TN 25 (11-12)

PR 01005.049 Utah

A. PR 13-004 Relationship of Child to NH in the State of Utah, NH – Jordan—REPLY

DATE: October 3, 2012

1. SYLLABUS:

We recognize that here, a Utah district court entered an order indicating that the DNH is Daxton’s natural father. However, the agency is not necessarily bound by a state court decision of paternity.

Notably, the court order does not mention the controlling standard that paternity be established by “clear and convincing evidence.” While there is a fair amount of evidence that suggests the DNH is Clamaint’s father, there is sufficient contrary evidence that we conclude there remains “substantial doubt” about paternity. Evidence that tends to support the claimant's application for child’s benefits consists of written statements by claimant's mother, claimant's grandmother, and the claimant's doctor; the DNH’s obituary; and social media postings by the DNH’s parents and sisters. However, this evidence as a whole does not rise to the level of clear and convincing, in light of the contrary evidence discussed below. Based on the evidence submitted for our review, we do not believe the Utah Supreme Court would conclude it constitutes clear and convincing evidence that the DNH is Daxton’s natural father.

POMS GN 00306.645(1) does not apply here because it pertains to a child legitimized prior to April 23, 1990. The Utah legislature repealed the legitimation statute that formed the basis of this POMS provision on this date. Daxton was not born until 2010, so this POMS provision does not apply.

2. OPINION

Questions Presented

To assist you in determining whether Daxton is entitled to surviving child’s benefits on the record of the deceased number holder (“the DNH”), Jordan, you asked us to answer the following questions:

1. whether the Utah district court had legal authority to enter a nunc pro tunc order establishing the DNH as Daxton’s natural father, effective August 1, 2011;

2. whether Utah’s highest state court would uphold the order; and if so, the effective date of the order; and

3. whether Daxton may acquire the status of the DNH’s child pursuant to POMS GN 00306.645(1), since he and the DNH never lived together.

Short Answer

The district court did not have legal authority to enter the order retroactively under Utah’s nunc pro tunc statute. Assuming the evidence underlying the order is the same evidence you submitted for our review, we doubt that the Utah Supreme Court would conclude it constitutes clear and convincing evidence the DNH is Daxton’s natural father. POMS GN 00306.654(1) does not apply here because it pertains to ways a father could have legitimized a child prior to April 23, 1990.

Background

According to information you provided, Daxton was born in Utah in November. His mother and the DNH were never married. The space for the father’s name is blank on a March 2011 application for a certified copy of Daxton’s birth certificate (and presumably on the original birth certificate), as well as on the Enumeration at Birth Numident record. The DNH died on February 24, 2011, while domiciled in Utah. In March 2012, Kari filed an application for surviving child’s benefits on his behalf as the DNH’s child. She filed a prior application on his behalf on March 5, 2011.

In a written statement dated April 1, 2011, Kari, stated “there is no doubt [the DNH] . . . is Daxton’s biological father[,] and he himself acknowledge[d] that he was Daxton’s biological father.”

Kathi, Karir’s mother, submitted a written statement dated March 2011 in support of Daxton’s claim. She reported the following events:

  • she witnessed the DNH at most of Kari’s pre-natal doctor visits;

  • she witnessed the DNH at the hospital (with his immediate family) before, during, and after Daxton’s birth;

  • she witnessed the DNH and his mother request that Daxton be given their surname;

  • “[n]umerous conversations regarding [the DNH’s] acknowledgment that he was Daxton’s father”;

  • she attended a dinner with the DNH and his parents, at his request, “to bring together both sides of the babies [sic] family”;

  • the DNH’s mother and his sisters attended Kari’s baby shower, and his mother “created a block in the quilt made for [Daxton] that says ‘Nanna’s little boy’”; and

  • during the DNH’s funeral, his immediate family introduced Daxton to extended family members as the DNH’s son, and the DNH’s father introduced Daxton as his grandson to his co-workers.

An obituary published in a local newspaper (presumably by the DNH’s immediate family) states the DNH is survived by “his infant son, Daxton.”

