TN 1 (12-05)

PR 01115.029 Montana

A. PR 06-009 Status of Child to NH in State of Montana NH-H~ J. Old Chief, SSN ~ (Your reference number S2D8B52:DS)

DATE: November 14, 2005

1. SYLLABUS

The claimant's enrollment in the Blackfeet tribe based on his mother's and the deceased number holder's blood quantum is not sufficient to establish a parent/child relationship with the number holder under Montana law. The evidence in this case, the tribal enrollment documents and the claimant's amended birth certificate, may be used to determine a parent/child relationship between the deceased number holder and the claimant by Montana's preponderance of the evidence standard.

2. OPINION

Question Presented

You have requested a legal opinion regarding whether the enrollment of Jeremy J~ O~ C~ (Jeremy) in the Blackfeet Tribe created a presumption that H~ J. Old Chief (H~) was Jeremy's natural father under the laws of Indian Territory, thereby making Jeremy eligible as a child under Montana State intestacy law.

Short Answer

Whether Jeremy is H~'s natural child under the Montana State intestacy law, not whether he is Jeremy's natural father under Blackfeet tribal law, will determine his eligibility for child's benefits on H~'s record. We do not believe Jeremy's enrollment in the Blackfeet Tribe based on his mother's and H~'s blood quantum created a presumption that H~ was Jeremy's natural father under Montana State law. We believe, however, that the Agency could reasonably weigh the evidence in this matter, i.e., the tribal enrollment documents and the amended birth certificate, and find that a preponderance of the evidence supports the conclusion that H~ was Jeremy's natural father under Montana State law.

Facts

The facts you have provided are as follows. Jeremy was born in Cascade County, Montana, which is not part of Blackfeet territory, on March 26, 1991, to H~ and Donna M~ F~ A~ (Donna). Presumably, the couple never married or attempted to marry. H~ died on May 10, 1992, presumably in the State of Montana.

The Montana Certification of a Birth Record you provided was filed on April 3, 1991. The certification contains H~'s name in the space for the father's name. The word "ALTERED" appears typed or stamped above the Clerk and Recorder's seal; however, the document itself does not identify what information was "altered." The document also bears a stamp by the Field Office (FO) Service Representative verifying the apparent authenticity of the certificate. The following handwritten statement appears under the FO stamp: "by Tribal Court Order ?added fth [father's] name (per prior claim)."

On December 15, 1996, the Blackfeet Tribe received Jeremy's application for enrollment in the tribe. Donna listed H~ as Jeremy's deceased father and provided his Blackfeet identification number and blood degree, as well as her own. On March 14, 1997, the Blackfeet Tribal Council found that Jeremy, whose blood degree was noted as 41/64 Blackfeet, was eligible for enrollment in the tribe.

You also indicated that the birth certificate was amended "due to a Tribal Court Order," although you did not provide a copy of the order, presumably because it is sealed pursuant to Montana State law. You also stated "[t]he birth certificate was amended based on [Jeremy's] enrollment" in the Blackfeet Tribe.

Legal Analysis

Section 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1), provides that "(e)very child (as defined in § 216(e)) of an individual . . . who dies . . . if such child" meets the eligibility criteria for child's insurance benefits listed in 42 U.S.C. § 402(d)(1)(A), (B), and (C) "shall be entitled to a child's insurance benefit." Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(e), provides that "[t]he term 'child' means (1) the child of an individual." Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A) provides in determining whether an applicant is the child . . . of a fully . . . insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate property by the courts of the State in which such insured individual . . . was domiciled at the time of his death . . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed as such.

See Montana Standard of Evidence for Presumption of Paternity of Posthumous Child, OGC R08, Regional Chief Counsel (K~) to ORC, August 30, 2000 (POMS PR 01115.029.A. PR 01-068).

The Blackfeet Tribal Law and Order Code states that "[t]he [Tribal] Court shall have jurisdiction of all suits brought to determine the paternity of a child . . . . A judgment of the [Tribal] Court establishing the identity of the father of the child shall be conclusive of that fact in all subsequent determination of inheritance by the Department of the Interior or by the [Tribal] Court." Blackfeet Tribal Law and Order Code, ch. 3, § 3 (Determination of Paternity and Support). As noted above, for purposes of determining Jeremy's eligibility for child's insurance benefits, Jeremy must show he is able to inherit from H~ under the laws of the State where H~ was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A). The sealed paternity order, while conclusive for purposes of the Blackfeet Tribe laws of inheritance, therefore, is not conclusive of paternity in the State of Montana.

