The NH was domiciled in South Dakota at the time of his death, therefore, we look the South Dakota law to determine whether or not the child is the child of the NH. The evidence provided is not sufficient to establish the Claimant’s right to inherit from the NH under South Dakota law. The NH’s estate was settled in a DOI probate proceeding and the DOI judge applied a the preponderance of the evidence standard, rather than a clear and convincing proof standard required under South Dakota’s probate code.

SSA has evidence that conflicts with the evidence presented during the DOI hearing. SSA records contain unexplained and contradictory statements regarding the NH’s living arrangements and acknowledgment of the Claimant. Thus, we do not think the DOI determination standing alone is sufficient to establish the Claimant’s right to inherit under South Dakota law. However, additional evidence could change our opinion, and therefore further development might be warranted.

Question Presented

Whether the claimant, L~, is the child of the number holder (NH), D~, under South Dakota intestate law, such that she is eligible for child insurance benefits.

Short Answer

Based on the current record, the evidence is not sufficient to establish L~’s right to inherit from the NH under South Dakota law. However, additional evidence could change our opinion, and therefore further development might be warranted. Such further development could include:

1. 1. 

   Clarifying whether the claimant’s mother, G~, has ever been married (even if not to the NH), and whether the claimant was born in wedlock or within 10 months of the dissolution of a marriage.

2. 2. 

   Obtaining a statement from the claimant’s mother to explain apparent inconsistencies, described in more detail below.

3. 3. 

   Obtaining a more detailed statement from the mother describing the circumstances around the claimant’s conception and birth and explaining why she knows the NH is the claimant’s father, and any other information relevant to paternity that the mother might have.

Background

L~ was born in July 2004. The NH, D~, is not identified as the father on her birth certificate.

The NH, whose last residence was in South Dakota, died intestate on February XX, 2007. In 2008, the child’s mother, G~, filed an application for child insurance benefits on behalf of L~, which was denied. In the application, G~ stated that she was never married to the NH, but did not specify whether she had ever been married to anyone else. She said that the NH did not live with L~ after she was born, except for about a week, or acknowledge to anyone that he was L~’s father.

In March 2015, G~ filed a second claim for child insurance benefits on the NH’s account on behalf of L~. In support of this claim, she submitted a September 2009 decision from the Probate Hearings Division of the Department of the Interior (DOI), finding L~ was the daughter of the NH and thus entitled to inherit a share of the NH’s Indian trust property. The DOI judge found a preponderance of evidence supported a finding of paternity, including evidence that that G~ cohabitated with the NH prior to and after L~’s birth, and that the NH publicly acknowledged L~ as his child.

Discussion

To qualify for child’s benefits on the earnings record of an insured individual, among other requirements, an applicant must be the “child” of the insured individual as defined in the Social Security Act. See 42 U.S.C. § 402(d)(1)(C); 42 U.S.C. § 416(e); 20 C.F.R. § 404.350(a). In determining parent-child relationship status for purposes of child insurance benefits, the agency looks to the intestacy law of the state in which the insured individual was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); POMS GN 00306.055.

South Dakota’s probate code provides that, for purposes of intestate succession, an individual born out of wedlock is the child of that individual’s birth parents, and the identity of the father may be established in one of several ways; as relevant here, paternity can be established by a judicial determination of paternity during the father’s lifetime, or by a presentation of clear and convincing proof in the proceeding to settle the father’s estate. See S.D. Codified Laws §§ 29A 2-114(a), (c); see also POMS GN 00306.630(A)(4)(c)-(d) (South Dakota Intestacy Laws).

Proceeding to Settle the Father’s Estate

Here, the NH’s estate was settled in a DOI probate proceeding. See 25 U.S.C. § 372 (providing that, when any Indian to whom an allotment of land has been made dies without having made a will disposing of his or her allotment, the Secretary of the Interior shall ascertain the legal heirs of such decedent). However, in finding L~ was an heir to the NH, the DOI judge applied a “preponderance of the evidence” standard—rather than a “clear and convincing proof” standard required under South Dakota’s probate code. Thus, we do not think the DOI determination standing alone is sufficient to establish L~’s right to inherit under South Dakota law.

