PR 01005.025 Michigan
A. PR 11-152 MOS-State: Michigan- Use of Grandparent Genetic Testing to Establish Relationship– REPLY
DATE: September 9, 2011
Andrea A~ filed an application for child’s benefits on behalf of her son, Shayne D. S~ Jr., claiming that he was the surviving child of Shayne D. S~. Andrea submitted DNA results that showed a 99.98% probability of relationship between Shelley B~, Shayne’s mother, and Shayne Jr. would be sufficient to establish entitlement to child’s benefits based on Shayne S~’s earnings record.
Under the Michigan Paternity Act, paternity is presumed when the DNA results of the mother, child, and alleged father, conducted by a person accredited for paternity determinations, show a 99% or higher probability of paternity. The Michigan statute does not address whether there is a presumption when DNA testing establishes the likelihood of a grandparent relationship. Id. Absent a presumption of paternity, Michigan law requires that paternity actions be established with a preponderance of the evidence. For the reasons discussed below, the Regional Attorney did not believe that Shelley’s DNA results would be sufficient to establish that Shayne Jr. was entitled to child’s benefits on Shayne’s account, without additional evidence confirming that Shelley is Shayne’s mother, and excluding Shayne’s brother as a person who could have fathered Shayne Jr. Thus, further development was recommended..
Andrea A~ filed an application for child’s benefits on behalf of her son, Shayne D. S~ Jr., claiming that he was the surviving child of Shayne D. S~. You asked us whether DNA results that showed a 99.98% probability of relationship between Shelley B~, Shayne’s mother, and Shayne Jr. would be sufficient to establish entitlement to child’s benefits based on Shayne S~’s earnings record. For the reasons discussed below, we do not believe that Shelley’s DNA results would be sufficient to establish that Shayne Jr. was entitled to child’s benefits on Shayne’s account, without additional evidence confirming that Shelley is Shayne’s mother, and excluding Shayne’s brother as a person who could have fathered Shayne Jr. Thus, we recommend further development.
Shayne D. S~ passed away on March 7, 2009. He was domiciled in Michigan. Prior to his death, he was in an on again and off again relationship with Andrea A~ for three years. During that time, Shayne was in and out of jail. On the day of Shayne’s funeral, Andrea told Shelley that she was pregnant. Shayne Jr. was born on October 25, 2009, seven months after Shayne’s death.
Shelley later took a DNA test. Andrea submitted the results of Shelley’s DNA analysis from Genetic Testing Laboratories. The Statistical results showed a 99.98% percent probability of relationship between Shayne Jr. and Shelley.
The evidence in the file includes a statement from Shelley. Shelley said she believed that Shayne Jr. was Shayne’s child because of a physical resemblance. Shelley also said that Shayne had a brother that lived in Sterling, Michigan and that Shayne’s father was “somewhere in Michigan,” but there had been no contact with him for many years.
In order to be eligible for child’s insurance benefits, the child applicant must be the wage earner’s “child” as that term is defined by the Social Security Act. 42 U.S.C. §§ 416(e), 416(h)(2)-(3). Here, the only consideration is whether Shayne Jr. could show that he is Shayne’s child by demonstrating that he was entitled to inherit Shayne’s personal property as his natural child under state inheritance laws. To make this determination, SSA applies the law that would be applied in determining the devolution of interstate personal property by the court of the State in which the insured individual was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); POMS GN 00306.055(A)(1). When Shayne died, he was domiciled in Michigan. Therefore, Michigan intestacy laws apply to decide whether Shayne Jr., is his child.
Michigan’s intestacy law lists several ways a child born out of wedlock can be considered a man’s natural child for purposes of intestate succession including: an acknowledgment of parentage by the man and the mother; a written request to correct a birth certificate that results in a substituted certificate; a mutually acknowledged relationship between the man and child that began before the child became 18; a court ordered filiation establishing paternity as provided in the Paternity Act; or a determination by a probate court that a man is the child’s father using the standards and procedures established under the Paternity Act. See Mich. Comp. Laws Ann. § 700.2114 (West 2011). The evidence contained in the file does not indicate that any of the above statutory criteria for establishing a parent-child relationship for purposes of intestate succession have been met.