Montana law of intestate succession provides that "an individual is the child of the child's natural parents, regardless of their marital status. The parent and child relationship may be established under Title 40, chapter 6, part 1" [Montana's Uniform Parentage Act (UPA)]. MONT. CODE ANN. § 72-2-124(1) (2005). Section 40-6-105(1)(g) of the UPA provides that "[a] person is presumed to be the natural father of a child if . . . the person is presumed to be the child's natural father under the laws of the state or Indian territory in which the child was born."

Based on our conversations with the Blackfeet Tribe Land Office, Cascade County where Jeremy was born is not part of Blackfeet territory, so again, the focus is on the laws of the State of Montana, assuming H~ was domiciled in that State when he died.

Based on the facts and documents you provided, it appears none of the other presumptions of paternity under Montana State law apply in this case. Presumably, Donna and H~ never married or attempted to marry; they never acknowledged H~'s paternity in writing; H~ did not consent to be named as the father on Jeremy's birth certificate; H~ never received Jeremy into his home; and no scientific evidence exists regarding H~'s alleged paternity of Jeremy. See id. § 40-6-105(1)(a)-(f).

Section 216(h)(2)(A) of the Social Security Act permits the Agency, when determining an applicant's status as the child of an insured individual, to apply "such law as would be applied in determining the devolution of intestate personal property by the courts" of a particular State. POMS PR 01115.029.A. PR 01-068 (citing Actions Related to Child Relationship Determinations that the Social Security Administration Can Perform, OGC SSD, Chief RSD (Fritz) to ORSISSD, October 13, 1993). The Office of the General Counsel "has consistently read section 216(h)(2)(A) to provide legal support for the Agency's longstanding interpretation of the Act that . . . SSA may consider a child's paternity as if it were the appropriate State court sitting with the child's intestacy claim before it." Id. For the reasons noted above, we believe a Montana court would apply Montana law to determine the devolution of intestate property in this matter. (While it may be possible that a Montana Court would give full faith and credit to the paternity order issued by the Blackfeet Tribal Court, see MONT. CODE ANN. § see 40-6-117(2), thereby dispensing with the need for further civil action to establish paternity, the Tribal Court paternity order is under seal and not available to the Agency.)

Under Montana law, a civil action could be brought to determine the existence of the father and child relationship. See id. § 40-6-107. This relationship could be proved by a preponderance of the evidence. See id. § 26-1-403, 40-6-105(3)(a). A preponderance of the evidence means the fact is more probable than not. See Black's Law Dictionary 1182 (6th ed. 1990); Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 117 S. Ct. 1953, 1963 n.9 (1997). The evidence relating to alleged paternity may include "all other evidence relevant to the issue of paternity of the child." MONT. CODE ANN. § 40-6-113. The tribal enrollment documents comprise evidence relevant to the issue of H~'s paternity of Jeremy. Thus, as explained below, the Agency, considering Jeremy's "paternity as if it were the appropriate State court sitting with the child's intestacy claim before it," POMS PR 01115.029.A. PR 01-068, could reasonably weigh this evidence, as well as the birth certificate you provided, and reasonably find that a preponderance of the evidence supported the conclusion that H~ was Jeremy's father.

The Blackfeet Constitution and By-Laws, art. II, amend. III, § 1(c), and Section 2C of Tribal Enrollment Ordinance 14, the procedures governing enrollment established under authority of the Blackfeet Constitution, provide that children born to a blood member of the tribe after August 30, 1962, must have one-fourth (1/4) degree of Blackfeet Indian blood. Section 16 of Ordinance 14 further addresses how the degree of Indian blood is determined and provides that in the case of a child of unwed parents, where the alleged father is deceased, the child's paternity must be determined by the Tribal Court before the father's blood degree may be allowed to the child.

