FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- MICHIGAN

A blood test showing the exclusion factor of 93% in a paternity action meets the test of "clear and convincing evidence" to rebut the presumption of legitimacy applied under Michigan law. (W~ Donald R., ~-- RAV (G~), to ARC, 05/16785

OD 2110 -- MI

By memorandum dated March 8, 1985, the Director, GLPSC, requested a legal opinion as to whether Human Leukoctte Antigan (HLA) tests that exclude the wage earner (w/E) as father of the claimant, Nicole M. W~, are sufficient in this case to rebut the presumption of legitimacy, and to reverse SSA's prior determination that the claimant is the W/E's child and entitled to benefits. [n our opinion, the HLA tests are sufficient. Moreover, SSA must follow a state court ruling that claimant is not the W/E's child.

Background Facts

The W/E and Linda W~ were married in January, 1974. Nicole was born in june, 1976. The W/E claims that he had no contact with Linda after their separation in November, 1974, and that he was medically incapable of fathering a child in 1975. SSA was unable to substantiate the latter claim. Linda claims that the W/E and she did have sexual relations in mid-1975, through the last week in September, in an attempt at reconciliation. She concedes having sexual relations with another man during the same period. No evidence corroborates either party's claims of contact or non-access. There is no evidence of any acknowledgement by the W/E of the claimant as his child.

SSA found Linda's story credible. In addition, under Michigan law, the child was presumptively the W/E's since she was born during the W/E's marriage to her mother. SSA felt it could find no persuasive evidence of non-access to rebut the strong presumption. The couple was divorced in April, 1984. During the divorce proceeding, HLA tests were ordered to determine if the W/E was the child's father. The test results report stated explicitly that "the putative father is excluded in the HLA system" and "Putative Father Excluded: Yes xx No ." The report also states "Cumulative Probability (%)of Exclusion of Non Fathers > 93%," --^[1]

Discussion

In a previous case, we advised you that under Michigan law HLA tests which excluded the W/E as the father could rebut the presumption of legitimacy. Jimmie L~, ~~RA V (G~) to ARC, SSA-V (W~)(5/4/84). ^[2] In that case, the W/E and the child had no common antigens, so the assurance of exclusion appears to have been 100%. Since in this case the W/E and child have some common antigens and the probability of exclusion is indicated to be "only" 93%, you have asked whether the tests are sufficient in this instance.

We approach this question from three ways. First, the standard for rebuttal of the presumption of legitimacy is "clear and convincing evidence." Serafin v. Serafin, 4lll Mich. 62g, 258 N.W.2d 461, 463 (1977). Although we can find no Michigan opinion clearly defining that standard, a concurring opinion in that case sought to establish that, as applied to this presumption, the standard requires, inter alia, that the evidence shows that "common sense and reason" are "outraged" presumption were not rebutted. Id. at 465, citing New York case law. Other phrases were suggested, all having in common the point that the presumption is one of the strongest known, and requires evidence to overcome it that is "extraordinarily high." Id. at 464-65 & n.8.

In the L~ matter, supra, there is no difficulty saying that even the concurring justice's standard is met since the exclusion factor appeared to be 100% because the W/E and child shared no common antigens at all. Where the exclusion factor is 93%, or some comparable basis, the standard is also arguably met, given the general confidence expressed in HLA tests by Michigan courts, and by the Michigan legislature, which because of HLA testing allowed blood tests to be admitted as evidence to establish as well as disprove paternity. M.C.L.A. 727.716 (1982); e.g., Pizana v. Jones, 127 Mich. App. 123, 339 .W.2d 1, 3 (1983); Tune v. Blaney, 132 Mich.' App. 759, 348 N.W.2d 19 (1984) [admitting tests indicating by 91% probability that defendant was the father]; Klein v. Francks, 111 Mich. App. 316, 314 N.W.2d 602(1981); Jimrole L. L~, supra and cases cited therein.

Certainly, in this case, there is no other evidence that directly supports the W/E's paternity of the child other than the mother's claims of access, which concede the possibility of another man as father. Thus, there is a little if not zero obstacle to concluding that the HLA tests here "outrage reason and common sense." However, we lack enough of an understanding of the scientific basis of HLA test to evaluate when tests of less than 100% exclusion would "outrage common sense and reason." ^[3] But we are able to resolve the case on other grounds.

We are satisfied that Michigan appellate courts would treat the HLA tests here as clear and convincing evidence to rebut the presumption of legitimacy. First, the single justice's stringent definition of that standard in Serafin v. Serafin, supra, predates the wide acceptance of HLA testing because of its proven reliability. Indeed, in Serafin that same justice acknowledged the relevance of blood tests. Id. at 465.

More significantly, in a later case that also involved whether the presumption of legitimacy was rebutted by clear and convincing evidence, the Michigan Court of Appeals, acknowledging Serafin, held that "properly conducted blood tests that preclude paternity are conclusive to rebut the presumption of legitimacy." (emphasis added). Shepard v. Shepard, 81 Mich. App. 465, 265 N.W.2d 374 377 (1978). That case involved exclusion of paternity through ABO testing, which is less reliable than HLA testing. Pizana v. Jones, supra, Klein v. Francks, supra.

Our review of case law from other jurisdiction which discuss HLA testing supports our conclusion. Courts have taken judicial notice that ABO testing excludes at best at a 75% rate, and that the HLA test itself has an exclusion rate of 78-80%. But when HLA testing is used in conjunction with other testing procedures, it produces an exclusion probability of 9(1% or better. See State of Kansas ex rel Hansen v. Blackman, 662 P.2d 1183 (S. Ct. Kansas 1983); Crain v. Crain , 104 Idaho' 666, 662 P.2d 538 (S. Ct. 1983); Phillips v. Jackson, 615 P.2d' 1228 (S. Ct. Utah. 1980); Owen v. Bell, 6 Ohio St. 3d 46 (Ct. App. 1983). ^[4] These courts have compared HLA testing to other admissible scientific evidence with the observation that a 100% degree of accuracy is no more required for HLA testing than for other admissible tests. Hauser v. Blackman, supra.; Crain v. Crain, supra.

