PR 01010.017 Indiana

A. PR 09-049 Entitlement to Surviving Child Benefits - Rebuttable Presumption of Paternity Charles L~, Deceased Wage Earner; Jeramey S~, SSN ~

DATE: August 7, 2008

1. SYLLABUS

Because Indiana gives full faith and credit to the judgments of other states, that state would consider itself bound by Iowa's law stating that a child born during the marriage is presumed to be a child of that marriage. Since no evidence overcoming the presumption of paternity has been provided, the ex-husband of the claimant's mother is the established father under Iowa law.

Therefore, the child is not entitled to surviving child's benefits on the record of the deceased wage earner.

2. OPINION

You requested a legal opinion regarding whether a child who was allegedly conceived during a relationship between his mother and the deceased wage earner while the mother was married to another man is eligible for surviving child's insurance benefits on the deceased wage earner's record. Based upon the evidence presented and for the reasons discussed below, we believe the child is not entitled to benefits on the deceased wage earner's record.

FACTUAL BACKGROUND

The materials you provided indicate that Angela S~, the child's mother, reported that she was involved with the deceased wage earner, Charles L~, while she was separated from her husband, Steve S~. During the separation, Mrs. S~ stated she went to Indiana from Iowa in May 1996 and had a relationship with Charles L~. Mrs. S~ stated she became pregnant during that time, and was five months pregnant when she separated from Charles L~ and returned to her husband in Iowa. Jeramey S~ was born on December 29, 1997, in Cedar Rapids, Iowa. According to Mrs. S~, she and Mr. S~ separated again in 1998 and later divorced on February 27, 2001.

Upon our request, you obtained a copy of the divorce decree. In the divorce decree, filed in Iowa District Court, Jeramey was described as a child of the marriage. The decree provided that Mr. and Mrs. S~ would have shared physical custody of Jeramey as well as another child of the marriage. Mr. S~ was ordered to pay child support for both children, and was awarded the right to claim Jeramey on his income tax returns beginning in the year 2000 and every year thereafter. In addition, Mr. S~ was ordered to provide Jeramey's medical insurance.

The evidence you provided also shows that the wage earner passed away on May 14, 2005, while domiciled in the state of Indiana. Although Charles L~ was never legally declared to be Jeramey's father, Mrs. S~ informed the Field Office that she can provide the names of Mr. L~' mother, brother, and a friend who will sign statements that Charles L~ is the father of Jeramey S~. Their statements would be based on comments allegedly made by the deceased wage earner, and Jeramey's ethnicity. The deceased wage earner was Native American and Mrs. S~ describes Jeramey as "obviously Native American."

Analysis

Under the Social Security Act, a child may establish that he is a child of a wage earner and, thus, eligible to receive child's insurance benefits on his account if, under state law, he would be entitled to inherit from the deceased wage earner if the wage earner died intestate. See 42 U.S.C. § 416 (h)(2)(A); 20 C.F.R. § 404.355(a)(1). If the child cannot qualify for child's benefits based on the right to inherit under state law, he can establish that he is eligible for benefits if the deceased wage earner either acknowledged paternity of the child in writing, was decreed by a court to be the child's father, or was ordered by a court to pay child support for the child. See 42 U.S.C. § 416 (h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3).

The deceased wage earner died domiciled in Indiana. Therefore, Indiana's intestacy law is applicable in this case. See 20 C.F.R. § 404.355(b)(1).

Because Jeramey is under the age of 20, his paternity could have been established by law in a cause of action that was filed either during the putative father's lifetime or within five months after the putative father's death. See Ind. Code Ann. § 29-1-2-7(b)(2)(b). Paternity can also be established under this statute if the putative father executed a paternity affidavit as set forth in Ind. Code Ann. § 16-37-2-2.1. See Ind. Code Ann. § 29-1-2-7(b)(5). No action to establish paternity was filed and no affidavit has been provided.

