TN 7 (09-06)

PR 01010.023 Maryland

A. PR 07-084 Parent-Child Relationship Between Number Holder (James W~, Jr.) and Marcus W~

DATE: March 9, 2007

1. SYLLABUS

While Maryland law does not specifically deal with gestational periods, evidence that the child was born 308 days after the number holder's death combined with hospital records showing the child was born after a gestational period of 39 weeks would be found by a Maryland court to "carry sufficient probative weight" to rebut the presumption of legitimacy.

2. OPINION

QUESTIONS PRESENTED

On February 15, 2007, you asked for our advice regarding (1) whether recently obtained medical records regarding Marcus W~' birth would be sufficient under Maryland intestacy law to establish that he is not the child of the number holder (NH) and if so, (2) whether SSA's initial determination awarding child's insurance benefits should be reopened and benefits ceased.

SUMMARY

Based on our review of the updated record and our research of relevant Maryland intestacy law, we believe that the recently obtained birth records of Marcus W~, in addition to the other evidence submitted to us, would be sufficient for a Maryland court to find that Marcus is not the child of the NH. Without the requisite parent-child relationship, Marcus is not entitled to child's insurance benefits on the NH's earnings record and the April 9, 2003 determination awarding him such benefits should be reopened. This reopening, if pursued by SSA, should be diligently pursed on an expedited basis.

BACKGROUND

The NH died in Maryland on November 17, 2001. He was allegedly still married to Lisa W~ when he died. On September 21, 2002, Lisa W~ gave birth to Marcus in Florida. Marcus was born 308 days after the NH's death. The NH is identified as Marcus' father on his birth certificate. On April 9, 2003, Marcus was awarded child's benefits on the NH's record. For a more detailed explanation of the facts, please see our prior legal opinion, dated August 4, 2006.

The Office of Inspector General (OIG) recommended review of this case to determine if the award to Marcus W~ was proper since he was born 308 days after the NH's death. See POMS GN 00306.020 Presumption of Legitimacy (stating that in situations where a child is born more than 287 days after the death of the mother's husband or her divorce from him, the issue must be developed and the case submitted to the RCC in the absence of a precedent opinion).

On August 4, 2006, we provided a legal opinion to your office regarding the parent-child relationship between the NH and Marcus W~. We concluded that Marcus would not be considered the child of the NH under Maryland intestacy law, but we recommended further development of the evidence before determining that Marcus is no longer entitled to receive child's insurance benefits.

The field office subsequently made attempts to further develop the record based on our recommendations. The field office was only able to secure Marcus' medical records at his birth. These records indicate that Marcus was born at 39 weeks gestation, and that he weighed 8 pounds, 2 ounces, and was 18.5 inches long. The field office was unable to obtain any of the other suggested development.

DISCUSSION

We are still assuming based on your memorandum that the NH's domicile at the time of his death was Maryland. Maryland intestacy law will, therefore, apply to the analysis of this case.

Under Maryland inheritance law, a child of the decedent who is conceived before the death of the decedent, but born afterwards shall inherit as if he had been born in the lifetime of the decedent. Md. Code Ann., Estates & Trusts § 3-107 (2006). Moreover, a child born or conceived during a marriage is presumed to be the legitimate child of both spouses. Md. Code Ann., Estates & Trusts § 1-206 (2006). Under this provision, the husband is the presumed father of the child conceived by his wife during the marriage.

The presumption, however, that a child born or conceived during a marriage is the child of both spouses is rebuttable. See Md. Code Ann., Estates & Trust § 1-105(b) (2006); see also Md. Code Ann., Family Law § 5-1027(c) (paternity statute providing that there is a rebuttable presumption that the child is the legitimate child of the man to whom its mother was married at the time of conception).

To rebut the presumption of legitimacy, the evidence must "carry sufficient probative weight." See Toft v. State of Nevada, 671 A.2d 99, 108 (Md. Ct. Spec. App. 1996). Among other evidence, the presumption may be "rebutted by the testimony of a person other than the mother or her husband." Md. Code Ann., Family Law § 5-1027(c)(2). If the court determines that the presumption is rebutted by testimony of a person other than the mother or her husband, it is not necessary to establish nonaccess of the husband to rebut the presumption. Md. Code Ann., Family Law § 5-1027(c)(3). The presumption of legitimacy may also be rebutted by blood tests or genetic testing. See Toft, 671 A.2d at 110 (stating that scientific data generally is at least as reliable, if not more significantly reliable, as testimony from one of the spouses' relatives or friends that a husband and wife lived separate and apart).