The test results of 93% used the phrase "cumulative probability for exclusion." This language is identical with the statements in the cited court cases discussing the reliability of HLA testing combined with other methods. We therefore infer that the results here also reflect such combined testing. In any event, since ABO testing at 60-75% reliability is conclusive to rebut the presumption of legitimacy, Shepard v. Shepard, supra, then 93% certainly is.

It was New York case law on which the concurring justice in Serafin relied principally for the "outrages reason and common sense" standard. New York courts also have accepted HLA testing: "In respect of...case law, an exclusion is deemed to be conclusive on the issue of paternity in all cases when the test has been properly administered." Goodrich v. Norman, 100 Misc, 2d 33, 421N.Y.S. 2d 285, 287 (Fam. Ct. 1979) (referring to less reliable (50-60%) ABO testing and comparing it to HLA as with "somewhat better than 90% exclusion reliability."); accord, Jane L. v. Rodney B., 103 Misc. 2d 709, 712, 438 N.Y. Supp. 2d 726, 728; (Fam. Ct. 1981); Comm. of Social Services v. Laredo, 100 Misc. 2d 220, 417 N.Y. Supp. 2d 665 (1979).

More recently, the highest New York court stated that HLA testing results that, among other evidence, indicated paternity by a 96.1% probability established paternity by "clear and convincing evidence." In re Harstein o/b/o Julie S. v. Mike S.,

N.Y.2d(Ct. App. January 14, 1985).

Our second approach reinforces the first. SSA has as a matter of binding policy taken the position that where under state law blood testing to exclude paternity is admissible as reliable, such tests are to be considered conclusive evidence to rebut the presumption of legitimacy, unless there is contrary state law. SSR 72-25 (C.B. l972), made binding and precedental by 20 C.F.R. 422.408.

Inasmuch as no Michigan court has concluded that HLA tests do not rebut the presumption where the exclusion probability is less than 100%, SSR 72-25 governs this case. Moreover, the ruling was adopted in the context of ABO testing, which Michigan courts have noted is generally less reliable than HLA testing, Pizana v. Jones, supra; Klein v. Francks, supra, and which one Michigan court found conclusive to disprove paternity, Shepard v. Shepard, supra.

A third approach is also conclusive in this matter. In the divorce proceeding, the state trial court ruled on the basis of the HLA testing that Nicole was not the W/E's child and accordingly declined to order support payments.

In Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) the Court of Appeals for the Sixth Circuit held that although the Secretary is not bound by a state trial court decision in a proceeding to which she was not a party, she is not free to ignore it in making Social Security determinations if four requirements are met: 1) an issue involved in a claim for social security benefits has been previously determined by a court of competent jurisdiction; 2) the issue was genuinely contested before the court by parties with opposing interests; 3) the issue falls within the category of domestic relations law; and 4) the state court ruling is consistent with the law as enunciated by the state's highest court. Gray was adopted by SSA as SSR 83-37c; Tony M~, ~ RA V (W~/G~) to ARC-Programs (W~} SSA V prior opinions cited therein.

The issue of whether Nicole is the natural child of the DWE falls within the general category of domestic relations law, it was decided by a state court of competent jurisdiction, and the matter was genuinely contested by parties with opposing interests: Linda, and through her, Nicole, was represented by counsel in the divorce proceeding. She has maintained that Nicole was the W/E's child at least since she filed for benefits for the child, and had she conceded in the divorce proceeding that Nicole was not the W/E's child, there would have been no need for blood tests. ^[5]

The trial court decision in this matter was not one "previously determined." SSA, however has recently chosen as a matter of policy to apply Gray v. Richardson to final SSA determinations if the state court decision is submitted within four years of the initial determination. Director, OPSC (Overs) to Director, Mid-America PSC (M~), "When the Social Security Administration (SSA) in Bound by a State Court Decision," 9/17/84). We recently applied this policy in James D~ RA V (G~) to ARC, Programs, SSA-V (W~) (April 5, 1985).

SSA based this choice on the principle that a state court decision meets the definition of "new and material evidence." See 20 C.F.R. 404.g88(b), 404.989(a)(1). Accord, SSR 67-22 {C.B. 1967) (where SSA rejected claim for child's benefits because presumption of legitimacy had not been rebutted, the child having been born while the mother was married to a man other than the DWE, submission within four years of state court ruling that presumption was rebutted, after SSA's denial was upheld by federal district court, required reopening as new and material evidence because the decree "materially affected the status of the child for social security purposes.").

In this matter, Linda filed for benefits in June 1981, which SSA apparently initially denied and then granted on reconsideration in August, 1983. Thus, the submission of evidence of the court ruling is timely. As in SSR 67-22, the state decree "materially affects the status of the child for social security purposes.

Given that the presumption of legitimacy has been rebutted, the child would be entitled to benefits only if the W/E "legitimated" her under Michigan law, M.C.L.A. 700.111(4), or if one of the "alternative federal tests" under 42 U.S.C. 416(h)(3) applies. In as much as the DWE has not, together with the mother, acknowledged the child in writing, or obtained a corrected birth certificate showing him as father, ^[6] or had a mutually acknowledged relationship with the child, the Michigan provisions do not apply. Nor do the alternative federal tests apply since the W/E has not acknowledged the child in writing, been decreed by a court to be her father, or ordered to support the child. In addition, he was not living with or supporting the child when the application for benefits was filed.

The claims folder is returned herewith.

