The NH is domiciled in Illinois therefore, we look to Illinois law to determine the parent-child relation between the NH and Claimant. Both the Claimant’s mother and NH report that the NH is not the Claimant’s biological father. The biological father is listed on the Claimant’s birth certificate and both the Claimant and the biological father share the same last name.

The NH has not adopted the Claimant and there is no indication that the NH was adjudged the father or acknowledged the paternity of the Claimant. Under the Illinois Parentage Act of 1984 and the current Illinois Parentage Act of 2015, which took effect on January 1, 2016, we believe that the Claimant cannot receive child insurance benefits on the NH’s earnings record because the Claimant cannot inherit as the NH’s child under Illinois intestate succession.

Short Answer

M~ is the biological mother of M2~, who has a pending claim for child insurance benefits based upon the record of R~, M~’s husband. Both M~ and R~ report that M~2s’ biological father is J~. J~ was also listed as the father on M2s’ birth certificate and M2~ shares his last name. You have asked whether M2~ qualifies as R~’s child, as determined in Illinois state law for intestate inheritance. For the reasons discussed below, we believe that M2~n is not R~’s child, as that term is used for child insurance benefits purposes.

Background

M~ is the biological mother of M2~, who was born on January XX, 2010. She filed for child insurance benefits on behalf of M2~ on November XX, 2014. The Child benefits claim was based upon the record of R~, M~’s husband. M~ has lived in Illinois with R~ and M~ since before the application date. R~ and M~ have been married since December XX, 1990. Both M~ and R~ report that M2~s’ biological father is J~. J~ was also listed as the father on M2s’ birth certificate and both share the same last name. R~ has not adopted M2~.

Discussion

An individual is eligible for benefits as an insured’s natural child if the individual could inherit the insured’s personal property as his or her natural child under State intestate inheritance laws. 20 C.F.R. § 404.355(a); 42 U.S.C. § 416(h)(2). The relevant State is the State in which the insured is domiciled at the time of application, or the State in which the insured was domiciled at the time of the insured’s death. 42 U.S.C. § 416(h)(2)(A). We apply the State law in effect at the time of our final decision on the application for benefits. 20 C.F.R. § 404.355(b)(3). If a claimant does not qualify as a child of the insured under that version of State law, we look at all versions of State law in effect from the first month a claimant could be entitled to benefits until the time of our final decision, applying the version of State law most beneficial to a claimant. Id.

We look to Illinois law regarding intestate succession because there is no question that R~, the insured, is domiciled in Illinois. Illinois establishes separate intestate distribution for children born out of wedlock. 755 ILCS 5/2-2. A child born out of wedlock is defined as “a child whose parents were not married to each other at the time of [the child’s] birth.” People of the State of Illinois, ex rel. Raines v. Biggs, 481 N.E.2d 899, 901 (Ill. App. Ct. 1985); see also Sturdy v. Sturdy, 214 N.E. 2d 607, 609 (Ill. App. Ct. 1966). Based on the evidence discussed below, we believe that M2~ was born out of wedlock, because evidence indicates that his biological father and mother were not married to each other. A child born out of wedlock is heir of his mother and of any maternal ancestor and of any person from whom his mother might have inherited, if living. 755 ILCS 5/2-2(h). A child born out of wedlock can also inherit from a father who has acknowledged paternity, or if the father has been adjudged the father of the child born out of wedlock. 755 ILCS 5/2-2(h). In all other cases, inheritance occurs when paternity is proven by clear and convincing evidence. Id. Here, the operative question is whether R~’s paternity would be established by clear and convincing evidence, because there is no indication that R~ was adjudged the father or acknowledged the paternity of M2~.

In determining what counts as clear and convincing evidence of paternity, the Illinois Parentage Act has established presumptions of paternity that are applicable. In re Estate of Poole, 799 N.E.2d 250, 257 (Ill. 2003). The Illinois Parentage Act applies in any civil action when parentage is at issue, even if not brought under the Illinois Parentage Act. 750 ILCS 45/9(a); In re Estate of Poole, 799 N.E.2d at 256 (applying definitions from the Illinois Parentage Act in a probate context). This inquiry requires analyzing both the prior version of the Illinois Parentage Act of 1984, which was in effect from 2007 until December 31, 2015 and the current Illinois Parentage Act of 2015, which took effect on January 1, 2016. It is necessary to look at both laws in order to determine which of the two laws, if any, is most favorable to the current claim for child insurance benefits on R~’s record. 20 C.F.R. § 404.355(b)(3).

Illinois Parentage Act of 1984

Under the Illinois Parentage Act of 1984, Illinois provided that a man is presumed to be the natural father of a child if he and the child’s natural mother are or have been married to each other, even though the marriage is or could be declared invalid, and the child is born or conceived during such marriage. 750 ILCS 45/5(a)(1). A man is also presumed to be the natural father of a child if after the child’s birth, he and the child’s natural mother married each other, even though the marriage is or could be declared invalid, and he is named, with his written consent, as the child’s father on the child’s birth certificate. 750 ILCS 45/5(a)(2). Alternatively, a man is also presumed to be the natural father if he and the child’s natural mother have signed an acknowledgement of paternity, or if the natural father is someone other than one presumed to be the father, an acknowledgement of parentage and denial of paternity in accordance with Section 12 of the Vital Records Act. 750 ILCS 45/5(a)(3), (a)(4).

A presumption of paternity based upon either 750 ILCS 45/5(a)(1) or (a)(2) can be rebutted only by clear and convincing evidence. 750 ILCS 45/5(b). A presumption under 750 ILCS 45/5(a)(3) or (a)(4) is conclusive unless the acknowledgement of parentage is rescinded under rules described in 750 ILCS 45/5(b). “A rebuttable presumption is one that ‘may be overcome by the introduction of contrary evidence’ (Black's Law Dictionary 1224 (8th ed.2004)), while a conclusive presumption is one that ‘cannot be overcome by any additional evidence or argument.’ Black's Law Dictionary 1223 (8th ed.2004) (cited in People ex rel. Dept. of Public Aid v. Smith, 818 N.E.2d 1204, 1213 (Ill. 2004)). The reason for this distinction flows from the different degree of involvement of the presumed father. “A man who voluntarily acknowledges paternity signs an acknowledgment form advising him of his rights and specifically informing him that he is accepting the responsibility of being a parent to the child, that he has a right to genetic testing, and that he is waiving that right by signing the voluntary acknowledgment. Thus, a presumed father who signs a voluntary acknowledgment is in an entirely different position from a man who simply assumes he is the child's father because of his marriage to the child's mother.” People ex rel. Dept. of Public Aid, 818 N.E.2d at 1213-1214.

Applying these principles, there was a rebuttable presumption that R~ is the father of M2~ under the Illinois Parentage Act of 1984, because M2~ was born during R~’s marriage to M~. However, we believe that J~ benefits from a conclusive presumption that M2~ is his child.^[1] J~ signed M~’s birth certificate. 410 ILCS 532/12 sets guidelines for issuing birth certificates. If the mother was married at the time of conception or birth and the presumed father (that is the mother’s husband) is not the biological father of the child, the name of the biological father shall be entered on the child’s birth certificate only if, in accordance with subsection (5), (i) the mother and the person to be named as the father have signed an acknowledgement of parentage and (ii) the mother and presumed father have signed a denial of paternity. 410 ILCS 532/12(4).

Because J~’s name was on the birth certificate we believe that J~ also signed an acknowledgement of parentage and that M~ and R~ signed a denial of R~’s paternity. We recommend that you request these documents to confirm that this occurred, as well as confirm that the acknowledgement of parentage was never rescinded. Assuming that these documents exist, they are sufficient to create a conclusive presumption of paternity of J~ under 750 ILCS 45/5(a)(4). We believe that the same evidence that establishes the conclusive presumption of J~ is clear and convincing evidence that overcomes the rebuttable presumption of R~’s paternity.^[2] See In re Estate of Olenick, 562 N.E.2d 293, 299 (Ill. App. Ct. 1990) (holding that an appropriately authenticated acknowledgement of parentage, under a prior amendment of the Illinois Parentage Act of 1984, was clear and convincing evidence of paternity).

Further, although not determinative, there is additional evidence in statements from R~ and M~ that M2~ is the child of J~, as well as the fact that M2~ bears the same surname as J~. As such, clear and convincing evidence rebuts the presumption of paternity of R~ and establishes a conclusive presumption that J~ is the father of M2~ under Illinois law. Thus, M2~ cannot inherit as R~’s child under intestate succession.

Illinois Parentage Act of 2015

The Illinois Parentage Act of 2015 has been in effect since January 1, 2016. Under this law, the parent-child relationship is established between a man and a child if there is: (1) an unrebutted presumption of parentage of the child under Section 204, (2) an effective voluntary acknowledgement of paternity by the man under Article 3 of the Act, unless rescinded or successfully challenged, (3) an adjudication of the man’s parentage, (4) the man adopted the child, or (5) a valid gestational surrogacy contract. 750 ILCS 46/201(b).

The law establishes a presumption of parentage in four circumstances. 750 ILCS 46/204. Under the first circumstance, parentage is presumed where the person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union or substantially similar relationship. 750 ILCS 46/204(a)(1). Presumptions may be rebutted by clear and convincing evidence. 750 ILCS 46/206.

Under the voluntary acknowledgement of paternity described in 750 ILCS 46/201(b)(2), the effect of an acknowledgement of paternity is equivalent to an adjudication of the parentage of a child and confers upon the acknowledged father all of the rights and duties of a parent. 750 ILCS 46/305(a). Also, a valid denial by a presumed parent filed with the Department of Healthcare and Family Services, as provided by law, in conjunction with a voluntary acknowledgement, is equivalent to an adjudication of the nonparentage of the presumed parent and discharges the presumed parent from all rights and duties of a parent. 750 ILCS 46/305(c). An acknowledgement of paternity with a valid denial by a presumed parent overcomes any presumption that a marital spouse is a parent, because this is equivalent to an adjudication. 750 ILCS 46/305(c).

Applying the Illinois Parentage Act of 2015, we believe that M2~ would not be found to be R~’s child. R~ initially would be a presumed parent under 750 ILCS 46/204(a)(1). However, assuming that J~ signed an acknowledgement of paternity of M2~ and that R~ denied parentage as discussed in the section above, this would be sufficient to overcome the rebuttable presumption that R~ is the parent and establish a parent-child relationship with J~ via 750 ILCS 46/201(b)(2), 46/305(a), (c). The Illinois Parentage Act of 2015 also clarifies that a child can have at most two parents. 750 ILCS 46/102. Thus, we conclude J~ would be found to be the parent of M2~, not R~, and thus M2~ could not inherit as the child of R~ for the purposes of intestate succession.

CONCLUSION

For the reasons discussed above, we believe that M2~ cannot receive child insurance benefits on R~’s record, because M2~ cannot inherit as R~’s child under Illinois intestate succession. We recommend that you request documentation that R~ signed a denial of parentage and that J~ signed an acknowledgement of paternity, as discussed above.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Ryan Shafer

Assistant Regional Counsel

Under Illinois law, for children born to an unmarried mother where there is no formal acknowledgement or court judgment of paternity, paternity must be proven by clear and convincing evidence .  It is extremely unlikely that a court would find clear and convincing evidence of paternity based solely on DNA test results from the number holder’s (NH’s) sister.  A court would look to additional evidence, such as witness testimony, to determine whether the clear and convincing standard is met.

In this case, we believe the DNA evidence and statements provided do not constitute clear and convincing evidence that the NH and the claimant are related. While the evidence suggest that the NH and the claimant are related, reasonable questions remain. If credible additional evidence is produced, we believe the Agency could conclude that the NH was the claimant’s father. (See full opinion for areas of inquiry that may provide additional evidence.)

You asked whether, for purposes of child’s benefits, a child would be considered the son of a deceased number holder based on DNA testing of the child and the number holder’s sister, the statement of the child’s mother, and the statement of the number holder’s sister. The number holder was an Illinois resident at the time of his death, and therefore Illinois law controls this matter.  For the reasons discussed below, we conclude that the DNA test and existing statements are insufficient to establish inheritance rights under Illinois law, but if sufficient additional evidence is presented on behalf of the child, inheritance rights could be established. 

FACTS

B~ asserts that her child, M~ is the son of the number holder. The number holder died in April, 1998. M~ was born in October 1998. B~ and the number holder were never married.

B~ provided the Agency with the results of a DNA test, which examined genetic similarities between M~ and Z~, the number holder’s sister. The results of the test indicated a “probability of relatedness” between M~ and Z~ of 99.998%, and stated that the odds were 59,198 to 1 that M~ and Z~ are related. 

Z~ also provided a statement indicating she is a friend of B~ and sister of the number holder. She stated that the number holder believed he was the father of B~’s unborn child, and that he was pleased to be having a child.  She stated that both the number holder and B~ lived with another of the number holder’s sisters, D~, at the time the number holder died. She stated that the number holder told family friends M2~ and D2~ that he was expecting a child. Z~ also submitted the number holder’s death certificate and her own birth certificate, which indicated that both Z~ and the number holder were children of E~. Z~’s birth certificate does not indicate who her father was; the number holder’s death certificate indicates that his father was A~.

B~ informed the field office that the number holder’s nine other siblings have not acknowledged that M~ is the number holder’s child.

B~ previously applied for child survivor benefits on behalf of M~ in 2004 and 2005 based on M~’s relationship to the number holder; those applications were denied because she failed to establish that the number holder was M~’s father. Most recently, B~ applied for child survivor benefits on behalf of M~. in June of 2014. 

ANALYSIS

Section 202(d) of the Social Security Act provides for the payment of benefits to the child of an insured number holder 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 number holder, 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 number holder 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 number holder was domiciled in Illinois at the time of his death. If M~ could inherit the number holder’s property under Illinois’s intestate succession laws, therefore, he is the number holder’s child for the purpose of eligibility for benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4). 

Under Illinois intestacy law, the right to inherit is based on a showing of paternity. 755 ILCS 5/2-2(h). For children born to an unmarried mother, acknowledgement of paternity during the father’s lifetime or a court judgment of paternity is sufficient proof of paternity. 755 ILCS5/2-2(h). In the absence of either a formal acknowledgement or court judgment, paternity must be proven by clear and convincing evidence. 755 ILCS 5/2-2(h). “Clear and convincing evidence” is a more exacting standard than a preponderance of the evidence, but is less exacting than the “beyond a reasonable doubt” standard applied in criminal trials. Estate of Ragen, 398 N.E.2d 198, 203 (Ill. 1st Dist. App. Ct. 1979). One way to describe the “clear and convincing evidence” standard is that the proof must show the assertion to be “highly probably true.” Id.   

The Illinois Parentage Act of 1984 makes DNA testing of the alleged father admissible to establish paternity. 750 ILCS 45/11. It does not address, however, the use of DNA from the alleged father’s sibling.  It is extremely unlikely that a court would find clear and convincing evidence of paternity based solely on Z~’s DNA test results. Although the DNA test indicated a very high likelihood that Z~ and M~ are related, there are outstanding issues that must be addressed before we can conclude that B~ and M~ have met the clear and convincing standard. 

Because the available DNA test results are not alone sufficient to establish the relationship between M~ and the number holder in this instance, a court would look to additional evidence, such as witness testimony, to determine whether the clear and convincing standard was met. See Estate of Svoboda, No. 5–13–0006, 2014 WL 2885697 (Ill. 5th Dist. App. June 23, 2014). Svoboda is instructive, because, like here, the alleged biological father was deceased; although in that case he died after the child’s birth, he never had any interaction with the child because the boy was immediately put up for adoption in another state. Id. at *1. In Svoboda, the biological mother was also deceased, so the court relied entirely on the testimony of siblings and acquaintances about their recollection of the relationship between the alleged parents more than 30 years earlier. ^[3] Id. at * 2.  The court had no DNA evidence in that case, but nonetheless found that the testimony and documents offered were sufficient to support the trial court’s conclusion that clear and convincing evidence supported a finding of paternity. Id. at *5, 7. 

Here, we do have DNA evidence that suggests that M~ and the number holder were related, though it does not establish that M~ was the child of the number holder. In addition to that DNA evidence, we have B~’s statement identifying the number holder as M~’s father, and Z~’s statement that she knew M~ was the number holder’s child, and that the number holder acknowledged prior to his death that he was expecting a child with B~.  M~ also appears to have been named after the number holder, taking the number holder’s first name as his middle name, and using the number holder’s last name. This suggests that B~ might have believed that the number holder was M~’s father at the time of M~’s birth.

While the above is evidence that the number holder may have been M~’s father, we cannot yet say that it is “very highly probable” that the number holder was M~’s father. Reasonable questions remain.  We suggest that you seek additional information from B~. We offer the following areas of inquiry that may shed light on whether the number holder was M~’s father:

• •

  It is necessary to determine whether B~ had a relationship with any other male members of the number holder’s family around the time that M~ was conceived.  The DNA test results presented do not rule out the possibility that a brother, father or uncle of the number holder fathered M~, and so other evidence is needed to rule out the possibility that a relative of the number holder could be M~’s father.

• •

  Z~’s statement indicates that both B~ and the number holder were living in the home of another sibling at the time that M~ was conceived. Were any other male family members of the number holder living at the same address? 

• •

  B~ might also provide additional information about her relationship with the number holder, such as how long they lived together, how long they dated, and whether their relationship was exclusive.

• •

  Z~’s birth certificate does not identify her father. Information regarding whether she and the number holder had the same father would help rule out the possibility that Z~ and M~ could be related through a bloodline not shared by the number holder.  If Z~ and the number holder had different fathers, that would not preclude a finding that the number holder is M~’s father, but it would necessitate further inquiry to rule out a relationship between B~ and any male member of Z~’s father’s family around the time of M~’s conception.

• •

  Z~’s statement indicates that the number holder had nine other siblings. B~ stated that those siblings have refused to acknowledge that the number holder was M~’s father. Information regarding why they have refused could be helpful.

• •

  A definitive statement that Z~ and B~ are not related would clarify that Z~ and M~ are related through M~’s father. If B~ and Z~ are directly related, that may weaken B~’s claim that the DNA commonality between Z~ and M~ is explained by the number holder being M~’s father. The DNA test result reveals only that Z~ and M~ are very likely related, and so information limiting the ways in which they could be related could strengthen the assertion that the number holder was M~’s father.

While the above questions are not dispositive, and it is possible that B~ could satisfy the clear and convincing standard by providing additional information not listed above, this list provides some idea of information which might satisfy the clear and convincing standard, depending on the content and credibility of the responses provided.

CONCLUSION

In light of the clear and convincing standard applied by Illinois courts when deciding questions of paternity, we believe that the evidence submitted is insufficient to demonstrate that the number holder was the father of M~.  We recommend requesting additional evidence from B~. Additional evidence could also be provided by the number holder’s other siblings, as well as the individuals identified by the number holder’s sister as having knowledge of the number holder’s reaction to B~’s pregnancy. If credible additional evidence is produced, we believe the Agency could conclude that the number holder was M~’s father. 

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Meredith D. Schacht

Assistant Regional Counsel

Illinois' intestacy statute does not refer to or incorporate the Illinois Parentage Act. Rather, the intestacy statute requires a finding of parentage by clear and convincing evidence where paternity is based on a written acknowledgment.

In this case, where a Voluntary Acknowledgement of Paternity was executed by the number holder, DNA testing which rules him out as the biological father would be sufficient to rebut his acknowledgment.

You have asked whether B~ (BC) can be entitled to benefits as a child of W~ (the wage earner) on the basis of having inheritance rights in Illinois, even though DNA tests show that the wage earner is not the biological father of BC. We conclude that BC would not have inheritance rights or be entitled to child's benefits based on the wage earner's acknowledgment of paternity, because the acknowledgment has been refuted by genetic testing showing that the wage earner was not BC's biological father.