That is not the end of the matter, however, because the Agency does not require that a child obtain a court order of paternity. Rather, the Agency decides the issue of paternity using the standard of proof the state court would use to determine paternity. See 20 C.F.R. § 404.355(b)(2). Under Indiana law, paternity must be established by a preponderance of the evidence. See Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. App. 1995) (paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence). Thus, if Jeramey could establish paternity according to the evidentiary requirements of Indiana law, he would be deemed a natural child of the deceased wage earner and would be entitled to child's benefits on the deceased wage earner's account. See 20 C.F.R. § 404.355(a)(1). Evidence regarding Jeramey's paternity from Mr. and Mrs. S~'s divorce in Iowa would be considered by Indiana courts. The Iowa divorce decree between Mr. and Mrs. S~ implicitly addressed the paternity of Jeramey. We believe Indiana courts would look to it for guidance on this issue and would give full faith and credit to the Iowa divorce decree. Indiana courts would consider themselves bound by such judgments so long as the state court which issued the order had jurisdiction over the subject matter and the relevant parties. See Ind. Code Ann. § 31-14-19-1 (West 2008); Lucas v. Estate of Stavos, 609 N.E. 2d 1114, 1116, 1120 (Ind. Ct. App. 1993), modified by Stidham v. Welchel, 698 N.E.2d 1152, 1155-56 (Ind. 1998). In assessing whether another state's jurisdiction was proper, the Indiana courts look to the substantive law of the other state. See id. at 1117. In this case, jurisdiction was proper. Mr. and Mrs. S~ were domiciled in Iowa at the time of the child's birth and when they divorced. In Iowa, a child born during the marriage is presumed to be a child of that marriage. See Iowa Code Ann. § 600B.41A; Calendar v. Skiles, 591 N.W. 2d 182 (Iowa 1999). Therefore, Jeramey is presumed to be Mr. S~'s child under Iowa law. See Iowa Code Ann. § 598.31. Iowa allows presumed paternity to be overcome, but requires that a formal action be filed. See Iowa Code Ann. § 600B.41.A. Mrs. S~ did not file an action to overcome paternity in Iowa.

Indiana law recognizes a divorce decree as a determination of paternity and precludes, except in extraordinary circumstances, a husband and wife from later challenging an explicit or implicit finding of paternity in the context of a dissolution action. See In re Marriage of Huss, 888 N.E. 2d 1238, 1242 (Ind. 2008) (citing Russell v. Russell, 682 N.E. 2d 513, 518 (Ind. 1997) ("In many cases, the parties to the dissolution will stipulate or otherwise explicitly or implicitly agree that the child is a child of the marriage. In such cases, although the dissolution court does not identify the child's biological father, the determination is the legal equivalent of a paternity determination in the sense that the parties to the dissolution . . . will be precluded from later challenging that determination, except in extraordinary circumstances."). The Iowa divorce decree would be entitled to full faith and credit by Indiana courts, and Indiana law would require a showing of extraordinary circumstances to overcome that presumption. No evidence of extraordinary circumstances has been presented.

If a cause of action was filed in Indiana, a paternity finding based on Mrs. S~'s testimony could be used to establish inheritance rights, but only if sufficient corroborative evidence or circumstances exist to support her testimony. See Ind. Code. Ann. § 29-1-2-7(b) and (c); Burnett v. Camden, 254 N.E. 2d 199, 201 (Ind. 1970), reh'g denied 255 N.E. 2d 650 (Ind. 1970). Mrs. S~ has stated that she can provide statements from the deceased wage earner's relatives/friends stating that the deceased wage earner was the child's father. This evidence combined with Mrs. S~'s testimony that she was not living with her husband and was involved with the deceased wage earner at the time she became pregnant would likely not satisfy the Indiana intestacy statute based on a review of other similar cases which had stronger evidence of paternity. See Green v. Estate of Green, II, 724 N.E. 2d 260, 265 (Ind. Ct. App. 2000) (where alleged father's unequivocal designation of putative heir as his son on signed documents was found to constitute corroborative evidence); Matter of Estate of Hendren, 459 N.E.2d 437, 442 (Ind. Ct. App. 1984) (evidentiary requirement of intestacy statute was met where paternity finding was based upon putative father's written acknowledgment of paternity); S.M.V v. Littlepage,442 N.E. 2d 103, 110 (Ind. Ct. App. 1982) ("No facts are disclosed in the evidentiary materials from the proceedings on the motion for summary judgment which would indicate that (1) paternity of the decedent had been established during his lifetime; or (2) Bonham and S.M.V. had married and he had acknowledged the paternity of the Child; or (3) Bonham had acknowledged the paternity of the Child in writing; or (4) that there was past performance of Bonham's obligation). Indiana courts have routinely required that there be written acknowledgement by the putative father to establish paternity posthumously.

