to designate another individual as his heir at law, and §2105.14 allows a posthumous child to inherit. Thus, in the absence of Ohio case law to the contrary, ^[14] we believe that under Ohio law a child conceived out of wedlock and born subsequent to the death of the father may inherit from the father.

Accordingly, we conclude that Dameon S~ , is not entitled to child's benefits on the account of the wage earner, Lamont D. M~. The claims folder is returned herewith.