In this case, Marcus was born 308 days (44 weeks) after the NH's death, which is 42 days (6 weeks) longer than the normal gestation period after conception. See The Merck Manual 2156 (18th ed. 2006) (stating that the typical pregnancy is considered to last 266 days or 38 weeks from the time of conception). Delivery up to two week earlier or later than the estimated date is considered normal. Id.

As more fully explained in our prior legal opinion, we have not found a Maryland case where a court has actually determined that a child is not the child of the mother's husband solely because of an abnormally long gestational period and that this fact alone could rebut the presumption of legitimacy. Therefore, we think it is more likely that a Maryland court would look at the evidence as a whole, and that it would consider not only the excessively long gestational period, but also consider the other evidence in the record to determine whether the presumption of legitimacy should apply or whether it has been rebutted.

In this case, we have a wide range of evidence that would likely cause a Maryland court to question Marcus' paternity. We have statements from the NH's adult son, Terry W~, and the NH's father, James Sr., that the NH moved to Maryland from Florida in October 2001, at the latest. They explain that the NH had to leave Florida because he was seriously ill and could not take care of himself. He was living in a hotel at the time and allegedly had not lived with Lisa W~ for over two years at that point. There is no evidence that Lisa W~ visited the NH in Maryland prior to his death, or that she had other contact with him once he moved there.

Moreover, other than Lisa W~' allegation, there is no evidence from her that the NH was Marcus' father. She did not respond to the field office's attempts to contact her. Although Marcus' birth certificate identifies the NH as his father, it was completed after the NH's death and there is no evidence that Lisa W~ had to present any evidence proving that the NH was Marcus' father. There are no genetic or blood test results involved in this case, and there is no judicial determination of paternity establishing the NH as Marcus' father.

We also believe that the recently obtained birth records of Marcus W~ further confirm our original opinion that he is not the child of the NH. As stated above, these records show that Marcus was born on September 21, 2002 at 39 weeks gestation. This evidence is compelling. It meant that Marcus' conception occurred on or about December 21, 2001, at least one month after the NH's death. It also meant that Marcus was not considered a postmature or post-term infant.

Hence, based on the record here, a Maryland court would likely find that the evidence carried sufficient probative weight to rebut any presumption of legitimacy that the NH was Marcus' father. Accordingly, we believe that a parent-child relationship does not exist in this case. Without the requisite parent-child relationship, Marcus was never entitled to child's insurance benefits on the NH's earnings record. SSA can reopen and revise a final determination for good cause within four years of the date of the notice of the initial determination. 20 C.F.R. § 404.988(b). The regulations state that good cause exists to reopen a determination where new and material evidence is furnished. 20 C.F.R. § 404.989(a).

We believe that the facts of this case meet the requirements for reopening. Marcus was awarded benefits on April 9, 2003, so the initial determination was most likely issued that same month. Therefore, you are still within the four years to reopen for good cause. However, because the four year period is about to expire, we encourage that you reopen the determination on an expedited basis before the applicable time limit expires. Although a determination can also be reopened at any time for fraud or similar fault, we believe the recently obtained medical evidence, as well as the other evidence discussed above, would constitute new and material evidence. Thus, we recommend that SSA consider reopening Marcus' application for benefits as soon as possible.

CONCLUSION

Based on the above, we believe that a Maryland court would find that Marcus is not the child of the NH based on the recently obtained medical records, as well as the other evidence of record. Without the requisite parent-child relationship, Marcus is not entitled to child's insurance benefits under the Act. Although SSA initially awarded Marcus child's insurance benefits as a legitimized child on April 9, 2003, SSA can reopen that determination for good cause on the basis of new and material evidence. This reopening, however, if pursued by SSA, should be done on an expedited basis before the four year time period expires.

Michael M~
Regional Chief Counsel

By:__________________________
Kenneth D~
Assistant Regional Counsel

B. PR 06-235 Parent-Child Relationship Between Number Holder (James W~, Jr.) and Marcus W~

DATE: August 4, 2006

1. SYLLABUS

In Maryland, the law is silent on the subject of gestational periods and their effect on the presumption of legitimacy. Recent cases, however, indicate that the court would consider an exceptionally long gestational period as one piece of evidence in determining if the presumption had been rebutted by a preponderance of evidence.