Conclusion

We conclude that Jeramey S~, who was born during the marriage of Mr. and Mrs. S~, could not inherit the intestate property of Charles L~, the deceased wage earner. Because Indiana gives full faith and credit to the judgments of other states, and because no evidence overcoming the presumption of paternity has been provided, Mr. S~ is Jeramey's established father under Iowa law. Based upon the information provided, we do not believe the child is entitled to surviving child's benefits on the record of the deceased wage earner.

Kristi A. S~
Acting Chief Counsel, Region VII
By ______________
Jennifer L. M~
Assistant Regional Counsel

B. PR 06-129 MOS- Use of Evidence in Order to Rebut the resumption of Legitimacy; Your Ref: S2D5G6 L~, Michael; Our Ref: 06-0030 - REPLY

DATE: May 10, 2006

1. SYLLABUS

An Indiana trial court's protective order sealing the results of court ordered DNA testing does not prevent SSA from using those results to overturn the presumption of legitimacy and reopen the claimant's child benefits award. Such a protective order cannot be enforced against an agency of the Federal government.

2. OPINION

This case was referred to this Office to address the propriety of using a DNA test submitted to the Agency which had been previously sealed by an Indiana state court, in order to re-open an initial determination of survivor benefits. Based on a survey of Indiana and federal case law, as well as the language of the protective order itself, we believe that no applicable federal or state statute or rule prevents the Agency from using this evidence. In the first place, the scope of the protective order sealing the DNA test is uncertain. Furthermore, even if the intention of the state court was to maintain strict confidentiality of the DNA results, the doctrine of sovereign immunity prevents a state court from enforcing protective orders or asserting contempt powers against an agency of the federal government. Therefore, we believe the Agency may use the DNA test already in its possession to reconsider the paternity of Quentin L~, for purposes of assigning benefits.

FACTS

According to the file, Michael L~, the number holder, died as an Indiana resident on February 8, 2002. He was married to Tammy L~ at the time of his death. In October 2002, Tammy L~ filed for benefits for her son, Quentin L~, who was born October 7, 2002. Michael L~ was also survived by his ex-wife, Shelly K~, and her three children. Because of the presumption of legitimacy of a child born during a marriage, see POMS GN 00306.020, benefits were awarded to Quentin L~, and adverse adjustment letters were sent to the three children of Shelly K~, who were receiving benefits at that time. Ms. K~ protested the adverse adjustments, claiming that Michael L~ was not the father of Quentin L~, but as she could not provide evidence of her allegation, benefits were awarded to Quentin L~ in December 2002.

In October 2002, a Petition to Determine Beneficiary was filed in the Indiana state probate court overseeing the disposition of Michael L~'s estate. That court ordered DNA paternity testing, which took place September 2004. Prior to testing, Tammy L~ filed a Motion for Protective Order Pursuant to Trial Rule 26, asking the Indiana state court to seal the DNA test. This Motion provided in part that it was necessary to seal the record because Ms. L~ planned to object to the relevancy and admissibility of the test. On September 9, 2004, the Indiana state probate court granted Ms. L~'s motion, ordering that "the results from the DNA in this matter shall be sealed until such time as the Court admits them as part of the record." The test indicated that Michael L~ was not the father of Quentin L~. On October 21, 2004, the state probate court issued an order and judgment finding that Quentin L~ was not the heir of Michael L~, pursuant to a stipulation by the parties. In March 2005, the results of the DNA test were provided to the Agency by Shelly K~'s husband.

DISCUSSION

A. Scope of the protective order.

As a general matter, court records are typically made available to the public. See Ind. S. Ct. Admin. R. 9(B), Commentary ("all persons, including members of the general public, the media, and commercial and noncommercial entities, are entitled to the same basic level of access to court records"). However, where a privacy interest exists that would countervail against the policy of open access to the public, such records are restricted from public access either as matter of course, or by court order. See id. at R. 9(D)(1) ("A court record is accessible to the public except as provided sections (G) and (H) of this rule, or as otherwise ordered sealed by the trial court").

The September 2004 DNA test at issue was sealed pursuant to Indiana Trial Rule 26(c), which states:

Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the discovery not be had;

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except the parties and their attorneys and persons designated by the court;

(6) that a deposition after being sealed be opened only by order of the court;

(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Trial Rule 37(A)(4) apply to the award of expenses incurred in relation to the motion.