BACKGROUND

BC out of wedlock on September, to J~ (BC's mother). On the following day, the wage earner executed an Illinois Voluntary Acknowledgment of Paternity form (acknowledgment). The wage earner is listed as the father on the hospital's birth certificate and the numident.

Statements indicate that the wage earner considered BC to be his son from the time of pregnancy until the wage earner died in October 2007. Six months before the wage earner died, however, BC's mother and BC submitted to court-ordered DNA testing on April XX, 2007. The results reflected that W~, (WW) was the biological father of BC, with 99.99 percent probability. According to reports made to the Agency, the wage earner apparently continued to treat BC as his son.

Following the wage earner's death, BC's mother filed an application for child's benefits on the wage earner's record.

DISCUSSION

Section 202(d) of the Social Security Act provides for the payment of benefits to the "child" of an insured wage earner who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that "[i]n determining whether an applicant is the child" of an insured person, "the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state" where the insured individual is domiciled at the time of application or death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); Program Operations Manual System (POMS) GN 00306.001(C)(1)(a). Here, the wage earner was domiciled in Illinois at the time of his death. So, Illinois law applies.

If BC could inherit the wage earner's property under Illinois' intestate succession laws, BC would be considered his "child" for the purpose of entitlement to child's benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a). According to Illinois intestacy law, "[i]f a decedent has acknowledged paternity of an illegitimate person or if during his lifetime or after his death a decedent has been adjudged to be the father of an illegitimate person, that person is heir of his father..." See Probate Act of 1975, 755 ILCS 5/2-2(h); POMS GN 00306.480(C)(1). Where, during the lifetime of the decedent, a court has adjudged a decedent to be the father, an authenticated copy of the judgment is sufficient proof of paternity. Id. However, in all other instances, the statute requires that paternity must be proven by clear and convincing evidence. Here, the wage earner and BC's mother executed a valid acknowledgment, and there was no adjudication of paternity. The wage earner acknowledged paternity of BC the day after he .

The Illinois Appellate Court has held that under the intestacy statute, paternity must be established by clear and convincing evidence even where there is an acknowledgment of paternity. The Court explained that acknowledgments of paternity are considered evidence of biological parenthood, until other evidence shows the acknowledgment to be untrue. The Court specifically found that where acknowledgments are subsequently shown to be untrue, "no court has the power to declare an illegitimate child heir to a man who could not possibly have been the child's natural father." In re Estate of Olenick, 562 N.E.2d 293 (Ill. App. 1990). In BC's case, the wage earner executed a valid acknowledgment of parenthood, which would have been accepted as sufficient evidence of parenthood for purposes of intestate distribution. However, the wage earner's acknowledgment was shown to be untrue when subsequent DNA test results showed WW is the biological father of BC.

Although the intestacy statute does not directly address the use of DNA evidence, the Illinois Parentage Act makes DNA testing of an alleged father admissible to establish paternity. 750 ILCS 45/11. Pursuant to the Illinois Parentage Act, "[i]f the tests show that the alleged father is not excluded and that the combined paternity index is at least 500 to 1, the alleged father is presumed to be the father" by the court. 750 ILCS 45/11(f)(4). This presumption may be rebutted by clear and convincing evidence. Id. Here, because WW filed a petition to establish paternity, the court ordered DNA testing. Test results showed a 99.99 percent probability that WW was BC's biological father. These accepted results refuted the wage earner's acknowledgment of paternity. Under Illinois law, BC could no longer be considered his heir "for purposes of intestate succession, where proof of natural fatherhood has been rebutted effectively by evidence demonstrating an impossibility thereof." Olenick at 562 N.E.2d at 299. Therefore, BC could not establish inheritance rights because the acknowledgment was rebutted, and was not entitled to children's insurance benefits after the wage earner's death.

You have asked whether a particular Illinois Supreme Court decision in a garnishment action would have any impact on inheritance law regarding acknowledgments. We assume you are referring to the case of People ex rel., Department of Public Aid v. Smith, 818 N.E.2d 1204 (Ill. 2004). In this child support garnishment case, an unwed man sought to rescind his voluntary paternity acknowledgment based on a misrepresentation of his paternity made by the child's mother. Citing a provision of the Illinois Parentage Act, the plaintiff attempted rescission of his acknowledgment of paternity after DNA testing established he was not the biological father. 750 ILCS 45/7(b-5). The plaintiff's request was opposed by the State, which had previously secured a child support order against him. The Illinois Supreme Court determined that the Illinois Parentage Act dictates that the presumption of natural fatherhood arising out of the plaintiff's voluntary acknowledgment of paternity is conclusive as it relates to a putative father's attempts to challenge that acknowledgment, at least where the putative father did not allege that the acknowledgment was based on fraud, duress or material mistake of fact.

The Smith case does not stand for the proposition that a written acknowledgment of paternity operates as an iron-clad determination of parentage for all purposes, despite subsequent DNA evidence to the contrary. The Smith case involved challenges to presumptions of paternity within the context of a child support enforcement matter (wage garnishment) brought under the Illinois Parentage Act. The Smith decision does not address intestacy law or whether the child could inherit from the man who had signed the acknowledgment under intestacy laws. Illinois' intestacy statute does not refer to or incorporate the Illinois Parentage Act. Rather, the intestacy statute requires a finding of parentage by clear and convincing evidence where paternity is based on a written acknowledgment. The Olenick case discussed above specifically addressed the intestacy statute and how, under that statute, an acknowledgment can be overcome by additional genetic evidence showing that the deceased person is not the father.

We believe that the Olenick decision is more on point in BC's case. The Court specifically found that regardless of his motives, the decedent's acknowledgment could not have served to legitimize the child without his having married the mother, nor could it have served as a "backdoor" adoption, nor could it substitute for a will. Olenick, 562 N.E.2d at 299 (citations omitted). While there are many reports of the wage earner's ongoing paternal behavior and goodwill toward BC, his acknowledgment of paternity was not enough to make BC his heir. In fact, his acknowledgment was rebutted by clear and convincing DNA evidence. As we have seen in the Smith case, paternity acknowledgments may be conclusive with respect to obliging a signor to his statutory responsibilities of parenthood. However, acknowledgments are not conclusive with respect to rights of inheritance.

CONCLUSION

We conclude that, although the wage earner signed a voluntary acknowledgment of paternity, BC could not establish inheritance rights. Despite the acknowledgment, clear and convincing evidence shows WW is BC's biological father.

Donna Calvert

Regional Chief Counsel, Region V

By: Kim S. M~

Assistant Regional Counsel

An Alabama court's Order of Paternity issued after the death of the number holder would not be sufficient to establish the claimant as a child of the number holder. The DNA testing based on samples from the deceased and the claimant and showing a 99.99% probability of a parent-child relationship would create a presumption of paternity absent any conflicting evidence.

A~ filed a claim for child's benefits on behalf of S~, born April, on the account of R~, who died on October 8, 2000. You indicated that there is no written acknowledgement of S~'s paternity by R~, but there is a court order of paternity from an Alabama Court. You also indicated that a DNA test was performed with DNA sample from the mother and child taken on October XX, 2004, and a DNA sample taken from R~ on September XX, 1995, as part of his induction into the military. The DNA testing was completed between October and December 2004, at a laboratory in N C. You have asked (1) whether Illinois would look to any provisions of other States' laws in this case, and (2) whether the DNA testing results submitted meet Illinois intestacy provisions. You also stated that the validity of the DNA test and the Alabama State court Order of Paternity are in question.

We conclude that the Alabama court's Order of Paternity would not suffice to establish paternity under Illinois law such that S~ could inherit from R~ as his natural child. However, the DNA testing submitted by S~'s mother appears sufficient to create a presumption of paternity under Illinois law such that S~ could inherit as R~'s natural child in Illinois. Thus, we conclude that, absent further evidence detracting from the validity of the DNA testing, S~ G~ could establish entitlement to child's benefits on R~'s account.

BACKGROUND

On February XX, 2005, A~ filed an application for CIB on behalf of her daughter, S~ , on the account of R~ A. M~, who died on October XX, 2000. The claimant, S~, in Virginia on April. S~'s birth certificate lists no father, and lists her mother as A~.

On December XX, 2004, the Director of the Laboratory Corporation of America (LabCorp), in Burlington, North Carolina, issued a DNA Analysis report pertaining to mother A~, child S~, and alleged father R~. The testing conclusion was that R~ and S~ shared genetic markers, and that he could not therefore be excluded as her biological father. The testing resulted in a 99.99% Probability of Paternity, as compared to an untested, unrelated man of the population of the same race as R~ and S~ (Caucasian). The Combined Paternity Index was 97,975 to 1. LabCorp's letterhead, on which the Report is printed, indicates that it is accredited by the AABB.

On March XX, 2005, a Report of Casualty was prepared by the Department of the Army in Alexandria, Virginia. The Report indicates that R~ died by homicide on October XX, 2000, in Cumberland County, N C. R~'s home of record at the time of his death was listed as Willow Springs, Illinois. Among the interested persons listed on the Report is "S~ I. G~, c/o A~, address (Daughter)." The Report references a Cumberland County Court Order as providing information regarding the circumstances of R~'s death as a homicide. See In Re Death Certificate, State of North C~ina General Court of Justice, Twelfth Judicial District (dated January 14, 2005). This legal document was issued in lieu of a death certificate because authorities in the County where R~ died indicated that he died by homicide, but his body could not be located and thus a death certificate could not be issued. See id.

On February 18, 2005, the State of Alabama Unified Judicial System, District Court of Etowah County, Alabama, issued an Order Establishing Paternity and Setting Amount of Child Support. Angela R. G~ is listed as the Plaintiff and R~ as the Defendant. The Order indicates that Defendant had been properly served by personal service. The cause was heard in the Court on February 8, 2005, and the Order notes that all interested parties were present. The Court ordered that R~ was the father of S~ I. G~, born April. In lieu of an amount for support and maintenance being entered on the Order, the notation "NA" was entered. The Order indicates that the matter was either submitted on the pleadings or evidence presented, or upon agreement reached by the parties. The Order notes that Defendant was deceased.

DISCUSSION

The Social Security Act provides for payment of insurance benefits to a child of an individual who dies a fully or currently insured individual if the child has filed an application for Child's Insurance Benefits (CIB), is unmarried, and was dependent upon such individual at the time of his death. 42 U.S.C. § 402(d)(1). The Act provides that the term "child" means the child, a legally adopted child, and under certain conditions, a stepchild or grandchild of an insured individual. See 42 U.S.C. § 416(e). The Act allows 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).

To determine entitlement as a natural child of a deceased wage earner, the Commissioner first 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 the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4); Program Operations Manual System (POMS) GN 00306.001(C)(2)(a); GN 00306.075(B)(2)(b) (noting that various versions of State law may be applied, beginning with the version in effect at the time of the adjudication of the claim). If, under State law, the claimant could take intestate personal property as the deceased wage earner's natural child, she is considered the wage earner's child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); POMS GN 00306.001(C)(1)(a).

A claimant can also 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); POMS GN 00306.100(B)(1). Finally, a claimant is deemed to be the deceased wage earner's child if she meets two requirements: (1) she shows by "evidence satisfactory to the Commissioner" 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); POMS GN 00306.100(B)(2).

We first consider whether S~ would be entitled to CIB based on Illinois intestacy law. Here, while R~ was stationed in another State pursuant to a tour of military duty, he was an Illinois resident at the time of his death. See POMS GN 00305.001(A)(2)(c). Thus, the intestacy law of Illinois is applied to determine whether S~ is entitled to inherit as a natural child of R~. See 42 U.S.C. § 416(h)(2)(A). According to Illinois law, a child born out of wedlock, can inherit if a decedent either acknowledged paternity or if he was adjudged to be the father of the child by a court of competent jurisdiction either during his lifetime or after his death. 755 ILL. COMP. STAT. 5/2-2(h) (West 2005); POMS GN 00306.480 (describing Illinois intestacy law). An authenticated copy of a court order adjudging paternity is sufficient proof of paternity only if the judgment occurred during the putative father's lifetime. 755 ILL. COMP. STAT. 5/2-2(h). Otherwise, paternity must be proved by clear and convincing evidence. Id. On February 18, 2005, the State of Alabama Unified Judicial System, District Court of Etowah County, Alabama, issued an Order adjudging R~ to be the father of S~. However, because it was issued after R~'s death, an authenticated copy of the Order alone would not be sufficient proof of paternity to allow S~ to inherit under Illinois law. See 755 ILL. COMP. STAT. 5/2-2(h).

Further, the Commissioner is not compelled to accept a State court determination regarding a domestic relations matter where, inter alia, competent jurisdiction is lacking and where the issue determined by the State court was not genuinely contested before the State court by parties with opposing interests. See Social Security Ruling (SSR) 83-37c, (<http://www.ssa.gov/OP_Home/ rulings/oasi/09/SSR83-37-oasi-09.html83), adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Here, the Alabama court's Order fails to demonstrate that proper service was made; while the Order indicates that the defendant, R~, was personally served, he was deceased for more than four years at the time of the hearing. See In re Marriage of Schmitt, 747 N.E.2d 524, 530 (Ill. App. Ct. 2001) (citations omitted) (court does not obtain personal jurisdiction where party is not properly served). There is no evidence that R~'s estate was personally served; thus, the Alabama Court's personal jurisdiction is in question. See ALA.R.CIV.P. 4(c) (West 2005); see also 735 ILL.COMP. STAT. 5/2-203(a). Additionally, there is no evidence that the matter of paternity was genuinely contested by opposing parties. The Alabama court's Order states that all interested parties were present at the hearing held February 8, 2005, and that the matter was either submitted on the pleadings or evidence presented, or upon agreement reached by the parties. Clearly, though, the deceased defendant, R~, was not present, and the Order does not indicate who, if anyone, represented R~ or his estate. The Order further does not specify what evidence or pleadings supported its judgment of paternity. The Commissioner, therefore, is not bound by the Alabama court's Order. See SSR 83-37c.

Even if the Commissioner does not accept the Alabama court's Order, the Commissioner could still find S~ entitled to child's benefits based on Illinois intestacy law if paternity could be shown by clear and convincing evidence. See 755 ILL.COMP. STAT. 5/2-2(h); POMS GN 00306.480(C)(3); see also In re Estate of Lukas, 508 N.E.2d 368, 374 (Ill. App. Ct. 1987) ("The petitioner's burden of proof here was to prove paternity by 'clear and convincing evidence' because the proceeding to adjudicate paternity did not take place during the decedent's lifetime."). Additionally, the Illinois Parentage Act of 1984 makes DNA testing of the alleged father admissible to establish paternity. See 750 ILL.COMP. STAT. 45/11. In adjudicating paternity in Illinois, a man is presumed to be the natural father of a child if blood or genetic testing shows that he is not excluded and that the combined paternity index is at least 500 to 1. See 750 ILL.COMP. STAT. 45/11(f)(4) (the presumption may be rebutted by clear and convincing evidence); POMS GN 00306.480(D)(3); Villareal on Behalf of Villareal v. Peebles, 701 N.E.2d 145, 147 (Ill. App. Ct. 1998), appeal denied, Villareal v. Peebles, 706 N.E.2d 503 (Ill. 1998). Here, S~'s mother submitted evidence showing that DNA testing was performed after R~'s death. The DNA testing shows that R~ was not excluded as S~'s father, and the combined paternity index is 97,975 to 1. Thus, this genetic testing creates a presumption of paternity in Illinois. See id. And there is no suggestion of evidence which would rebut this presumption.

You have also asked whether the DNA testing results would satisfy Illinois intestacy provisions. There is nothing on the face of the evidence to show that the testing would not satisfy Illinois law and create a presumption of paternity which, in turn, would establish paternity sufficient to allow S~ to inherit as R~'s natural child. R~'s DNA sample was obtained during his lifetime, pursuant to his induction into the military. Both the Act and Illinois law contemplate the establishment of paternity sufficient to satisfy Illinois intestacy law after a putative father's death. See 42 U.S.C. § 416(h)(2)(A); 755 ILL.COMP. STAT. 5/2-2(h). Further, the laboratory which performed the testing is an accredited laboratory. See LabCorp DNA Analysis Report. If you obtain some other evidence which you believe brings the validity of the DNA testing into question, or which rebuts the presumption of paternity established by the testing, you may contact us for further guidance.

Because we conclude that the DNA testing would suffice to establish paternity under Illinois law such that S~ could inherit from R~ as his natural child, we do not address whether S~ might also establish her status as a child under other methods, such as whether R~ acknowledged paternity in writing, or whether he was contributing to her support at the time he died. See 42 U.S.C. § 416(h)(3)(B)(i), (ii); 20 C.F.R. § 404.355(a)(3), (4).

CONCLUSION

We believe that the DNA results are sufficient to establish that S~ G~ is the child of R~ and could inherit from him under Illinois law. There does not appear to be any other evidence to challenge either the validity of the DNA testing or otherwise rebut the presumption of paternity under Illinois intestacy law.

In order for DNA testing of a claimant's siblings to meet the clear and convincing standard necessary under Illinois law to establish the claimant as the deceased number holder's child, additional development must be obtained ruling out possible paternity by the number holder's male relatives.

You have requested an opinion on whether DNA testing of genetic material provided by the other children of the deceased wage earner is sufficient to establish paternity under Illinois law so that the claimant, D~ ("D~"), can be considered the wage earner's child for child's insurance benefit ("CIB") purposes. For the reasons stated herein, we advise that you undertake additional development to eliminate the possibility that a paternal relative of the wage earner, R~ ("R~"), could be the father of D~. If the possibility, that a paternal relative of R~ fathered D~, can be eliminated, we believe that, based on the DNA test results and the additional information you provided, an Illinois court may find that R~ was D~'s father.

FACTS

The evidence of file documents that the claimant's mother, S~ ("S~"), reported that she had lived with R~ for eight years, since she was the age of fifteen. See Report of Contact dated July 26, 1999. S~ had three other children with R~: R~ B~, II; K~; and R~. S~ sought to establish that R~ was the father of her three children, and, in December 1996, the Illinois Department of Public Aid ordered genetic testing of R~; K~ B~; and R~ B~ to determine whether R~ was their father. Pursuant to that order, DNA samples were taken from R~ and the three children. Results of the paternity DNA testing showed that there was a 99.94% probability that R~ was the father of R~; a 99.95% probability that R~ was the father of K B~; and 99.92% probability that R~ was the father of R~ R. B~, II. Based on the results of the paternity DNA testing, an Administrative Court Order for Support was issued on January 6, 1997.

On June 17, 1998, R~ died in an automobile accident. S~ was approximately two months pregnant at the time of R~'s death; however, S~ reported that she was so early in her pregnancy that there was no way R~ could have known about it. See Report of Contact dated July 26, 1999. R~ was domiciled in Illinois at the time of his death.

On February 26, 1999, S~ gave birth to D~. In July 1999, S~ filed an application for surviving child's benefits on D~'s behalf. This claim was denied under section 216(h)(3) of the Social Security Act ("the Act"), 42 U.S.C. § 416(h)(3), because the Agency determined that there was not sufficient evidence to establish D~'s entitlement under State law.

S~ sought to establish that R~ was the father of D~ and, in March 2004, genetic testing was performed. Because the DNA of R~ B~ was not available for testing, DNA was taken from his other children: R~ ; K~ A. B~ B~; and R~. Their genetic material was analyzed and compared with the genetic material taken from D~. Based on the results of the sibling DNA testing, it was determined that there was a 99.99% probability that R~ was the father of D~. On April 23, 2004, the Illinois Department of Public Aid determined that "[t]he father and child relationship was established between R~’s, father, and minor child, D~ …." See Administrative Paternity Order dated April 23, 2004. S~ filed a new application for surviving child's benefits on D~'s behalf in April 2004, and submitted the results from the sibling DNA testing.