In other words, because Jeremy was born out of wedlock, and Donna claimed in the enrollment application that H~ was Jeremy's father and that he was deceased, Blackfeet tribal law required a Tribal Court determination of paternity before H~'s blood degree could be attributed to Jeremy. The tribal enrollment documents reflect that Jeremy was enrolled as a member of the Blackfeet Tribe with a blood degree of 41/64, the amount derived by combining Donna and H~'s blood degrees. As such, we believe that the Agency could find that the enrollment documents show by a preponderance of the evidence that H~ was Jeremy's father.

Moreover, Jeremy's birth certificate, which reflects H~ is his father, is evidence relevant to the determination of paternity. Montana law provides that when "paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child must be entered on the certificate of birth in accordance with the finding and order of the court." MONT. CODE. ANN. § 50-15-221(7)(c) (2005). According to the FO, the Montana Department of Public Health and Human Services confirmed that it had a court order on file. Presumably, the Montana DPHHS followed the law in amending Jeremy's birth certificate, as it is generally presumed that Government agencies comply with the law in carrying out their duties. See U.S. Postal Service v. Gregory, 534 U.S. 1, 10 (2001) ("a presumption of regularity attaches to the actions of Government agencies") (citation omitted); see also Red Top Mercury Mines, Inc. v. U.S., 887 F.2d 198, 202-03 (9th Cir. 1989) ("There is a presumption of regularity in the performance of their duties by government officials") (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414 (1971)). In sum, we believe the Agency could reasonably weigh this evidence and find that a preponderance of the evidence supported a conclusion that H~ was Jeremy's father.

Deana R. E~-L~
Regional Chief Counsel, Region VIII
By _______________________
Teresa H. A~
Assistant Regional Counsel

B. PR 01-068 Montana Standard of Evidence for Presumption of Paternity of Posthumous Child (Revised Footnote 6)

DATE: September 12, 2000

1. SYLLABUS

SSA could reasonably weigh the evidence in this case and find that a preponderance of the evidence supports the conclusion that the NH was the child's father. Since Montana statutes treat a court order of paternity as applying retroactively to the date of the child's birth, SSA may do likewise, since it is considering paternity as if it were the appropriate State court sitting with the child's intestacy claim before it.

2. OPINION

Question

You have asked for an opinion on two issues. First you ask whether Milen O~ B~s oral acknowledgments of paternity to his relatives was sufficient to establish paternity of a posthumous child, Sharlyee P. P~ under Montana law. Assuming Milen O~ B~'s acknowledgments were sufficient to establish paternity, you then ask whether the statements of Toy P~'s and Milen's relatives dated in February 2000 regarding his oral acknowledgments would have only prospective effect under Montana law.

Summary

We believe you could determine, based upon a preponderance of the evidence, that Milen O~ B~ was the father of Sharlyee P. P~. We also believe that you could apply such a finding retrospectively to the child's birth.

Law

Federal Law

Section 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1), provides that "(e)very child (as defined in § 216(e)) of an individual . . . who dies . . . if such child" meets the eligibility criteria for child's insurance benefits listed in 42 U.S.C. § 402(d)(1)(A), (B), and (C) "shall be entitled to a child's insurance benefit." Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(e), provides that "[t]he term 'child' means (1) the child of an individual . . . ." Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A) provides in determining whether an applicant is the child . . . of a fully . . . insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate property by the courts of the State in which such insured individual . . . was domiciled at the time of his death . Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed as such.

42 U.S.C. § 416(h)(2)(A).

Montana Law

Montana State law provides for presumptions of paternity in cases where the individual and the child's natural mother marry or attempt to marry within certain time periods surrounding the child's birth (see MONT. CODE ANN. § 40-6-105(1)(a), (b), and (c) (1999); the individual receives the minor child into his home and openly represents the child to be his natural child (see id. § 40-6-105(1)(d)); the child's mother and the individual acknowledge the individual's paternity of the child in a paternity acknowledgment form provided by the department of public health and human services (see id. § 40-6-105(1)(e)); scientific evidence resulting from a blood test shows a 95% or higher statistical probability of paternity (see id. § 40-6-105(1)(f)); or the individual is presumed to be the child's natural father under the laws of the State or Indian territory in which the child was born (see id. § 40-6-105(1)(g)).