 

FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- MICHIGAN

Where a child's mother and the alleged father were married at the time of the child's birth, although the wife and husband were separated two years before the child's birth, the presumption of legitimacy of the child may not be rebutted solely on the basis of statements by the mother and a third party that the third party is the natural father of the child, particularly since there is evidence to show that the husband continued seeing the mother up until three months after the child's birth. (L~, Robert, ~-- RAV (M~), to ARC, 12/04/84.)

OD 2110 -- MI

By memorandum dated October 9, 1984, you have asked whether the facts in this case are sufficient to rebut the presumption of the legitimacy of Timikia L~, who was born while her mother was married to the wage earner Robert L~. In our opinion, the evidence is insufficient under the law of Michigan to rebut the presumption. We note, however, that a doubt has been raised and you may choose to gather more conclusive evidence if possible. The reasons for our opinion follow.

BACKGROUND FACTS

Joann and Robert L~ were married on September 27, 1969. Joann left Robert in 1973, but resumed seeing him after three months. Joann may have continued seeing Robert until as late as September 1975, although she was also involved with other men. Timikia was born on June 24, 1975. Her birth certificate does not list a father, but her name is shown as Timikia L~. Joann and Robert were divorced on March 31, 1976. The divorce decree refers to "the minor child Timikia," but states that it makes no order regarding custody or support.

Following Robert's death, Joann L~ filed for surviving divorced mother's benefits and child's benefits on Robert's record in February 1984. At that time, she stated that the date Robert was last home was unknown."

Subsequent development to determine the identity of Timikia's father is conflicting. On March 13, 1984, Joann stated that although she had no proof, she ."knew" that Timikia's father was Calvin James L~, not Robert L~. For that reason, she had not listed Robert as Timikia's father on the birth certificate. On May 1, 1984, without any additional proof or evidence, Calvin J. L~ advised SSA that he was Timikia's father. On August 10, 1984, Joann stated that she had seen Robert until September 1975. She stated: "I believe it is possible that Robert L~ is the father of Timikia S. L~ but I don't think he is. I was involved with other people at the time and just do not believe that Robert is Timikia's father."

Additional evidence has not been received despite SSA's efforts to obtain at least some of it. There are no statements from Joann's mother, with whom she lived at the time Timikia was conceived, regarding whether or not Joann was seeing Robert at that time. There is no evidence from Joann or Calvin J. L~ regarding any financial support or parental involvement on Calvin's part, or any evidence that a paternity action was ever brought by Joann on behalf of Timikia against Calvin. There is no explanation from Robert's mother regarding her failure to mention Timikia as Robert's child when she filed for a lump sum death benefit or when she later advised SSA about a subsequent illegitimate child Robert had fathered in 1981. Robert's siblings did not respond to SSA's inquiries.

DISCUSSION

The wage earner resided in Michigan at the time of his death, and Timikia and Joann have lived continuously in Michigan since Timikia's conception and birth. Therefore Michigan legitimacy and intestate inheritance provisions control the issue of the. presumption of legitimacy and its rebuttal. 42 U.S.C. §216(h)(2)(A).

Michigan law provides that a child born or conceived during a marriage is presumed to be the legitimate child of the husband and wife, including for purposes of intestate succession. M.C.L.A. §700.111(2); Serafin v. Serafin, 401 Mich. 629, 258 N.W.2d 461 (1977). This presumption may only be rebutted by clear and convincing evidence. Serafin v. Serafin, supra. Moreover, only the natural parents, during their lifetimes, may rebut the presumption of legitimacy. M.C.L.A. §700.111(3). ^[7]

In this case, the primary evidence rebutting the presumption of legitimacy are the statements of the mother. These statements are permissible as statements of a living natural parent under M.C.L.A. §700.111(3). The statement of Calvin J. L~ appears to be incompetent evidence under Michigan law. We would give it little evidentiary value in any event, since it is unsupported by any corroborating evidence or pattern of paternal behavior. At most, it reflects evidence that at some point Joann told Calvin that he was the father of her child. The facts that the birth certificate and divorce decree are silent regarding paternity do not, alone, establish or rebut paternity.

Michigan case law clarifies that the presumption of legitimacy must be rebutted by clear and convincing evidence because it is "one of the strongest presumptions known to the law." Shepherd v. Shepherd, 81 Mich. App. 465, 265 N.W.2d 374 (1978). The Shepherd court cited with approval Justice Coleman's concurring statements in Serafin, supra, which it summarized as follows:

"clear and convincing" evidence means something more than a preponderance of evidence. Such evidence of rebuttal must be "very convincing", "of such cogency as to render belief necessary" and "beyond all reason- able doubt." 401 Mich. at 640, 258 N.W.2d at 464.

265 N.W.2d at 376.

The mother's statements in this case do not rise to the level of clear and convincing evidence. On March 13, 1984, she stated that Calvin J. L~ , not Robert L~ , was Timikia's father. Although she "knew" it, she had no evidence to prove Calvin's paternity or to disprove Robert's paternity. On August 10, 1984, Joann affirmed her belief that Robert was not Timikia's father, but also explained that she was seeing Robert as well as other men during the time Timikia was conceived. This evidence is similar to the evidence in Johnson v. Johnson, 93 Mich. App. 415, 286 N.W.2d 886 (1980), where the court considered the paternity of a child conceived shortly before the marriage during which the child was born. The primary evidence against the father's paternity was the mother's statements that she was uncertain as to the identity of her child's father. At the time the mother met the man she later married she did not know she was pregnant, but she was told by a doctor two months after meeting the man that she may have been "about three months pregnant." The child was born during wedlock, about eight months after the mother and "father" met. Although the trial court had found that the mother had failed to establish that the man she later married was the child's father, the court of appeals reversed the decision. The appeals court clarified that the presumption of legitimacy, based on the child's birth during wedlock, presents prima facie evidence of paternity. The mother's burden was not to establish paternity. Rather, she had to disprove paternity by clear and convincing evidence. Her uncertainty regarding whether her husband had fathered the child born only eight months after they had met (but within the limits of a normal gestation period under Michigan law) was not clear and convincing evidence of nonpaternity.