However, even though Shayne Jr. has not established paternity under any of the above statutory criteria, SSA may still permit him to establish paternity. SSA regulations provides that“[i]f applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” 20 C.F.R. § 404.355(b)(2). See also POMS GN 00306.525(B).
Under the Michigan Paternity Act, paternity is presumed when the DNA results of the mother, child, and alleged father, conducted by a person accredited for paternity determinations, show a 99% or higher probability of paternity. See Mich. Comp. Laws Ann. § 722.716 (West 2011). The Michigan statute does not address whether there is a presumption when DNA testing establishes the likelihood of a grandparent relationship. Id. Absent a presumption of paternity, Michigan law requires that paternity actions be established with a preponderance of the evidence. Bowerman v. MacDonald, 427 N.W.2d 477 (Mich. 1988); POMS PR 01115.025 (PR 07-165). The Michigan Supreme Court has defined a preponderance of the evidence as “that evidence which outweighs that which is offered to oppose it.” Martucci v. Ballenger, 33 N.W. 2d, 789, 791 (Mich. 1948). See also POMS GN 00306.525 (H) (noting that a preponderance of the evidence is more than 50%).
As we advised previously, we believe that the Michigan courts would consider a grandparent’s DNA test as probative of the issue of paternity. POMS PR 01115.025 (PR 07-165). In In Re Estate of J~, 525 N.W.2d 493, 497 (Mich. Ct. App. 1994), the court stated that “one method of proving paternity in this case is to utilize a DNA profile by using the child’s tissue and the tissue of either decedent or decedent’s mother.” Here, Shelley’s DNA results show that there is a 99.98% probability that she is related to Shayne Jr. However, Shelley’s DNA results do not indicate whether she is Shayne’s mother or is related to Shayne in some other way. In order to establish that Shelley is Shayne Jr.’s grandmother, Shelley needs to submit Shayne’s birth or death certificate. If Shelley produces this evidence, we believe that her DNA results would be sufficient to prove that she is Shayne Jr.’s grandparent. The DNA results, however, would not be dispositive of whether Shayne fathered Shayne Jr. Shelley’s DNA results would only prove that Shayne Jr. is biologically related to Shelley or one of her sons.
Accordingly, to establish Shayne paternity, it is crucial to exclude Shayne’s brother who lived in Michigan. While Andrea’s claim is somewhat bolstered by Shelley’s statement that “[Shayne Jr.] looks like my son did as a baby,” we do not believe that her statement alone is sufficient to exclude Shayne’s brother. We do, however, believe that an affidavit from Andrea or Shayne’s brother stating that they did not have sexual relations with each other, at or around the time of conception, would be sufficient to rule out Shayne’s brother. Kienutske v. Barnhart, 375 F.Supp. 2d 556, 561-62 (E.D. Mich. 2004) (Noting that Plaintiff met the statutory requirement of “satisfactory evidence” because she submitted a wealth of uncontradicted evidence that the number holder was the father including; an affidavit that she “did not have sexual relations with anyone other than [the number holder] during the period of time [her] child Jacob was conceived,” and there was “no possibility that anyone other than [the number holder] was the natural father.”).
If the above evidence is obtained, we believe that a Michigan Court would find that by a preponderance of the evidence Shayne fathered Shayne Jr. and that Shayne Jr., therefore, had inheritance rights with respect to Shayne. As such, you could reasonably conclude that Shayne Jr. is Shayne’s child for purposes of child’s benefits.
For the reasons discussed above, we conclude that the Final Order is not binding on SSA, but could be viewed as sufficient evidence to establish the existence of a parent-child relationship between the NH and Roseanne and Guadalupe T~.
B. PR 11-060 MOS – Michigan – Court order in wrongful death case as evidence of child status
DATE: March 7, 2011
The Final Order is not binding on SSA, but could be viewed as sufficient indicia of reliability that SSA may accept it as establishing the existence of a parent-child relationship between the NH and the T~ children.