Montana law provides that, except for presumptions that are conclusive or irrebuttable, a presumption of paternity may be rebutted "in an appropriate action by a preponderance of the evidence." MONT. CODE ANN. § 40-6-105(3)(a) (1999) (emphasis added); see also In re the Marriage of K.E.V., 883 P.2d 1246, 1250 (Mont. 1994). In general, in Montana civil cases disputed issues must be proved by a preponderance of the evidence. See MONT. CODE ANN. § 26-1-403 (1999).

An action to determine the existence of the father and child relationship with respect to a child who has no presumed father . . . may be brought by the child, the mother or personal representative of the child, the department of social and rehabilitation services or its appropriate local affiliate, the personal representative or a parent of the mother if the mother has died, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor.

See id. § 40-6-107 (emphasis added); see also id. § 40-6-108; Borchers v. McCarter, 92 P.2d 941, 945 (Mont. 1979).

Evidence relating to paternity may include:

(1) evidence of sexual intercourse between the mother and alleged father at any possible time of conception; (2) an expert's opinion concerning the statistical probability . . . ; (3) blood test results . . .; (4) medical or anthropological evidence . . . based on tests performed by experts . . .; and (5) all other evidence relevant to the issue of paternity of the child.

MONT. CODE ANN. § 40-6-113 (1999).

Facts

Milen O~ B~ (Milen) was born on November 14, 1974. Milen was in the military and/or active Reserves/National Guard from May 1, 1993 through May 1, 1997.

Toy P~ (Toy) maintained she and Milen began dating and in or about August 1998, and dated exclusively. On or about December 1998, Toy and Milen told Milen's sister, Donna R~, that Toy was pregnant with Milen's child (see Ms. R~' February 14, 2000 Affidavit). Milen died on January 1, 1999. Toy gave birth to Sharlyee P. P~ (Sharlyee) seven months later on August 7, 1999.

Toy applied for lump sum and child's social security benefits based on Milen's earnings record, on Sharlyee's behalf in February 2000. She stated she had become pregnant one month prior to Milen's death; she and Milen did not consider themselves married; Milen had not supported her at the time of his death; he had not contributed to her support or taken her to doctor's appointments; he knew Toy was pregnant; and he never acknowledged Sharlyee in writing.

On February 11, 2000, Jennie P~, Toy's grandmother, attested that Milen had told her Toy "was going to be the mother of his baby." On February 15, 2000, Geraldine F~, Milen's mother, attested that Milen had told her before he died that Toy was pregnant by him and that he had considered seeking employment to help Toy. Ms. F~ stated that Sharlyee looked like Milen.

Discussion

Section 216(h)(2)(A) of the Social Security Act permits the Social Security Administration (SSA), when determining an applicant's status as the child of an insured individual, to apply "such law as would be applied in determining the devolution of intestate personal property by the courts" of a particular State. Actions Related to Child Relationship Determinations that the Social Security Administration Can Perform, OGC SSD, Chief RSD (Fritz) to ORSISSD, October 13, 1993. The Office of General Counsel "has consistently read section 216(h)(2)(A) to provide legal support for the Agency's longstanding interpretation of the Act that . . . SSA may consider a child's paternity as if it were the appropriate State court sitting with the child's intestacy claim before it." Id.

Most of the presumptions of paternity in Montana law do not apply to Milen's alleged paternity of Sharlyee. Specifically, Toy and Milen never married or attempted to marry; Milen died prior to Sharlyee's birth and never received her into his home; Toy and Milen never acknowledged his paternity on a paternity acknowledgment form; and apparently, no scientific evidence exists regarding Milen's alleged paternity of Sharlyee. See MONT. CODE ANN. § 40-6-105(1)(a)-(f) (1999). Thus, Milen is not presumed to be Sharlyee's father under the laws of the State of Montana (MONT. CODE ANN. § 40-6-105(a)-(f)).