ANALYSIS

Section 202(d) of the Act provides for the payment of benefits to the "child" of an insured wage earner who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that "[i]n determining whether an applicant is the child" of an insured person, "the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state" where the insured individual is domiciled at the time of application or death. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(b)(4); Program Operations Manual System ("POMS") GN 00306.001(2)(a). Here, R~ was domiciled in Illinois at the time of his death. If D~ could inherit R~'s property under Illinois' intestate succession laws, he is R~'s "child" for the purpose of CIB entitlement. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a). However 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 Illinois Parentage Act of 1984. See 42 U.S.C. § 416(h)(2)(A); 750 Ill. Comp. Stat. ("ILCS") 45/ 1-27 (Illinois Parentage Act of 1984).

Illinois intestacy law requires illegitimate children who seek to inherit from their deceased fathers to provide authenticated copies of proper court orders of paternity. See 755 ILCS 5/2-2(h). However, under Social Security regulations, the child is not required to obtain an adjudication of paternity. 20 C.F.R. § 404.355(b)(2). Rather, the SSA adjudicator determines paternity using the state's standard. Under Illinois law, D~ would have to prove paternity by "clear and convincing" evidence. See 755 ILCS 5/2-2(h) ("…in all other cases paternity must be proved by clear and convincing evidence."; POMS GN 00306.480(C); In the Matter of Estate of Lukas, 508 N.E.2d 368, 374 (Ill.App. 1 Dist., 1987) ("The petitioner's burden of proof here was to prove paternity by 'clear and convincing evidence' because the proceeding to adjudicate paternity did not take place during the decedent's lifetime.").

The Illinois Parentage Act of 1984 makes DNA testing of the alleged father admissible to establish paternity. 750 ILCS 45/11. Pursuant to the Illinois Parentage Act of 1984, "[i]f the tests show that the alleged father is not excluded and that the combined paternity index is at least 500 to 1, the alleged father is presumed to be the father" by the court. 750 ILCS 45/11(f)(4). This presumption may be rebutted by clear and convincing evidence. Id. Absent a presumption of paternity, Illinois law requires "clear and convincing evidence" of paternity. See 755 ILCS 5/2-2(h); POMS GN 00306.480(C).

However, the Illinois Parentage Act of 1984 does not address use of sibling DNA to establish the presumption of paternity. Notably, the Illinois Parentage Act of 1984 does not directly address the testing of other family members, such as grandparents, aunts and uncles, or siblings, in determining paternity. Although results from sibling DNA testing may constitute evidence that Illinois courts would consider when determining paternity, they do not, standing alone, establish that D~ is R~'s natural child. Cf. Matter of the Estate of Lukas, 508 N.E.2d at 372 (at hearing, expert testimony was presented regarding use of paternal grandmother's blood test results to establish her decedent son was child's father). Here, the genetic profile of D~'s DNA was analyzed and compared to the genetic profile of not one, but three, alleged siblings. According to the results of the DNA testing, "the genetic markers found in the testing of the alleged paternal biological relatives, the alleged father is estimated to have a probability of paternity of 99.99%, as compared to an untested, unrelated man." Although probative because of the high probability percentage, the results demonstrate only that D~ is biologically linked to the children of R~. The DNA testing does not, however, rule out the possibility that another paternal member of R~'s family, such as one of his brothers, an uncle, or his father, could be the natural father of D~. See Memorandum from OGC Region V to SSA-MOS, Entitlement to Child's Benefits Based on DNA Testing of Siblings of Deceased Number Holder in Wisconsin - Calvin O~, page 4, (October 25, 2002) ("In this case, the tests showed a 99.999 percent probability of Calvin's paternity, which seems quite high. This probability was calculated in comparison to an untested, unrelated random Indian man, apparently leaving the possibility that a related man is as statistically likely as Calvin to be Calene's father."); Memorandum from OGC Region V to SSA-MOS, Acceptability of Putative Grandparent DNA Testing to Establish Paternity in Illinois - R~ Ray O~ (Deceased), page 3, (September 26, 2002) (explaining that DNA testing of grandparents only demonstrates child's biological link to putative paternal family, but does not rule out possibility that one of deceased's male relatives fathered child); Memorandum from Assistant Regional Counsel, Chicago, to Assistant Regional Commissioner, MOS, Billy J. L~, (February 14, 2001) (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 OGC Region V to SSA-MOS, Does Posthumous Genetic Testing Based on the DNA of the Deceased Numberholder's Relatives Establish Paternity Under Michigan State Law? - Jeffrey W~, page 5, (May 25, 2000) (explaining that DNA testing of paternal relatives only demonstrates child's biological link to putative paternal family, but does not rule out possibility that one of deceased's male relatives fathered child); but see Memorandum from OGC Region V to SSA-MOS, Posthumous Finding of Paternity in Ohio, page 5 (March 22, 2001) ("Because genetic testing of the grandparents resulted in a 99.98% probability of the wage earner's paternity, not just the grandparent's relationship, it was recommended that excluding fatherhood by any other family member of the wage earner is unnecessary."). While the genetic testing only demonstrated a biological link between D~ and R~'s paternal family, the Illinois Department of Public Aid, nevertheless, determined that "[t]he father and child relationship was established between R~ B. B~ SR, father, and minor child, D~ B~…." See Administrative Paternity Order dated April 23, 2004. An Illinois court would likely look favorably on this factor in determining whether there was clear and convincing evidence of paternity.

As discussed above, absent an adjudication of paternity, Illinois law requires "clear and convincing evidence" of paternity. See 755 ILCS 5/2-2(h); POMS GN 00306.480(C) ("After a putative father's death, paternity is established by clear and convincing evidence."). The record contains a statement from D~'s mother stating, "I did not date any of R~ B~'s brother[s]." Statement of S~ dated November 29, 2004. In another statement, S~ reported that "she never dated any brother of the deceased." Statement of S~ taken on August 19, 2004. We believe Illinois courts will likely consider this as relevant evidence in making a paternity determination, although it may be insufficient to rule out the possibility of sexual relations with any paternal member of R~'s family at least a year before D~ . See People ex rel. Forrest v. Winston-Bey, 625 N.E.2d 708, 712 (Ill. App. 1st 1993) (Detailed testimony presented by mother, including the time, place and circumstances surrounding alleged intercourse and failure to have intercourse with any man other than defendant, was sufficient to support jury's finding of paternity, even without results of genetic blood tests.).

The record also documents that S~ stated on July 26, 1999, that, "R~ was not aware I was pregnant at the time of his death." K~, a sister of R~'s, also reported on July 26, 1999, that "[R~] was unaware that S~ was pregnant when he died" but that "R~ and S~ were living together at the time of his death." In an application for CIB filed on July 26, 1999, K~ stated, "I believe [R~] is the father." However, on August 3, 1999, C~, R~'s brother, reported that R~ knew S~ was pregnant and had acknowledged that he was the father at a time when S~ was about two months pregnant. In addition, S~'s mother, A~, reported on August 5, 1999, that "[R~] never said one way or the other" that he was the father of the child S~ was carrying. Since there are conflicting statements, an Illinois court will weigh their credibility may believe that R~ did not know that S~ was pregnant. See People ex rel. Raines v. Price, 347 N.E.2d 29, 32 (Ill. App. 4th 1975) (While the witnesses directly contradicted one another, the testimony of the complainant, if believed, was sufficient to support a finding of paternity.).

The record also contains other conflicting information that detracts from a conclusion that R~ is D~'s father. On November 29, 2004, S~ reported that she was living with R~ when he died. However, at an earlier interview on September 9, 1999, S~ reported that R~ had been cheating on her and that they had a "normal relationship of breaking up and getting back together." In addition, S~'s mother, A~, reported on August 5, 1999, that "[R~] stayed with his sister, K~". R~'s sister, K~, stated on August 17, 1999, that "living arrangements varied between K~ sister's house and S~ P~ and L~ [his] girlfriend's houses." An Illinois court will weigh the inconsistent statements in the evidence in deciding whether there is clear and convincing evidence of paternity. See Matter of the Estate of Lukas, 508 N.E.2d at 374 (Trial judge, as trier of fact in paternity proceeding, has duty to assess credibility of all witnesses, both expert or nonexpert, to determine weight to be given their testimony and to draw all reasonable inferences therefrom.).

Finally, the court will likely consider whether anyone is contesting R~'s paternity in this action. Here, the record indicates that R~'s sister, K~, stated on August 17, 1999, "I…don't feel that D~ is the son of my brother R~ ." Moreover, paternity DNA testing was performed while R~ was alive to establish whether he was the father of S~'s three other children, suggesting that he did not acknowledge them as his or questioned whether they were his children. Whether he would have done so here is not known. In any event, at least one member of R~'s family has expressed some doubt as to whether R~ is the father of D~, which suggests that this matter is contested. If everyone in the file agreed that R~ was the father of D~, an Illinois court likely would consider this factor favorably in determining paternity.

Taking all of the above into consideration, in order to meet the "clear and convincing" legal standard to prove paternity, it is advisable that additional evidence be collected, such as statements from R~'s brothers and other male relatives, if any, and S~, to rule out such paternal relatives as being D~'s father. However, as noted above, the credibility of R~'s brother C~ is already suspect given the fact that he stated R~ knew of S~'s pregnancy when S~ previously acknowledged that there was no way R~ could have known about her pregnancy prior to his death.

CONCLUSION

Given the "clear and convincing" evidence standard for paternity under Illinois law, it is recommended that additional evidence be obtained to rule out any likelihood that a paternal relative of R~fathered D~. If additional evidence eliminates the possibility that a paternal relative is D~'s father, it is likely that an Illinois court would then determine that R~ was D~'s father. Therefore, we advise that D~ may be considered R~ B~'s child for purposes of receiving surviving child's benefits on R~'s account if credible non-genetic evidence eliminates the possibility that a paternal relative of the wage earner, R~ B~, could be the father of D~.

SSA is not bound to accept a default order of parentage and support in determining the child claimant's status under Illinois intestacy law. Further development should be undertaken to determine if the child can establish inheritance rights based on clear and convincing evidence of paternity.

You have asked whether J~ (hereinafter referred to as "J~") can be entitled to child's benefits based on a default order of paternity issued by the Circuit Court of Cook County, Illinois, Domestic Relations Division, and whether, pursuant to Gray v. Richardson, the Circuit Court of Cook County Illinois' order of paternity is consistent with the law enunciated by the state's highest court.

We conclude that, pursuant to Gray v. Richardson, the state's highest court would resolve the issue of paternity as did the Circuit Court of Cook County. However, because the proceedings before the Circuit Court of Cook County were uncontested, the Social Security Administration (SSA) would not be required to recognize the default judgment of paternity. We believe that further development is required in order for SSA to determine whether J~ could be found to be the child of C~ (hereinafter referred to as "R~") under either 42 U.S.C. § 416(h)(2)(A) - if further development demonstrates paternity by clear and convincing evidence or 42 U.S.C. § 416(h)(3)(c)(ii) - if (1) "evidence satisfactory to the Commissioner of Social Security" demonstrates that the wage earner was the child's father, and (2) the wage earner was either living with the child or contributing to the child's support.

BACKGROUND

J~'s date of birth is May. According to SSA records, M~ was listed as the father on J~'s birth certificate. J~'s mother, F~ (a.k.a. L~) (hereinafter referred to as "Ms. A~"), stated that at the time J~ was conceived, she had split up with M~, had moved to Chicago, and was dating and sleeping with R~. She claims that when she found out that she was pregnant, she began having problems with R~, and they broke off their relationship. Subsequently, M~ came to Chicago, and the two of them resumed their relationship. M~ was present when J~ . Although there was no birth certificate submitted with this claim, when Ms. A~ applied for a social security number for J~, "M~" was listed as the father on a birth certificate that was submitted at that time.

R~ filed for disability insurance benefits (DIB) in 1996, and apparently was awarded benefits since November 1995. On his disability application, he named four children, but he did not name J~. According to the information that you provided, one was R~'s legitimate child and the other three were illegitimate children.

On February XX, 2000, the Circuit Court of Cook County Illinois, Domestic Relations Division issued an Order of Parentage and Support, finding that R~ was the father of J~ and ordering him to pay child support. The Court entered judgment by default. The order indicated that R~ was served by substitution, and he did not file an answer or make an appearance. No hearing was held and the Court found parentage based on J~'s affidavit that R~ was J~'s natural father and that no other person could be the father. The order notes that, although J~ had sexual relations with A~ during the conceptive period, DNA test results excluded A~ as J~'s father.

R~ died on July XX, 2002. On August XX, 2002, Ms. A~ filed a claim for child's benefits on behalf of J~. The claim was denied on September XX, 2002. The Agency indicated that Ms. A~ did not provide the name of anyone with whom R~ had discussed paternity. However, Ms. A~ submitted a statement in support of J~'s claim on which she listed two individuals and the Ramsey County Child Support office as "people that know [R~] is [J~'s] father[.]" Ms. A~ filed a request for reconsideration on October 8, 2002. In addition, she submitted a statement indicating that R~ had orally admitted that J~ was his child to two non-relatives, his mother, father, and grandfather. R~'s mother and grandfather are deceased, and Ms. A~ does not know the address or phone number of R~'s father. She did, however, provide names and addresses for two other individuals to whom R~ allegedly admitted paternity. She also provided the Order of Parentage and Child Support, which it appears the Agency did not have at the initial level.

DISCUSSION

The Social Security Act provides for the payment of insurance benefits to a child of an individual who dies a fully or currently insured individual if the child has filed an application for Child's Insurance Benefits, is unmarried, and was dependent upon such individual at the time of his death. 42 U.S.C. § 402(d)(1). The Act provides that the term "child" means the child, a legally adopted child, and under certain conditions a stepchild or grandchild of an insured individual. See 42 U.S.C. § 416(e). The Act allows 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).

To determine entitlement as a natural child of a deceased wage earner, the Commissioner first 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). If, under State law, the claimant could take intestate personal property as the deceased wage earner's child, she is considered the wage earner's child for Social Security benefit purposes. See id; POMS GN 00306.001(C)(1)(a).

A claimant can also 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); POMS GN 00306.100(B)(1).

Finally, a claimant is deemed to be the deceased wage earner's child if the child meets two requirements: (1) she 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); POMS GN 00306.100(B)(2).

We first consider whether J~ would be entitled to child's benefits based on Illinois' intestate inheritance law. 42 U.S.C. § 416(h)(2)(A) requires that the Commissioner apply 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). R~ was domiciled in Illinois at the time of his death.

According to Illinois law, an out of wedlock child can inherit if a decedent was adjudged to be the father of the child during the decedent's lifetime. See 755 ILCS 5/2-2(h); POMS GN 00306.480. On February 23, 2000, the Circuit Court of Cook County, Illinois, Domestic Relations Division issued an Order of Parentage and Support finding R~ to be the natural father of J~. The Order of Parentage and Support was based on default, as R~, who was served by substitution, did not file an Answer or appear at the proceedings. Illinois law allows for a valid paternity judgment by default, where the alleged father is properly served but fails to appear, and where the testimony of the mother may have been, but was not necessarily, heard. See 750 ILCS 45/14(f). A judgment from a court of general jurisdiction with no apparent jurisdictional defects is presumed valid. See Anderson v. Anderson, 124 N.E.2d 66, 73 (Ill. App. Ct. 1955).

According to Illinois law, a child can inherit based upon an authenticated copy of a paternity judgment that was obtained during the father's lifetime. 755 ILCS 5/2-2. Thus, Illinois courts would likely give decisive effect to R~'s paternity judgment in an heirship proceeding. Accordingly, pursuant to 42 U.S.C. § 416(h)(2)(A), J~ would be considered R~'s child for surviving child's benefit purposes. However, 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 paterntiy 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 highest court in the state. In the present case, because R~ never filed an answer or appeared, and judgment was ultimately entered by default, the issue of paterntiy was not genuinely contested before the state court by parties with opposing interests. Thus, pursuant to Gray v. Richardson, the Commissioner would not be required to accept the state court's judgment regarding paternity. Moreover, we think there are good reasons here to question the default judgment. For instance, M~ rather than R~ was listed as the father on J~'s birth certificate. In addition, R~ named four children on his disability application, including three illegitimate children; however, he failed to name J~ as one of his children.

Even if the Commissioner does not accept the paternity judgment due to the fact that it was uncontested, based on the holding in Gray v. Richardson, the Commissioner could still find that J~ could be entitled to child's benefits based on Illinois' intestate inheritance law if paternity could be shown by clear and convincing evidence. See 755 ILCS 5/2-2(h); POMS GN 00306.480(C)(1). Therefore, the Agency should consider the additional evidence submitted by Ms. A~, and attempt to obtain additional information that appears to be available, 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). The Order of Parentage and Support provides some evidence for the Agency to consider. In addition, L~ provided to the Agency the name, address, and phone number of two individuals to whom R~ admitted that J~ was his child (L~ and A~). L~ provided another individual's name, address, and phone number (S~) in a child relationship statement, and it appears that the Agency may not have considered that information. Ms. A~ also provided an affidavit to the Circuit Court of Cook County indicating that R~ was J~'s father. Ms. A~ did not submit this affidavit, but it may contain additional information which could be helpful to the Agency. In addition, the Order of Support was entered against R~ more than two years prior to this death and the Ramsey County Child Support Office may have additional information bearing on paternity, such as whether or not R~ paid any support under the order. If the Agency can find that the evidence amounts to clear and convincing evidence of paternity, then pursuant to 42 U.S.C. § 416(h)(2)(A), J~ would be considered R~'s child and entitled to benefits.

A claimant can also be deemed to be the deceased wage earner's child upon proof that, prior to the wage earner's death, a court decreed the wage earner to be the claimant's father or 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). In the instant case, the Order of Parentage and Support entered by the Circuit Court of Cook County, Illinois, Domestic Relations Division would satisfy both these conditions. However, as discussed previously, pursuant to Gray v. Richardson, the Commissioner is not bound by the state court's judgment regarding paternity, since it was not contested. Further, as explained, there is conflicting evidence in this case that raises questions about the correctness of the states's default paternity finding. Therefore, we conclude that there is insufficient evidence to prove entitlement under 42 U.S.C. § 416(h)(3)(C)(i). See POMS GN 00306.100(D)(1), (E)(2).

Finally, a claimant is deemed to be the deceased wage earner's child if the child: (1) 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. See 42 U.S.C. § 416(h)(3)(C)(ii); POMS 00306.100(B)(2).

As indicated in connection with 42 U.S.C. § 416(h)(2)(A), we believe that the Agency may need to develop the evidence and further consider whether the child relationship can be established under this final method. In addition to considering the Order of Parentage and Support, which was apparently not considered in the initial denial, the Agency could develop whether or not the individuals already named by Ms. A~ have information regarding R~'s admission of paternity. The Agency could try to obtain the affidavit provided to the Circuit Court of Cook County indicating that R~ was J~'s father, and attempt to find out whether the Ramsey County Child Support Office has any further information relevant to the determination of paternity. Finally, because actual support must be established under 42 U.S.C. § 416(h)(3)(C)(ii), it would be important to determine whether R~ paid any support under the order. (R~ might have paid support to the county rather than to Ms. A~). Thus, further development of the evidence may be needed to determine whether paternity may be established in accordance with this last method.

CONCLUSION

We conclude that, although the Agency would not accept the Order of Parentage and Support because it was not contested, it is still not clear whether J~ could establish inheritance rights based upon clear and convincing evidence, or whether she could establish that she is C~'s child under another provision of the statute. Further development would be needed to determine whether there is clear and convincing evidence that R~ was J~'s father, or whether there is evidence satisfactory to the Commissioner that R~ was J~'s father and whether he was contributing to her support.

