You have requested a legal opinion regarding whether Adam R~ is the father of Myron
On October 27, 1999, Sarah R~ filed an application on behalf of Myron R~ for child's
benefits on the account of the deceased number holder (N/H), Adam R~. Sarah is the
N/H's biological daughter.
On July 23, 1982, Sarah fled the home in Stebbins, Alaska, in which she had been living
with the N/H, her mother, and siblings, and went to a Women's Shelter in Nome, Alaska.
The following day, she filed a report with the Nome Police Department accusing the
N/H of sexually assaulting her. She stated that this conduct had been continuing since
she was about seven years old and that she was not certain how many times or exactly
when she had been sexually assaulted. Although she reported that the most recent incident
was around July 6, 1982, this was not the only incident.
Sarah also told the police that she thought she might be pregnant from the sexual
assault by her father and that she had never had sex with another man in her life.
She said her last boyfriend was four years prior to the report. See Department of Public Safety Report, Cpl. D. Casanovas, July 24, 1982 [Police Report of July 24, 1982].
During a criminal investigation into Sarah's report, Cpl. D. Casanovas of the Nome Police Department concluded that the N/H had numerous sexual contacts
with Sarah and that Sarah had "not recently nor probably ever had sex with a male
other than Adam J. R~." See Department of Public Safety Report, Cpl. D. Casanovas, July 25, 1982 [Police Report of July 25, 1982]. Two witnesses reported that Sarah
had told her of the N/H's sexual assaults on her, and one witness, Sarah's brother
Charles R~, stated that he knew the N/H had been raping Sarah since 1979. See Alaska State Trooper Report, August 10, 1982.
On July 26, 1982, a grand jury in Nome, Alaska, indicted the N/H for one count of
rape, and one count of incest. See Indictment for Sexual Assault in the First Degree, Nome Superior Court, July 26,
1982. On December 16, 1982, the N/H pleaded nolo contendere to incest as charged in
count II of the July 26th indictment. See Judgment and Order of Probation, Nome Superior Court, December 16, 1982. Sentencing was conducted at the same hearing,
at which time Sarah testified that she was pregnant and that the N/H was the father
of her baby. See Audio Tape of Sentencing Hearing (side 1), Nome Superior Court, December 16, 1982
[Sentencing Tape, December 16, 1982]. The N/H did not deny that he was the father
of Sarah's baby. Mr. John R. V~, the N/H's attorney at the time (and the current District
Attorney for the Second Judicial District of the State of Alaska, in Nome) has stated
that there was no dispute that Sarah had become pregnant as a result of the incest.
See Letter from John R. V~ to Larry H~, December 10, 1999.
Myron was born on February 26, 1983. A birth certificate, obtained from the Alaska
Bureau of Vital Statistics on January 27, 2000, lists only his mother's name. See Bureau of Vital Statistics Certificate of Live Birth, Issued January 27, 2000.
The N/H died in Alaska on March 9, 1995. At the time Sarah filed the application for
child's benefits, she signed a statement that she believed the N/H was Myron's father,
because he raped her and she became pregnant with Myron. She claimed the rape occurred
in May 1982, and that Adam was convicted, in June 1982, of raping her. She stated
that she lived with the N/H from her birth in 1962, to June 1982. In May 1992, she
married Brian C. S~, Sr. See Statement of Claimant or Other Person, October 27, 1999.
A child is entitled to child's insurance benefits if he applies for such benefits,
is unmarried, is under the age of 18, and was dependent upon the N/H at the time of
the N/H's death. See 42 U.S.C. § 402(a)(1). There is no dispute that Myron meets the age, filing and non-marriage
requirements. The focus here is on whether he meets the dependency requirement.
A child is deemed dependent if he or she was (1) living with or supported by the N/H
at the time or his or her death, or (2) is the legitimate child of the N/H. See 42 U.S.C. § 402(d)(3). If a child is illegitimate, he or she may nonetheless be deemed
legitimate for purposes of child insurance benefits, and hence deemed dependent and
entitled to benefits, if he would be entitled to inherit personal property from the
N/H under State intestate law of the state where the N/H was domiciled at the time
of his death. See 42 U.S.C. § 416(h)(2)(A).