2. OPINION

QUESTIONS PRESENTED

On June 7, 2006, you asked for our advice regarding whether Marcus W~, would be considered the child of James W~, Jr., the number holder (NH) under Maryland intestacy law.

SUMMARY

Based on our review of the record as it currently exists and our research of relevant Maryland intestacy statutes and case law, we believe that a Maryland court could find that Marcus is not the child of the NH. We recommend, however, further development of the record before determining that Marcus is no longer entitled to receive child's insurance benefits.

BACKGROUND

The NH was receiving Social Security benefits at the time of his death on November 17, 2001. The NH died in Maryland. At the time of the NH's death, he was allegedly married to Lisa Carol W~.

On September 21, 2002, Lisa gave birth to Marcus in Florida. Marcus was born 308 days after the NH's death. The birth certificate for Marcus identifies the NH as his father.

On April 3, 2003, Lisa filed for surviving child's insurance benefits on behalf of Marcus. Lisa named the NH as Marcus' father. On April 9, 2003, Marcus was awarded benefits effective January 2003.

The Office of Inspector General (OIG) referred this case to determine if the award to Marcus was proper since he was born 308 days after the NH's death. See POMS GN 00306.020 Presumption of Legitimacy (stating that in situations where a child is born more than 287 days after the death of the mother's husband or her divorce from him, the issue must be developed and the case submitted to the RCC in the absence of a precedent opinion).

The field office has repeatedly tried to contact Lisa to obtain medical records regarding her pregnancy, but she has not responded to these attempts. There was an earlier indication in the record that her whereabouts may have been unknown. Lisa's physicians will not release any medical information to the field office without her signed consent. The record also indicates that the field office has determined from Family and Children Services that Lisa is currently not allowed to have any contact with Marcus.

In a Report of Contact on May 15, 2006, Terry W~, an adult son of the NH, reported that the NH had been living with him in Maryland since approximately May or June 2001 until he died in November 2001. Prior to moving to Maryland, NH had been living in a hotel in Florida. According to Terry, the NH and Lisa had not been living together for over two years.

Terry reported that the NH moved to Maryland because the NH had been in poor health and needed someone to take care of him. Terry also stated that he had been informed from his grandfather that Lisa allegedly tried to have NH killed and that this matter was being investigated by the Hillsborough County Sheriff's Department in Florida. Terry stated he never heard of a posthumous child being born to Lisa until he was first contacted by SSA. His opinion was that Marcus could not possibly be the NH's child.

On June 7, 2006, James W~, Sr., (James Sr.), the father of the NH and the grandfather of Terry, submitted a certified statement (Form SSA-795). In the certified statement, James Sr. stated that he drove the NH to Maryland on or about October 17, 2001 to live with Terry. James Sr. stated that the NH moved to Maryland because he was very ill and that he was incapable of looking after himself. He was on oxygen, in a wheel chair, and on prescribed morphine. According to James Sr., the NH had been in and out of hospitals for more than two years and that he would not have been capable of fathering a child. James Sr. also stated that the other reason that NH was moved to Maryland to live with Terry was because Lisa was allegedly trying to have him killed.

DISCUSSION

Section 402(d) of the Social Security Act provides that every child of an individual who dies a fully or currently insured individual shall be entitled to child's insurance benefits if that child meets certain qualifications. 42 U.S.C. § 402(d)(1). In determining whether an applicant is the child of an insured individual, the Commissioner will apply the intestacy laws of the state where the deceased was domiciled at the time of his death. 42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2005). An applicant having the status of "child" under the state's intestacy laws would have the same status for purposes of obtaining child's insurance benefits. Id. We are assuming based on your memorandum that the NH's domicile at the time of his death was Maryland. Accordingly, Maryland law applies.

Under Maryland inheritance law, a child of the decedent who is conceived before the death of the decedent, but born afterwards shall inherit as if he had been born in the lifetime of the decedent. Md. Code Ann., Estates & Trusts § 3-107 (2006). Moreover, a child born or conceived during a marriage is presumed to be the legitimate child of both spouses. Md. Code Ann., Estates & Trusts § 1-206 (2006). Under this provision, the husband is the presumed father of the child conceived by his wife during the marriage.