Although grandparent DNA test results may constitute evidence Illinois courts would consider when determining whether there is clear and convincing evidence of paternity, they do not, standing alone, establish that the child claimant is the NH's father. Additional evidence should be collected, such as statements from the NH's brother(s), if any, and the child's mother, ruling out such brother(s) as the child's father. If paternity is established, entitlement to surviving child's benefits would begin as of the NHs date of death.

You have requested an opinion on whether DNA testing of genetic material provided by the deceased wage earner's parents is sufficient to establish paternity under Illinois law so that L~ (L~) can be considered the wage earner's child for child's insurance benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(2). For the reasons stated herein, we advise that you undertake additional development to eliminate any brother of the wage earner, R~ (R~), as possible father of L~. If R~ had no brothers, or if he had brothers but the possibility that one of them fathered L~ can be eliminated, we believe that, based on the DNA test results and the additional information you provided, an Illinois court would find R~ was L~'s father.

C~

In 1987, R~ began dating L~, a.k.a. L~ (L~). On July XX, 1990, L~ . L~'s birth certificate does not identify a father. The couple dated until 1991. On October XX, 2001, R~ died without marrying L~. At the time of his death, R~ was domiciled in Illinois.

On October XX, 2001, L~ filed an application for surviving child's benefits on L~'s behalf. In April of 2002, R~'s parents, L~, and L~ were tested by Genetica DNA Laboratories, Inc. The resulting DNA analysis did not exclude R~'s parents as paternal grandparents of L~. The analyst, E~, M.D., Ph.D., certified that the estimated probability of grandparentage by R~'s parents, as compared to an untested, unrelated couple of the North American Hispanic population, was 99.95%.

On May XX, 2002, R~'s mother, Beatrice O~ (Beatrice) wrote a letter stating that she and her husband recognized L~ as R~'s daughter and that they sent L~ clothing every month.

ANALYSIS

If the wage earner is deceased, the Social Security Administration (SSA) applies the intestacy laws for the state where the deceased wage earner had a permanent home at the time of death. 20 C.F.R. § 404.355(b)(1). Here, R~ was domiciled in Illinois at the time of his death. Therefore, L~ can be eligible for surviving child's benefits on R~'s account only if she could inherit R~'s property as his child under Illinois law governing intestate succession. 42 U.S.C. § 416(h)(2)(A). Illinois intestacy law requires illegitimate children who seek to inherit from their deceased fathers to provide authenticated copies of proper court orders of paternity. 755 ILCS 5/2-2(h). However, under Social Security regulations, the child is not required to obtain an adjudication of paternity. 20 C.F.R. § 404.355(b)(2). Rather, the SSA adjudicator determines paternity using the state's standard. Under Illinois law, L~ would have to prove paternity by “clear and convincing evidence.” 755 ILCS 5/2-2(h).

The Illinois Parentage Act of 1984 makes DNA testing of the alleged father admissible to establish paternity. 750 ILCS 45/11. If the test shows that the alleged father is not excluded and that the combined paternity index is at least 500 to 1, the court presumes paternity. 750 ILCS 45/11(f)(4). This presumption may be rebutted by clear and convincing evidence. Id. Absent a presumption of paternity, Illinois law requires clear and convincing evidence of paternity. 755 ILCS 5/2-2(h).

However, the Illinois Parentage Act of 1984 does not address use of grandparent DNA to establish the presumption of paternity. Although such grandparent DNA test results may constitute evidence Illinois courts would consider when determining paternity, they do not, standing alone, establish that L~ is R~'s natural child. In the Matter of the Estate of Lukas, 508 N.E.2d 368, 372 (1st Dist. 1987) (at hearing, expert testimony was presented regarding use of paternal grandmother's blood test results to establish her decedent son was child's father). Although probative because of the high probability percentage, the results demonstrate only that L~ is biologically linked to the alleged paternal grandparents' family. They do not rule out the possibility that another male member of R~'s family, such as a brother, could be the natural father. See Memorandum from OGC Region V to SSA-MOS, Does Posthumous Genetic Testing Based on the DNA of the Deceased Numberholder's Relatives Establish Paternity Under Michigan State Law?, J~, page 5, (May 25, 2000) (explaining that DNA testing of paternal relatives only demonstrates child's biological link to putative paternal family, but it does not rule out possibility that one of deceased's male relatives fathered child).

Here, the claim is bolstered somewhat by R~ and L~'s four-year relationship and Beatrice's statement that she and her husband recognized R~ as L~'s father. However, there is also evidence that detracts from that conclusion, such as the lack of R~'s identification as father on L~'s birth certificate. Moreover, no evidence was presented that R~ ever acknowledged paternity or contributed to the child's support. Taking such factors into consideration, in order to meet the “clear and convincing” legal standard to prove paternity, it is advisable that additional evidence be collected, such as statements from R~'s brother(s), if any, and L~, ruling out such brother(s) as L~'s father.

You also asked, if paternity was established, what would be the appropriate date of entitlement. For purposes of entitlement to surviving child's benefits, L~ would be considered R~'s child for inheritance purposes as of the date of his death. See Warren-Boynton State Bank v. Wallbaum, 528 N.E.2d 640, 643 (Ill. 1988) (stating that “heirs” in the technical sense of the word are always determined at the time of the testator's death).

CONCLUSION

Under Illinois law, it is unlikely the “clear and convincing” evidence standard proving paternity has been met. Therefore, it is recommended that additional documentation be obtained to rule out any likelihood that a brother of R~ fathered L~. If additional evidence eliminates the possibility that a brother is L~'s father, it is likely that an Illinois court would then determine that R~ was L~'s father. Therefore, it is our opinion that L~ can be considered R~'s child for the purpose of receiving surviving child's benefits on R~'s account if adequate non-genetic evidence, as described above, is obtained.

Thomas W. C~

Regional Chief Counsel

By: _________________________

Preeti C~

Assistant Regional Counsel

An acknowledgement of paternity has retroactive effect in Illinois.

This is with reference to your May 25, 1993 inquiry concerning whether an acknowledgment of paternity can confer inheritance rights prior to the date of the acknowledgment under Illinois Law. Your memorandum and the claim file indicate that F~, Sr., the wage earner, was awarded a period of disability beginning May XX, 1990, pursuant to an application for disability insurance benefits he filed on October XX, 1991. In his October 1991 application, the wage earner stated that he never married but he acknowledged that J~ was his child. In an August XX, 1992 signed document, the wage earner acknowledged that J, E, L, and F~, were all his children. In July 1992, a child's insurance benefits application under the wage earner's account was filed by B~ on behalf of J~ S~, and similar applications were filed by M~ on behalf of E~, L~, and F~, Jr. Because the children are potentially eligible for benefits retroactive to July 1991, 12 months prior to filing, the issue arose whether the wage earner's acknowledgments of paternity rendered after July 1991 had a retroactive effect or were only effective from the date they were rendered.

We conclude that under Illinois law an acknowledgment of paternity has a retroactive effect. Under Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. 416(h)(2)(A), J~, E~, L~, and F~. are children of the wage earner if they are entitled to share in the distribution of the wage earner's intestate personal property as the wage earner's children under the law of their father's domicile at the time their applications were filed. As the wage earner was domiciled in Illinois when their applications were filed, Illinois law applies./ The pertinent Illinois statute states in part:

If a decedent has acknowledged paternity of an illegitimate person . . . , that person is heir of his father . . . .

755 ILCS 5/2-2(h)./ Although such a paternal acknowledgment would entitle the child to inherit from his or her father, it does not legitimate the child under Illinois law. The same section provides that a person becomes legitimate only if, in addition to such acknowledgment, his or her parents intermarry. Because the wage earner never married, J~, E~, L~, and F~, remain illegitimate.

The Illinois statute does not address the issue of whether a paternal acknowledgment has a retrospective effect. We have not found any Illinois case law or legislative history that directly addresses this question. After examining the underlying rationale for the pertinent Social Security Ruling, case law relevant to that rationale, and other legal authority, however, we conclude that a paternal acknowledgement would have retroactive effect in Illinois.

We begin our analysis with Social Security Ruling (SSR) 85-17. SSR 85-17 states in part:

The courts have consistently distinguished between statutes which legitimate children and those which merely confer inheritance rights. While acts of legitimation tend to be given effect retroactive to the birth of the child, acts which confer inheritance rights without legitimating the child operate prospectively only. One frequently given rationale for the difference is that since inheritance statutes operate only upon somebody's intestate death, no purpose is generally served in ascribing retroactive effect to such statutes. The section of the Wisconsin statute involved here is not a statute that confers legitimacy; rather it confers only inheritance rights. Therefore, because there is no case law or legislative history to the contrary, it is concluded that actions which confer inheritance rights operate only from the date of their occurrence.

Under SSR 85-17, the rationale for concluding that acknowledgements generally operate prospectively is that inheritance statutes also generally operate prospectively. This is confirmed by the underlying OGC opinions which led to SSR 85-17./ Currently, however, there appears to be a trend toward more retroactive operations of these inheritance statutes./ Absent a general rule on the prospective or retrospective operation of these statutes, it is appropriate to examine the Illinois statute directly to determine if it is prospective or retrospective.

Prior to 1978, the Illinois statutes did not allow an illegitimate child to inherit from his father. Ill. Rev. Stat. ch. 3, par. 2-1(b) (1976). At that time, as today, a child could become legitimate if his parents inter-married and the child was acknowledged by the father. Id. The Supreme Court found this inheritance scheme unconstitutional under the equal protection clause of the Fourteenth Amendment because it treated illegitimate children differently from legitimate children without demonstrating an adequate state interest. Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459 (1977).

The current version of the statute, which allows illegitimate children to inherit from their father if the father has acknowledged them even though their parents never intermarried, became law on September 12, 1978 by legislation that stated:

This amendatory Act takes effect upon its becoming a law and applies to the estates of decedents dying before, on or after its effective date.

P.A. 80-1429, 2 (1978). This language indicates that the amended statute is retroactive because it applies to estates of decedents dying before the statute's enactment.

The courts have also found the statute to have such a retroactive effect. In Re Estate of Rudder, 78 Ill.App.3d 517, 397 N.E.2d 556, 558 (1979) (amended statute applies to estate of father dying before the statute's enactment so long as estate is still open); Cooper v. Harris, 499 F.Supp. 266, 267 (N.D. Ill. 1980) (in a claim for Social Security child's survivor benefits, the amended statute's provisions apply to determine the illegitimate child's rights even where the father died before the statute's enactment and the estate is now closed)./ The district court in Cooper found the Rudder decision inapplicable because that decision was expressly based on the strong preference for finality in the administration of estates. In Cooper, the district court stated that R~'s prohibition on applying the statute retroactively where the estate was already closed was not applicable in an action to recover Social Security benefits because "In this case, plaintiff is not making a claim against B~'s [father's] estate; she is seeking benefits not subject to probate." Cooper, 499 F.Supp. at 267. Accordingly, the rationale against finding an inheritance statute retroactive in probate matters does not prohibit a finding of retroactivity in Social Security benefit cases.

Although under SSR 85-17's rationale, the statute's retroactivity suggests that an acknowledgment of paternity may also have retroactive effect, this analysis is not definitive. Because, to our knowledge, no court in Illinois has ruled on whether an acknowledgment under the statute also has retroactive effect, it is unknown whether a court addressing this issue in the future would follow the same rationale as SSR 85-17. If one waits for such a decision by an Illinois court, moreover, it is likely to be a long wait. Because inheritance rights are not normally fixed before the death of the decedent whose estate is at issue and any acknowledgment would occur during the decedent's lifetime, an Illinois court may never have reason to determine whether an acknowledgment of paternity has retroactive effect. Accordingly, the issue must be resolved without such Illinois precedent.

We conclude that acknowledgments in Illinois should be given retroactive effect in Social Security benefit cases because the rationale against such retroactivity in cases involving rights in a decedent's estate do not apply to Social Security benefits cases. As the United States District Court for the Northern District of Illinois has already held in Cooper, rights in a decedent's estate are not affected by granting Social Security benefits through a retroactive application of the statute. The Northern District further developed this rationale in Williams v. Sullivan, No. 88 C 10932 (December 11, 1989, N.D. Ill.). As in Cooper, the Northern District faced the issue of whether a state inheritance statute should be given retroactive effect and thereby entitle the illegitimate child of the deceased wage earner to child's benefits under the Social Security Act. In Williams, the New York statute in question, unlike Illinois' statute, did not expressly provide for retroactive application. Williams slip op. at 5. The court recognized that the state had a legitimate interest in protecting property rights in an estate which were fixed at the time of the decedent's death and could further that interest by ensuring that such vested rights are not later overturned by the retroactive application of a new inheritance statute. Id. at 7-8. Because such vested rights in a wage earner's estate would not be disturbed by a retroactive application of an inheritance statute in a Social Security benefits case, the court found that the new inheritance statute should be given retroactive effect to determine the claimant's rights to Social Security child's benefits. Id. at 8-11. Likewise, because vested rights in a wage earner's estate will not be disturbed by giving retroactive effect to an acknowledgment of paternity by an Illinois wage earner in Social Security benefit cases, there is no apparent state interest in precluding such a retroactive application in Social Security cases.

Because of the lack of Illinois precedent, we cannot say that our conclusion might not be overturned by future court rulings. However, based on the current state of the law, we believe that it is reasonable to conclude that an acknowledgment of paternity has retroactive effect in Illinois. Accordingly, the wage earner's acknowledged, but still illegitimate children, are entitled to receive benefits payable prior to the date the wage earner acknowledged them as his children.

Conclusive results of a DNA fingerprinting test (considered a reliable test within the scientific community) constitute clear and convincing evidence of paternity, giving the child inheritance rights under Illinois laws of intestate succession. ( C.~ RAV(W~) to Director, RsI/SSIB 05/22/91)

You have requested our assistance in determining whether C~ is entitled to child's insurance benefits on C~'s account. We conclude that she is.

Background

C~ died in an automobile accident on September XX, 1988. At the time of his death, C~ had been living with M~ for at least one month and possibly for as long as three months. Although M~ admits that she lived with another man prior to moving in with C~ and, following his death, she lived with yet a third man, she claims that C~ is the father of her child, C~.

C~ was divorced from C~ in April 1988, after 15 years of marriage. He and C~ had three children, M~, who was 13 years old when C~ died, J~, who was g, and S~, who was 7. J~ and S~ resided with their mother, but M~ lived with C~ and M~.

C~ to M~ R~ on June, eight and one half months after C~' death. On June 27, 1989, M~ applied for child's insurance benefits on C~'s behalf, naming the insured, C~ G~ , as C~'s father. M~ also submitted a claim against C~' estate to the Will County probate court. At the time of her initial application and the probate proceeding, however, M~ was unable to present any corroborating evidence of paternity. The record suggests that because M~ was in the early weeks of her pregnancy when C~ died, he was not even aware that M~ was pregnant and it is uncontroverted that he did not acknowledge the child as his own nor make any reference to it. Although M~'s parents and C~' parents agree that C~ was C~'s father, their opinions are based solely upon M~'s representations. No one disputes that M~ and C~ were living together and that C~ could have been C~'s father, but C~' ex-wife and his friends question the paternity because M~ purportedly had other boyfriends and because C~ neither acknowledged the pregnancy nor mentioned any plans for starting a family with M~. In fact, according to C~' ex-wife, he had specifically expressed his aversion toward having more children.

Under Illinois law, following the death of a putative father, paternity can be established only by clear and convincing evidence. At the time she applied, neither the probate court nor SSA considered M~'s evidence sufficient and her claims were denied by both. Thereafter, however, M~ submitted to SSA the results of a DNA fingerprinting test conducted on March 7, 1990 by Cellmark Diagnostics of Maryland along with an affidavit from Daniel G~, the Director of Laboratories for Cellmark. His laboratory compared blood samples from M~ and C~ with C~' blood samples which the lab obtained from the Will County Coroner's Office. By comparing the DNA fingerprints of the three blood samples, Cellmark concluded that C~ was C~'s father. According to Cellmark, the probability that the match between C~ and C~ was by chance was one in 270 billion. SSA has subsequently verified that the Coroner's Office sent C~' blood sample directly to Cellmark. We understand that based upon M~'s submission of the DNA test results, the probate court has reopened the matter and the parties to that case are close to settlement.

Discussion

C~ is entitled to benefits if, under Illinois' intestate succession laws, she is eligible to inherit from C~. Social Security Act 216(h)2)(A). Although the Will County probate court rejected C~'s claim, SSA is not bound by that ruling. It has long been established that a claimant for child's insurance benefits need not obtain a state court adjudication in order to establish his/her relationship to the deceased insured. See Memorandum from the Office of General Counsel, Social Security Division to Office of Retirement and Survivors Insurance re Application of State Law Time Limitations in "child Relationship Determinations Under Title II of the Social Security Act (April 2, 1991) at 4. Conversely, the Secretary is not bound by state court judgments deciding questions of family status 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 (6th Cir. 1973); SSR 83-87c; Memorandum from the Office of General Counsel, Chicago to ARC, Programs, Chicago re Determination of Paternity after Death of Wage Earner Effective Date of Court Findings of Paternity. Dated July 8, 1982. Thus, a settlement agreement in the reopened probate proceedings would not compel an SSA finding of paternity.

Issue. Under Illinois law, C~ can inherit from C~ by intestate succession only if she establishes his paternity by "clear and convincing evidence." Ill. Rev. Stat. ch. 110 1/2 2-2. The "clear-and- convincing" standard requires a high level of certainty, greater than a "preponderance," but still less than "beyond-a-reasonable doubt." Brown v. Bowen, 847 F.2d 342, 345-346 (7th Cir. 1988). We agree that the fact of M~ and C~' co-habitation, together with M~'s uncorroborated assertions regarding paternity, were not themselves sufficient to establish clear and convincing evidence of paternity. The question now presented is whether an Illinois court would accept evidence of DNA fingerprinting and whether this evidence, plus M~'s assertions and the undisputed fact that M~ and C~ lived together during the relevant time, establishes by "clear-and-convincing" evidence that C~ was C~'s father.

Analysis. DNA fingerprinting is a relatively new procedure and we could not find any reported Illinois opinions that address directly the use of DNA fingerprinting to establish paternity, although some lower courts in other jurisdictions have considered the procedure's validity in both paternity and criminal cases. ^[4]

There are two analyses under which an Illinois court could conclude that any scientific evidence should be considered in deciding paternity: 1 if such evidence falls within the ambit of the Illinois Parentage Act as an appropriate blood test for determining paternity; or 2) notwithstanding the parentage statute, if such evidence is admissible under general evidentiary principles. Under either analysis, the court's decision rests upon the scientific validity of the DNA fingerprinting procedure. Then, if the court agrees that the results of an appropriately-conducted DNA fingerprint test are valid, the next question would be whether, in this case, the procedures followed by the Cellmark laboratory comport with acceptable practice. See People v. Thomas, 561N.E.2d 57 (Ill. 1990); Andrews v. Stake, 533 So.2d 841 (Fla. App. 1988); People v. Wesley, 533 N.Y.S.2d 643 Co. Ct. 1988); In the Matter of the Adoption of "Baby Girl S," an infant under the age of fourteen years, 532 N.Y.S.2d 634 (Surr. Ct. 1988).

The Illinois Parentage Act. In deciding questions of paternity, the Illinois Parentage Act authorizes the use of "appropriate tests to determine inherited characteristics, including, but not limited to, blood types and genetic markers such as those found by Human Leucocyte Antigen (HLA) tests." Ill. Rev. Star. ch. 40 2511(a). The statute does not specifically refer to DNA fingerprinting, but its language could be read broadly enough to encompass that procedure as an "appropriate test to determine inherited characteristics" if the court found that the test is an appropriate method for determining paternity.