Ind. R. Trial P. 26(c). The Indiana Supreme Court has held that Trial Rule 26(c) allows a trial court to impose conditions on discovery, for good cause, where a party seeks judicial protection from a perceived abuse of the discovery process. Jacob v. Chaplin, 639 N.E.2d 1010, 1012 (Ind. 1994). Indiana courts have also consistently held that trial courts have an inherent power to prescribe the terms and conditions of discovery, absent an abuse of discretion. Jacob, 639 N.E.2d 1010, 1012; Kristoff v. Glasson, 778 N.E.2d 465, 470 (Ind. Ct. App. 2002).

Thus, the lower state court in this case had wide discretion to issue a protective order specifying the terms under which the DNA test could be used, including how it could be obtained, accessed, and disseminated, and by whom. For example, in one recent marital dissolution case in Indiana, the parties stipulated to protective orders designed to protect the confidential status of private information obtained during discovery; the trial court in that case issued a protective order stating that such discovery "shall be used only for the conduct of this litigation and for no other purpose whatsoever, and shall not be given, shown, made available, or communicated in any way" to anyone other than individuals designated by the court order. Bobrow v. Bobrow, 810 N.E.2d 726, 729 (Ind. Ct. App. 2004). Here, the trial court issued an order stating only that "the results from the DNA in this matter shall be sealed until such time as the Court admits them as part of the record." Because Tammy L~ stipulated to the fact that Quentin L~ was not the heir of Michael, the DNA test was never unsealed and made part of the record. Given the general language of the protective order, the intent of the Court in issuing this sealing order is unclear. See Morgan v. U.S. Dep't of Justice, 923 F.2d 195, 197-98 (D.C. Cir. 1991) (discussing different possible intention of Court's sealing order, and resulting effects on subsequent dissemination).

Indiana courts have held that third parties cannot obtain and disseminate sealed documents from the court file, even where the third parties obtained access to court records prior to the protective order. See, e.g., Howard Publications v. Lake Michigan Charters, 649 N.E.2d 129 (Ind. Ct. App. 1995). However, unlike in Howard Publications, the Agency did not obtain the DNA test from the court file, but received the sealed document through no action of its own; instead, the Agency came into possession of the sealed DNA test through the actions of Shelly K~'s husband, a non-party. Moreover, unlike a newspaper, the Agency has no intention of disseminating the information, and is instead using it internally in a manner not open to the public. Any policy interest in protecting a party "from annoyance, embarrassment, oppression, or undue burden or expense," see Ind. R. Trial P. 26(c), is thus minimally implicated by the Agency's use of the document.

But, in the absence of guiding precedent, it is difficult to ascertain the exact scope of the protective order and the restrictions which might limit SSA as a non-party when, as here, the record was obtained from another non-party to the litigation. In any event, we need not resolve the issue of scope of the protective order, given the doctrine of sovereign immunity, discussed below.

B. Even if the Indiana trial court intended to prevent use or dissemination of the DNA test by the litigants to a third party, it cannot enforce its protective order or assert contempt powers against an agency of the federal government.

Even assuming that Tammy L~ or the Indiana trial court objects to the Agency's use of the sealed DNA test, sovereign immunity prevents the Agency from exposure to any liability resulting from use of the document. The doctrine of sovereign immunity provides that "[t]he United States, as sovereign, 'is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Lehman v. Nakshian, 453 U.S. 156, 160 (1981), quoting United States v. Testan, 424 U.S. 392, 399 (1976) and United States v. Sherwood, 312 U.S. 584, 586-87 (1941).

Thus, the United States, or any agency thereof, can only be exposed to legal liability in a court of law if the United States expressly waives sovereign immunity, in the form of a specific statutory authorization. Bosaw v. Nat. Treasury Employees' Union, 887 F.Supp. 1199, 1210 (S.D. Ind. 1995). Here, no applicable statutory authorization would allow the Indiana trial court to enforce its protective order against the Agency. Indeed, federal courts have uniformly held that, absent an express waiver of sovereign immunity, contempt proceedings brought against federal officers or agencies cannot be sustained because state courts do not have jurisdiction to enforce such contempt actions. Schwett v. Schenk, 792 F.2d 1447, 1451-52 (9th Cir. 1986); Boron Oil Co. v. Downie, 873 F.2d 67, 70 (4th Cir. 1989) ("The [Agency] has not waived its immunity, thus the state court (and the federal court on removal) lacks jurisdiction to proceed against a federal employee acting pursuant to agency direction.").