Other Michigan cases which have found clear and convincing evidence which rebutted a presumption of legitimacy have had more conclusive evidence. For example, in Raleigh v. Watkins, 97 Mich. App. 258, 293 N.W.2d 789 (1980), there was evidence regarding dates of intercourse and contraception used, strong inferences of non-access by the husband at the time of conception, blood test results, as well as other corroborating evidence. Our legal opinions in cases from Michigan and other states Which require clear and convincing evidence to rebut a presumption of legitimacy have generally required more evidence than is present here to satisfy the standard. See, e.g., Willie F. B~

~ , RA-V (G~) to ARC, Programs V (W~), 12/14/82 (Michigan: evidence of nonaccess by husband during period of conception, corroborated by mother's consistent statements and AFDC records found clear and convincing); Jimmie L. L~, (G~) to ARC, Programs V (W~), 5/4/84 (Michigan: blood tests which precluded paternity found clear and convincing); James T. B~, ~ ,RA-V (G~) to ARC, Programs V (M~), 9/26/80'(Indiana: evidence in paternity adjudication, changed birth certificate, and admission of alleged natural father and mother found clear and convincing);and James E. G~, ~, RA-V (I~) to ARC-RSI (M~), 8/10/79 (Ohio: failure to mention known child in divorce decree does not adjudge paternity or rebut presumption of paternity).

CONCLUSION

Analogizing to the evidence considered in the foregoing cases, in our opinion there is not clear and convincing evidence which rebuts the presumption that Timikia L~ is legitimate. The mother's statements do not rule out access to Robert at the time the child was conceived. You may wish to pursue development of additional evidence of non-access. See POMS GN00306.050 and 00306.060 and the types of evidence suggested in the last paragraph of background facts above. ^[8] Without such evidence, the presumption of legitimacy is not rebutted in this case and Timikia L~ must be viewed as the legitimate child of Robert L~ for purposes of determining eligibility for Social Security benefits.

The claims folder is returned herewith.

 

FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- MICHIGAN

The results of a blood test may constitute clear and convincing evidence for the purpose of rebutting the presumption of the legitimacy of a child where the results of the test show that the child in question could not possibly have been the natural offspring of the alleged father. (L~ , Jimmie L.,~ -- RAV (G~), to ARC, 05/04/84.

OD 2110 -- MI

Your April 16, 1984 request for an expedited legal opinion asked whether under Michigan law a blood test that excludes the mother's husband as the father of a child born during a marriage is sufficient to meet the clear and convincing standard of Michigan law to rebut the presumption of legitimacy. The answer is yes.

Therefore, the claimant child is not entitled to benefits as the wage-earner's legitimate child under 42 U.S.C. 402(d)(1),(3) unless she meets one of the alternative state law or "federal" tests under 42 U.S.C. 416(h)(2), (3). In our opinion, she does not.

RELEVANT FACTS

The number holder (NH), Jimmie L. L~, is a 70year old man receiving old-age insurance benefits. His prior marriage ended with the death of his wife in May, 1980. He married Karen S~ L~ on May 3, 1982. According to the wife's statements in the file, the NH and Karen S~ lived together for 2 1/2 years before their marriage. In one statement, Karen L~ says she "married the NH only because she was pregnant."

Claimant was born May 20, 1982, shortly after the marriage. Initially, the NH appears to have treated the child, Simone, as his own. He is named on the birth certificate, and has named her as his child on Social Security Administration documents.

Neither the marriage nor the joys of fatherhood lasted long. Karen L~ left the NH in November, 1982. Although the NH, in the bitter divorce fight that has followed, appears to have initially sought custody of Simone, and at one point also sought to replace her mother as representative payee, he has since disavowed paternity. He expressed doubts about paternity to SSA as early as February, 1981, when the child was less than a year old.

In November, 1983, the NH through his attorney obtained the results of Human Leukocite Antigen (HLA) tissue typing tests which as a matter of scientific principle show conclusively that he could not be the father of Simone. Because the mother and child share certain antigens, the haplotype of her father must show one of two values, each comprised of three specific antigens. ^[9] Since the antigens that make up these two values overlap, a total of four antigens is involved. The HLA tests show, however, that the NH possesses none of these four antigens.

In February, 1984, the NH presented these test results to SSA and protested the entitlement of the child to benefits on his earnings record. He stated that he married her mother only because he thought he was the biological father. The mother appears to still claim that he is the father. She denies the NH's claim that she told him that he was not.

ANALYSIS

A. Presumption of Legitimacy and Its Rebuttal Under Michigan Law Generally

Michigan law clearly provides that a child born (or conceived) during a marriage is presumed to be the legitimate child of the husband and wife, including for purposes of intestate succession. M.C.L.A. 700.111(2); Serafin v. Serafin, 401 Mich.' 629, 258 N.W.2d 461 (1977). The law also clearly provides that this presumption may be rebutted. M.C.L.A. 700.111(3); Serafin v. Serafin, supra. The standard for rebuttal is clear and convincing evidence. Serafin v. Serafin, supra.

M.C.L.A. 700.111(3) places two limits on the power to rebut the presumption of legitimacy. Only the natural parent may disprove it, and the right to do so terminates upon the death of the presumed parent. No problem exists, then, for it is the presumed father who is seeking to rebut here and he is still alive. ^[10] Thus, the only question to be decided is whether the blood test meets the standard of clear and convincing evidence.

B. Status of Blood Tests with Regard to Paternity Under Michigan Law

We previously addressed the question you have asked in Larry L. F~, RA-V (P~) to DM, Grand Rapids, MI. (B~), 6/3/69. At that time, we advised you that the "Lord Mansfield Rule," which then still applied in Michigan, would not bar consideration of blood tests that excluded paternity to rebut the presumption, and that Michigan courts would consider such proof as reliable evidence.