This is the approach adopted by a New York Court in In the Matter of the Adoption of "Baby Girl S," an infant under the age of fourteen years, 532 N.Y.S.2d 634 (Surr. Ct. 1988). The New York Family Court Act, like the Illinois Parentage Act, does not specifically refer to DNA fingerprints, but instead provides generally for the admission into evidence of "blood genetic marker tests" to "aid in the determination of whether [an] alleged father is or is not the father of the child." In deciding a question of paternity, the New York Surrogate's Court considered the validity of the DNA probe and concluded that the DNA probe is a blood genetic marker test. As such, it is appropriately admitted into evidence "under the clear language of the Family Court Act." 532 N.Y.S.2d at 637. In reaching this conclusion, the Court cited expert testimony showing that the DNA probe is an extremely accurate way to identify the gene structure of an individual and held that the DNA test results are even more convincing than the results of an HLA test. 532 N.Y.S.2d at 637. The Court also noted the "total acceptance in the scientific community of the validity of the results of DNA tests" and dismissed as unpersuasive testimony challenging the statistical probabilities of paternity 8,077,991 to 1 in that case). Id~.

Similarly, the Office of General Counsel, Region VII, has concluded that the results of a DNA fingerprinting test fall within the meaning of a Kansas statute which provides that evidence relating to paternity may include the results of a blood test showing the statistical probability of the alleged father's paternity. Memorandum from the Office of General Counsel, Region VII, to Regional Commissioner, SSA re Establishing Paternity after the Death of the Number Holder Claude C.K~ ,~ (March 30, 1990).

We conclude that the Illinois Supreme Court would find the reasoning of Baby Girl S. persuasive and would rule that DNA fingerprinting constitutes an "appropriate test" to determine inherited characteristics within the meaning of the Parentage Act. Within the scientific community there is much support for the procedure. Indeed, as one commenter has chronicled, significant scientific studies have validated the method and contrary evidence is lacking. Comment, DNA Fingerprinting and Paternity Testing, 1989 U.C. D~ L. Rev. 609, 646. Moreover, even assuming that there exists a bona fide scientific dispute over the validity of DNA fingerprinting test results, at least one Illinois appellate court has held that the Parentage Act specifically authorizes the admission of controversial test results, along with expert opinion interpreting those results.

People ex. rel Kelly v. Pasko, 540 N.E.2d 462 (Ill. App. 1989). Thus, under the state statute an Illinois court would consider both the test results and Dr. Daniel G~'s opinion as to the meaning of those results in determining paternity here.

The Frye Test. Even if the Illinois court determined that DNA fingerprinting does not fall within the ambit of the Parentage Act, the court could still conclude that general evidentiary principles compel its consideration of the test results. As with many jurisdictions, in determining judicial acceptance of scientific evidence, Illinois follows the standard set forth by the D.C. Circuit in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which prohibits the use of scientific evidence that has not gained general acceptance within the relevant scientific community. People v. Thomas, 561N.E.2d 57, 63 Ill. 1990); People v. Eyler, 549 N.E.2d 268 Ill. 1989). According to the Frye Court:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

293 F. at 1014.

Although no Illinois opinion has applied the Frye test to the DNA fingerprinting process as a whole, the Illinois Supreme Court has specifically considered and approved the scientific acceptability of certain procedures that are inherent components of the DNA fingerprinting process. The Court has repeatedly held, for example, that electrophoresis is generally accepted as a reliable method for detecting genetic markers in blood and therefore Illinois courts will take judicial notice that the process is reliable. See Appendix. Thomas, 561 N.E.2d at 63; Eyler, 549 N.E.2d at 287, People v. Partee, 511 N.E.2d 1165, 1185 (Ill. App. 1987).

Those courts in other jurisdictions that have analyzed the DNA fingerprinting process under the Frye standard, have concluded that the procedure satisfies Frye. In People v. Wesley, 533 N.Y.S.2d 643 Co. Ct. 1988), a criminal matter, the New York Court noted that the admissibility of DNA fingerprinting was before it as a question of first impression and held an extensive hearing solely on that issue. In a detailed opinion outlining the underlying principles, procedures and technology involved in this process, the Court concluded that DNA Fingerprinting "is reliable and has gained general acceptance in the scientific community." 533 N.E.2d at 659. Similarly, in another criminal case, Andrews v. State, 533 So.2d 841 (Fla. App. 1988), a Florida appellate court questioned the continuing viability of the Frye standard, but concluded that the standard was nevertheless satisfied by the DNA print test. The court held that the procedure was predicated upon "several well accepted scientific principles."

DNA testing has been utilized for approximately ten years and is indicated by the evidence to be a reliable, well established procedure, performed in a number of laboratories around the world. Further, it has been used in the diagnosis, treatment and study of genetically inherited diseases. This extensive nonjudicial use of the test is evidence tending to show the reliability of the technique.

533 So.2d at 849-850. The Andrews court also noted that errors in the process lead to no result being obtained rather than an erroneous result, an additional indicia of reliability.

We are not aware of any jurisdiction that holds that DNA fingerprinting has not been accepted by the scientific community.

Thus, under either the parentage act or under general evidentiary principles, the Illinois courts would likely accept the results of a DNA fingerprinting test. The sole question remaining is the validity of the test as conducted by Cellmark.

Cellmark reliability. Cellmark Diagnostics is a recognized leader in the field of DNA fingerprinting. Wesley, 533 N.Y.S.2d at 643, n.2; 15 Fam. L. Rep. (BNA) 3008, fn 1. In the literature Cellmark provided, the process that laboratory employs is described in detail and is consistent with the procedures described in Wesley and . Thus, this is a reputable laboratory that specializes in this particular procedure and all of the information before us is consistent with the conclusion that the procedure was properly conducted.

Moreover, as the Andrews court pointed out, errors in the procedure lead to inconclusive results, rather than false positive results and here the evidence of paternity is so overwhelming as to satisfy any standard of proof. All nineteen bands in C~'s DNA fingerprint that could not be attributable to M~ were found in C~' DNA fingerprint. (See appendix). The probability that two unrelated persons will share a given band is 1 in 4. As the number of bands increases, the probability of two unrelated persons sharing common bands changes dramatically. ^[5] By nineteen bands, the probability that C~ and C~ are unrelated is described as 1 in 270 billion. Thus, even assuming a generous margin for error, the existence of so many bands common to both C~ and C~ establishes paternity by clear and convincing evidence.

Conclusion.

No one has disputed that C~ could have been C~'s biological father. However, M~'s uncorroborated assertions alone were insufficient to meet the Illinois standard of clear and convincing evidence. Because the results of the DNA fingerprinting were conclusive and because that process is considered reliable within the scientific community, we conclude that C~ is C~'s biological father and, under the Illinois laws of intestate succession, she would inherit from him. Therefore, C~ is eligible for benefits on C~' account.

APPENDIX

The DNA (deoxyribonucleic acid) molecule carries the body's genetic information and is tightly coiled within the nucleus of a cell. Unraveled, a molecule of DNA is approximately six feet long. The molecule forms a "double helix" in which two chains of nucleotides, running in opposite directions, are held together between pairs of bases. It has been described as resembling a twisted rope ladder or spiral staircase. The sides of the ladder are made up of alternating units of phosphate and sugar (deoxyribose). The rungs are made up of four compounds called bases adenine, cytosine, guanine, and thymine (abbreviated A,C,G, and T). Each rung consists of two bases: A-T, T-A, C-G, or G-C, held together by a weak chemical bond. A can only link with T and C can only link with G. Each rung on the DNA ladder is referred to as a "base sequence" or "base pair" and constitutes a bit of information. There are approximately 3 billion bits of information (base sequences) in a molecule of DNA.

A sequence of three bases on the DNA molecule is known as a codon. Groups of codons form genes. A gene is a unit of inheritance composed of a segment of DNA and carrying coded information. It contains a certain number of base pairs in a certain order. The genetic code lies in the order of the bases in the DNA molecule, organized in genes. An individual receives half of his/her genetic material from each parent. The order of the base sequences, organized in genes, determines all of the characteristics of a living organism.

Although long segments of DNA are the same from person to person, certain areas of DNA are highly variable. These areas are called polymorphisms and contain what is called "anonymous sequences" or "junk DNA." Polymorphous regions provide the basis for DNA fingerprinting. Through application of the principles of Mendelian inheritance and through empirical studies, scientists have concluded that, with the exception of identical twins, no two individuals share the same sequential pattern in these polymorphic regions and, thus, each individual's DNA is unique.

The process of DNA Fingerprinting involves six steps. Many of these procedures are used in other types of blood testing. Each step has gained scientific acceptance in the field in which it belongs and some have specifically been accepted by courts in Illinois and other jurisdictions. Wesley, 533 N.Y.S.2d 643, 652.

1) Extraction of the DNA. First, the DNA is chemically extracted from the submitted sample and purified.

2) Fragmentation by Restriction Enzymes. Second, the DNA is cut into fragments using restriction enzymes. These enzymes sever the DNA molecules at specific base sequences. Generally, a restriction enzyme will cut everyone's DNA in the same places, resulting in the same-size fragment lengths. However, in every person, variable lengths of repetitive "junk DNA" turn up periodically and, in those areas, the cutting points are shifted, resulting in fragments of varying lengths.

3) Gel Electrophoresis. The DNA fragments are then subjected to a technique called gel electrophoresis which lines up the DNA fragments according to length. The process involves placing the DNA fragments on an electrically charged flat gelatin surface containing agarose gel, a thick jel1o-like substance full of holes. At one end of this surface is a positively charged electric pole and at the other end a negatively charged pole. DNA carries a negative charge and the fragments, attracted by the positive charge, travel from the negatively charged end to the positively end. The distance the fragments travel depends upon their length. Because it is difficult for the larger, bulkier fragments to move through the gel, they will not travel as fast or as far as the shorter fragments and arrange themselves closer to the negative pole. The result is an orderly arrangement of DNA fragments along parallel lines. The Illinois Supreme Court has concluded that electrophoresis is a reliable method for detecting genetic markers. Thomas, 561 N.E.2d at 63; E~, 549 N.E.2d at 287. See also Correll v. State, 523 So.2d 562 (Fla. 1988).

4) Southern Blotting. The double-stranded DNA fragments are then split apart into two strands, leaving their chemical bases (A,C,G, and T separated like open zipper teeth. The fragment pattern is then transferred from the gel onto a sheet of nitrocellulose (or nylon membrane) which resembles a sheet of heavy blotting paper.

5) Hybridization. A probe is a fragment of DNA that carries the complementary code for a specific base sequence. To identify the aspects of the DNA pattern unique to each individual, probes that have been developed in the laboratory are applied to the nitrocellulose membrane. These probes are tagged with a radioactive marker substance and are designed to seek out a pre-determined locus on a polymorphic region of the DNA. Upon finding a fragment that carries all or part of its complementary base sequence, the probe binds to the fragment. The marker component of the probe will cause the probe-bound fragments to "light up," allowing easy identification of their positions in the fragment pattern.

6) Autoradiograph. The excess probe is washed away and the nitrocellulose sheet is placed against a piece of X-ray film and exposed for several days. When the film is processed, black bands appear where the radioactive probes stuck to the fragments, looking like the bar codes found on food packages at supermarkets. This is known as an autoradiograph (autorad) or DNA Fingerprint. To determine paternity, the bands of the mother, child and alleged father are compared. All of the bands that are common to the mother and child are marked. The remaining bands in the child's fingerprint must come from the biological father.

The key to the DNA fingerprinting process is the statistical probability that two unrelated people will share the same band patterns. Cellmark provides the following chart of probability which is based upon a study published in 1985 by J~, W~, and T~ and borne out by subsequent studies. See Jackson, "DNA Fingerprinting and Proof of Paternity," 15 Fam. L. Rep. (BNA) 3007,3012 (May 16, 1989):

NUMBER OF BANDS PROBABILITY OF AN UNRELATED INDIVIDUAL HAVING THE SAME BANDS

1 1 in 4 2 1 in 16 3 1 in 250 6 1 in 4,000 8 1 in 65,000 10 1 in 1,000,000 12 1 in 17,000,000 14 1 in 268,000,000 16 1 in 4,300,000,000 18 1 in 68,000,000,000 20 1 in 1,000,000,000,000

The fact that the issue of paternity was not genuinely contested by parties with opposing interests is sufficient basis for rejecting a court order amending heirship. (A~, J~, ~, RA V [W~] to ARC, Progs. Chicago, 06/24/88)

You have asked whether, based on an Order Amending Heirship entered in the Circuit Court of Cook County declaring T~ the natural child of J~ A~, the deceased number holder, the September XX, 1985, denial of child's benefits to T~ should be reopened. For the following reasons, we do not believe that the Order Amending Heirship is evidence that warrants reopening the denial of benefits to T~.

FACTS

The following facts may be derived from documents in the claims folder. J~ A~ died on July XX, 1985, domiciled in Illinois. He was married to R~ . J~ and R~ had no children. At the time of his death, A~ was job hunting, having recently separated from the Marine Corps.

T~ P~ on June. Her mother, B~, claims that J~ A~ was T~'s father. T~'s birth certificate contains no father's name.

J~ A~ never acknowledged paternity of T~ during his lifetime; and, in fact, he contested paternity. Shortly after T~'s birth, B~ sued A~ for paternity. A~ defended the suit and, at first, was successful in having the paternity suit dismissed for lack of probable cause that T~ was his issue. Thereafter, however, B~ (represented in court by the Illinois Department of Public Aid) succeeded in persuading the court to reconsider its ruling. A finding of probable cause was entered; and A~ was ordered to submit to a blood test. The order never was carried out because shortly thereafter A~ enlisted in the Marine Corps. His enlistment mandated that the paternity proceedings be stayed. After his discharge from the Marine Corps, A~ died before the paternity proceedings could be reactivated.

A~ died intestate. The original Order of Heirship listed R~ as J~'s sole heir. B~ nevertheless sought child's benefits for T~. The only evidence she submitted in support of her application was her own testimony that she had an exclusive sexual relationship with J~ A~ throughout the four to five months during which she said T~ was conceived. B~ could name no witnesses nor produce any other evidence to corroborate her testimony and, in fact, affirmatively stated that J~'s relatives all would say that he was not T~'s father.

Shortly after J~'s death, his widow, R~, also applied for child's benefits on behalf of J~ M~ her child from a previous marriage. R~'s application for child's benefits for J~ M~ was denied because A~ had contributed less than one-half of M~ support in the twelve months before A~ death.

On November 18, 1987, an Order Amending Heirship was entered naming T~ J~ A~ heir and natural child. The Order states that the court found T~ to be the natural child and heir of J~ A~ "by clear and convincing evidence." The Order also states that the court heard testimony and that neither J~'s estate nor his widow, R~, objected to entry of the Order Amending Heirship. The only other document provided to us by B~'s/ T~'s attorney is B~'s affidavit attesting that J~ was T~'s father and that J~ was her only sexual partner during the months in which T~ must have been conceived.

DISCUSSION

According to Section 216(h)(2)(A), 42 U.S.C. 416(h)(2)(A), in determining whether the applicant is a child of a deceased number holder the Secretary must apply the law of the state of the decedent's domicile at the time of death regarding devolution of intestate personal property. In Gray v. Richardson, which has been adopted as SSR 83-37c (July 1983), the Sixth Circuit Court of Appeals held that the Secretary is bound by a pertinent state court decision, even though he was not a party to the case, if four prerequisites are met:

(1) An issue in a claim for social security benefits previously has been determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the State court by parties with opposing interests; (3')'"the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

474 F.2d at 1373 (emphasis added). In this instance, at least one, and more likely two, of the foregoing four criteria are not met.

In our opinion, the Secretary is not bound by the Order Amending Heirship because B~'s request to amend heirship was not genuinely contested by any party with opposing interests. The Order itself states that neither J~'s estate nor his widow objected to it. Accordingly, the issue whether T~ was J~'s natural child and heir was not contested before the state court that entered the Order Amending Heirship.

Moreover, it is likely that there were no "parties with opposing interests," that is, no one with pecuniary interests that would be adversely affected by the Order Amending Heirship. Child's benefits on J~'s account for R~'s son by a previous marriage already had been denied, and it appears likely from the information in the claims folder that A~ estate was insubstantial. Therefore, it does not appear that R~ had anything to lose by not contesting B~'s renewed claim on T~'s behalf.

The fact that the issue of T~'s paternity was not genuinely contested, alone, is sufficient basis for the Secretary not to be bound by the Order Amending Heirship. We also agree with your judgment that there does not seem to be clear and convincing evidence underlying the Order Amending Heirship. As you know, pursuant to Illinois law, paternity of an illegitimate child may be established after the putative father's death only if "proved by clear and convincing evidence." Ill. Rev. Stat. Ann. Ch. 110 1/2, 2-2(h). In view of J~ A~ denial of T~'s paternity during his lifetime, B~'s uncorroborated self-serving testimony alone does not appear to constitute clear and convincing evidence. See, e.g., In re Estate of Lukas, 508 N.E. 2d 368, 374 (Ill. App. 1987) (quoting In re Estate of Raven, 39'8 N.E.2d 198, 203 (Ill. App 1979), as stating that clear and convincing evidence is "the quantum of proof which leaves no reasonable doubt in the mind of the trier of fact as to the truth .... ") appeal den. sub nom. Lukas v. American Bank Trust Co., 515 N.E.2d 111 (Ill. 1987)-

Conclusion

The Secretary is not bound by the Order Amending Heirship because the issue of T~'s paternity was not genuinely contested by parties with opposing interests. Moreover, it is likely that the Order is contrary to Illinois law because, even though the court recites that the Order is based on "clear and convincing evidence," the record does not contain sufficient evidence supporting B~'s claim that J~ A~ was T~'s father to meet the "clear and convincing" standard of proof as defined by Illinois courts in analogous cases. Accordingly, you may deny the request to reopen the denial of child's benefits to T~.

LEGITIMACY AND LEGITIMATION PRESUMPTIONS AND EVIDENCE ILLINOIS

An amendment to a birth certificate to show a particular individual as the father of a claimant based upon a writ of mandamus resulting from a petition of the child's mother following the death of the alleged father is not sufficient to establish paternity for inheritance purposes when it is not based upon "clear and convincing evidence" of paternity. (C~, J~ T., ~ RAV (D~), to ARC, 07/29/85.)

This responds to your request for assistance in determining whether G~ A. M~ is entitled to benefits as the child of the decreased wage earner, J~ T. C~ . We conclude, for the reasons discussed below, that G~ A. M~ is not entitled to benefits. We also conclude that a prior award of benefits based on a January 27, 1984 application was erroneous and should be revised.

FACTS

The relevant facts may be briefly summarized: G~ out of wedlock to B~ on March in Chicago, Illinois. The wage earner, J~ , died on December 5, 1971, domiciled in Illinois. On October 9, 1974, B~ filed an application for child's benefits on behalf of G~. At that time, little evidence substantiating the wage earner's paternity was obtained. B~ stated that the wage earner did not live with her and G~ from the time of the child's birth until the wage earner's death. It is not clear when, if ever, the wage earner and B~ ^[6] did live together, although apparently the parties' relationship ended at some undisclosed time prior to G~'s birth. There is conflicting evidence concerning whether the wage earner contributed any money to the child's support. At best, it appears that the wage earner may have given B~ small sums of money for the child "once in a while" and in any event was clearly not making regular and substantial contributions of support at the time of his death. ^[7] B~ also stated at the time of the March, 1974 application that the wage earner had acknowledged his paternity to his mother both orally and in writing, but that the wage earner's mother would not give her any of his letters.