While the above cases deal specifically with whether federal agencies have to comply with state court subpoenas or other instruments compelling discovery, and rely in part on the Touhy doctrine, we believe that the principles contained therein are applicable in this case. See also Bosaw, 887 F.Supp. 1199, 1212 (finding upon review of the case law that where the case originates in state court, application of the Touhy doctrine is also often accompanied by lack of jurisdiction stemming from sovereign immunity, reflecting an overall concern with federalism). Sovereign immunity must be expressly waived, and as that has not occurred here, we believe that the Agency cannot be held in contempt by a state court. Accordingly, we recommend that the Agency use the DNA test currently in its possession to re-determine whether Quentin L~ is entitled to benefits.

CONCLUSION

The scope of the protective order issued by the Indiana lower court pursuant to Trial Rule 26(c) appears somewhat unclear. As the Agency obtained the document through no action of its own, and has no intention of publicly disseminating it, sealing may not bar the Agency from use of the document. In any event, even if the state court were to disagree with this interpretation and issue a contempt sanction, the doctrine of sovereign immunity prevents the Agency or its employees from being held liable, absent an express waiver of immunity, which is not present here. Thus, we do not believe the Indiana trial court's protective order prevents the Agency from using the DNA test record already in its possession. We therefore recommend that the Agency use the DNA test in the re-determination of Quentin L~'s eligibility for benefits. Michael L~'s file is returned for further processing.

C. PR 85-029 Child - Presumption of Legitimacy - Oliver C. F~, A/N~

DATE: October 29, 1985

1. SYLLABUS

FR LEGITIMACY AND LEGITIMATION -- PRESUMPTIONS AND EVIDENCE -- INDIANA

Where a child conceived during the wedlock of one union was not born until after the dissolution of the marriage and the remarriage of the mother, and there is evidence not only of access, but actual sexual intercourse on the part of the first husband, the presumption of the legitimacy of the child and thus the inheritance rights of the child from the first husband is not rebutted solely by reason of the acknowledgment of the child by the second husband and a questionable unsigned statement of the first husband's father which he later denied making. (F~, Oliver C., ~ -- RAV (U~), to ARC, Progs., 10/29/85.)

OD 2110 -- IN

2. OPINION

Oliver C. F~, the wage earner, and Velma A~ were married on April 5, 1963 and divorced on December 18, 1968. At the time of the divorce, Velma was pregnant. The divorce judgment, however, does not mention that fact. Velma married Donald A~ on December 20, 1968. On February 9, 1969, Donna L. A~ was born in Pontiac, Michigan. The birth certificate identifies Donald as the father. On June 14, 1983, Oliver F~ died. He was a resident of the State of Indiana at the time. Velma subsequently applied for child's insurance benefits, 42 U.S.C. §402(d), for Donna A~. You question whether Donna is entitled to benefits as the legitimate child of the wage earner. For the following reasons, we are of the opinion that she is.

According to Velma's statement, Donna was conceived in May 1968, one month before Velma and Oliver separated. Velma did not meet Donald A~ until the latter part of July and did not have sexual relations with him until after their marriage. Velma explained that Donna is not mentioned in the divorce judgment because Velma concealed her pregnancy from the court. Velma was advised by her attorney that if the court were aware that she was pregnant, the divorce would be delayed for an additional year. Velma concealed the pregnancy so that the divorce would become final as soon as possible. Although Velma concealed the pregnancy from the court, she did not conceal it from Oliver. She informed Oliver that she was pregnant before they separated. According to Velma, Oliver never questioned that the child was his. In October 1982, Oliver contributed $300 towards school clothes for Donna.

Velma explained that she identified Donald as Donna's father on the birth certificate because she was married to him at the time. Donald subsequently adopted the four other children of Velma and Oliver. He did not adopt Donna, however, because he was already identified as her father on the birth certificate.