Nonetheless, the DOI judge did not find that the evidence presented was not clear and convincing proof. Thus, it is possible that the same evidence presented during the DOI proceeding could also meet the clear and convincing proof standard. See POMS PR 01115.046 (SSA could rely on DOI determination to establish relationship where DOI used clear and convincing proof standard). The South Dakota Supreme Court has defined “clear and convincing” evidence as “evidence that is so clear, direct, weighty, and convincing so as to allow the trier of fact to reach a clear conviction of the precise facts at issue without hesitancy to their truth.” See Matter of J.Z., 410 N.W.2d 572, 574 (S.D. 1987); POMS GN 00306.630(A)(1)(4)(d). And the South Dakota Supreme Court has found adequate proof of paternity where a decedent publicly acknowledged the child as his own and treated it as if it were a legitimate child. See Kessler v. Loers, 74 N.W.2d 599, 603-05 (S.D. 1956). The evidence presented to the DOI judge could be viewed as meeting this standard—as witnesses apparently testified that family members knew L~ as the NH’s child, the NH co-habitated with L~’s mother prior to and after her birth, and the NH publicly acknowledged L~ as his child.

However, SSA has evidence that conflicts with the evidence presented during the DOI hearing. Specifically, when G~ previously applied for benefits on L~’s behalf in 2008, she stated that the NH did not live with L~ after she was born (except for about a week), or acknowledge to anyone that he was L~’s father. Without any plausible explanation for this inconsistency, we do not think a South Dakota court would conclude on this record that there is clear and convincing proof of paternity.

Determination of Paternity

Under South Dakota’s probate code, paternity may also be established by a judicial determination of paternity during the father’s lifetime. Although there was no judicial determination of paternity during the NH’s lifetime, the agency will not apply any state inheritance law requirement that an action to establish paternity must be taken within a specified period of time or that an action to establish paternity must have been started or completed before the worker’s death. See 20 C.F.R. § 404.355(b)(2). Moreover, if applicable state inheritance law requires a court determination of paternity, the agency will not require that the claimant obtain such a determination but will decide paternity using the standard of proof that the state court would use as the basis for a determination of paternity. See id. Thus, the relevant question is whether paternity could be established using the standard of proof that a South Dakota court would use as the basis for a determination of paternity.

The standard of proof a South Dakota court would use as the basis for a determination of paternity depends on whether a presumption of parentage exists. Potentially relevant here is the presumption that the husband is the father of a child born during a marriage, or within 10 months after the dissolution of a marriage. If this presumption applies, only genetic test results excluding the husband as the biological father or establishing another person as the biological father would rebut the presumption. See S.D. Codified Laws, §§ 25-8-57, 25-8-64; see also Kessler v. Loers, 74 N.W.2d 599, 602 (S.D. 1956) (requiring clear and convincing evidence to rebut marital presumption of paternity); Smith v. Smith, 24 N.W.2d 8, 9 (S.D. 1946). In light of this presumption, it would be important to know if L~’s mother was married to someone other than the NH at the time of her birth or during the 10 months prior to her birth.

Assuming L~’s mother was not married at the time of her birth, a lower standard of proof would apply. An action to determine paternity is a civil proceeding, and the preponderance of the evidence standard would apply. See S.D. Codified Laws § 25-8-7; VanderWerf v. Anderson, 195 N.W.2d 145, 146 (S.D. 1972).

Here, as noted above, the DOI judge applied a preponderance standard in finding paternity. But as also noted above, SSA has contradictory information that, presumably, was not considered by the DOI judge. Even under the lower preponderance standard, this unexplained conflict is problematic. Absent some explanation for the contradictory information regarding whether the NH lived with and acknowledged L~ before his death, we do not think the preponderance of the evidence standard can be met.

Conclusion

Based on the current record, which contains unexplained and contradictory statements regarding the NH’s living arrangements and acknowledgment of L~, the evidence does not establish L~’s right to inherit from the NH under South Dakota law. However, additional evidence could change our opinion, particularly if L~’s mother was not married at the time of L~’s birth—in which case a lower standard of proof applies. Therefore, further development might be warranted, including:

1. 1. 

   Clarifying whether the claimant’s mother, G~, has ever been married (even if not to the NH), and whether the claimant was born during the marriage or within 10 months of the dissolution of a marriage.

2. 2. 

   Obtaining a statement from the claimant’s mother explaining the apparent inconsistencies between statements that the mother made in a 2008 application for child insurance benefits on behalf of the claimant, and information in a September 2009 ALJ decision from the Probate Hearings Division of the Department of the Interior (DOI). The 2008 application stated that the NH did not live with the claimant after she was born (except for about a week), and did not acknowledge to anyone that he was her father. By contrast, the DOI decision indicates that the NH cohabitated with the claimant’s mother prior to and after the claimant’s birth, family members knew the claimant as the NH’s child, and the NH publicly acknowledged the claimant as his child.

