TN 40 (05-16)

PR 01105.046 South Dakota

A. PR 16–079 Relationship of Child to NH in the State of South Dakota for CIB,

Date: February 5, 2016

1. Syllabus

The NH was domiciled in South Dakota at the time of his death, therefore, we look the South Dakota law to determine whether or not the child is the child of the NH. The evidence provided is not sufficient to establish the Claimant’s right to inherit from the NH under South Dakota law. The NH’s estate was settled in a DOI probate proceeding and the DOI judge applied a the preponderance of the evidence standard, rather than a clear and convincing proof standard required under South Dakota’s probate code.

SSA has evidence that conflicts with the evidence presented during the DOI hearing. SSA records contain unexplained and contradictory statements regarding the NH’s living arrangements and acknowledgment of the Claimant. Thus, we do not think the DOI determination standing alone is sufficient to establish the Claimant’s right to inherit under South Dakota law. However, additional evidence could change our opinion, and therefore further development might be warranted.

2. Opinion

Question Presented

Whether the claimant, L~ is the child of the number holder (NH), D~, under South Dakota intestate law, such that she is eligible for child insurance benefits.

Short Answer

Based on the current record, the evidence is not sufficient to establish L’s right to inherit from the NH under South Dakota law. However, additional evidence could change our opinion, and therefore further development might be warranted. Such further development could include:

  1. Clarifying whether the claimant’s mother, G~, has ever been married (even if not to the NH), and whether the claimant was born in wedlock or within 10 months of the dissolution of a marriage.

  2. Obtaining a statement from the claimant’s mother to explain apparent inconsistencies, described in more detail below.

  3. Obtaining a more detailed statement from the mother describing the circumstances around the claimant’s conception and birth and explaining why she knows the NH is the claimant’s father, and any other information relevant to paternity that the mother might have.

Background

L~ was born in July 2004. The NH, D~, is not identified as the father on her birth certificate.

The NH, whose last residence was in South Dakota, died intestate on February, 2007. In 2008, the child’s mother, G~, filed an application for child insurance benefits on behalf of L~, which was denied. In the application, G~ stated that she was never married to the NH, but did not specify whether she had ever been married to anyone else. She said that the NH did not live with L~ after she was born, except for about a week, or acknowledge to anyone that he was L~’s father.

In March 2015, G~ filed a second claim for child insurance benefits on the NH’s account on behalf of L~. In support of this claim, she submitted a September 2009 decision from the Probate Hearings Division of the Department of the Interior (DOI), finding L~ was the daughter of the NH and thus entitled to inherit a share of the NH’s Indian trust property. The DOI judge found a preponderance of evidence supported a finding of paternity, including evidence that that G~ cohabitated with the NH prior to and after L~’s birth, and that the NH publicly acknowledged L~ as his child.

Discussion

To qualify for child’s benefits on the earnings record of an insured individual, among other requirements, an applicant must be the “child” of the insured individual as defined in the Social Security Act. See 42 U.S.C. § 402(d)(1)(C); 42 U.S.C. § 416(e); 20 C.F.R. § 404.350(a). In determining parent-child relationship status for purposes of child insurance benefits, the agency looks to the intestacy law 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.

South Dakota’s probate code provides that, for purposes of intestate succession, an individual born out of wedlock is the child of that individual’s birth parents, and the identity of the father may be established in one of several ways; as relevant here, paternity can be established by a judicial determination of paternity during the father’s lifetime, or by a presentation of clear and convincing proof in the proceeding to settle the father’s estate. See S.D. Codified Laws §§ 29A 2-114(a), (c); see also POMS GN 00306.630(A)(4)(c)-(d) (South Dakota Intestacy Laws).

Proceeding to Settle the Father’s Estate

Here, the NH’s estate was settled in a DOI probate proceeding. See 25 U.S.C. § 372 (providing that, when any Indian to whom an allotment of land has been made dies without having made a will disposing of his or her allotment, the Secretary of the Interior shall ascertain the legal heirs of such decedent). However, in finding L~ was an heir to the NH, the DOI judge applied a “preponderance of the evidence” standard—rather than a “clear and convincing proof” standard required under South Dakota’s probate code. Thus, we do not think the DOI determination standing alone is sufficient to establish L~’s right to inherit under South Dakota law.