The wage earner's mother, who is now deceased, submitted a "statement" on an SSA-795 form on May 15, 1975. This "statement" consists of two conflicting handwritten paragraphs, neither of which match each other or the mother's signature at the end of the SSA-795. The first paragraph states that the wage earner and B~ M~ were living together at the time B~ was conceived and that "to the best of my knowledge, my son J~ T. C~ is the father to G~ A.." This paragraph also indicates that the wage earner and B~ were living together at the time of his death, although as previously discussed B~ stated that she did not live with the wage earner after G~'s birth. The second paragraph is preceded by the date "May 15, 1975" and states that "I know nothing about the person you speak about" (presumably B~). This second paragraph also indicates that the wage earner never lived with a woman and was not living with B~ at the time of his death.

On April 16, 1975, B~, through her attorney, filed a petition for mandamus against the Illinois Department of Public Health (IDPH) in Cook County Circuit Court. The petition states that B~ and the wage earner lived together prior to the child's birth and until his death (again, contrary to B~'s contemporaneous statements to SSA). The petition further states that at the time of Grethen's birth, the wage earner "apprised" the hospital of his paternity, although his name was not placed on the birth certificate "through inadvertence." Most important, the petition states that the wage earner "acknowledged to all" that G~ was his child, referring to an attached affidavit. The referenced affidavit, however, is actually a notarized statement, dated September 12, 1973, by another child of the wage earner indicating that the wage earner and B~ were living together at the time G~ was conceived and that "to the best of my knowledge" the wage earner was G~'s father. The affidavit does not specifically indicate that the wage earner acknowledged his paternity.

The petition further stated that IDPH had refused a demand to amend the birth certificate to list the wage earner as the child's father, and requested the court to issue a writ of mandamus directing IDPH to amend the birth certificate. The file indicates that the court "heard" the petition for mandamus on May 12, 1979, with the state's attorney present, and on that date entered a two paragraph order prepared by B~'s attorney. The order simply stated that the court found the wage earner to be G~'s father, and directed IDPH to amend the birth certificate. IDPH subsequently issued an amended birth certificate listing the wage earner as the father.

Your office subsequently requested our opinion regarding G~'s entitlement to benefits. We determined that G~ was not entitled to benefits. J~ J. C~ , ~ , RAV (K~) to Reg. Rep. BRSI (B~), 8/6/76. We concluded that the posthumous court determination of paternity did not create inheritance rights under Illinois law, which at that time provided that a child born out of wedlock could inherit from his or her father only if the parents later married and the father acknowledged the child. We also determined that G~ did not qualify for benefits under any of the alternative tests for entitlement under Section 216h)(3) of the Social Security Act. The wage earner did not acknowledge his paternity in writing, was not living with or contributing to the child's support at the time of his death, and was not decreed to be the child's father by a court prior to his death. Accordingly, your office denied G~'s application for benefits on August 29, 1976. '

B~ did not appeal this denial. However, she filed another application on behalf of G~ on January 27, 1984. No new evidence was submitted or obtained in connection with this application. Instead, B~ apparently relied on the amended birth certificate showing the wage earner to be G~'s father. The district office awarded benefits, effective duly 1983, based on the amended birth certificate, although the legal basis for that determination is not evident. The district office subsequently requested the Great Lakes Program Service Center (GLPSC) to review the file to determine whether earlier entitlement existed based on the prior application. GLPSC then determined that the recent award may have been erroneous. However, since the first application was denied after dune 29, 1976, G~ falls within the Boatman class. Accordingly, you have asked us to reexamine this case in order to determine whether G~ is entitled to benefits based on the March, 1974 application, particularly in view of the Intervening changes in Illinois law since our prior opinion.

ANALYSIS

Under Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. 416(h) (2)(A), G~ A. M~ is entitled to benefits as the child of the wage earner if, under the intestacy law of the state of domicile at the time of death (Illinois), she would be eligible to inherit from the wage earner as the latter's child. Irrespective of state law, G~ may be entitled to benefits under Section 216(h)(3)(c) of the Act if the wage earner had acknowledged his paternity in writing, been declared by a court to be G~'s father, been ordered to contribute to G~'s support (all before the wage earner's death), or been shown by "satisfactory" evidence to be G~'s father and had been living with her or contributing to her support when he died.

We first address the 1984 award of benefits based on the amended birth certificate showing the wage earner as G~'s father. As we indicated above, it is not clear on what basis the district office believed this birth certificate provided grounds for entitlement. Apparently, the district office relied on the fact that under Illinois law since 1962, the name of the father of an illegitimate child may not be entered on a birth certificate without the written consent of both parents or, in the alternative, a court finding of paternity. Ill. Ann. Star. Ch. 111 1/2, ~73-12(4) (S~-H~ 1984). The district office may have also based its determination on POMS GN 00306.175 (9/83), which at the time of the January, 1984 application provided that an amended birth certificate itself may be used to establish entitlement under Section 216(h)(3)(c) if it can be reasonably determined that the amended certificate was issued as a result of a written acknowledgement or a court finding of paternity. As subsequently revised in August, 1984, POMS GN 00306.175 and 00306.176 now provide that in a state such as Illinois, a birth certificate of an illegitimate child that shows the name of the father creates a presumption of either written acknowledgement or a court determination of paternity for purposes of entitlement under Section 216(h)(3)(c).

We therefore assume that the district office concluded that the amended birth certificate constituted evidence either of written acknowledgement or a court finding of paternity, thereby entitling G~ under two of the alternate tests for entitlement set forth in Section 216(h)(3)(c). It also appears that the district office made this determination solely on the basis of the amended certificate presented by B~ when she reapplied in January 1984, and that the district office did not have the actual court order on which the amended certificate was based. However, we do not agree that in this case the amended birth certificate can be used to establish entitlement. The petition for mandamus filed in April, 1975 stated that the wage earner "apprised" the hospital of his paternity at the time of G~'s birth, but significantly did not state that the wage earner actually furnished the hospital with written consent to be filed with IDPH's Office of Vital Records. ^[8] Instead, the petition appears to request mandamus relief on the basis of a court finding of paternity rather than on the basis that the wage earner had given written consent to enter his name on the birth certificate. Accordingly, the May 12, 1975 court order directing IDPH to amend the birth certificate was based on a finding of paternity rather than a finding of written consent. Thus, the amended birth certificate is not evidence of written acknowledgement of paternity for purposes of entitlement under Section 216(h)(3)(c)(1)(I).

Moreover, although the amended birth certificate was based on a court finding of paternity, this finding was made after the wage earner's death and therefore does not provide grounds for entitlement under Section 216(h)(3)(c) (i)(II). We also reaffirm the conclusion in our earlier C~ opinion that G~ does not qualify for benefits under the alternate "support" test of Section 216(h)(3)(c)(ii). Even assuming that on this record there is "satisfactory" evidence of paternity (which we doubt), no new evidence of support by the wage earner has been submitted or obtained. Moreover, none of the recent court cases since our earlier opinion that have liberally interpreted the "support" test require a finding of entitlement in this case (see note 2, supra). Under these circumstances, we see no reason to revise our earlier determination. Accordingly, we conclude that G~ is not entitled to benefits under any of the alternate tests for entitlement established by Section 216(h)(3)(c).

We now address whether G~ is the wage earner's heir under Illinois for purposes of entitlement under Section 216(h)(2)(A). In our opinion dated August 6, 1976, we concluded that G~ was not the wage earner's heir under then-applicable Illinois law, which required the father to legitimate the child by acknowledgement and by marriage to the mother. Ill. Ann. Stat. ch. 110 1/2, 2-2 (S~-H~ 1977). This statute was held unconstitutional by the Supreme Court in Trimble v. Gordon, 430 U.S. 762 (1977). Following Trimble, the statue was amended to expand those instances in which a child born out of wedlock may inherit from his or her father. Illinois Public Act 80-1429, effective September 12, 1978, codified at Illinois Ann. Stat. ch. 110 1/2, 2-2 (S~-H~ 1984).

Under the amended statute, a child legitimated by the subsequent marriage of his parents and acknowledgement by the father may still inherit. However, a child not legitimated in this manner may still inherit as an illegitimate child if the decedent acknowledged his paternity or if during his lifetime or after his death the decedent was adjudged to be the child's father. The amended statute provides that a copy of a Judgment of paternity made by a court of competent jurisdiction during the father's lifetime shall be proof of paternity, but that in all other cases paternity must be proved by "clear and convincing evidence." The "clear and convincing evidence" standard itself applies to the requirement of acknowledgment. "Effect of Illinois Law P.A. 80-1429 on Requirement for Entitlement of Illegitimate Children," RAV (P~) to Director, IPB V (S~), 5/19/80; L~ , ~ , RA V (G~) to Director, IPB V (S~), 5/19/80.

Although the wage earner died in 1971, Public Act 80-1429 is retroactive for the purpose of determining entitlement to social security benefits, especially with respect to those claims falling within the Boatman class. Cooper v. Harris, 499 F.Supp 266, 267 (N.D. Ill. 1980); A~D~ , ~ , RA V (Dorn) to ARC-Programs (W~, 6/27/83. ^[9] The wage earner was not adjudged to be the claimant's father during his lifetime. Therefore, we must determine whether the May 12, 1975 order directing IDPH to amend the birth certificate was based on "clear and convincing evidence" of paternity, or whether, apart from that posthumous court determination, the record demonstrates by "clear and convincing evidence" that the wage earner acknowledged paternity or that he was otherwise the claimant's father.

In a series of recent opinions, we have examined the scope of the "clear and convincing evidence" standard for establishing paternity. "Effect of Illinois Law P.A. 80-1429 on Requirements for Entitlement of Illegitimate Children," RA V P~) to ARC-Programs, 5/19/80; Al S~,~ RA V (D~) to ARC-Program, 7/28/80; J.T. T~, RA V (P~) to ARC-Programs, 12/13/80; O~ ~, RA V (K~) to ARC-Programs, 5/19/82 F~ ,~ RA V (M~) to ARC-Programs, 6/1/83; A~ ,~ , RA V (D~) to ARC-Programs (W~), 6/27/83. We have emphasized that evidentiary standard places "a very high burden of proof on the claimant," requires "a broad range of convincing evidence which reveals no significant internal contradiction," and excludes "credible evidence (that) contradicts other evidence of paternity." "Effect of Illinois Law, etc." We have also emphasized that the "clear and convincing evidence" standard requires more than simply proof "by a preponderance of the evidence;" it is therefore insufficient that the available evidence demonstrates that paternity is "more likely true than not." F~ , supra. At the same time, we have recognized that the standard does not require proof beyond a reasonable doubt or necessarily exclude every possible doubt, question, or inconsistency arising from the record. A~D .m, supra. In short, the "clear and convincing evidence" standard does not require that paternity be "almost certainly true;" it does require that paternity be "highly probably true." Estate of Ragan, 398 N.E. 2d 198, 203 (Ill. App. 1979).

In the present case, we are unable to conclude that the April 12, 1975 court order was based on "clear and convincing evidence" of paternity, or that apart from this order the evidence in the file establishes by "clear and convincing evidence" that the wage earner acknowledged paternity or that he was otherwise the claimant's father. The April 12, 1975 order directing IDPH to amend the birth certificate does not recite any evidence or reasons upon which the court based its conclusory statement that "J~ T. C~ was the father of G~ A. M~," nor does the order indicate that the wage earner's paternity had been established by "clear and convincing evidence" or some equivalent standard (since the order predated the amended statute). When contacted by SSA in connection with the January 1984 application, neither B~ R~

nor her attorney could recall or had records of the evidence upon which the court's finding was based. The file claims folder does indicate that an SSA claims representative reviewed the file and found no substantial evidence of acknowledgement or paternity.

The state court's "finding" was apparently based solely on B~ R~'s representations in her petition for mandamus. These allegations were: (1) that she and the wage earner lived together until his death (in contrast to her statements to SSA that she and the wage earner separated prior to G~'s birth); (2) the statement of the wage earner's other daughter that the wage earner and B~ lived together at the time of G~'s conception and her belief that the wage earner was G~'s father; and (3) that the wage earner "apprised" the hospital of his paternity. We do not believe that such allegations establish the wage earner's paternity to be "highly probably true," particularly in view of: (1) the absence of any indication from friends or relatives that the wage earner ever actually acknowledged his paternity; (2) the contradictory May 15, 1975 statement of the wage earner's mother; (3) B~ R~'s contradictory statements concerning her relationship with the wage, earner; and (4 the fact that B~ waited over two years following the wage earner's death to apply for social security benefits and to bring the action to correct the birth certificate. Thus, we conclude that the state court's posthumous determination of paternity was not based on "clear and convincing evidence." ^[10]

Apart from the April 12, 1975 state court order, the available evidence fails to establish by "clear and convincing evidence" that the wage earner acknowledged paternity or that he was otherwise the father of the claimant. The above discussion concerning the state court order similarly indicates that the evidence in the record falls far short of establishing that the wage earner's paternity is "highly probably true." Specifically, there is no direct, credible evidence that the wage earner ever acknowledged his paternity. This conclusion does not preclude the claimant from submitting additional evidence to show that the state court finding was based on "clear and convincing evidence" or that the standard is otherwise met, although given the passage of time such a showing may be difficult to make. Based on the present record, however, we are simply unable to conclude that either acknowledgement or paternity has been established by "clear and convincing evidence."

The remaining issue concerns the reopening of the erroneous award of benefits based on the January 1984 application. As previously discussed, this award was based on the erroneous determination that the May, 1975 court order constituted evidence of either written acknowledgement of paternity or a court finding of paternity for purposes of entitlement under Section 216(h) (3)(c) of the Act. For the reasons already set forth, we believe that this determination was clearly erroneous on the face of the evidence and therefore may be revised. See 20 C.F.R. 404.988(b), 404.988(a)3; POMS GN 04010.080; Munsinger v. Schweiker, 709 F.2d 1212 (8th Cir. 1983); Kenneth B~, RA V (D~) to ARC-Programs (W~), 4/11/85.

Accordingly, we conclude that G~ A. M~ is not entitled to benefits as the wage earner's child under either the October, 1974 or January, 1984 applications for benefits. We also conclude that the award of benefits based on the latter application was erroneous and may be revised. The benefits paid to B~ R~ based on that award therefore constitute an overpayment, Waiver of this overpayment may be appropriate after further development. B~ was clearly "without fault" in receiving the overpayment. We leave to your office the determination concerning whether recovery would defeat the purpose of Title II or be against equity and good conscience.

PARENT AND CHILD COURT DECREE OF PATERNITY ILLINOIS

Where an action to establish paternity is brought before the death of the alleged father and the action is contested by the alleged father during his lifetime and by his family subsequent to his death, a State Court ruling that a blood test showing a 92% probability of paternity plus the testimony of two witnesses meet the criteria for "clear and convincing evidence" needed to establish paternity after death, is a valid ruling and may not be disregarded by DHHS where the other conditions in Gray v. Richardson, 474 F2d 1370(1973) are satisfied.

By referral dated February XX, 1985, you asked whether SSA should follow a state court finding of paternity in this case. Specifically, you ask: (1) whether paternity can be established by a court action after the wage earner's death in Illinois, and 2) whether the criteria of Gray v. Richardson, 474 F,2d 1370 (1973) are satisfied. In our opinion the answers to both questions are "yes" and SSA should therefore follow the state court finding of paternity. Our reasons follow.

BACKGROUND FACTS

J~ on November. His mother, S~, was not married at the time. S~ filed a paternity complaint with the Kankakee County Circuit Court on October XX, 1983, alleging that J1~'s father was J2~ The suit was actively contested, first by the wage earner, and then after his death on April XX, 1984 by his widow.

Before the wage earner's death, the court ordered him to submit to a blood test. The blood test did not exclude the wage earner as the father, and established a 92% likelihood that the wage earner was the father. S~ admits that she never married or lived with the wage earner, and that he never supported the child. However, S~ alleged relations with the wage earner at the probable time of conception. In addition, several witnesses testified that they saw the wage earner and S~ together at her apartment or work, and gave other evidence supporting a finding of paternity.

S~ filed for benefits on behalf of Joseph H~ on August XX, 1984. Benefits were denied on October 31, 1984 because there was insufficient evidence to establish paternity. On December XX, 1984 the Kankakee County Circuit Court found that J~, the wage earner, was the father of Joseph H~. S~ timely filed a request for reconsideration on December XX, 1984. The court order was submitted to SSA on January 22, 1985 in support of the requested reconsideration.

DISCUSSION

Under Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. 416h)2A, Joseph H~ is the child of the deceased wage earner if he would be entitled to share in the distribution of the wage earner's intestate personal property as the wage earner's child under the law of the decedent's domicile. The wage earner lived in Illinois at the time of his death. Under Illinois law, one way an illegitimate child is deemed an heir is:

if during his lifetime or after his death a decedent has been adjudged to be the father of an illegitimate person, that person is the heir of his father...

If the declaration of paternity is made after the father's death, paternity must be proved by "clear and convincing evidence." S.H.A. ch. 110 1/2, 2-2h), elf. Sept. 12, 1978.

The cited Illinois statute explicitly permits a paternity decision to be made in Illinois after the father's death. The statute was upheld by the Appellate Court of Illinois in Cody v. J~son, 92 Ill. App. 3d 208, 415 N.E.2d 1131 (1980. The court acknowledged that an estate may have greater difficulty defending against a paternity charge than a person who may be able to refute such a claim by a blood test. The court nonetheless held that there were no constitutional problems with the statute, and noted that those seeking an adjudication of paternity on or after death:

are held to a higher standard of proof that being clear and convincing evidence) than would otherwise be the case in a civil action.

415 N.E.2d at 1135-6. Moreover, in this case the paternity action was begun before the wage earner died, and the wage earner had been given notice of the action and had already taken a blood test before his death. His estate was not prejudiced in its defense of the lawsuit by the wage earner's death.

As you are aware, the Sixth Circuit Court of Appeals held in Gray v. Richardson that, although the Secretary is not bound by a state court decision to which he was not a party, he cannot ignore a state court decision where the following four prerequisites are found:

(1) An issue in a claim for social security benefits previously has been determined by a State court of competent jurisdiction; (2) this issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

474 F.2d at 1373. The decision in Gray has been adopted by SSA. SSR 83-37c (July 1983). Each of these prerequisites is satisfied in this case.

First, the issue of paternity was previously determined by a competent State court. Although the court did not rule prior to SSA's initial decision on October 31, 1984, S~ timely requested reconsideration and advised SSA of the court order before SSA issued its reconsidered decision. Thus, the state court ruled prior to SSA's final decision in this case. See 20 C.F.R. 404.905. Moreover, SSA policy is to apply Gray v. Richardson to any state court order where a prior administrative decision could be reopened within the rule of administrative finality. In this case, the state court decision would be "new and material" grounds for reopening an initial decision within four years of its issuance. Director, OPSC (Overs) to Director, Mid-America PSC (Mings), "When the Social Security Administration (SSA) is Bound by a State Court Decision," 9/17/84.

Second, the paternity issue was genuinely contested by parties with opposing interests. You have advised us that both sides presented evidence which the judge considered.

Third, the paternity issue is within the general category of domestic relations law.

Fourth, the state court result is consistent with the law enunciated by the highest court in the State. The rule in Illinois is that a lower court's judgment regarding paternity should not be disturbed unless it is contrary to the manifest weight of the evidence. Cody v. J~son, 415 N.E.2d 1131 at 1134. It is unlikely that another court would disagree with the trial court's finding of "clear and convincing evidence" of paternity in this case. Under S.H.A. ch. 40, 1404, a blood test which precludes a finding of paternity is conclusive. However, a blood test which permits a finding of paternity is admissible but is not alone sufficient evidence, and must be supported by additional evidence. Here, the blood test showed a 92% probability of paternity. In addition, there were several witnesses who gave evidence in support of a finding of paternity. The statutory requirements were therefore met.