Guadalupe and Roseanne T~ both received Supplemental Security Income (SSI), Guadalupe starting in 1985, and Roseanne starting in 1986. Guadalupe is still in current pay. SSA apparently terminated Roseanne’s SSI in June 2010. In May 2010, Roseanne and Guadalupe submitted evidence that, in 1993, they received proceeds from a wrongful death suit filed by the estate of NH Ruben C~. You asked whether an order from the Circuit Court of Wayne County (Michigan), identifying Roseanne and Guadalupe as the NH’s children, is sufficient to establish that Roseanne and Guadalupe had a parent-child relationship with the NH for purposes of entitlement to Title II benefits on the NH’s account. We conclude that the final order is not binding on SSA, but could be considered acceptable evidence to establish the parent-child relationship necessary for Title II benefits.
NH Ruben C~ died on April 3, 1992. The NH was domiciled in Michigan. In 1992, the NH’s estate filed a wrongful death action against Detroit Receiving Hospital in the Circuit Court of Wayne County (Michigan). The court appointed three guardians ad litem, presumably to represent the interests of the six minor children who sought to participate in the wrongful death action. The court initially identified the children as Ruben B~, Robert B~, Roseanne C~, Guadalupe C~, Julie C~, and Ruben C~. Later, the court recognized that the “C~” children did not share the NH’s surname, but instead bore the surname “T~.” An attorney represented the four T~ children, who all resided in Texas. Guadalupe C~, the NH’s mother, and Diane B~, a resident of Michigan and the mother of the two B~ children, served jointly as personal representatives of the NH’s estate, and were also represented by separate counsel. On December 22, 1992, the court approved a settlement in the wrongful death case. On April 15, 1993, the court issued a final order approving the distribution of wrongful death proceeds (Final Order). The Final Order named the NH’s mother, father, and six minor children, including “the decedent’s four children located in Texas,” as wrongful death heirs.
In 1992, Diane B~ filed applications for survivors’ benefits on the NH’s account on behalf of her minor children, Ruben and Robert B~. SSA granted those applications. In 1993, the mother of Ruben, Julie, Guadalupe and Roseanne T~ filed applications on their behalf for survivor’s benefits on the NH’s account. The mother of the T~ children was not married to the NH, and no father was listed on the children’s’ birth certificates. The mother did not submit the Final Order in support of the applications. SSA denied the applications because there was insufficient evidence to establish a parent-child relationship with the NH. More than fifteen years later, in May 2010, new claims were filed for Roseanne and Guadalupe. The 1993 Final Order was submitted to support the new claims.
Section 202(d) of the Act provides for the payments of benefits to the child of an insured wage earner who is retired, disabled, or deceased. 42 U.S.C. § 402(d). In determining whether an applicant is the child of an insured person, the Commissioner of Social Security applies the law that 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 the number-holder’s death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001(2)(a).
The NH was domiciled in Michigan at the time of his death. Therefore, if Guadalupe and Roseanne could inherit the NH’s property under Michigan’s law of intestate succession, they are the NH’s children for the purpose of entitlement of child’s insurance benefits on the NH’s account. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a).
There is no evidence that the NH had an estate that was distributed under Michigan’s law of intestate succession. However, the Final Order in the wrongful death suit identifies Guadalupe and Roseanne T~ as the NH’s minor children, and includes them as wrongful death heirs for the purpose of receiving proceeds from the wrongful death suit. The only people who can recover damages in an action under the Michigan wrongful death statutes are “the deceased’s spouse, children, descendants, parents, grandparents, brothers and sister, and, if none of these persons survive the deceased, then those persons to whom the estate of the deceased would pass under the laws of intestate succession determined as of the date of the deceased.” Mich. Comp. Laws § 600.2922(3)(a). Michigan courts use the state law of intestate succession to determine whether an individual qualifies as a wrongful death heir. Turner v. Grace Hospital, 530 N.W.2d 487, 489 (Mich. Ct. App. 1995), rev’d on other grounds, 560 N.W.2d 629 (Mich. 1997); Estate of Renaud v. Bolling, 509 N.W.2d 858, 859 (Mich. Ct. App. 1994). Therefore, the question in this case is whether SSA is bound by, or can otherwise accept, the Final Order as evidence that Guadalupe and Roseanne could inherit from the NH as his children.