But, as there was then no clear guidance from any Michigan court with regard to whether such proof should be given conclusive weight, and the authority from other jurisdictions was divided on the question of weight, we left this question open. We recommended that the blood test proof be supplemented with evidence 'about the husband's non-access to the mother at the time of conception.

Developments since that 1969 opinion, however, merit that we now conclude that reliable blood test evidence that excludes the husband's paternity is conclusive evidence to rebut the presumption for purposes of Michigan law. First, the Lord Mansfield Rule has been abolished in Michigan. Serafin v. Serafin, supra. Although our 1969 opinion concluded that the Rule did not bar evidence of blood tests as it did then bar testimony by the husband or wife to show non-access, the opinion appeared to weigh the fact that the Rule then barred such testimony against giving blood tests conclusive weight.

Second, the 1969 opinion had found in Michigan cases only dictum from one appellate court to suggest that blood tests would be considered to conclusively rebut the presumption. Maxwell v. Maxwell, 167 N.W.2d 114, 118 (Mich. App. 1969). In Serafin v. Serafin, supra, however, where the Michigan Supreme Court held that the husband who denied paternity and sought to rebut the presumption was entitled to present his best evidence, 258 N.W.2d at 463, two justices appeared to endorse blood tests for this purpose. 258 N.W.2d at 465.

Panels of the Michigan Court of Appeals have since read this dictum together with language from an earlier Michigan Supreme Court case which holds that blood test evidence to exclude paternity is admissible to defend against a paternity suit and "may rule out" paternity. These cases hold that properly conducted blood tests that preclude paternity are conclusive to rebut the presumption of legitimacy, calling such tests the best evidence for this purpose. Sheperd v. Sheperd, 81 Mich. App. 465, 265 N.W.2d 374, 377 & n.4 (1978), citing People v. Nichols, 341, Mich. 311, 67 N.W.2d 230, 232 (1954). Accord, Pizana v. Jones, 127 Mich. App. 123, 339 N.W.2d 1, 3 (1983) Osborn v. Fabsatz, 105 Mich. App. 450, 306 N.W.2d 319, 321 (1981); People v. Sturdivant,' 91 Mich. App. 128, 283 N.W.2d 669, 671 (1979)(dictum). Cf. Shifter v. Wolf, 120 Mich. App. 182, 327 N.W.2d 429, 431 (1982)["where paternity is not excluded by a blood test [which proves nonpaternity] defendant is left to traditional forms of proof" (emphasis added)].

A third reason for our conclusion is that this matter involves HLA-testing. The cases above largely involved ABO blood group testing. Although ABO testing has been admitted to prove non-paternity in Michigan for 30 years, the recent development of HLA testing is considered even more reliable.^[11] See Pizana v. Jones, supra. As one Michigan court noted, "HLA testing is so powerful that many of the older rules of evidence for blood tests in disputed paternity cases now require complete revision." Klein v. Francks, 111 Mich. App. 316, 314 N.W.2d 602 (1981), citing Terascki, "Resolution By HLA Testing .... ," 16 Journal of Family Law 543 (1977-78).

Finally, in SSR 72-25 (C.B. 1972), SSA ruled that where under state law (Hawaii) ABO blood testing to exclude paternity is admissible, it is to be considered conclusive evidence that rebuts the presumption of legitimacy unless there is contrary state law. Accord, Frank M~, RA-V,RA-V (K~) to ARC Programs V (M~), 8/8/80 (Indiana); Kurt N. Y~ , RA V(A~) to ARC-RSI V (M~), 5/5/80 (Wisconsin); Anthony M~ , ~ , RA-II (W~) to ARC II (W~), 10/25/79 (New York). Cf. George W. E~ , ~ , RA-V (K~) to ARC Programs V (M~), 11/25/80 (Ohio law requires proof of non-access even where blood grouping (ABO) tests exclude paternity). A Social Security Ruling is of precedental value and is binding on SSA. 20 C.F.R. 422.408.

For the above reasons, we conclude that the HLA blood tests alone conclusively rebut the presumption of legitimacy.^[12]

C. Application of State Intestacy Law and "Federal" Tests For Benefits Eligibility

Given our conclusion, Simone is thus a child born during a marriage but not the issue of that marriage. Under M.C.L.A. 700.111(4), (5), a man is considered to be the father of such a child for all purposes if any of three conditions apply: the man and the mother join in a written acknowledgement executed with the same formalities as a deed and recorded in the office of the probate judge; the man and mother request in writing and obtain a corrected birth certificate for the child; the man and child have a mutually acknowledged relationship that continued until the death of either. If one of these conditions applies, the child is arguably the NH's intestate heir, and thus entitled to benefits under 42 U.S.C. 416(h)(2)(A).

In this case these tests do not apply with regard to the number holder. ^[13] There is no evidence of a written acknowledgement with the necessary formalities. There is no corrected birth certificate, only the original. Finally, any mutually acknowledged relationship has been terminated by the NH prior to death. ^[14]

Under 42 U.S.C. 416(h)(3)(A)(1), a child not otherwise entitled to benefits on the earnings record of an individual entitled to old age benefits will receive them in certain circumstances. None of these apply here. There have been no relevant court decrees. Although there might well be a written acknowledgment by the NH, the requirement that it have been made one year prior to the earlier of the NH's entitlement or age 65 cannot be met. The child was born when the NH was age 68. ^[15] This timing also precludes application of the "living with" or "support tests"-under §216(h)(3)(A)(ii), which further requires other evidence that the Secretary finds satisfactory to show the NH to be the father; given the blood test results, there is not such satisfactory evidence.