CONCLUSION

For the foregoing reasons, we conclude that paternity can be established by a court action after the wage earner's death in Illinois and that the criteria of Gray v. Richardson are satisfied in this case. It is therefore our opinion that SSA should follow the state court finding of paternity in this case.

INHERITANCE RIGHTS BY ILLEGITIMATE CHILD "CLEAR AND CONVINCING EVIDENCE" PROVISION ILLINOIS

Illinois law would not recognize the legitimation laws of a foreign state (e.g., a state where legitimation is achieved and has a reasonable connection to the facts), where the basis for legitimation is contrary to Illinois law or policy.

Under Illinois law, in a case where statements from nine of the alleged father's relatives and friends indicated that the wage earner had acknowledged the child by word or conduct are held to be sufficient to constitute "clear and convincing evidence" of acknowledgment and, thus, paternity. The "clear and convincing evidence" standard does not require a "perfect" or "air-tight" case which excludes every possible question or doubt of paternity arising from the record. (, A~, ~ RAV (D~), to ARC, 06/27/83.)

This responds to your request for our assistance in determining whether V~ T~ qualifies for benefits as the child of A~D~ . We conclude, for the reasons discussed below, that V~ T~ is entitled to benefits.

FACTS

The relevant facts may be briefly summarized: V~ T~ on April in Beloit, Wisconsin to M~ T~. The wage earner, who was living in Beloit at the time the child , was never married to M~ . The wage earner's name was not listed on the birth certificate. The wage earner died domiciled in Illinois on June XX, 1974. The wage earner had been living in Illinois since at least 1972, when he applied for and was awarded disability benefits. The wage earner had also been living in Illinois at least from 1959 until 1965, when he separated from his wife, E~ (now E~ ). The wage earner's three children from this marriage, which ended in divorce in 1969, first received benefits in 1972 based on their father's disability and later received survivors' benefits.

M~ T~ (who still lives in Beloit) abandoned her son V~ at some unspecified time prior to the wage earner's death in 1974. V~ was then placed in the legal custody of the Rock County (Wisconsin) Department of Social Services and continues to live with foster parents in Rock County. The Rock County Department of Social Services filed an application for child's benefits on behalf of V~ T~ on November XX, 1980, over six years after the wage earner's death. The claim was initially denied on December XX, 1980, but was subsequently reopened due to the Boatman order.

Following are summaries of statements by various parties contained in the claims folder:

1. M~ (V~ 's mother): The wage earner was V~ 's father. He was living in Beloit at the time the child . She "thinks" the wage earner accepted responsibility for payment of the hospital expenses (when contacted, the hospital replied that the wage earner had not accepted responsibility for expenses). The wage earner was not living with either V~ or her at the time of his death and never contributed to his support. The wage earner told his brothers and sisters that he was V~'s father (as evidenced below, the brothers and sisters confirm the wage earner's acknowledgement). The wage earner also told two friends and co-workers that he was V~'s father (as evidenced below, one of these friends confirms this acknowledgement while the other friend does not "remember" the wage earner). She could not list, on the Child Relationship Statement, any written evidence that the wage earner had acknowledged V~ as his son, except for the possibility, discussed above, that the wage earner had accepted responsibility for payment of hospital expenses and the possibility that he had listed V~ on an application for employment in 1966. When contacted, the employer replied that it had no information available for periods prior to 1975. M~ T~ also stated that she "thought" that a Rock County Court had decreed the wage earner to be V~'s father (although the wage earner had not been ordered to contribute to V~'s support). However, both court records and welfare records indicate that no judicial proceedings ever took place in Rock County. M~ later acknowledged that her assumption concerning paternity proceedings was based solely on a single contact made by her with the Rock County District Attorney's Office; she neither observed nor took part in any actual proceedings. She never received any copy of a court order. Finally, M~ T~ stated that V~ no longer lives with her and instead lives with "a friend."

2. M~ W~ (sister of the wage earner) - She submitted a photograph of two adults and an infant she identified as being the wage earner, M~ T~ , and V~, purportedly taken shortly after V~'s birth (the photograph is dated October, 1966). The wage earner lived with her in Battle Creek, Michigan for a period prior to his death and spoke often of V~ as his son. When he was dying, he wanted her to raise V~. She located V~ after the wage earner's death, but V~ seemed happy with his foster parents. Other members of her family are aware that the wage earner was V~'s father. She is greatly concerned about V~'s welfare. V~'s mother is M~ T~. She has nothing 'in writing by the wage earner, such as a letter, that would represent an acknowledgement. She contacted the wage earner's employers, but the wage earner had not listed V~ as a dependent at any of his jobs. Even before the Rock County Department of Social Services filed an application (November 26, 1980), M~ W~ submitted a statement on July 29, 1980 that she styled as a "protective filing" for benefits. She preferred to have V~'s foster mother file the formal application. She also states that she believes the wage earner acknowledged his paternity in open court in Rock County although she has no personal knowledge that this occurred. As already discussed, there is no record of judicial proceedings in Rock County.

3. J~ (sister of the wage earner). He visited her occasionally in Battle Creek, Michigan from 1971 until his death. He often discussed his son, V~. He was upset that his ex-wife was receiving benefits for her three children while V~ was not receiving benefits. (The folder does not indicate whether an application on behalf of V~ for benefits based on the wage earner's disability was ever filed).

4. J~ (sister of the wage earner) - The wage earner lived with her in Battle Creek, Michigan for a period in 1969. He spoke of his son V~ because her own child was the same age.

5. W~ W~ (sister of the wage earner) - She used to live in "Beloit, Illinois" and would visit her brother and M~ T~, who were then living together. He acknowledged his son V~, and acted as any father would, He frequently brought the child over to her house so that she could babysit. She now lives in Battle Creek.

6. C~ (brother of the wage earner) - He first saw V~ as an infant. His brother told him that V~ was his son. V~'s mother since abandoned him, and the child now lives with foster parents. V~ Visits C~ 's home (in Battle Creek) on holidays and other special occasions. C~ has "no doubt" that his brother was V~ 's father.

7. G~ (brother-in-law of the wage earner; separated from the wage earner's sister W~; lives in Beloit) - The wage earner told him, in both Wisconsin and Illinois, that he was V~'s father.

8. S~ (friend and co-worker; now lives in Indiana) - The wage earner lived in Wisconsin with M~ when V~ . The wage earner acknowledged to him and several others in Beloit (including G~ ) that he was V~'s father. "As far as I know, A~ supported the child up until his death."

9. J~ (identified by M~ T~ as a friend and co-worker of the wage-earner) - He does not "remember" an A~ .

As already noted, the wage earner applied for disability benefits in 1972. Benefits were awarded on the basis of alcoholism and severe psychosis. Because the wage earner was determined to be unable to manage his own affairs, the Cook County Department of Public Aid acted as representative payee. In his application for disability benefits filed on January 12, 1972, the wage earner listed only two of his children by E~ : (born in 1960) and J~ (born in 1963). He did not mention his third child by E~ , O~ (born in April, 1965 probably subsequent to his separation from E~), and did not mention V~ T~ . He told an examining physician in April, 1972 that he had two children who lived with their mother. In a statement filed on May 25, 1972, he asserted that all his relatives - two brothers and three sisters - lived in Battle Creek and said that "I hear from them very seldom." The wage earner "acknowledged" O~ as his son in a statement filed on August 8, 1972, ^[11] asserting that even though he had never seen O~, E~ had told him in late 1964 that she was pregnant and "so O~ must be my son." O~'s birth certificate lists the wage earner as his father.

Thus, the available evidence demonstrates no written acknowledgement of paternity by the wage earner. He did not accept responsibility for payment of hospital expenses, did not list V~ T~ on any employment applications (as far as can be known), and did not list the child on a 1972 application for disability benefits. He was apparently never decreed by a court to be V~'s father (contrary to M~ T~ 's and M~ 's assumptions otherwise) or ordered by a court to contribute to V~'s support. He was not living with V~ when he died and, according to M~ T~ , never contributed to his support (although a friend who knew the wage earner and M~ T~ when they lived together in Beloit stated that the wage earner supported the child up until his death). On the other hand, there is extensive evidence that the wage earner acknowledged his paternity to his family and his friends and that his family fully considers V~ to be the wage earner's son. Although the available evidence does not indicate whether the wage earner continued to see V~ after he and M~ T~ separated, the statements of those who observed the wage earner, M~, and V~ together tend to show that the wage earner indeed acted as V~'s father.

ANALYSIS

Under Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. 416(h)(2)(A), V~ T~ is entitled to benefits as the child of the wage earner if, under the intestacy law of the state of domicile at the time of death (Illinois), he would be eligible to inherit from the wage earner as the latter's child. Irrespective of state law, V~ T~

may be entitled to benefits under Section 216(h)(3)(C) of the Act if the wage earner had acknowledged his paternity in writing, been declared by a court to be V~'s father, been ordered to contribute to V~'s support (all before the wage earner's death), or been shown by "satisfactory" evidence to be V~'s father and had been living with him or contributing to his support when he died.

V~ does not satisfy any of the "federal,' criteria of Section 216(h)(3). Therefore, the issue here is whether V~ would be entitled to inherit from the wage earner under "state law." We must first determine, however, whether Illinois would apply its own law of legitimation and intestate succession or would look to the law of another state. This is so because: (1) V~ T~ in Wisconsin and has continued to reside there, (2) the wage earner was domiciled in Wisconsin at the time of V~'s birth, (3) the wage earner died domiciled in Illinois, and (4) the wage earner orally acknowledged his paternity in Illinois, Wisconsin, and Michigan (where he lived occasionally with relatives). We conclude here that Illinois would apply its own law of legitimation and intestate succession. We also conclude that the applicable Illinois law is that in effect at the time of the application for benefits November 26, 1980 rather than that in effect at the time of the wage earner's death June 28, 1974. Finally, we conclude that pursuant to Illinois law as so applied, V~ T~ is, for social security benefit purposes, the wage earner's heir.

1. Which State's Law Applies?

As a general proposition, whether a child must be born in wedlock in order to inherit from his putative father is determined by the law of the state where the putative father was domiciled at the time of his death. Restatement Second) Conflict of Laws 261; 10 Am. Jut. 2d Bastards 152. Where the law of the decedent's domicile does not absolutely exclude inheritance by a child born out of wedlock, the status of the child as legitimate for purposes of inheritance whether or child is born legitimate or subsequently legitimated by force of law) is ordinarily governed by the personal law of the child rather than the law of the decedent's domicile. Id.

In such a case, whether the child is legitimate is determined by the law of the state that has the most significant relationship to the parent and the child. Restatement (Second) Conflict of Laws, 287; 10 Am. Jur. 2d Bastards 152. This state will ordinarily be the one that has the greatest interest in having its law applied at that particular time with respect to that particular issue. Thus, the state of the child's domicile has a substantial interest in its law providing for legitimacy whose purpose, among others, is to give the child a right of support against the parent. On the other hand, where the question of legitimacy bears on inheritance, the state of the putative father's domicile at the time of his death has the dominant interest. Alternatively, if legitimacy is claimed on the basis of the putative father's act of acknowledgement, the status of the child will be determined by the law of the state either where the parent was domiciled or the child was domiciled at the time of the act of acknowledgement. This is so even if another state has a more dominant interest with respect to the issue - i.e., the state of the father's domicile at death when inheritance is in question - since the law favors legitimacy and seeks to-protect the father's expectations by giving his act of acknowledgement its intended effect. Id. See also 87 A.L.R. 2d 1274.

In summary, so long as the law of the decedent's domicile at death does not exclude from inheritance those born out of wedlock, the status of the child as legitimate for purposes of inheritance is determined by the law of any state that achieves legitimation, so long as the state has a reasonable connection with the facts. The child will usually be held legitimate, and thus able to inherit in accordance with the intestate succession law of the state where the father died domiciled, if this would be his status under the law of the state where either the parent or child was domiciled when the parent performed a legitimating act (such as acknowledgement). Federal courts have commonly applied these rules in determining legitimacy issues in social security child's benefits cases. See, e.g., Tyler v. Schweiker, 530 F. Supp. 1028 (D. Md. 1981); Montgomery v. Schweiker, 523 F. Supp. 1128 (D. Md. 1981).

Illinois courts have taken a somewhat stricter view of the effect of a foreign state's legitimation law on-inheritance from Illinois domiciliaries, holding that Illinois will not recognize such a status contrary to its own laws or public policy. In Hall v. Gabbert, 72 N.E. 806 (Ill. 1904), the Illinois Supreme Court held that for purposes of determining intestate succession to real property of an Illinois domiciliary, the legitimacy of a purported heir is determined by Illinois law and not by the law of state where the decedent was domiciled when he performed alleged legitimating acts (in this case, Illinois law conferred legitimate status on the child). In McNamara v. McNamara, 135 N.E. 410 (Ill. 1922), the Illinois Supreme Court accepted, for purposes of inheritance under Illinois law, the legitimate status of a child previously declared by California courts in accordance with California's legitimation statute. The Court remarked that while Illinois law controlled inheritance, the status of the child as legitimate was controlled by the domicile of the father and the child at the time the alleged legitimating acts were performed. In Pierce v. Pierce, 39 N.E. 2d 990 (Ill. 1942), the Court recognized the legitimacy of the child as conferred under Nevada law, based upon the parents' subsequent marriage and the father's acknowledgement while the parties were domiciled in Nevada.

However, in Fuhrhop v. Austin, 52 N.E. 2d 267 (Ill. 1943), the Illinois Supreme Court refused to recognize the status of legitimacy as conferred by an Arkansas statute that provided that the issue of a marriage null in law are deemed legitimate. The parents had been domiciled in Arkansas at the time of their void marriage. The Court distinguished McNamara by pointing out that the issue of legitimacy had been adjudicated by the California courts in litigation involving the same parties. The Court distinguished Pierce by pointing out that the method recognized by Nevada law for legitimizing children born out of wedlock (intermarriage and subsequent acknowledgement by the father) was similar to that method recognized by Illinois law, while the Arkansas statute was in direct conflict with Illinois law which then followed the common law principle that issue of a void marriage are deemed illegitimate). The most recent case in this-area is Estate of Stewart, 268 N.E. 2d 187 (Ill. App. 1971. There, the Illinois' Appellate Court, relying on Fuhrhop, held that where Illinois law provided that the issue of a void marriage are legitimate, a void Tennessee marriage conferred the status of legitimacy upon a child seeking to inherit personal property from an Illinois domiciliary, notwithstanding the fact that under Tennessee law (where the parties were domiciled at the time of the marriage), the marriage was insufficient to confer legitimacy status.

The Illinois Supreme Court has not ruled on the issue since Fuhrhop, and it is entirely possible that should it decide the issue today the Court would adopt the more modern approach taken by the second Restatement. Until then, however, it appears that the Illinois courts would not recognize, for purposes of inheritance of either real or personal property, a status of legitimacy conferred by the law of another state, unless that status had been formally adjudicated in a judicial proceeding (as in McNamara) or the foreign law was compatible with Illinois law as in Pierce). Wisconsin (where the claimant and still resides and where the wage earner was domiciled at the time of the claimant's birth) confers legitimacy status upon a child born out of wedlock if the parents subsequently marry, regardless of acknowledgement by the father. Wis. Stat. Ann. 767.60 formerly 245.25). As applicable at the time of the wage earner's death, Michigan law conferred legitimacy status upon a child born out of wedlock if the parents subsequently married or the parents executed a recorded acknowledgement. Mich. Comp. Laws Ann. 702.83 West 1978). ^[12] Both Wisconsin law and Michigan law in this regard are incompatible with Illinois law which conferred at the time of the wage earner's death, and still confers today, legitimacy status upon the parents' subsequent marriage and acknowledgement by the father). In any event, the claimant would not have the status of a legitimate child under either Wisconsin law or Michigan law, since his parents neither married nor executed a recorded acknowledgement. Therefore, Illinois would not look to the law of either Wisconsin or Michigan in determining whether claimant is legitimate for purposes of inheritance.

To be distinguished from those statutes that legitimate a child born out of wedlock and thus accord to him the right of inheritance of a legitimate child in addition to other rights) are those statutes that enable the illegitimate child to inherit as such regardless of whether he has been legitimated. Since the latter statutes are ones merely of descent that govern solely the inheritance of the property, rather than laws conferring status, they have no extraterritorial effect so as to control the descent of property of the domiciliary of another state. 10 Am. Jur. 2d Bastards 152; Restatement (Second) Conflict of Laws, 261 comment (f), 287 comment (d). In other words, foreign law that enables a child to inherit as illegitimate, as distinguished from that law that legitimates the child and thus grants him the right to inherit as legitimate, does not control intestate succession to property of a decedent who died domiciled in another state. We have concluded above that Illinois would not look to the law of either Wisconsin or Michigan in determining whether the claimant is legitimate. As just discussed, whether claimant may inherit as an illegitimate child is governed solely by Illinois law, ^[13] We now consider this issue.

2. Application of Illinois Law

Prior to September 1978, Illinois law provided for inheritance by a child born out of wedlock who had been subsequently legitimated by the marriage of his parents and acknowledgement by his father. Ill. Rev. Star. ch. 110 1/2, 2-2 (S~-H~ 1977). As a result of Public Act 80-1429, a child so legitimated may still inherit; however, a child not. legitimated in this matter may still inherit as an illegitimate child if the father acknowledges paternity, is adjudged to be the child's father during his lifetime or after his death, or is otherwise shown by "clear and convincing evidence" to be the father of the child. Ill. Rev. Star. ch. llO 1/2, 2-2 (S~-H~ 1979); POMS GN T00306.135. The "clear and convincing evidence" standard itself applies to the requirement of acknowledgement. Here, since the claimant's parents never married, he was not legitimated pursuant to Illinois law. However, the alternative provisions of P.A. 80-1429 relating to inheritance by illegitimates may still be applicable. Although the wage earner died in 1974, P.A. 80-1429 has been held to be retroactive for the purpose of determining eligibility for child's social security benefits. Cooper v. Harris, 499 F. Supp. 266, 267 (N.D. Ill. 1980).

In a series of recent opinions, we have examined the scope of the "clear and convincing evidence" standard for establishing paternity. "Effect of Illinois Law P.A. 80-1429 on Requirements for Entitlement of Illegitimate Children," RA V (P~) to ARC-Programs, 5/19/80; A1 S~ ,~ , RA V D~ to ARC Programs 7/28/80; J.T. T~ , ~ , RA V (P~) to ARC-Programs, 12/13/80; O~ R~ ,

~ , RA V (K~) to ARC-Programs, 5/19/82; F~ , ~

~ , RA V (M~) to ARC-Programs, 6/1/83. We have emphasized that this evidentiary standard places "a very high burden of proof on the claimant," requires "a broad range of convincing evidence which reveals no significant-internal contradiction," and excludes "credible evidence (that) contradicts other evidence of paternity." "Effect of Illinois Law, etc." We have also emphasized that the "clear and convincing evidence" standard requires more than simply proof "by a preponderance of the evidence;" it is therefore insufficient that the available evidence demonstrates that paternity is "more likely true than not." F~, supra.

However, we have never suggested that the "clear and convincing evidence" standard requires a "perfect" or "air-tight" case or that it excludes every possible question or doubt of paternity arising from the record In Estate of Raven, 398 N.E 2d 198, 203 (Ill. App. 1~79), the leading case to date on P.A. 80-1429, the court stated that "although (often) stated in terms of reasonable doubt, clear and convincing evidence is considered to be more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense."' The court also stated:

The spectrum of increasing degrees of proof, from preponderance of the evidence, to clear and convincing evidence, to beyond a reasonable doubt, is widely recognized, and it has been suggested that the standard of proof required would be clearer if the degrees of proof were defined, respectively, as probably true, highly probably true, and almost certainly true. 398 N.E. 2d 198.