There is a possibility that Milen could be presumed to be Sharlyee's natural father under the laws of the Indian territory in which Sharlyee was born (Sharlyee apparently was born in Crow Agency, on the Crow Indian Reservation). See id. § 40-6-105(1)(g). Therefore, we request further development before we can issue an opinion on this issue, including: Sharlyee's birth certificate; any tribal registration documentation concerning Sharlyee's heritage; and any Crow Indian tribal laws, or any other applicable tribal laws, concerning paternity. We will be pleased to consider this matter further when we receive the requested information

Certainly, under Montana law a civil action could be brought to determine the existence of the father and child relationship. See id. § 40-6-107. As discussed above, the relationship could be proved by a preponderance of the evidence. See id. §§ 26-1-403, 40-6-105(3)(a); In re the Marriage of K.E.V., 883 P.2d 1246, 1250 (Mont. 1994).

The evidence relating to alleged paternity may include "all other evidence relevant to the issue of paternity of the child." Id. § 40-6-113. The statements from Toy, Ms. F~, Ms. R~, and Ms. P~ comprise "evidence relevant to the issue of [Milen's] paternity" of Sharlyee. Thus, SSA, considering Sharlyee's "paternity as if it were the appropriate State court sitting with the child's intestacy claim before it" (see Memorandum, Actions Related to Child Relationship Determinations . . .) could reasonably weigh this evidence and reasonably find that a preponderance of the evidence supported the conclusion that Milen was Sharlyee's father.

If the Agency finds Milen to be Sharlyee's father, you ask whether a paternity determination could be retroactive to the date of Sharlyee's birth. Significantly, the Montana legislature intended for the findings under the Parentage Act and intestacy statutes to be used retroactively at least back to the date of a natural parent's death for purposes of asserting inheritance rights. See MONT. CODE ANN. § 40-6-108(5) (1999) ("Section 40-6-107 and this section do not intend the time within which a right of inheritance or a right to succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates or to determine heirship or otherwise"); Id. § 72-2-118 (regarding an after born heir's right to inherit through intestate succession, "an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth").

Additionally, the Montana Parentage Act specifies that a "court may limit the father's liability for past support of the child." MONT. CODE ANN § 40-6-116 (bolding added). Additionally, "the father's liability for a statutory debt created by the payment of public assistance is limited to the amount of assistance paid during the 2-year period preceding commencement of the action to declare the existence of the father." Id. § 40-6-108(4) (bolding added). Here again, the Montana legislature showed its intent that the findings under the Parentage Act be used retroactively for the collection of previously accrued financial obligations.

Additionally, the Montana Department of Public Health and Human Services may, and if requested by a parent or if court ordered, must, after the establishment of paternity, prepare an amended or substitute birth certificate. See id. §§ 40-5-234(4), 40-5-235(2); see also id. §§ 40-6-116(2), 40-6-123. This certificate must be consistent with the paternity findings under the Parentage Act and "the fact that the father child relationship was declared after the child's birth may not be ascertainable from the new certificate." Id. § 40-6-123 (bolding added).

Thus, the Montana statutes treat a court order regarding paternity as applying retroactively to the date of the child's birth. We believe that you, considering Sharlyee's paternity as if you were the appropriate State court sitting with the child's intestacy claim before you, may do so as well.

C. PR 01-065 Montana Standard of Evidence for Presumption of Paternity of Posthumous Child

DATE: August 30, 2000

1. SYLLABUS

Under Montana law, a civil action may be brought to determine the existence of the father and child relationship. SSA considering the child's paternity as if it were the appropriate State court may establish the relationship by a preponderance of the evidence. The Montana legislature intended for the findings under the Parentage Act and intestacy statutes to be used retroactively.

2. OPINION

Question

You have asked for an opinion on two issues. First you ask whether Milen O~ B~'s oral acknowledgments of paternity to his relatives was sufficient to establish paternity of a posthumous child, Sharlyee P. P~, under Montana law. Assuming Milen O~ B~'s acknowledgments were sufficient to establish paternity, you then ask whether the statements of Toy P~'s and Milen's relatives dated in February 2000 regarding his oral acknowledgments would have only prospective effect under Montana law.

Summary

We believe you could determine, based upon a preponderance of the evidence, that Milen O~ B~ was the father of Sharlyee P. P~. We also believe that you could apply such a finding retrospectively to the child's birth.