A state court decision is binding on SSA when (1) a state court of competent jurisdiction has previously adjudicated an issue in a claim for Social Security benefits; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the state. Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973). This case squarely meets only two of the four prongs of the G~ test, and minimally complies with a third. Because all four prongs are not satisfied, SSA is not bound by the Final Order. However, SSA may consider the Final Order as evidence in support of the claims.
The Final Order meets the first prong of the G~ test because the Circuit Court of Wayne County is a state court of competent jurisdiction, and the Final Order recognized Guadalupe and Roseanne as the NH’s children. Michigan circuit courts have general jurisdiction over criminal and civil cases, including domestic relations cases, with a special office for domestic relations cases involving minor children. See A Guide to the Michigan Courts, http://www.courtreference.com/Michigan-Courts.htm#160.
The Final Order also meets the third prong of the G~ test. Wrongful death suits do not fall into the core category of domestic relations cases, which generally encompasses divorce, annulment, awards of alimony, child support, child custody and visitation, as well as modifications of such decrees. See Friedlander v. Friedlander, 149 F.2d 739, 740 (7th Cir. 1998) (discussing the domestic relations exception to federal diversity jurisdiction; distinguishing between core domestic relations cases and cases in the penumbra of the domestic relations exception); Cook v. Winters, 645 F. Supp. 158, 159 (S.D. Texas 1986). However, because wrongful death suits often require a court to investigate questions of marital or parent-child relationships in order to determine whether a plaintiff has standing to bring suit, federal courts have recognized that wrongful death suits may properly be considered domestic relations cases. For example, in Cook v. Winters, the court invoked the domestic relations exception to federal diversity jurisdiction, and abstained from exercising jurisdiction over a wrongful death suit that would have required the court to determine the existence of a parent-child relationship between the plaintiff and the decedent. Id., 645 F. Supp. at 159 (citing Goins v. Goins, 777 F.2d 1059, 1061 (5th Cir. 1985)). In declining to exercise jurisdiction, the court in Cook cited federal courts’ longstanding deference to state courts on domestic relations issues. That was also the Sixth Circuit’s rationale for the third prong of G~. Compare C~, 645 F. Supp. at 159, with G~, 474 F.2d at 1373. In the case of the T~ children, the issue of parentage was not simply a question of fact for the wrongful death action. The T~ children had to establish the parent-child relationship in order to have standing to participate in the wrongful death action brought by the NH’s estate. Mich. Comp. Laws § 600.2922(3)(a). Under both federal and Michigan law, standing is a question of law that cannot be conferred by agreement of the parties. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443, 444 (7th Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); In re Complaint of MTCA, 615 N.W.2d 255 (Mich. Ct. App. 2000). For these reasons, the Final Order can properly be considered a domestic relations case within the meaning of the G~ test.
The Final Order is not facially inconsistent with Michigan law as enunciated by the higher Michigan courts, including the Michigan Supreme Court. Neither is it definitively clear that the court applied the correct legal standard. The Michigan Supreme Court holds that in determining whether a man is the natural father of an out-of-wedlock child, state courts are limited to the tests of parentage set out in the state’s law of intestate succession, Mich. Comp. Laws § 700.111(4). Estate of Scharenbroch v. Stephens, 477 N.W.2d 436, 437 (Mich. Ct. App. 1991) (citing Easley v. John Hancock Mutual Life Ins. Co., 271 N.W.2d 513 (Mich. 1978)); T~, 530 N.W.2d at 589. See also Tryc v. Michigan Veterans’ Facility, 545 N.W.2d 642, 646 (Mich. 1996). At the time the Final Order was issued in 1992, the only statutory test of parentage that the state court could have applied in finding that the T~ children were the NH’s natural children was the existence of a mutually acknowledged parent-child relationship that continued until the NH’s death. Mich. Comp. Laws § 700.111(4)(c). The statute requires both man and child to make some acknowledgement of the parent-child relationship while both are living, but does not require an ongoing social relationship Mich. Comp. Laws § 700.111(4)(c); Estate of J~, 525 N.W.2d at 494-95; Estate of S~, 477 N.W.2d at 437; Estate of S~, 383 N.W.2d 266, 268-69 (Mich. Ct. App. 1985).