Given the nature of the cases such as the one presented here, with all the inevitable gaps and inconsistencies in whatever evidence can be gathered, the paternity of the wage earner will often be apparent in spite of certain evidence or lack thereof that cannot be easily explained. "Clear and convincing evidence" of paternity may exist even though reasonable doubts and questions are apparent from the record. As Reagen suggests, the standard, while exacting, does not require that the existence of paternity be "almost certainly true;" it is sufficient that the fact of paternity be "highly probably true."

The present case is one in which, although the record indicates several questions and doubts, we are nevertheless left with the firm and definite conviction that the wage earner's paternity is "highly probably true." In other words, although there is some evidence in the record that cannot be easily explained as consistent with an allegation of paternity, other evidence cannot be explained at all other than by concluding that the wage earner must have been the claimant's father.

Thus, it is true that the wage earner never acknowledged his paternity in writing, never contributed to the claimant's support, did not accept responsibility for payment of hospital expenses, did not list the claimant on employment applications (as far as can be known), and, most important, did not list the claimant on a 1972 application for disability benefits. Apparently no paternity proceeding was brought against the claimant. Moreover, no application on behalf of the claimant was filed until six years after his death. Some of these "inconsistencies" may or may not be explained. The wage earner apparently worked sporadically and may not have been able to contribute to the wage claimant's support. Whether or not the wage earner listed the claimant on employment applications cannot be conclusively established due to the lack of available records. Although the wage earner did not list the claimant on his 1972 application for disability benefits, at that time he was suffering from alcoholism and severe psychosis and did not list one of his other children (by E~ D~ ). With respect to the absence of any paternity action, it must be noted that M~ T~ who later abandoned the claimant, was not a responsible parent and may not have desired to actively pursue a paternity action. Even assuming, as she stated, that she contacted the District Attorney, the latter may have determined that insufficient evidence existed to warrant a paternity action. As for the failure to file an application for social security benefits until six years after the wage earner's death, it must again be noted that M~ T~ abandoned the claimant prior to the wage earner's death; the Rock County Department of Social Services, as the claimant's legal custodian, may not have been aware of either the wage earner's paternity or the fact that he had died.

On the other hand, relatives and friends of the wage earner have consistently stated that he acknowledged his paternity; those who observed him together with the claimant also state that he acted as the claimant's father. Many of these relatives clearly consider the claimant to be a member of their family and appear sincerely and genuinely interested in his welfare. Their statements are not contradicted by other parties. None of these. relatives have any apparent interest in making false statements concerning the wage earner's acts and words of acknowledgement. Despite the questions and doubts discussed above, the evidence of acknowledgement is credible and convincing, and cannot be explained other than to. conclude that the wage earner indeed acknowledged his paternity. Indeed, P.A. 80-1429 establishes "acknowledgement" as a separate criteria enabling an illegitimate child to inherit from his father. Thus, so long as the evidence of acknowledgment itself is "clear and convincing," it is irrelevant that other actions of the purported father may be inconsistent with a finding of paternity.

Thus, the claimant may inherit from the wage earner under Illinois law. We conclude, therefore, that V~ is entitled to benefits as the child of the deceased wage earner, A~D~

INHERITANCE RIGHTS BY ILLEGITIMATE CHILD "CLEAR AND CONVINCING EVIDENCE" PROVISION ILLINOIS

In order to establish inheritance rights under Illinois law an illegitimate child who has not been acknowledged in writing by the alleged natural father must establish by "clear and convincing" evidence that he or she is the natural child of the person from whom inheritance is being sought. "Clear and convincing" evidence is defined as "a broad range of convincing evidence which reveals no significant internal contradiction."

Statements from two relatives and a friend of the claimant and one friend of the deceased individual, none of which can be corroborated, countered by the fact that some statements of the claimant appear to be inconsistent with some of the facts, do not meet the requirements of "clear and convincing." (M~, F~, ~ RAV (M~), to ARC, 06/O1/83.)

I. QUESTION PRESENTED

The wage earner. F~ , died on March 20, 1969 domiciled in Illinois. On December 6, 1982, D~ filed a claim on behalf of A~M. P~ for child's benefits on the ground that A~ was the child of F~ . A~ birth certificate does not indicate the identity of the father.

You have asked whether the statements of five individuals, D~ her mother, her sister, a friend of D~ and a friend of F~ constitute "a broad range of convincing evidence which reveals no significant internal contradiction," necessary to entitle A~ to SSA child's benefits under Illinois law.

II. ANSWER

In our opinion, the statements of four persons related to or befriended of claimant's mother, D~ , and the statement of one person befriend of deceased wage earner do not, taken together, constitute a "broad range of convincing evidence."

III. DISCUSSION A. Federal Law

Under section 216(h)(2)(a) of the Social Security Act, 42 U.S.C.A. 416(h)(2)(A), A~ would be eligible to inherit from F~ as the latter's child. Illinois Public Act 80-1429, effective September 12, 1979 and codified at Ill. Rev. Stat., ch. 110 1/2, S2-2 (S~-H~ Annot. Ed. 1982-83 Cum. Supp.) (hereinafter P.A. 80-1429) has enlarged somewhat the circumstances in which an illegitimate child may inherit from a deceased. In this case, however, for A~ to be determined the illegitimate, natural child of F~ , claimant must present "clear and convincing evidence" of paternity. Previous opinions of this Office ^[14] have stated that the standard places a heavy burden on a claimant and is only met when a claimant presents "a broad range of convincing evidence which reveals no significant internal contradiction." "R~" at page 3, quoting "effect of Illinois Law P.A. 80-1429 on Requirements for Entitlement of Illegitimate Children," RA V (Plotkin) to ARC-Programs V (M~), 5/19/80.

Although F~ died in 1969, P.A. 80-1429 has been held to be retroactive for the purpose of determining eligibility for child's social security benefits, Cooper v. Harris, 499 F. Supp. 266, 267 (N.D. Ill. E.D. 1980).

B. Facts Reflected in Claims Folder

The claims file in this matter contains five signed statements. All of the statement are quite limited and general and none contain dates or events which would permit cross-corroboration or cross-refutation. D~ M. P~ , claimant's mother, stated in full:

I never lived with F~ either before or after the birth of A~.

F~ was separated from his wife since the fall of 1968. I had been dating F~ off and on since 03/67.

F~ was a very responsible person. He told me that he would take full responsibility for A~. I never took him to court for A~'s support or paternity for that reason.

I was working when A~ . I was never receiving Public Aid until after F~ death. Public Aid never took F~ to court.

I never applied for surviving child's benefits because I was working and I was able to support A~.

I do not have any written acknowledgement in my possession. F~ died four months after A~'s birth.

On a Statement Regarding Contributions, Form SSA-783, D~ stated that F~ contributed an average of $30.00 a week and "clothing, baby supplies, diaper, formula, etc." for A~ , stated that:

. . . F~ told me that he and D~ were expecting a child. He told me he would take care of D~ and the baby. He did visit D~ and A~ and A~ lived in my home, I saw F~ visit often.

D~ sister, D~ , stated:

I am D~ younger sister, I lived in the same house that D~ lived in while she dated F~ D~ and F~ told me they were expecting a child.

A friend of D~ , R~ stated:

I have known D~ since childhood.

F~ and D~ told me they were expecting a child.

I saw F~ visiting D~ and A~ on several occasions after the birth.

A~ looks like F~ .

Other than D~ , her friend and her relatives, only H~ , a friend of F~ , gave a signed statement. He stated:

I was a business partner and friend of F~ since 1954. F~ told me that he and D~ were expecting a child.

He also told me that he did buy baby items for A~ . I don't know if he made weekly contributions but I know he was helping out financial as much as he could.

Mr. L~ name was provided by D~ . No documentary evidence has been included in the claims file or referred to in any statements. A letter to F~ last employer, Mutual of Omaha, Chicago, Illinois, was returned as undeliverable.^[15]

The file contains other evidence which does not support the claimant. A Report of Contact, Form SSA-5002, dated 12-17-82, prepared by Elaine M~ states in full:

M~ (F~ wife) called. She doesn't know anything about A~ . She does not wish to sign any statements.

Finally, A~ birth certificate (D~ , informant), dated November 25, 1968 does not show a father's name or birthplace. It does, however, show a father's age as 25. At that time, F~ was 34.

C. State Law Applied to Facts

We are of the opinion that the facts shown by SSA development to date do not show "by clear and convincing evidence" that F~ , deceased, is the natural father of A~ , claimant.

In Estate of Ragen, 79 Ill. App.3d 8, 398 N.E.2d 198 (1st Dist. 1979), the court distinguished proof " by clear and convincing evidence" from proof "by a preponderance of the evidence." The court stated:

. . . The preponderance of the evidence has been defined as evidence sufficient to incline an impartial and reasonable mind to one side of an issue rather than the other . . .. A proposition proved by a preponderance of the evidence is one that has been found to be more probable true than not . . . . Clear and convincing evidence, on the other hand, reflects a more exacting standard of proof.

While it has been defined as evidence which leaves the mind well-satisfied of the truth of a proposition . . ., strikes all minds alike as being unquestionable . . ., or leads to but one conclusion . . ., proof by clear and convincing evidence has most often been defined as the quantum of proof which leaves no reasonable doubt in the mind of the trier of fact as to the truth of the proposition in question. 398 N.E.2d at 202-03 (citations omitted).

Were we to characterize the facts set forth in claims file, we would assert that, at best, an unbiased factfinder might "be inclined to find that A~ was the son of F~ , rather than not." At best, therefore, the claims file could support a finding that F~ was proved to be the father of A~ by a preponderance of the evidence. However, the evidence is insufficient to prove such paternity "by clear and convincing evidence.

The evidence given by the five persons signing statements is composed mostly of statements by friends or interested parties, in one form or another, that F~ orally acknowledge A~ to be his child. Such evidence in itself does not constitute a "broad range of convincing evidence" in this case.

Moreover, the evidence presented by claimant lacks complete internal consistency in several respects. Not only was there a thirteen (13) year delay in making the claim, but the statement by D~ that F~ "was a very responsible person" is questionable in light of the facts that F~ does not appear in any way on A~ birth certificate, F~ made no known written acknowledgement of paternity and no evidence indicates that F~ paid or contributed to the expenses of A~ birth at Chicago Lying-In Hospital.

Next, D~ explanation for the thirteen year delay: "I was working and was able to support A~," is questionable in light of her statement indicating that she was "on Public Aid" after F~ death. We believe it to be unlikely that anyone "on Public Aid" would knowingly forego other income because he or she "was working and was able to support" a child entitled to SSA benefits. It goes without saying that "Public Aid" does not allow a single parent to support a child very well, and to state that she nevertheless knowingly forbore from applying for survivor's benefits because she could support A~on "Public Aid" rings false.

Finally, in light of the other discrepancies, the discrepancy on A~ birth certificate, showing his father's age as 25 when F~ was 34, takes on added weight.

In conclusion, we have reviewed Illinois cases reported since P.A. 80-1429 was enacted, ^[16] and in none of them was evidence such as presented here considered sufficient. The closest appears to be Cooper V. Harris, supra, in which the decedent's own mother and sister testified that decedent had orally acknowledged paternity, decedent had also acknowledged paternity in writing to "Public Aid" but the writing had since been lost in a fire at "Public Aid" offices, and decedent had paid weekly child support for eleven (11) years.

Unlike Cooper v. Harris, in this matter there were no oral acknowledgements testified to by relatives of decedent, the delay of thirteen (13) years is not adequately explained, there was no written acknowledgement of paternity, ever made, and here the birth certificate contains a major unexplained age discrepancy if F~ were indeed the father.

The closest RA V opinion we have discovered is J. T. T , A/N

, RA V (P~) to ARC-Programs V (C~-J~) 12/15/80. In T , benefits were awarded in part because the oral acknowledgement has been made to the deceased wage earner's mother and stepfather, among other. In this case F~ never acknowledged his paternity of A~ to close family members or others whose relation to the decrease reflects an obvious intimacy.

There are some inconsistencies in the claims folder you may wish to further develop. Any further development should concentrate on F~ relatives, his last workplace, documentary evidence, and any evidence which would tend to corroborate or refute evidence already in the claims file, e.g.., the degree of F~ friendship with H~ .

IV. CONCLUSION

We are of the opinion that the evidence now in the claims file does not constitute clear and convincing evidence that F~ is the father of A~ . Therefore, based on the evidence now in the claims folder we do not believe that A~ is entitled to child's benefits under the Social Security Act. If after additional development more evidence supporting F~ paternity appears, do not hesitate to resubmit this case to our office.

M~ , wife of F~ filed an original Application for Surviving Child's Insurance Benefits, Form SSA-6 on March 26, 1969. That form showed F~ ' last employer as:

Mutual of Omaha ~~ ~~~~, Illinois

We note that the latest Chicago Telephone Directory lists both Mutual of Omaha and Redfield Associates as located at ~~ ~~~ Illinois. Further development, if any, should include contact with deceased's last employer at its correct current address.

LEGITIMACY Presumption and Proof Illinois

In order to show paternity there must be "clear and convincing evidence" that the alleged father was in fact the natural father. When credible evidence contradicts other credible evidence a finding in favor of a claimant should not be made.

( O~ ~ - ~ - RA V (K~) to ARC - 5/19/82)

This is with reference to your April 26, 1982 memorandum inquiring whether O~ A~ R~ may be determined to be the child of the deceased wage earner, O~ , under Illinois P.A. 80-1429. We understand that the case is being reexamined pursuant to the stipulated order in Boatman v. Schweiker, Civil No. 78 C 299, N.D. Ill., E. Div., 10/7/81.

A death certificate shows that the wage earner identified as O~ (O~) M~ December and died March XX, 1967 in Illinois. His address at the time of death was shown as address. The document shows that the informant was his brother, J~, and that the wage earner was never married. J~ address was listed as address.

A birth certificate shows that O~ on February. The name of the father was listed as O~ and the maiden name of the mother was L~. The name of the informant was L~ whose address was address. L~ filed an application for surviving child's insurance benefits on behalf of O~ on August XX, 1979.

The wage earner's earnings record shows that he had the following wages from 1963 until his March 20, 1967 death:

1963 - 0 1964 - $1,714.71 1965 - 0 1966 - 602.90 1967 - 0

He had total wages of $11,247.65 for the years 1955 through 1962, but never earned more than $2,153.60 in any year. An employee in the Owens-Illinois Personnel Department reported on October 9, 1979 that an O~ listed on his tax withholding form three children and claimed four exemptions, but company records do not show the names of the children or ages or dates of birth. Owens-Illinois listed O~ home address as address.

L~, the mother, completed a child relationship statement on August 21, 1979, indicating that the wage earner was never decreed by a court to be the child's father and was never ordered by a court to contribute to the child's support. She indicated that the wage earner had written letters referring to the child as his son, had listed the child as his on applications for employment, and verbally admitted he was the parent of the child.

On the August 31, 1979 application for surviving child's insurance benefits, L~ indicated that the wage earner contributed $50.00 a week without any breaks from various jobs he held from December 1961 to March 1967. The file does not contain any explanation why she waited more than 12 years before filing an application for surviving child's insurance benefits for her child. L~ states that she lived with the wage earner in Illinois from about 1961 until his death in 1967.

The claims folder contains reports of contact of other relatives and friends of the deceased wage earner.

A~ alleged in October 1979 that she was married to the wage earner for about three years and he told her he had fathered a son by L~ She had no children from the wage earner and did not know the whereabouts of his relatives.

The wage earner's brother, J~, said in October 1980 that he know nothing regarding the matter and that his brother never said he was the father of the child.

The wage earner's mother, M~, stated in March 1980 that she heard from neighbors that her son had a child, but she never visited the child or saw a picture of the child. She did not know whether her son supported the child or lived with the child before his death.

E~, a friend, stated that the wage earner told him he was the father of the child. He indicated that the wage earner and L~ lived at his apartment at address at the time the child , but the wage earner and L~ moved out several months later.

Under section 216(h)(2)(A) of the Social Security Act, 42 U.S.C.A. 416(h)(2)(A), O~ is entitled to benefits as the child of the wage earner if, under the intestacy law of the state of domicile at the time of death (Illinois), he would be eligible to inherit from the wage earner as the latter's child. Illinois Public Act 80-1429, effective September 12, 1978 and codified at Ill. Rev. Stat. Ch. 110 , 2-2 (S~-H~), which has broadened the instances under which an illegitimate child may inherit from his or her father. 2 As applied to the facts of this case, Public Act 80-1429 required "clear and convincing evidence" of O~ paternity. This office has set forth guidelines for the application of P.A. 80-1429. "Effect of Illinois Law P.A. 80-1429 on Requirements for Entitlement of Illegitimate Children," RA V (P~) to ARC-Programs V (M~), 5/19/80; Al S~, CL-8-12-6, RA V (D~) to ARC-Programs V (M~), 7/28/80.

In the aforementioned May 19, 1980 opinion, our office concluded:

In summary, current interpretations of P.A. 80-1429 place a very high burden of proof on a claimant. To meet that burden, in the absence of an adjudication made during the father's lifetime, a claimant may persuade an adjudicator of the fact of paternity by presenting a broad range of convincing evidence which reveals no significant internal contradiction. When some credible evidence contradicts other credible evidence of paternity, it appears that a finding in favor of a claimant should not be made.

There is no question that some of the evidence tends to support L~ contention that O~ is the wage earner's son. The statement by L~ that the wage earner lived with her prior to, at the time of, and subsequent to the child's birth is supported by the statements of A~, his purported wife, and E~, a friend. A~ alleged in October 1979 that she was married to the wage earner for about three years and he told her he had fathered a son by L~ also stated that the wage earner revealed he was the father of the child and lived with the wage earner and L~ at address in Chicago at the time of the birth and several months thereafter. The wage earner's mother reportedly heard from neighbors that her son had a child.

On the other hand, there is some evidence which raises doubts of

paternity. L~ stated that the wage earner contributed $50.00 a week in support to her and the child, but in the 27-month period prior to his death the wage earner had only $602.90 in reported earnings. If L~'s allegation is true, the wage earner would have contributed $2,600 (52 weeks times $50) a year or more than $5,700 over a 27-month period during a period when his reported earnings were only $602.90. In fact, the SSA earnings records show that he never earned more than $2,153.60 in any single year. Thus, a serious question regarding L~'s credibility regarding support is raised by the earnings record in the claims folder.

In addition, the death certificate shows that the informant was the wage earner's brother and lists the wage earner's address as that of his brother and not L~. This raises some question about L~'s allegation that she was living with the wage earner at the time of his death. Other factors which tent to weigh against a finding that the wage earner was not the father is his mother's comment that she never saw the child or a picture of the child and that no letter was produced indicating the wage earner's acknowledgment of the child as his own. Although we agree that a 12-year gap between the wage earner's death and L~'s filing an application for benefits is not normally significant, it takes on some added importance when considered with the other evidence.

Based on our review of the claims folder, we are of the opinion that there is some credible evidence contradicting other credible evidence of paternity. "Effect of Illinois Law P.A. 80-1429 on Requirements for Entitlement of Illegitimate Children," supra; Al S , supra. We do not believe that the standard of clear and convincing evidence of paternity under Illinois law has been met. Accordingly, we conclude that O~ is not entitled to benefits as the surviving child of the deceased wage earner.

1 The wage earner sometimes went by the name M~, his parents' last name.

2 The Act was the legislative response to the Supreme Court's decision in Trimble v. Gordon, 430 U.S. 762 (1977), which declared unconstitutional the provision of the Illinois Probate Act permitting illegitimate persons to inherit only from their mothers.