D. Effect of Prospective State Court Decision

As a final matter, we note that the issue of the NH's paternity is to be decided in a Michigan court proceeding now pending between the NH and his wife. This office has previously addressed the issue of whether the Secretary is bound by state court judgments. Lamont D. M~ , ~, RA-V (D~) to ARC-Programs V (W~), 6/9/82, and prior memoranda cited' therein.

Consistent with the criteria set 'forth by the Court of Appeals for the Sixth Circuit, the Secretary is not free to ignore a state trial court decision on an issue involved in a claim for social security benefits where (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. Dennis v. Railroad Retirement Board, 585 F.2d 151 (6th Cir. 1978); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). The decision in Gray has been adopted by SSA. SSR 83-37c (Jul. 1983).

The first three criteria will certainly be met by the forthcoming court decision. If the court concludes on the basis of the blood tests that Simone is not the NH's child, the fourth criterion will also be met. If it concludes that she is not, you might wish to resubmit the case for our determination whether that resolution is consistent with the law of the State's highest court. However, you need not wait for this court decision to make your own.

The claims folder is returned herewith.

FR LEGITIMACY AND LEGITIMATION -- PRESUMPTION AND EVIDENCE -- MICHIGAN

Under Michigan Probate Code, "only the person presumed to be the natural parent of a child may disapprove any presumption relevant to the relationship . . .". Either the husband or wife while either remains alive, can disprove the presumption of legitimacy of a child born or conceived during their marriage. In order to overcome the presumption, the proof must be clear and convincing. (B~ Willie F., ~ -- RA V (G~) to ARC 12/14/82).

OD 2110 -- MI

1. Introduction and Conclusion

On October 21, 1982 we forwarded an interim response in the above-captioned matter. We have succeeded in making contact with only one authoritative source in the state who has offered assistance in interpreting relevant Michigan law: Probate Judge Harold E. R~. Genessee County, Michigan who is the author of an article concerning illegitimate children and rights of inheritance which appeared in the Michigan State Bar Association Journal, 57 Mich. S.B.J. (May, 1978). In order not to delay resolution of this matter any longer, we are proceeding to issue this opinion based upon the legal authorities we have consulted to date.

As noted in our interim response, the attorney for the claimant has asserted that the Michigan Probate Code provides that the child claiming benefits in this case is presumed to be the natural child of the deceased number-holder Willie B~, even though the mother has freely stated that the child was fathered by another man. We have concluded that the statute in question, when interpreted in light of the contemporaneous case law concerning rebuttal of the presumption of legitimacy of a child born during marriage, permits either the husband or the wife of such marriage to disprove the presumption. Given the facts in this case, we have further concluded that the presumption is rebutted here and the child may not claims as the child of Willie B ~.

2. Background Facts

The basic facts in this case appear to be as follows. Willie B~ and Bobbie Jean P~ were married in Tennessee on June 28, 1958. Willie left their home about two years after the 1961 birth of a child and called Bobbie from Detroit, Michigan a few days later. Willie returned to Tennessee three times: once in 1978, once at Christmas, 1979, and once about a month before his death in Michigan on May 23, 1980.

The claimant child, Victor L. B~, was born in Tennessee on October 2, 1967 to Bobbie Jean, but his birth certificate does not show the name of the father. Bobbie Jean has stated that the father is Edward G~. Records for Bobbie Jean under the Aid to Families with Dependent Children program, Title IV-A of the Social Security Act, as amended, 42 U.S.C. 601 et seq., have consistently shown Edward G~ as the father of Victor.

Based upon the foregoing evidence, the Administration determined that the presumption of legitimacy of the child born during a marriage had been rebutted; that Victor was not the child of the number-holder; and that, therefore, child's benefits must be denied. The attorney for the claimant has requested reconsideration, submitting certain provisions of the Michigan Probate Code governing intestate successions.

3. Discussion

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. 416(h)(2)(A), directs the Secretary to determine the status of child by applying such law as would be applied by the courts of the state in which the insured individual dies domiciled when those courts determine the devolution of the insured individual's intestate personal property. Since Willie B~ died do look to the law of intestate succession which the Michigan courts would apply. "In determining heirs, the general rule is that descent and distribution of property is determined by the law of the situs, actual or constructive." In the Matter of estate of B~ deceased, Blanco V. Blanco et al., 323 N.W.2d 671(Mich. App. 1982). The situs of Willie's property is Michigan and Michigan law would apply.

In its Probate Code, Michigan provides by statue as follows:

(1) For all purposes of intestate succession, a child is the heir of each of his or her natural parents notwithstanding the relationship between the parents except as otherwise provided by (the statutory section terminating parental rights for intestate secession in cases such as court order or release for adoption).

(2) If a child is born or conceived during a marriage, both spouses are presumed to be the natural parent of the child for all purposes of intestate succession. . .

(3) Only the person presumed to be the natural parent of a child under subsection (2) may disprove any presumption that may be relevant to the relationship, and this exclusive right to do so terminates upon the death of the resumed parent. W.C.L. 700.111(1)-(3); M.S.A. 27.5111(1)-(3).

This 1979 revision of the Code was in effect at the time of Willie B~ death.

Prior to the passage of this statute, the Michigan Supreme Court dealt with the common law presumption of legitimacy which protects the status of a child born during marriage in the case of Serafin v. Serafin, 401 Mich. 529, 258 N.W.2d 461 (1977). The S~ decision abrogated Michigan's common law adherence to what is commonly referred to as Lord Mansfield's Rule: "that the declarations of a father or mother shall not be permitted to say after marriage that they have had no connection, and therefore that the offspring is spurious." 258 N.W. 2d at 462; Egbert v. Greenwalt, 44 Mich. 245, 249, 6 N.W. 654 (1880). After Serafin , therefore, ^[16] it is possible under Michigan common law for a husband and wife to testify concerning nonaccess to each other so as to rebut the presumption of legitimacy of a child born during their marriage. 258 N.W.2d at 462. The S~ court quoted with approval from the high court of a sister state:

We are not persuaded that the public treasury should be protected (by avoiding enrollment of an illegitimate child on public welfare) by foisting upon a husband the support of a child obviously not his own. 258 N.W.2d at 453.