However, the Final Order did nothing more than identify Guadalupe and Roseanne as the NH’s children. It made no explicit findings regarding a parent-child relationship, and did not explain why or on what basis the court recognized Roseanne and Guadalupe as the NH’s children. The attorney for the T~ children has informed SSA that she possesses no other documents relating to the wrongful death suit. For that reason, we cannot definitively verify that the state court used the appropriate statutory test in determining parentage. Nonetheless, this is not a case where the state court clearly used a test that did not comply with state law, or issued a parentage decision in the face of obviously conflicting evidence regarding parentage. See, e.g., Outwater obo McClinchey v. Secretary of Health & Human Services, 894 F. Supp. 1114 (E.D. Mich. 1995) (SSA did not err when it did not defer to a Michigan paternity order that did not comply with the criteria set forth in § 700.111) (citing G~, 474 F.2d at 1373). Because the Final Order is not, on its face, inconsistent with Michigan law, it minimally complies with the fourth prong of the G~ test.
The Final Order does not, however, meet the second prong of the G~ test. The Circuit Court of Wayne County issued the Final Order pursuant to a settlement agreement, rather than a fully litigated proceeding genuinely contested by parties with opposing interests. In addition, the attorney for the T~ children has informed SSA that, to the best of her knowledge, none of the other participants in the wrongful death suit actively challenged the parentage of the T~ children. Consequently, the Final Order is not binding on SSA as determination of parentage. G~, 474 F.2d at 1373.
However, the fact that the Final Order is not binding under G~ does not mean that SSA cannot accept it as establishing a parent-child relationship. Even though it was not fully litigated, the Final Order does have other indicia of reliability. First, it is not strictly an ex parte order. See G~, 474 F.2d at 1373. Under Michigan law, state courts cannot simply approve a settlement in a wrongful death case. If the parties to a wrongful death action want to settle the case, the representatives of the deceased’s estate must petition the court, which must conduct a hearing before approving or rejecting the settlement. Mich. Comp. Laws § 700.3924(1). We may presume that the court held such a hearing in this case. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971) (recognizing a presumption of regularity).
Second, as previously stated, the issue of parentage was jurisdictional: the state court needed to make a determination of parentage in order to decide whether the T~ children had standing to pursue a wrongful death action. Mich. Comp. Laws § 600.2922(3)(a). Under both federal and Michigan law, standing cannot be conferred by the agreement of the parties. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443, 444 (7th Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); In re Complaint of MTCA, 615 N.W.2d 255 (Mich. Ct. App. 2000). Although we cannot determine how the court reached its decision, under the presumption of judicial regularity we generally cannot assume that the court violated its duty and merely accepted an agreement of the parties that the T~ children had standing. Citizens to Preserve Overton Park, 401 U.S. at 415-16.
Third, even though the Final Order represents a settlement rather than a contested action, there were other parties to the wrongful death action whose interests were not fully aligned with those of the T~ children. For example, the fact that the T~ children were permitted to participate in the wrongful death action significantly decreased the share of proceeds that were available to the two B~ children. The B~ children were apparently represented by a guardian ad litem, who had a fiduciary duty to represent their best interest in the case. Mich. Comp. Laws §§ 600.2922(6)(c); 700.2901(2)(d). That fiduciary duty would likely have led the guardian to oppose the T~ children’s participation in the proceeds of the settlement if the guardian were not satisfied that they were appropriate wrongful death heirs. The personal representatives of the NH’s estate – the NH’s mother and the B~ children’s mother – also had a fiduciary duty to use their authority in the best interest of the estate and in the interests of the parties who participated in the estate. Steinway v. Bolden, 460 N.W.2d 206 (Mich. 1990).
For these reasons, even though it is not binding under G~, the Final Order carries sufficient indicia of reliability that SSA may accept it as establishing the existence of a parent-child relationship between the NH and the T~ children. G~, 474 F.2d at 1373 (citing In re B~, 136 U.S. 586 (1890)).