In a written statement dated April 2011, Kerry , M.D., reported that he/she cared for Kari during her labor and delivery. Kerry also stated the person the applicant identified as the DNH in pictures the applicant showed to him/her “was the same person at the hospital claiming paternity.”

The record includes what appear to be printouts from social media websites. On one website posting, the DNH’s sister referred to Daxton as her “cute baby nephew”; in a response, another sister referred to the DNH as Daxton’s “Daddy” and remarked how much Daxton resembles the DNH when he was a baby. On another website posting, the DNH’s parents posted happy first Father’s Day wishes, and one of his sisters commented: “I hope[] on your first Father’s Day you got to spend your day seeing Daxton as much as you wanted . . . he could feel you there, bud!”

The record also includes an affidavit dated December 6, 2011, in which Cynthia, the DNH’s mother, alleged the following. She witnessed unsuccessful attempts by the DNH to contact and communicate with Kari about her pregnancy. She accompanied the DNH to the hospital the day Daxton was born, but they were denied entry to the nursery. She witnessed Kari state that Daxton’s birth certificate would not identify the NH as his father, and that Daxton would have her surname because “[t]hat’s the perks of being the mom.” Kari refused to talk to the DNH and did not permit him to take an active role in the child’s life or to visit him.

Cynthia suspected that Kari did not identify the DNH as Daxton’s biological father on the child’s ecclesiastical blessing record. In sum, Cynthia alleged that Kari did not identify the DNH as Daxton’s father until after the DNH’s death, and “based upon the denials and behavior of Kari both during and after the pregnancy, there remains a concern and belief that [the DNH] may not be the biological father of Daxton.”

On February 28, 2012, a Utah District Court judge signed an order apparently prepared by Kari’s attorney. The court noted that all parties appeared personally before the court and were represented by counsel, that the court was “fully advised in the premises” (i.e., aware of all the evidence), and that there was “good cause appearing therefore” (presumably to enter the order retroactively). The court then ordered, adjudged, and decreed that the DNH is Daxton’s natural father; that Kari may use the order to have Daxton’s birth certificate amended to reflect the DNH as his father; and that the order be entered nunc pro tunc, effective August 1, 2011.

Discussion

It Does Not Appear the Court Had Legal Authority to Enter the Order Nunc Pro Tunc

We doubt the court had statutory or common law authority to enter the order nunc pro tunc. The Utah Code provides that “[a] court having jurisdiction may, upon its finding of good cause and giving of such notice as may be ordered, enter an order nunc pro tunc in a matter relating to marriage, divorce, legal separation or annulment of marriage.” Utah Code Ann. § 30-4a-1. Under the common law, a nunc pro tunc order may be entered to correct the court’s own errors or omissions. See Bagshaw v. Bagshaw, 788 P.2d 1057, 1060 (Utah Ct. App. 1990); C.J.S. Motions and Orders § 51 (May 2012) (noting “[a]n order nunc pro tunc necessarily presupposes an existing order upon which it operates”). Here, there is no indication of any such error or omission.

However, whether the court had authority to enter the order nunc pro tunc is irrelevant because, as discussed below, we do not think there is clear and convincing evidence of paternity.

The Evidence Presumably Underlying the Order Is Not Clear and Convincing Proof of Paternity

To qualify for child’s benefits on the earnings record of an insured individual, an applicant must be the child of the insured individual. The child must also (1) apply for child’s insurance benefits; (2) at the time such application is filed be unmarried and either be under age 18 or be under age 19 and a full-time elementary or secondary school student, or over 18 and under a disability that began before he attained the age of 22; and (3) be dependent on the number holder. See 42 U.S.C. § 202(d)(1); 20 C.F.R.

§ 404.350.

See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). Child includes the natural child of an insured individual. See 42 U.S.C. § 216(e); 20 C.F.R. § 404.355. The Act provides that in determining the status of a child, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property under the laws of the state in which the insured wage earner was domiciled at the time of his or her death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(a)(1), (b)(1). Because the DNH was domiciled in Utah at the time of his death, that state’s intestacy law applies. See 42 U.S.C.§ 416(h)(2)(A); Section 216(h)(2)(A) is the only provision of the Act under which the claimant could qualify as the DNH’s child.