Law

Federal Law

Section 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1), provides that "(e)very child (as defined in § 216(e)) of an individual . . . who dies . . . if such child" meets the eligibility criteria for child's insurance benefits listed in 42 U.S.C. § 402(d)(1)(A), (B), and (C) "shall be entitled to a child's insurance benefit." Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(e), provides that "[t]he term 'child' means (1) the child of an individual . . . ." Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A) provides in determining whether an applicant is the child . . . of a fully . . . insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate property by the courts of the State in which such insured individual . . . was domiciled at the time of his death . . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed as such.

42 U.S.C. § 416(h)(2)(A).

Montana Law

Montana State law provides for presumptions of paternity in cases where the individual and the child's natural mother marry or attempt to marry within certain time periods surrounding the child's birth (see MONT. CODE ANN. § 40-6-105(1)(a), (b), and (c) (1999); the individual receives the minor child into his home and openly represents the child to be his natural child (see id. § 40-6-105(1)(d)); the child's mother and the individual acknowledge the individual's paternity of the child in a paternity acknowledgment form provided by the department of public health and human services (see id. § 40-6-105(1)(e)); scientific evidence resulting from a blood test shows a 95% or higher statistical probability of paternity (see id. § 40-6-105(1)(f)); or the individual is presumed to be the child's natural father under the laws of the State or Indian territory in which the child was born (see id. § 40-6-105(1)(g)).

Montana law provides that, except for presumptions that are conclusive or irrebuttable, a presumption of paternity may be rebutted "in an appropriate action by a preponderance of the evidence." MONT. CODE ANN. § 40-6-105(3)(a) (1999) (emphasis added); see also In re the Marriage of K.E.V., 883 P.2d 1246, 1250 (Mont. 1994). In general, in Montana civil cases disputed issues must be proved by a preponderance of the evidence. See MONT. CODE ANN. § 26-1-403 (1999).

An action to determine the existence of the father and child relationship with respect to a child who has no presumed father . . . may be brought by the child, the mother or personal representative of the child, the department of social and rehabilitation services or its appropriate local affiliate, the personal representative or a parent of the mother if the mother has died, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor.

See id. § 40-6-107 (emphasis added); see also id. § 40-6-108; Borchers v. McCarter, 592 P.2d 941, 945 (Mont. 1979).

Evidence relating to paternity may include: (1) evidence of sexual intercourse between the mother and alleged father at any possible time of conception; (2) an expert's opinion concerning the statistical probability . . . ; (3) blood test results . . .; (4) medical or anthropological evidence . . . based on tests performed by experts . . .; and (5) all other evidence relevant to the issue of paternity of the child.

MONT. CODE ANN. § 40-6-113 (1999).

Facts

Milen O~ B~ (Milen) was born on November 14, 1974. Milen was in the military and/or active Reserves/National Guard from May 1, 1993 through May 1, 1997.

Toy P~ (Toy) maintained she and Milen began dating and in or about August 1998, and dated exclusively. On or about December 1998, Toy and Milen told Milen's sister, Donna R~, that Toy was pregnant with Milen's child (see Ms. R~' February 14, 2000 Affidavit). Milen died on January 1, 1999. Toy gave birth to Sharlyee P. P~ (Sharlyee) seven months later on August 7, 1999.

Toy applied for lump sum and child's social security benefits based on Milen's earnings record, on Sharlyee's behalf in February 2000. She stated she had become pregnant one month prior to Milen's death; she and Milen did not consider themselves married; Milen had not supported her at the time of his death; he had not contributed to her support or taken her to doctor's appointments; he knew Toy was pregnant; and he never acknowledged Sharlyee in writing.

On February 11, 2000, Jennie P~, Toy's grandmother, attested that Milen had told her Toy "was going to be the mother of his baby." On February 15, 2000, Geraldine F~, Milen's mother, attested that Milen had told her before he died that Toy was pregnant by him and that he had considered seeking employment to help Toy. Ms. F~ stated that Sharlyee looked like Milen.

Discussion

Section 216(h)(2)(A) of the Social Security Act permits the Social Security Administration (SSA), when determining an applicant's status as the child of an insured individual, to apply "such law as would be applied in determining the devolution of intestate personal property by the courts" of a particular State. Actions Related to Child Relationship Determinations that the Social Security Administration Can Perform, OGC SSD, Chief RSD (Fritz) to ORSISSD, October 13, 1993. The Office of General Counsel "has consistently read section 216(h)(2)(A) to provide legal support for the Agency's longstanding interpretation of the Act that . . . SSA may consider a child's paternity as if it were the appropriate State court sitting with the child's intestacy claim before it." Id.