The S~ court went on to declare:

Neither is the peace of the general society fostered by continued adherence to (the rule precluding a husband or wife testifying so as to establish the illegitimacy of a child born during their marriage. Rather, we are convinced, it is best fostered by lifting the veil of incompetency imposed upon a husband on wife by the rule. In our view the public peace and respect for law are enhanced, not by arbitrarily assigning the duty of support to a man who is not the father of the child, but by allowing him to contest paternity by his best evidence. 258 N.W.2d at 463 (emphasis added).

Finally, the court quoted with approval the following declaration from the appellate court of another sister state:

If the function of a court is to find the truth of a matter so that justice might be done, then a rule which absolutely excludes the best possible evidence of matter in issue rather than allow it to be weighed by the trier of fact must necessarily lead to injustice. Further, when a court voluntarily blindfolds itself to what every citizen can see, the public must justifiably question the administration of law to just that extent. 258 N.W.2d at 463.

The S~ decision confirmed that there still exists a strong presumption of legitimacy of a child born during a marriage, even though testimony of the husband or wife might now be admissible in rebuttal of that presumption. Only "clear and convincing evidence" will rebut this presumption. 258 N.W.2d at 463. In a concurring opinion, Justice C~ focused attention on the strength of this presumption:

The presumption of legitimacy is one of the strongest presumptions know to the Law. . . .

The phrase "clear and convincing evidence". . . obviously does not mean that a mere preponderance of the evidence or a modicum of additional evidentiary weight will be sufficient to overcome the presumption of legitimacy. Much more than that is necessary.

The proof of illegitimacy must be "very convincing", "of such cogency as to render belief necessary", and "beyond all reasonable doubt" before a judge can rule that a child is illegitimate. . . . The husband who seeks to establish that he is not the father of a child born during the marriage still faces a formidable task. 258 N.W.2d at 464-465. See, also, Shepard v. Shepherd, S1 Mich. App. 465, 265 N.W.2d 374,375, (1978).

Section 700.111 of the probate code and S~ in the common law must be read together and, if possible, in harmony in order to interpret the current state of Michigan law concerning rebuttal of the presumption of legitimacy of a child born during marriage. The 1977 court decision reflects two primary concerns: first, to protect the status of the child with a strong presumption; but, second, to establish the truth of the paternity of the child clearly and convincingly with the best evidence possible, rather than obscuring the truth by interposing the artificial veil of an essentially irrebuttable presumption. The 1979 statute appears to be susceptible to several interpretations, only one of which, we submit, is harmonious with S~. We have found no evidence from the legal authorities to which we have had access that the statute was intended to reverse the effect of S~.

The interpretations of the section 700.111(1)-(3) which its language may support are as follows. First, the statute may be read to mean that "the person presumed to be the natural parent" can only mean the husband in the marriage and that, if he does not disprove the presumption of legitimacy before his death, it becomes an irrebuttable presumption. It is true that the only presumption of parentage required in most cases is a presumption of paternity, not one maternity. Given this fact and the reference to the singular "person presumed" rather than the plural "persons", it is arguable that only the husband as the presumed father has the right to disprove the presumption.

A second interpretation is in accord with first to the effect that only the husband is the "presumed" parent with the right to disprove the presumption. However, under the second interpretation anyone, including the estate of a deceased husband, may challenge the presumption, but only bringing to bear evidence of acts or statements of the "presumed person" in disproof of it. Such acts or statements might range from explicit denial of paternity to prolonged non-access from the mother during the feasible period of conception of the child. This interpretation appears to us to be strained, given the actual wording of the statute. It does, however, have the merit of recognizing that a husband who has not had the caution to make a will for disposal of his property at death (as is true under this intestacy statute) is not likely during his lifetime to have formally challenged the legal status of a putative child with proofs of the impossibility of his paternity.

Indeed, in many cases he may not even know of the existence of the potential claimant to his property. It must be recognized that the question of whether there be a presumption of legitimacy for intestate secession of the putative child may frequently not arise until the death of the "presumed" parent. It seems anomalous that under the first interpretation the legislature would have provided the possibility of challenging the legitimacy of a claimant to the intestate succession, only to extinguish the possibility by limiting the right of challenge to the dead person alone. Under the second interpretation, another interested party, such as the representative of the estate of the deceased "presumed" parent, could challenge the presumption. The statute would limit the proof to those of the actions or statements of the deceased while he was alive, however.

A third interpretation of the statute is based upon reading "the person presumed to be the natural parent" in subsection (3) as meaning either the husband or the wife, because both are statute also reads that the presumed parent "may disprove any presumption that may be relevant to the relationship" (emphasis added). Thus, under the third interpretation, either the husband or the wife may disprove either the presumption that he or she is a parent or the presumption that his or her spouse is a parent of the child.

We have concluded that the third interpretation is the one which best provides a harmonious consistency among the various aspects of Michigan statutory and case law relating to this issue. First, the interpretation brings the statute and the S only to the extent that, with respect to intestate succession, rebuttal of the presumption of legitimacy rests solely with the husband and wife and is not possible after both their deaths.