3. 3. 

   Obtaining a more detailed statement from the mother describing the circumstances around the claimant’s conception and birth and explaining why she knows the NH is the claimant’s father, as well as any additional information relevant to paternity that the mother might be able to provide.

In the event additional information is obtained, we would be happy to review it and advise accordingly.

In a South Dakota claim where a Department of the Interior Probate Judge issued an order naming our claimant as an heir of the deceased number holder, we may use that order to establish the parent-child relationship since she clearly indicated that the relationship was established "under South Dakota law". We infer from this that DOI used South Dakota's "clear and convincing" standard of evidence rather than the less restrictive "preponderance of the evidence" standard.

The relationship is established as of the claimant's date of birth.

Question Presented

You requested an opinion on whether claimant J~ (Claimant) can qualify as the child of D~, the Number Holder (NH), based on an Order issued by the Department of the Interior (DOI) that Claimant is an heir of the NH. If so, you have also asked if the DOI order controls the effective date of the parent-child relationship, or whether the relationship would be established as of the child's birth date.

Short Answer

Based on the evidence currently before the Agency, we believe that Claimant qualifies as the child of the NH, and that the parent-child relationship can be established as of Claimant's birth date. ^[1]

Each of these decisions must be made on a case-by-case basis.

Summary of Facts Presented

Claimant was born in South Dakota, on January XX, 2002. Claimant's birth certificate identified L~ as her birth mother, but did not identify Claimant's father. Claimant's mother was never married to the NH.

In June 2005, the NH, a domiciliary of South Dakota who had received an allotment of Indian land, died intestate. At that time, the Agency received an application for disability benefits on the NH's behalf filed by three of his surviving children.

On August XX, 2007, after an evidentiary hearing, a DOI Indian Probate Judge (AJ), issued an "Order Determining Heirs and Decree of Distribution" (DOI order) to settle the NH's Indian trust assets and land allotments. The DOI order included the following findings of fact and conclusions of law:

Decedent [NH], an enrolled member of the Crow Creek Sioux Tribe of South Dakota, died a domiciliary of the State of South Dakota;

NH had one marriage and fathered nine children during his lifetime;

No will was submitted for NH's estate, and there is no evidence that NH executed a will;

NH was survived by nine heirs at law, "as determined under South Dakota Codified Laws, §29A-2-103(1) (2005)."

J~, born on January XX, 2002, is one of NH's nine heirs and therefore entitled to 1/9 of NH's Indian trust assets and property.

On September XX, 2007, Claimant's mother filed an application for surviving child benefits for Claimant. Claimant's mother submitted claimant's birth certificate and the DOI order to support the application.

Legal Analysis

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A), provides that a child will be deemed to be the child of a deceased wage earner if he or she would be entitled to inherit under the laws of the state in which the wage earner was domiciled at the time of his or her death. Because NH was domiciled in South Dakota at the time of his death, South Dakota laws apply.

South Dakota laws of intestate succession provide that "an individual born out of wedlock is the child of that individual's birth parents," and that "[t]he identity of the father may be established . . . by a presentation of clear and convincing proof in the proceeding to settle the father's estate." S.D. Codified Laws § 29A-2-114(c) (2007); see also SSA POMS GN 00306.010 & record if the child is an heir to the parent's estate under relevant State law). Thus, the DOI decision in question must establish that NH was the Claimant's father by clear and convincing evidence.

"Clear and convincing evidence is evidence so clear, direct, weighty, and convincing as to allow the trier of fact [here, the Agency] to reach a clear conviction of the precise facts at issue, without hesitancy as to the truth." POMS GN 00306.630. The "clear and convincing," standard of proof, described as "highly probable," is a "more exacting measure of persuasion" than preponderance of evidence, the traditional measure of persuasion in civil cases, such as Indian probate proceedings before the DOI. See McCormick on Evidence, Title 12, Ch. 36, § 340 (6th ed.) (2006).

Generally, to establish paternity in Indian probate proceedings before the DOI, the standard of proof is less than that required by the South Dakota intestacy statute: Indian probate proceedings use a "preponderance of the evidence," ^[2] and any proceeding applying a "clear and convincing" standard is merely an "anomalous decision." See Estate of Ross, 44 IBIA 113, 121 (2007) (citing Estate of William Youpee, 28 IBIA 200, 202 (1995)); and Estate of Eckiwaudah, 27 IBIA 245, 250 (1995). Thus, the DOI decision comports with South Dakota law if it established NH's paternity by "clear and convincing" evidence and did not merely rely upon the preponderance of the evidence standard.