Donald A~ corroborated the most significant aspects of Velma's statement. Herbert F~, the wage earner's father, was unable to state whether Donna was Oliver's child. He advised the Social Security Administration that Oliver did not tell him anything about Donna's parentage.[1]

While the information contained in the claims folder specifically, the unsigned statement of Herbert F~ raises a doubt of whether Donna is actually the child of Oliver F~, we are of the opinion that it is insufficient to overcome the legal presumption that Donna was fathered by the wage earner. At the time of his death, the wage earner was domiciled in the State of Indiana. The law of that state, therefore, determines the relationship of Donna and the wage earner. Program Operations Manual System (POMS) §GN00306.045. Indiana Law provides:

A man is presumed to be a child's biological father if:

(1) He and the child's biological mother are or have been married to each other and the child is born during the marriage or within three hundred (300) days after the marriage is terminated by death, annulment, or dissolution.

Ind. Code Ann §31-6-6.1-9(a) (West Supp. 1985). According to the Indiana courts, the presumption that a child conceived during marriage is legitimate is "one of the strongest known to the law," H.W.K. v. M.A.G., 426 N.E.2d 129 (Ind. Ct. App. 1981), and is rebutted only "on facts which prove conclusively that the husband could not have been the father," L.F.R.v.R.A.R., 269 Ind. 97, 378 N.E.2d 855 (1978).

[T]he presumption could be overcome by proof that the husband was impotent; or that he was entirely absent so as to have had no access to the mother; or was entirely absent at the time the child, in the course of nature, must have been begotten; or was present only under such circumstances as to afford clear and satisfactory proof that there was no sexual intercourse.

Phillips v. State ex rel. Hathcock, 82 Ind. App. 356, 145 N.E. 895, 897 (1925). Accord ,L.F.R. v. R.A.R., supra. Proof of sterility also rebuts the presumption. H.W.K.v.M.A.G., supra.

The facts presented by the present claim for child's insurance benefits are remarkably similar to those presented in Darrow v. Geisen, 102 Ind. App. 14, 200 N.E. 711, 712 (1936). In that case, the Appellate Court of Indiana stated:

The question presented is: Shall a child conceived during the wedlock of one union inherit from the paternal side of the union when it is undisputed that the husband of that union was not impotent, had access to and actual sexual intercourse with his wife within the normal period of gestation; that the child was born within that period and was not prematurely born even though before the birth of the child that union was dissolved by a divorce decree and the mother married to another, who acknowledged the child as his own, it not being shown that the latter husband ever had sexual intercourse with the mother prior to their marriage.

Two presumptions are applicable to this case when taken with the facts proven. One is that a child conceived during wedlock is a lawful issue of that union. The other presumption is that the wife was faithful to the husband, and until it is shown, by positive evidence, the second husband here actually had sexual intercourse with the mother of this child within a normal period of gestation, these two presumptions must prevail. The mere fact that the second husband could have had access to the mother is not sufficient to overthrow the presumption that she was faithful to the first husband.

In the present case, the claims folder contains no evidence that the wage earner did not have access to Velma during the period in which Donna was conceived. To the contrary, Velma states positively that she and the wage earner did have sexual intercourse in May 1968. Nor does the claims folder contain evidence that during the period in which Donna was conceived the wage earner was either sterile or impotent. In our opinion, therefore, the wage earner is presumed to be the biological father of Donna A~ and she is entitled to benefits. [2]

We are returning the claims folder to you.

A child shall be deemed dependent upon his father . . . at the time specified in paragraph (1)(C) unless, at such time, such individual was not living with or contributing to the support of such child and --

(B) such child has been adopted by some other individual.

42 U.S.C. §402(d)(3). In the present case, Donald A~ did not formally adopt Donna. The State of Indiana, moreover, does not recognize the theory of equitable adoption. In re Estate of Fox, 164 Ind. App. 221, 328 N.E.2d 224 (1975). See, R.D.S.'"V.'S.L.S., 402 N.E.2d 30 (Ind. Ct. App. 1980). Therefore, Donna is deemed to be dependent upon the wage earner at the time of his death.


Footnotes:

[1]

In an earlier statement given over the phone, Herbert F~ stated that both Oliver and Velma informed him that Donna was fathered by Donald A. When the statement was mailed to him for his signature, however, Herbert refused to sign. In a telephone conversation with a claims representative on August 2, 1984, Herbert denied ever making such a statement.

[2]

In order to be eligible for benefits, Donna must not only be the child--of Oliver F~ but must have been dependent upon him at the time of his death. 42 U.S.C. §402(d)(1)(C). Pursuant to statute:


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PR 01010.017 - Indiana - 06/07/2006
Batch run: 11/29/2012
Rev:06/07/2006