Nonetheless, the DOI judge did not find that the evidence presented was not clear and convincing proof. Thus, it is possible that the same evidence presented during the DOI proceeding could also meet the clear and convincing proof standard. See POMS PR 01115.046 (SSA could rely on DOI determination to establish relationship where DOI used clear and convincing proof standard). The South Dakota Supreme Court has defined “clear and convincing” evidence as “evidence that is so clear, direct, weighty, and convincing so as to allow the trier of fact to reach a clear conviction of the precise facts at issue without hesitancy to their truth.” See Matter of J.Z., 410 N.W.2d 572, 574 (S.D. 1987); POMS GN 00306.630(A)(1)(4)(d). And the South Dakota Supreme Court has found adequate proof of paternity where a decedent publicly acknowledged the child as his own and treated it as if it were a legitimate child. See Kessler v. Loers, 74 N.W.2d 599, 603-05 (S.D. 1956). The evidence presented to the DOI judge could be viewed as meeting this standard—as witnesses apparently testified that family members knew L~ as the NH’s child, the NH co-habitated with L~’s mother prior to and after her birth, and the NH publicly acknowledged L~ as his child.

However, SSA has evidence that conflicts with the evidence presented during the DOI hearing. Specifically, when G~ previously applied for benefits on L~’s behalf in 2008, she stated that the NH did not live with L~ after she was born (except for about a week), or acknowledge to anyone that he was L~’s father. Without any plausible explanation for this inconsistency, we do not think a South Dakota court would conclude on this record that there is clear and convincing proof of paternity.

Determination of Paternity

Under South Dakota’s probate code, paternity may also be established by a judicial determination of paternity during the father’s lifetime. Although there was no judicial determination of paternity during the NH’s lifetime, the agency will not apply any state inheritance law requirement that an action to establish paternity must be taken within a specified period of time or that an action to establish paternity must have been started or completed before the worker’s death. See 20 C.F.R. § 404.355(b)(2). Moreover, if applicable state inheritance law requires a court determination of paternity, the agency will not require that the claimant obtain such a determination but will decide paternity using the standard of proof that the state court would use as the basis for a determination of paternity. See id. Thus, the relevant question is whether paternity could be established using the standard of proof that a South Dakota court would use as the basis for a determination of paternity.

The standard of proof a South Dakota court would use as the basis for a determination of paternity depends on whether a presumption of parentage exists. Potentially relevant here is the presumption that the husband is the father of a child born during a marriage, or within 10 months after the dissolution of a marriage. If this presumption applies, only genetic test results excluding the husband as the biological father or establishing another person as the biological father would rebut the presumption. See S.D. Codified Laws, §§ 25-8-57, 25-8-64; see also Kessler v. Loers, 74 N.W.2d 599, 602 (S.D. 1956) (requiring clear and convincing evidence to rebut marital presumption of paternity); Smith v. Smith, 24 N.W.2d 8, 9 (S.D. 1946). In light of this presumption, it would be important to know if L~’s mother was married to someone other than the NH at the time of her birth or during the 10 months prior to her birth.

Assuming L~s mother was not married at the time of her birth, a lower standard of proof would apply. An action to determine paternity is a civil proceeding, and the preponderance of the evidence standard would apply. See S.D. Codified Laws § 25-8-7; VanderWerf v. Anderson, 195 N.W.2d 145, 146 (S.D. 1972).

Here, as noted above, the DOI judge applied a preponderance standard in finding paternity. But as also noted above, SSA has contradictory information that, presumably, was not considered by the DOI judge. Even under the lower preponderance standard, this unexplained conflict is problematic. Absent some explanation for the contradictory information regarding whether the NH lived with and acknowledged L~ before his death, we do not think the preponderance of the evidence standard can be met.

Conclusion

Based on the current record, which contains unexplained and contradictory statements regarding the NH’s living arrangements and acknowledgment of L~, the evidence does not establish L~’s right to inherit from the NH under South Dakota law. However, additional evidence could change our opinion, particularly if L~’s mother was not married at the time of L~’s birth—in which case a lower standard of proof applies. Therefore, further development might be warranted, including:

  1. Clarifying whether the claimant’s mother, G~, has ever been married (even if not to the NH), and whether the claimant was born during the marriage or within 10 months of the dissolution of a marriage.

  2. Obtaining a statement from the claimant’s mother explaining the apparent inconsistencies between statements that the mother made in a 2008 application for child insurance benefits on behalf of the claimant, and information in a September 2009 ALJ decision from the Probate Hearings Division of the Department of the Interior (DOI). The 2008 application stated that the NH did not live with the claimant after she was born (except for about a week), and did not acknowledge to anyone that he was her father. By contrast, the DOI decision indicates that the NH cohabitated with the claimant’s mother prior to and after the claimant’s birth, family members knew the claimant as the NH’s child, and the NH publicly acknowledged the claimant as his child.

  3. Obtaining a more detailed statement from the mother describing the circumstances around the claimant’s conception and birth and explaining why she knows the NH is the claimant’s father, as well as any additional information relevant to paternity that the mother might be able to provide.

In the event additional information is obtained, we would be happy to review it and advise accordingly.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501105046
PR 01105.046 - South Dakota - 05/09/2016
Batch run: 05/09/2016
Rev:05/09/2016