Second, our last interpretation of subsections (2) and (3) of the statute permits these to be read more harmoniously with subsection (4). It is well-settled ruled of statutory construction by the courts that pertinent provisions of a statute be considered together and that, if possible, all parts be construed so as to give them force and effect, rather than negating any part by the construction of another part. Melia v. Appeal Bd. of Mich. Employ. Sec. Comm'n., 346 Mich. 544, 78 N.W.2d 273, 275 (1956); Madary v. Engel, 111 Mich. App. 517, 314 N.W.2d 676, 677 (1981). Subsections (2) and (3) of section 700.111 are read together to create a presumption of parentage in the respective spouses of the marriage during which the child is born. Subsection (4) is then read to establish paternity in a man other than the husband of the marriage during which the child is born or conceived, if the presumption of subsection (2) is rebutted under subsection (3): i.e., the child is "not the issue of that marriage." M.C.L. 700.111(4). We see no other way in which subsections (3) and (4) can be read together harmoniously. If subsection (4) allows another man to establish paternity on his own while the presumption of the husband's paternity remains unrebutted, what becomes of the mandate contained in subsection (3) that "(o)nly the person presumed to be the natural parent ... may disprove (the) presumption"?

Under our interpretation of subsection (3) that both spouses are presumed parents with the right to disprove any presumption, the wife's role in disproving the presumption of the husband's paternity under subsection (3) is consistent with here role as mother joining with the real natural father under subsection (4) to establish his paternity. Under each of the ways in which a man other than the husband may establish his status as the natural father, the natural mother must join in (e.g., joining him in acknowledging the child in writing; joining him a written request for correction of the birth certificates; and, in most cases we presume, implicitly joining him in facilitating his bearing a mutually acknowledged parental relation with her child). Thus, subsection (4)'s establishment of paternity in a man other than the husband is accomplished through the cooperation of the mother who, as the wife under subsections (2) and (3), has the power to disprove the presumption of her husband's paternity.

Judge R ~ in a letter to us dated November 4, 1982 agrees with this third interpretation of the statute discussed, supra.

Reading section 700.111(3) in conjunction with S~, we have concluded that under Michigan law either the husband or wife, while either remains alive, may disprove the presumption of legitimacy of a child born or conceived during their marriage. Their proof must be "clear and convincing", or such as to render belief in non-legitimacy necessary, in order to overcome the presumption. Merely a preponderance of evidence probably does not meet this burden of proof.

Applying these conclusions to the facts in this case, we have determined that the available evidence provided by the mother of Victor, the wife of the number-holder Willie, is sufficiently clear and convincing to rebut the presumption of Victor's legitimacy. According to the facts known to the Social Security Administration and related by the mother, Bobbie Jean, her husband, Willie, left her at least three and a half years before the birth of Victor and returned to visit only three times, all more than ten years after his birth. The mother has stated that the father of the child was not her husband, but Edward G~. AFDC records consistently show G~ as the father.

This evidence, therefore, includes an admission against the interest of the child claimant in this case by the mother that the number-holder is not the father. The evidence of the mother also indicates non-access by the husband during any feasible period of conception of the child. Reenforcing these key admissions are the objective records of the AFDC program, the information for which was apparently supplied by the mother with no apparent reason to deceive.

The Michigan appellate court in Wason v. Wason. 83 Mich. App. 364, 268 N.W.2d 405 (1978) perceived little hope that the presumption of legitimacy could be sustained where the mother asserted in affidavit that her husband had no access to be the father of the child during the period in question.

In Raleigh v. Watkins, 97 Mich. App. 258, 293 N.W.2d 789 (1980), the natural father of a child brought suit to establish paternity in himself, rebutting the presumption of legitimacy of the child and the presumption of paternity of the husband of the marriage during which the child was conceived. The court recited the evidence submitted in support of his claim to paternity and concluded that, under the S~ "clear and convincing" evidence standard, the presumption of legitimacy was rebutted:

(1) An admission in (the mother) original sworn answer to plaintiff's complaint that plaintiff was the child's father;

(2) An additional admission by (the mother) . . .that (she) became pregnant by the plaintiff during the time she lived with him;

(3) (The mother's) statement at trial that she was taking birth control pills while she was living with her husband;

(4) (The mother's) statement at trial that she utilized no contraceptives during the time she lived with and had sexual relations with plaintiff;

(5)(The mother's) statement at trial that the father of her child could only be either her husband or plaintiff;

(6) (The mother's) last date of intercourse with her former husband was between July 4 and July 12,1975. (She) used birth control pills until July 12,1975. (She) lived with plaintiff from July 12, 1975 through August 15, 1975, and continued to have sexual relations with him through October of 1975. The minor child. . . was born May 24, 1976. Therefore, the relevant dates indicate that in order for (her)husband to be the father of her child the birth control pills would have to have been ineffective and (she) would have to have been ineffective and (she) would have to have been approximately four months pregnant at the time of her divorce in 1975. Yet, (she) stated she did not know she was pregnant at the time of her divorce;

(7) (The mother's) judgment of divorce stated that no children were born of (her) marriage to her husband. When (she) was given the opportunity to amend that judgment to reflect the fact of having had a child by that marriage, the opportunity was declined;

(8) A blood test of plaintiff requested by (the mother) indicated that plaintiff's blood type was compatible with the blood type of his alleged son . . .;

(9) No steps were ever taken by (the mother) to determine whether her former husband could be the father of her child;

(10) Plaintiff testified that (the mother) told him that (the child) was his son; and

(11) (The mother's) expert witness. . . testified that (she) told her that plaintiff. . . "must be" (the child's) father.

The only evidence offered against the finding of paternity was (the mother's) denial at trial based on her conviction that she will "never be 100% sure" that plaintiff is the father of her son. We conclude that the trial court was correct in its judgment finding that plaintiff rebutted the presumption of legitimacy and proved paternity in himself by clear and convincing evidence. 293.N.W.2d at 790-791.

In the case of the child Victor, here, there appears to be no evidence whatsoever that you have reported to us which supports the paternity of Willie. The claim as to his paternity and the legitimacy of Victor apparently rest solely on the statutory presumption in section 700.111 of the probate code. As stated, supra, we believe that there is sufficient "clear and convincing" evidence to rebut the presumption of legitimacy under S~ and that it comes from the mother, a "presumed parent" under section 700.111 who may disprove the presumption.