Here, the DOI AJ did not state whether she was using the "preponderance of the evidence" or the "clear and convincing" standard of proof. However, the ALJ stated that her decision on NH's surviving heirs was determined under South Dakota laws of intestate succession, which require clear and convincing proof. See S.D. Codified Laws § 29A-2-114(c) (2007). ^[3] Thus, the Agency could reasonably infer the ALJ applied the controlling "clear and convincing" standard of proof required under South Dakota law, and the claimant has inheritance rights in NH's estate under South Dakota Law.

If a child born out of wedlock has inheritance rights in a parent's estate under relevant state law, the parent-child relationship may be established back to the date of the child's birth. See 42 U.S.C. § 416(h)(2)(A); see also SSA POMS GN 00306.010 & 00306.055. Thus, Claimant is NH's child and heir as of her date of birth.

CONCLUSION

Based on the facts and relevant law, it is OGC's opinion that Claimant qualifies as the child of the NH, that relationship can be established as of Claimant's date of birth, and Claimant is eligible to receive survivor child's benefits on the NH's account.

Deana R. E~-L~

Regional Chief Counsel, Region VIII

By: Debra J. M~

Assistant Regional Counsel

A South Dakota State court would find the Department of Interior's Order of Determination of Heirs sufficient to establish the NH's paternity of the child claimant. Thus, SSA would be justified in determining that the child was the NH's child under the laws of intestate succession of the State of South Dakota for purposes of section 216(h)(2)(A) of the Act.

Additionally, the State of South Dakota presumably accepted the order to establish "legitimation," as it issued a "new" as opposed to an "amended" birth certificate for Claimant. The relationship may be established as of the Claimant's date of birth.

Question Presented

You requested an opinion on whether C~ (Claimant) can qualify as the child of the Number Holder (NH), and whether that decision can be based on an Order issued by the Department of the Interior that Claimant is an heir of the NH. If so, you have also asked if the Order controls the effective date of the parent-child relationship, or whether the relationship would be established as of the child's birth date.

Short Answer

Based on the evidence currently before the Agency, we believe that Claimant qualifies as the child of the NH, and that the parent-child relationship can be established as of Claimant's birth date. ^[4]

FACTS

According to information you provided, Claimant was born in Winner, South Dakota, on May XX, 1999. The birth certificate that Claimant's mother initially submitted with Claimant's application for a Social Security card identified N~ as her birth mother. ^[5] The birth certificate did not identify Claimant's father. Claimant's mother was never married to the NH. A new birth certificate, which Claimant's mother submitted in support of her second application for benefits, lists the NH as Claimant's father, and the claimant and the NH have the same surname.

On June XX, 2003, the NH, a domiciliary of South Dakota who had received an allotment of Indian land, died intestate. Claimant's mother thereafter filed an application for surviving child benefits for Claimant. The application showed an alleged child relationship of "other." The Agency denied Claimant's application for the following reasons: "Child illegitimate - cannot inherit - no ceremonial marriage - not deemed child." Claimant did not appeal the denial of her claim.

Meanwhile, in July 2003, the Agency received an application for disability benefits on the NH's behalf filed by three of his surviving children. The application, which the Agency granted, did not identify Claimant as the NH's child.

On June XX, 2004, after an evidentiary hearing, the United States Department of Interior issued an "Order Determining Heirs and Decree of Distribution" (Order) to settle the NH's Indian land allotments, which included property located on the Lower Brule, Rosebud, and Santee Reservations in South Dakota. The Order included the following findings of fact and conclusions of law:

Decedent [NH] never married, but he was the father of five (5) children;

No Last Will and Testament was submitted for probate in this [NH's] estate, and there is no substantial evidence to conclude that the decedent [NH] executed a Will;

At death, the decedent [NH] was survived by heirs at law . . . under the statutes of descent of the State of South Dakota [S.D. Codified Laws Ann 29A-2-103(1) (1995)]. . .

For the purpose of determining the descent of land to the heirs of any deceased Indian, every Indian child, shall for such purpose be deemed the legitimate issue of his or her father.

The Order identified Claimant as one of NH's daughters, and thus a surviving heir entitled to a share of NH's Indian land allotments.

On June XX, 2006, the South Dakota Department of Health, through the Brule County Register of Deeds, issued a new "Certificate of Birth" that identified NH as Claimant's father and a file date of June XX, 1999 (seven days after Claimant's date of birth).