The presumption that a child born or conceived during a marriage is the child of both spouses is rebuttable. See Md. Code Ann. Estates & Trust § 1-105. Although Section 1-206 does not address how the presumption may be rebutted, case law suggests that the presumption is rebuttable in the same way as prescribed under the paternity statute. See Turner v. Whisted, 607 A.2d 935, 938 (Md. 1992) (recognizing that paternity can be established under either the Family Law Article or the Estates and Trusts Article and that "the rules of evidence controlling the proof of paternity ought to be the same in either case.") (quoting Shelley v. Smith, 241 A.2d 682 (Md. 1968)).

Under the Family Law Article, the burden is on the complainant to establish by a "preponderance of the evidence that the alleged father is the father of the child." Md. Code Ann., Family Law § 5-1027(a) (2006). The statute further provides that "the [legitimacy] presumption . . . may be rebutted by the testimony of a person other than the mother or her husband." Md. Code Ann., Family Law § 5-1027 (2006). The presumption of legitimacy may also be rebutted by blood tests or genetic testing. See Toft v. State of Nevada, 671 A.2d 99, 110 (Md. Ct. Spec. App. 1996) (stating that scientific data generally is at least as reliable, if not more significantly reliable, as testimony from one of the spouses' relative or friends that a husband and wife lived separate and apart)

In this case, Marcus was born 308 days after the NH's death, which is 42 days longer than the normal gestation period. See The Merck Manual 2017 (17th ed. 1999) (stating that the typical pregnancy is considered to last 266 days from the time of conception). A question is therefore raised as to whether Marcus was conceived prior to the death of the NH. For purposes of this analysis, we are assuming that the NH was still married to Lisa at the time of his death. If Marcus was conceived prior to the NH's death in November 2001, the NH is presumed to be his father. If not, the presumption would not apply.

We have found no legal authority in Maryland for the proposition that because a child is born more than a certain number of days after the death of the husband of the child's mother, the presumption of legitimacy will no longer apply. Courts in Maryland have generally been reluctant to take judicial notice of the normal gestation period, particularly in the absence of medical evidence. In Harward v. Harward, 196 A. 318, 321 (Md. 1938), for example, the court stated that "neither the mean nor the extremes of the period of gestation in a woman is so commonly and precisely known that the courts may take judicial notice of them . . . ." However, a more recent case, Kassama v. Magat 792 A.2d 1102, 1105, n. 5 (Md. 2002), suggests that courts may now be able to take judicial notice of normal gestation period. Citing to medical authority for support, the court stated that although the human gestational period is commonly referred to as being approximately 280 days (40 weeks) from the first day of the mother's last normal menstrual period, the actual gestational term, based on ovulatory or fertilization age, is two weeks shorter --- 38 weeks or 266 days. Id.

Despite this recent case law, we have not found a Maryland case where a court has actually determined that a child is not the child of the mother's husband solely because of an abnormally long gestational period and that this would alone rebut the presumption of legitimacy. Accordingly, we believe that in a case such as this one, a Maryland court would look at the evidence as a whole, and that it would not only take notice of the excessively long gestational period, but it would also consider other evidence in the record to determine whether the presumption of legitimacy should apply or whether it is rebutted.

In this case, we have statements from both the NH's adult son, Terry, and the NH's father, James Sr., that the NH moved to Maryland in October 2001 at the latest. They explain that the NH had to leave Florida because he was seriously ill and incapable of taking care of himself. Terry also states that the NH had not lived with Lisa for over two years prior to his move to Maryland.

There is no evidence in the record that Lisa visited the NH in Maryland in October or November prior to his death. Indeed, based on the statements from Terry and James Sr. that Lisa allegedly tried to have the NH killed, it seems highly unlikely that there was any contact between Lisa and the NH in the weeks or month before he died.

There is minimal evidence from Lisa. We have only Marcus' birth certificate listing the NH as the father and the medical records regarding Lisa's caesarean section operation. The birth certificate was obviously completed after the NH's death and it appears that the only reason that the NH's name was placed on the birth certificate was because he was allegedly married to Lisa. The cesarean section records did not reveal any evidence regarding Marcus, other than his Apgars score which was normal at 9/9 and that he weighed 8 pounds, 2 ounces. We also do not have any genetic or blood tests to consider, and there is no evidence from Lisa that she had any contact with the NH in the weeks before his death.

This case is of course complicated by the fact that Lisa is not responding to the field office's attempts to contact her so that further medical records or statements can be