20 C.F.R. § 404.355(b)(4); POMS GN 00306.001(C)(2)(a).

The Utah Uniform Probate Code provides that an individual is the child of the individual’s natural parents, regardless of marital status, and that the parent and child relationship may be established for inheritance purposes as provided in the Utah Uniform Parentage Act. See Utah Code Ann. § 75-2-114(1). As we discuss in more detail below, we recommend updating POMS GN 00306.645 to make clear that Utah does not distinguish legitimate from illegitimate children. We will issue a separate opinion on our recommendations for updating the POMS.

Under the Utah Uniform Parentage Act, the father-child relationship can be established in a number of ways. As applicable here, the relationship can be established by an adjudication of paternity. See Utah Code Ann. § 78B-15-201(2)(c); see also POMS GN 00306.645(2)(b). The standard of proof in a trial to determine paternity is clear and convincing evidence. See id.§ 78B-15-112; see also POMS GN 0306.645(2)(b).

The Utah Supreme Court has stated that clear and convincing evidence ‘implies something more than the usual requirement of a preponderance, or greater weight, of the evidence; and something less than proof beyond a reasonable doubt.’ The court has explained further that, ‘for a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.’

POMS GN 00306.645(2)(b) (quoting Child v. Child, 332 P.2d 981, 986 (Utah 1958)); Greener v. Greener, 212 P.2d 194, 204-05 (Utah 1949)).

We recognize that here, a Utah district court entered an order indicating that the DNH is Daxton’s natural father. However, the agency 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.3d 1370 (6th Cir. 1973), explains that the Commissioner must accept a state court determination only 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 the general category of domestic relations; and (4) resolution by the state trial court is consistent with the law enunciated by the highest court in the state. Here, paternity is an issue within the category of domestic relations, and the Utah district court had jurisdiction to determine paternity. See Utah Code Ann. § 78B-15-104. But it is not clear that the issue was genuinely contested by parties with opposing interests. Although it appears that the DNH’s parents were respondents in the proceeding, we do not know whether they contested paternity. Most importantly, we do not think the court’s order is consistent with Utah law, as enunciated by the Utah Supreme Court—assuming the court considered the same evidence presented for our review. We do not know what evidence the court actually considered; we assume the court considered the same evidence presented to SSA.

PNotably, the court order does not mention the controlling standard that paternity be established by “clear and convincing evidence.” While there is a fair amount of evidence that suggests the DNH is Daxton’s father, there is sufficient contrary evidence that we conclude there remains “substantial doubt” about paternity. Evidence that tends to support Daxton’s application for child’s benefits consists of written statements by Kari, her mother, and her doctor; the DNH’s obituary; and social media postings by the DNH’s parents and sisters. However, this evidence as a whole does not rise to the level of clear and convincing, in light of the contrary evidence discussed below.

Notably, Kari does not explain why she has “no doubt” that the DNH is Daxton’s father; her written statement is merely conclusory. Her statement would be more persuasive if she indicated that she and the DNH had sexual intercourse during the period when Daxton could have been conceived, and if she denied having sexual intercourse with any other man during this period. She also failed to provide any other details regarding her relationship with the DNH, i.e., whether they were boyfriend and girlfriend during the period when Daxton could have been conceived, whether they lived together during this period, etc. Cf., e.g., In re Estate of E~, 448 N.W.2d 23, 24 (Iowa 1989) (court concluded evidence of paternity was virtually conclusive, as there was undisputed testimony the putative father and mother lived together, the mother was not sexually intimate with anyone except the putative father during their period of cohabitation, and the putative father and mother regularly engaged in sexual intercourse without birth control). We did not locate any Utah cases discussing clear and convincing evidence of paternity in the absence of genetic testing. We expect Utah courts would give persuasive weight to other states’ case law applying the clear and convincing evidence standard.