For the reasons discussed above, we conclude that the Final Order is not binding on SSA, but could be viewed as sufficient evidence to establish the existence of a parent-child relationship between the NH and Roseanne and Guadalupe T~.
C. PR 04-035 MOS-Effect of Termination of Parental Rights on Inheritance Rights and Social Security Benefits in Region V States Your Reference Number: S2D5G6 Our Reference Number: 03P080
DATE: December 5, 2003
This opinion indicates whether termination of parental rights affects a child's right to inherit from its natural parents under State law, in the absence of subsequent adoption by other individuals .
NOTE: Questions pertaining to specific fact scenarios must be submitted to the RCC for a legal opinion.
You asked us to research the laws of the states in Region V to determine how the termination of parental rights affects a child's right to inherit from its natural parents in the absence of subsequent adoption by other individuals and, consequently, the child's potential entitlement to Social Security benefits. We discuss each state's law below.
The Social Security Act (Act) provides for the payment of child's insurance benefits (CIB) to certain children of individuals who are entitled to old-age or disability insurance benefits or who died fully or currently insured. See 42 U.S.C. § 402(d) (2003); 20 C.F.R. §§ 404.350-404.368 (2003). In order to qualify for CIB, an applicant must be the wage earner's "child" as that term is defined by the Act. See 42 U.S.C. §§ 416(e), 416(h)(2-3). The Act provides that a child is the child of a currently insured individual if he or she would be entitled to inherit from the insured individual. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355; POMS GN 00306.001(C)(1)(a), (2)(a), POMS GN 00306.075. The Agency applies the state law in effect at the time it makes its final decision on the application for benefits. However, if the child claimant would not qualify as the insured wage earner's child under that version of the state law, the Agency looks at all versions of the state law in effect from the first month for which the child claimant could be entitled to benefits until the time of the Agency's final decision, and the Agency applies the version of state law that is most beneficial to the child claimant. See20 C.F.R. 404.355(B)(3)-(4); POMS GN 0030.075(B)(2).
A child's entitlement to CIB depends on whether that individual can inherit money, property or other assets as the wage earner's child according to state intestacy laws. The following paragraphs discuss the laws regarding inheritance rights of children whose natural parents have had their parental rights terminated in each of the six states that comprise Region V:
In Illinois, it appears that a child retains the right to inherit from its natural parents after parental rights are terminated. The Illinois Adoption Act provides that once parental rights are terminated, or a court enters a judgment of adoption, the natural parents are "relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, and the child shall be free from all obligations or maintenance and obedience as respects such natural parents." 750 ILCS 50/17 (2003). This section, however, does not specify inheritance rights as one of the rights affected by termination. In Illinois, courts will not insert conditions or limitations into a statute that are absent from the text. See Davis v. Toshiba Machine Co., America, 710 N.E.2d 399, 401 (Ill. 1999). Additionally, the Illinois Probate Act specifically provides that, for purposes of inheritance, an adopted child is not a child or a descendant of a natural parent. See 755 ILCS 5/2-4(d). The Probate Act does not impose a similar exclusion upon children whose parents have had their parental rights terminated. The Illinois rules of statutory construction provide "that where there exists a general statutory provision and a specific statutory provision, either in the same or in another act, both relating to the same subject, the specific provision controls and should be applied." See Knolls Condo. Ass'n v. Harms, 781 N.E.2d 261, 267 (Ill. 2002). Here, the more specific terms of the Probate Act appear to control the more general terms regarding the effect of termination as explained in the Adoption Act. Because the Probate Act limits only the adopted child's ability to inherit, we presume that a child can likely inherit from natural parents after their parental rights have been terminated, unless and until the child is adopted by another.