On November 27, 1998, the agency began applying the most favorable version of State
inheritance law in effect from the date of the death of the decedent, or from the
first date a claimant might possibly be entitled to child insurance benefits, up through
the date of the final administrative decision. See 20 C.F.R. § 404.355(b) (1999). Moreover, the agency began applying State law without
regard to time limits therein, or court order requirements. Id. Here, the decedent was domiciled in Alaska at the time of his death.
In Alaska, for purposes of intestate succession by, through, or from a person, an
individual is the child of the individual's natural parents, regardless of their marital
status, and the parent and child relationship may be established as indicated under
Alaska Statute section 25.20.050. Alaska Stat. § 13.12.114(a). Section 25.20.050 provides
A child born out of wedlock is legitimated and considered an heir of the putative
parent when (1) the putative parent subsequently marries the undisputed parent of
the child; (2) for acknowledgments made before July 1, 1997, the putative parent acknowledges,
in writing, being a parent of the child; (3) for acknowledgments made on or after
July 1, 1997, the putative father and the mother both sign a form for acknowledging
paternity under AS 18.50.165; or (4) the putative parent is determined by a superior
court without a jury or by another tribunal, upon sufficient evidence, to be the parent
of the child. Acceptable evidence includes evidence that the putative parent's conduct
and bearing toward the child, either by word or act, indicates that the child is the
child of the putative parent. That conduct may be construed by the tribunal to constitute
evidence of paternity. When indefinite, ambiguous, or uncertain terms are used, the
tribunal may use extrinsic evidence to show the putative parent's intent.
AS § 25.20.050 (1999). Because the agency applies State law without regard to time
limits therein, or court order requirements, the Program Operations Manual System
(POMS) provides that SSA may make the determination outlined in subsection 4 of section
25.20.050. See POMS GN 00306.080. Although there are no Alaska Attorney General Opinions or Alaska Supreme Court precedents
that would provide significant guidance in our decision, we believe there is sufficient
evidence to show that the N/H is Myron's father.
Despite the N/H's failure to acknowledge paternity or expressly recognize Myron as
his natural child, both Sarah's sworn testimony and the police investigation indicated
that, at the time of Myron's conception, Sarah had never had sexual relations with
anyone other than the N/H. See Police Report of July 25, 1982; see also Sentencing Tape, December 16, 1982. Sarah also testified under oath that the N/H was the father of
her child. See Sentencing Tape, December 16, 1982. Finally, Sarah's brother indicated that he knew that the N/H
had been raping Sarah since 1979. See Alaska State Trooper Report, August 10, 1982. There is no evidence to indicate that Sarah had engaged in intercourse
with anyone other than the N/H around the time of Myron's conception.
Moreover, the N/H's plea of nolo contendere would estop him from relitigating the
question of whether he had intercourse with Sarah. Although under federal law an exception
is made to the rule of collateral estoppel for convictions based on pleas of nolo
contendere, "Alaska law is significantly different from federal law on the subject
of nolo contendere pleas . . . ." Pletnikoff v. Johnson, 765 P.2d 973, 979 (Alaska 1988) (M~, C.J. dissenting). In Burcina v. City of Ketchikan, 902 P.2d 817 (Alaska 1995), the Alaska Supreme Court held "based on public policy
grounds, that a civil plaintiff is collaterally estopped from relitigating any element
of a criminal charge to which he has plead nolo contendere." Burcina, 902 P.2d at 822. More recently, the Alaska Supreme Court has held that a defendant
in a subsequent civil action was precluded from challenging the facts which constituted
the elements of offenses to which he had pled nolo contendere. See Lashbrook v. Lashbrook, 957 P.2d 326, 329 fn. 2 (Alaska 1998) (citing Burcina, 902 P.2d at 822). Therefore, the N/H's nolo contendere plea here would preclude
him from denying that he had sexual intercourse with Sarah around the time of Myron's
Based on all the evidence, we believe an Alaska State court would find that the N/H
was Myron's natural father. As a result, Myron would be entitled to inherit from the
N/H's estate, and hence is entitled to child's insurance benefits.