We cannot confirm the authenticity of the social media postings submitted, and the most detailed evidence provided comes from an interested party – Kari’s mother. In prior instances, we have recommended that a statement from one disinterested person coupled with a statement from the child’s mother does not rise to the level of clear and convincing evidence. See, e.g., Memorandum from Ass’t Reg. Attorney (Cohen), Denver, to Reg. Comm., SSA, Denver, Evidence of Paternity Under Montana Law . . . . (Oct. 9, 1979).

Most significant, the record contains probative conflicting evidence of paternity. Cynthia, the DNH’s mother, submitted an affidavit indicating that Kari behaved in ways that undermine her current claim that the DNH is Daxton’s father. For example, according to Cynthia Parris, Kari did not permit the DNH to enter the nursery at the hospital; did not allow the DNH to visit or take an active role in the child’s life; and did not identify the DNH as the father on Daxton’s birth certificate. If this account is accurate, Kari’s behavior during and after her pregnancy suggests the DNH is not Daxton’s biological father. There is independent corroboration for Cynthia’s allegations; the father’s name is blank on a March 2011 application for a certified copy of Daxton’s birth certificate, and no father is identified on Daxton’s enumeration at birth record – Kari presumably provided the information for both of these records. On the other hand, Cynthia also posted comments on a social media website seeming to acknowledge that the DNH was a father.

Kari might be able to explain her actions that seem inconsistent with the DNH’s paternity, or otherwise rebut Cynthia ’s statement. Thus, additional development of the record may result in evidence sufficient to satisfy the clear and convincing standard of proof. Evidence of paternity may be clear and convincing despite the fact that other evidence may contradict it. See In re Estate of B~, 603 N.W.2d 688, 693 (Neb. Ct. App. 2000). We recommend that you ask Kari to provide details of her relationship with the DNH during the period when Daxton could have been conceived, and to supply statements from additional disinterested persons or perhaps from the DNH’s immediate family members that he acknowledged Daxton as his biological child to them. We also recommend that you ask Kari to explain her alleged contradictory statements and actions prior to the DNH’s death that suggests he is not Daxton’s biological father. If Kari provides sufficient additional evidence and you determine that it is credible, the evidence as a whole may rise to the level of clear and convincing, notwithstanding Cynthia ’s conflicting affidavit.

The POMS Provision Regarding Legitimized Children Does Not Apply

You asked whether Daxton may acquire the status of the DNH’s child pursuant to POMS GN 00306.645(1), since he and the DNH never lived together. POMS GN 00306.645(1) does not apply here because it pertains to a child legitimized prior to April 23, 1990. The Utah legislature repealed the legitimation statute that formed the basis of this POMS provision on this date. See Utah Code Ann. § 78-30-12 (provided that a father can legitimate an out-of-wedlock child “by publicly acknowledging it as his own, receiving it as such with the consent of his wife, if he is married, into his family, and other treating it as if it were a legitimate child . . . .”), repealed by Laws 1990, c. 245, § 24, eff. Apr. 23, 1990. Daxton was not born until 2010, so this POMS provision does not apply.

We note that the Utah Intestacy POMS should be updated to reflect the current status of Utah law related to legitimacy. As noted above, the Utah intestacy statute provides that an individual is the child of the individual’s natural parents, regardless of marital status. We interpret this provision to mean that for purposes of inheritance, Utah no longer distinguishes between legitimate and illegitimate children. Rather, if a paternal relationship is established as provided in the Utah Uniform Parentage Act, the child is considered the child of the father from the date of birth, and has the same rights regardless of his parents’ marital status. As such, where a child’s relationship to the number holder is established under the Utah Uniform Parentage Act, the child should be treated as a legitimated child (rather than an illegimate child with inheritance rights). Compare POMS GN 00306.050 with POMS GN 00306.055. As currently drafted, POMS GN 00306.645 does not accurately reflect the state of Utah law on legitimacy.

Conclusion

The district court clearly did not have legal authority under Utah’s nunc pro tunc statute to enter the order, and it does not appear the court possessed such authority under Utah common law. More importantly, we do not believe that the Utah Supreme Court would find that the evidence underlying the order (assuming it is the same evidence you submitted for our review) constitutes clear and convincing evidence of paternity sufficient to uphold t