On July XX, 2007, Claimant's mother filed a new application for survivor benefits for Claimant.

On August XX, 2007, Claimant's mother completed a "Child Relationship Statement," in which she stated that:

NH listed Claimant as a dependent on a tax return^[6] ;

• •

  written evidence (probate papers and statements from NH's mother and a social worker "used to get father's name on birth certificate through Lower Brule Tribal Court") showed that Claimant was NH's daughter; and

• •

  NH admitted orally to his mother than he was Claimant's parent.

On August XX, 2007, W~, NH's mother, signed a memorandum "To Whom It May Concern," in which she stated that:

My son [NH] orally informed [me] that he is the biological father of C~ [Claimant]. [NH] did assist with care for C~ by means of financial support, caring for her, keeping her at my home for periods of time, he did take responsibility as her father when it was possible. Other family members are willing to attest to this, if needed. C~ did make her permanent home with her mother N~.

To support Claimant's second application for survivor benefits, Claimant's mother submitted to the Agency the Order from the Department of Interior, the new Certificate of Birth, and the statement from NH's mother.

Legal Analysis

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A), provides that a child will be deemed to be the child of a deceased wage earner if he or she would be entitled to inherit under the laws of the state in which the wage earner was domiciled at the time of his or her death.

The facts presented establish that NH was domiciled in South Dakota at the time of his death.

South Dakota laws of intestate succession provide that "an individual born out of wedlock is the child of that individual's birth parents," and that "[t]he identity of the father may be established . . . by a presentation of clear and convincing proof in the proceeding to settle the father's estate." S.D. Codified Laws § 29A-2-114(c) (2007); see also SSA POMS GN 00306.010 & GN 00306.630 (a child born out of wedlock may be entitled to child benefits based on either parent's record if the child is an heir to the parent's estate under relevant State law). "Clear and convincing evidence is evidence so clear, direct, weighty, and convincing as to allow the trier of fact [here, the Agency] to reach a clear conviction of the precise facts at issue, without hesitancy as to the truth." POMS GN 00306.630. The "clear and convincing," standard of proof, described as "highly probable," is a "more exacting measure of persuasion" than preponderance of evidence, the traditional measure of persuasion in civil cases. McCormick on Evidence, Title 12, Ch. 36, § 340 (6th ed.) (2006).

Here, a Department of Interior Administrative Law Judge (ALJ) held an evidentiary hearing to determine the NH's heirs for purposes of distributing the NH's Indian land allotments. In a decision dated June XX, 2004, the ALJ found that Claimant was the NH's daughter; an heir to those portions of the NH's estate containing Indian land allotments in South Dakota; and the legitimate issue of the NH. See 25 U.S.C.A. § 372 (2007). Generally, to establish paternity in Indian probate proceedings before the Secretary of the Interior, the standard of proof is less than that required by the South Dakota intestacy statute: Indian probate proceedings use a "preponderance of the evidence,"^[7] and any proceeding applying a "clear and convincing" standard is merely an "anomalous decision." See Estate of Ross, 44 IBIA at 121 (citing Estate of William Youpee, 28 IBIA 200, 202 (1995)); and Estate of Eckiwaudah, 27 IBIA at 250.

The ALJ did not state whether she was using the "preponderance of the evidence" or the "clear and convincing" standard of proof. However, the ALJ stated that her decision on surviving heirs was in accordance with the laws of descent of South Dakota, which require clear and convincing proof. And, as in a prior OGC opinion related to this issue, notice was given to all interested parties and there is no evidence that the decision was administratively appealed. See Memorandum from Regional Chief Counsel, Denver (L~ and P~), to Regional Commissioner, Denver, Questionable Child Relationship - South Dakota (March 22, 1993). Moreover, the State of South Dakota presumably accepted the order to establish "legitimation," as it issued a "new" as opposed to an "amended" birth certificate for Claimant. See S.D. Codified Laws §§ 34-25-13.1(1) (2007) (indicating that a new birth certificate will issue where a "court of competent jurisdiction" determines paternity) and 34-25-15 (indicating a new birth certificate is issued "upon receipt of a court order . . . determining paternity of a child").

Thus, based upon relevant law and the facts presented, we believe that the Claimant is eligible to receive Title II child's benefits on the NH account.

CONCLUSION

Based on the evidence provided, Claimant qualifies as the child of the NH, and that relationship can be established as of Claimant's date of birth.

Deana R. E~-L~

Regional Chief Counsel, Region VIII

By: Debra J. M~

Assistant Regional Counsel