In Indiana, it appears that a child retains the right to inherit from its natural parents after parental rights are terminated, absent subsequent adoption. Section 31-35-6-4 of the Indiana Code states that when parental rights are terminated, "all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support, pertaining to the relationship, are permanently terminated." BURNS IND. CODE ANN. § 31-35-6-4 (2003). Section 31-35-6-4 does not specify inheritance rights as one of the rights affected by termination. The predecessor to section 31-35-6-4, however, stated that termination of parental rights "shall divest the parent and the child of all legal rights, privileges, duties and obligations, including rights of inheritance, with respect to each other." BURNS IND. CODE ANN. § 31-3-1-7(g) (1976) (repealed and replaced by § 31-6-5-6, effective October 1, 1979). The rules of statutory construction provide that when the legislature changes the text of a statutory provision, it is presumed that a change of meaning was also intended. See City of Fort Wayne v. Slattery, 791 N.E.2d 807, 811 (Ind. App. 2003). Because the legislature deleted from the statutory text language stating that termination of parental rights results in termination of the child's inheritance rights, it is presumed that the legislature intended to repeal that provision.
In Michigan, the termination of parental rights (absent subsequent adoption) does not terminate a child's right to inherit from its natural parents. See MICH. COMP. LAWS ANN. § 700.2114(1), (3) (2003). Subsection (1) states that, except as provided in subsections (2) (pertaining to adoption) (3) (discussed below) and (4) (inapplicable for the objectives of this memorandum), "for purposes of intestate succession by, through or from an individual, an individual is the child of his or her natural parents...." Subsection (3) provides that "the permanent termination of parental rights" only terminates the right of the natural parents to inherit from or through the child for purposes of intestate succession. Thus, the child's right to inherit from the natural parents remains intact unless that child is actually adopted by other individuals. See MICH. COMP. LAWS ANN. § 700.2114(2) ("An adopted child is the child of his or her adoptive parent or parents and not of his or her natural parents"). The predecessor to this law, however, provided that the termination of parental rights ended kinship for inheritance purposes for both the parent and the child. See MICH. COMP. LAWS ANN. § 700.110(1) (West 2000). We previously advised that, effective April 1, 2000, the permanent termination of parental rights of a minor by order of a court, by a release given by the parent for purposes of adoption, or by any other legal process, ends intestate succession by the parent through the child only (i.e., the child can still inherit from the parents). However, prior to that date, termination of parental rights cuts off the right of both the parent and the child to inherit from the other. See Amendments to the Michigan Revised Probate Code, Memorandum from Regional Chief Counsel, Region V, to Assistant Regional Commissioner, Management and Operations Support (Dec. 11, 2002), at 2.
In Minnesota, a child's right to inherit from its natural parents is severed at the time parental rights are terminated. See In re Estate of B~, 452 N.W.2d 686, 688 (Minn. 1990) (finding that MINN. STAT. § 260.241(1) (now § 260C.317) does not preserve a child's right to inherit from a natural parent after parental rights are terminated); In the Matter of the Welfare of J.D.N., 504 N.W.2d 54, 58 (Minn. App. 1993) (recognizing that when parental rights are terminated, the child loses its right to intestate succession because the natural parent is relieved of the corresponding obligations arising from that right).
In Ohio, the termination of parental rights does not terminate a child's right to inherit from its natural parents. The right to inherit from a natural parent is terminated only upon the adoption of the child by other parents. See OHIO REV. CODE. ANN. § 3107.15(A)(1) (2003); Mauer v. Becker, 271 N.E.2d 255 (Ohio 1971) (interpreting chapter 3107 to mean that only adoption severs inheritance rights between the child and its legal parents); see also In re F~, No. 19960, 2000 WL 1201287 (Ohio App. 9 Dist. Aug. 9, 2000) (unpublished decision); Pledgure v. Goutras, No. 2000-CA-0035, 2000 WL 492578 (Ohio App. 5 Dist. Apr. 3, 2000) (unpublished decision).