Most of the presumptions of paternity in Montana law do not apply to Milen's alleged paternity of Sharlyee. Specifically, Toy and Milen never married or attempted to marry; Milen died prior to Sharlyee's birth and never received her into his home; Toy and Milen never acknowledged his paternity on a paternity acknowledgment form; and apparently, no scientific evidence exists regarding Milen's alleged paternity of Sharlyee. See MONT. CODE ANN. § 40-6-105(1)(a)-(f) (1999). Thus, Milen is not presumed to be Sharlyee's father under the laws of the State of Montana (MONT. CODE ANN. § 40-6-105(a)-(f)).

There is a possibility that Milen could be presumed to be Sharlyee's natural father under the laws of the Indian territory in which Sharlyee was born (Sharlyee apparently was born in Crow Agency, on the Crow Indian Reservation). See id. § 40-6-105(1)(g). Therefore, we request further development before we can issue an opinion on this issue, including: Sharlyee's birth certificate; any tribal registration documentation concerning Sharlyee's heritage; and any Crow Indian tribal laws, or any other applicable tribal laws, concerning paternity. We will be pleased to consider this matter further when we receive the requested information

Certainly, under Montana law a civil action could be brought to determine the existence of the father and child relationship. See id. § 40-6-107. As discussed above, the relationship could be proved by a preponderance of the evidence. See id. §§ 26-1-403, 40-6-105(3)(a); In re the Marriage of K.E.V., 883 P.2d 1246, 1250 (Mont. 1994).

The evidence relating to alleged paternity may include "all other evidence relevant to the issue of paternity of the child." Id. § 40-6-113. The statements from Toy, Ms. F~, Ms. R~, and Ms. P~ comprise "evidence relevant to the issue of [Milen's] paternity" of Sharlyee. Thus, SSA, considering Sharlyee's "paternity as if it were the appropriate State court sitting with the child's intestacy claim before it" (see Memorandum, Actions Related to Child Relationship Determinations . . .) could reasonably weigh this evidence and reasonably find that a preponderance of the evidence supported the conclusion that Milen was Sharlyee's father.

If the Agency finds Milen to be Sharlyee's father, you ask whether a paternity determination could be retroactive to the date of Sharlyee's birth. Significantly, the Montana legislature intended for the findings under the Parentage Act and intestacy statutes to be used retroactively at least back to the date of a natural parent's death for purposes of asserting inheritance rights. See MONT. CODE ANN. § 40-6-108(5) (1999) ("Section 40-6-107 and this section do not intend the time within which a right of inheritance or a right to succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates or to determine heirship or otherwise"); Id. § 72-2-118 (regarding an after born heir's right to inherit through intestate succession, "an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth").

Additionally, the Montana Parentage Act specifies that a "court may limit the father's liability for past support of the child." MONT. CODE ANN § 40-6-116 (bolding added). Additionally, "the father's liability for a statutory debt created by the payment of public assistance is limited to the amount of assistance paid during the 2-year period preceding commencement of the action to declare the existence of the father." Id. § 40-6-108(4) (bolding added). Here again, the Montana legislature showed its intent that the findings under the Parentage Act be used retroactively for the collection of previously accrued financial obligations.

Additionally, the Montana Department of Public Health and Human Services may, and if requested by a parent or if court ordered, must, after the establishment of paternity, prepare an amended or substitute birth certificate. See id. §§ 40-5-234(4), 40-5-235(2); see also id. §§ 40-6-116(2), 40-6-123. This certificate must be consistent with the paternity findings under the Parentage Act and "the fact that the father child relationship was declared after the child's birth may not be ascertainable from the new certificate." Id. § 40-6-123 (bolding added).

Thus, the Montana statutes treat a court order regarding paternity as applying retroactively to the date of the child's birth. We believe that you, considering Sharlyee's paternity as if you were the appropriate State court sitting with the child's intestacy claim before you, may do so as well.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115029
PR 01115.029 - Montana - 04/28/2011
Batch run: 04/28/2011
Rev:04/28/2011