In Wisconsin, it appears that the termination of parental rights does terminate a child's right to inherit from its natural parents. Wisconsin statute provides that termination of parental rights "means that...all rights, powers, privileges, immunities and obligations existing between parent and child are permanently severed." WIS. STAT. § 48.40(2) (2003). The Wisconsin supreme court held that a prior version of this statute, which provided for termination of "all rights of parents," severed the right of the natural parents to inherit from the child. See In re Estate of P~, 175 N.W.2d 234, 235-36 (Wis. 1970). The court reasoned that the term "all rights" was clear and unambiguous and that "[i]f the legislature had intended to say, all rights except for the right to inherit..., it would have said so." Id. at 235. The legislature subsequently amended section 48.40 and included language that evinced an intent to make the effect of termination reciprocal between natural parent and child. See WIS. STAT. § 48.40(2) (stating that termination of parental rights means that "all rights...existing between parent and child" are severed) (emphasis added). In Estate of P~, the court noted that if this language were adopted, it would cut off a child's right to inherit from the parent as well. Id. at 236 (indicating that the legislature had previously contemplated, but had rejected a statutory version which provided that both parental rights and a child's right to inherit would end upon the termination of parental rights). "A revised statute is to be understood in the same sense as the original unless the change in language [clearly] indicates a different meaning." See WIS. STAT. § 990.001(7); Seider v. O'Connell, 612 N.W.2d 659, 667 n.4 (Wis. 2000). Thus, given the amendatory language and the Wisconsin Supreme Court's indication that this language would cut off inheritance rights of children when parental rights are severed, we presume that a child cannot inherit from its natural parents after parental rights have been terminated on or after April 10, 1996 (the effective date of the statutory amendment).
We recommend that POMS be amended, as indicated above, to reflect applicable state laws. We also recommend that questions pertaining to specific fact scenarios be submitted for a legal opinion.
Shelley’s DNA testing was conducted at Genetic Testing Laboratories, an American Association of Blood Banks (AABB) testing Facility. Under Michigan law, blood testing, tissue typing, and DNA testing performed for purposes of determining paternity must be “conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks.” Mich. Comp. Stat. Ann. § 711.716(b)(2) (West 2011). The DNA test report does not state that the testing procedure was conducted by a person who was accredited for paternity determinations by the AABB, but does state that the center is accredited by the AABB. Absent any evidence in the file that would call into question the qualifications of the testing staff or the authenticity of the report, we believe it would be reasonable to conclude that the testing satisfied the requirements of Michigan law.
The documents provided to us do not indicate whose interests the three guardians ad litem represented. However, the Michigan wrongful death statute requires courts to appoint a guardian ad litem to represent the interests of any minor with an interest in the case, as well as incompetent adults who do not already have a fiduciary. Mich. Comp. Laws § 600.2922(6)(c). There is no indication that the three adults who participated in the suit – Diane B~; the NH’s mother; and the NH’s father – were incompetent. Consequently, it is reasonable to assume that the court appointed the guardians to represent the interests of the minor children.
Children of the deceased’s spouse, and some persons named in the deceased’s will, may also pursue a wrongful death action. Mich. Comp. Laws § 600.2922(b)-(c).
Michigan law also considered a man to be the natural father of a child born out of wedlock if (a) the man and the child’s mother jointly filed a written acknowledgement of parentage with the appropriate probate court; or (b) the man and the child’s mother jointly requested a corrected birth certificate for the child, and a substitute birth certificate was then issued. Mich. Comp. Laws § 700.111(4). The statute was amended, effective October 19, 1993, to add that a child born out of wedlock could also inherit by intestate succession if there was a court-issued order of filiation establishing paternity under the Michigan paternity act. Mich. Comp. Laws § 700.111(4)(d). In 1996, Michigan enacted an Acknowledgement of Parentage Act (Public Act 1996, No. 305 § 2), which also allowed a child’s parents to stipulate parentage and establish parental rights without further adjudication. Mich. Comp. Laws § 722.1002 et seq. However, to the best of our information, no order of affiliation, stipulation of parentage, or affidavit of parentage exists in this case, and the NH is not listed as the father on the birth certificate of either Guadalupe or Roseanne T~.
Indiana statute provides that for purposes of intestate succession, "an adopted child shall be treated as a natural child of the child's adopting parents, and the child shall cease to be treated as the child of the natural parents…." BURNS IND. CODE ANN. § 29-1-2-8 (2003).
Section 31-6-5-6 was subsequently repealed and replaced by 31-35-6-4, effective July 1, 1997. The statutory language, however, was not materially altered.