PR 01115.046 South Dakota

A. PR 08-155 Request for Opinion Regarding Status of Child to a Number Holder Based on an Order Determining Heirs by the Department of the Interior in the State of South Dakota; NH Duane G. C~, xxx-xx-~

DATE: Date: July 17, 2008

1. SYLLABUS

In a South Dakota claim where a Department of the Interior Probate Judge issued an order naming our claimant as an heir of the deceased number holder, we may use that order to establish the parent-child relationship since she clearly indicated that the relationship was established "under South Dakota law". We infer from this that DOI used South Dakota's "clear and convincing" standard of evidence rather than the less restrictive "preponderance of the evidence" standard.

The relationship is established as of the claimant's date of birth.

2. OPINION

Question Presented

You requested an opinion on whether claimant Jazz T~ (Claimant) can qualify as the child of Duane G. C~, the Number Holder (NH), based on an Order issued by the Department of the Interior (DOI) that Claimant is an heir of the NH. If so, you have also asked if the DOI order controls the effective date of the parent-child relationship, or whether the relationship would be established as of the child's birth date.

Short Answer

Based on the evidence currently before the Agency, we believe that Claimant qualifies as the child of the NH, and that the parent-child relationship can be established as of Claimant's birth date. 1

Each of these decisions must be made on a case-by-case basis.

Summery of Facts Presented

Claimant was born in South Dakota, on January 18, 2002. Claimant's birth certificate identified Lori A. T~ as her birth mother, but did not identify Claimant's father. Claimant's mother was never married to the NH.

In June 2005, the NH, a domiciliary of South Dakota who had received an allotment of Indian land, died intestate. At that time, the Agency received an application for disability benefits on the NH's behalf filed by three of his surviving children.

On August 22, 2007, after an evidentiary hearing, a DOI Indian Probate Judge (AJ), issued an "Order Determining Heirs and Decree of Distribution" (DOI order) to settle the NH's Indian trust assets and land allotments. The DOI order included the following findings of fact and conclusions of law:

Decedent [NH], an enrolled member of the Crow Creek Sioux Tribe of South Dakota, died a domiciliary of the State of South Dakota;

NH had one marriage and fathered nine children during his lifetime;

No will was submitted for NH's estate, and there is no evidence that NH executed a will;

NH was survived by nine heirs at law, "as determined under South Dakota Codified Laws, §29A-2-103(1) (2005)."

Jazz R. T~, born on January 18, 2002, is one of NH's nine heirs and therefore entitled to 1/9 of NH's Indian trust assets and property.

On September 14, 2007, Claimant's mother filed an application for surviving child benefits for Claimant. Claimant's mother submitted claimant's birth certificate and the DOI order to support the application.

Legal Analysis

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A), provides that a child will be deemed to be the child of a deceased wage earner if he or she would be entitled to inherit under the laws of the state in which the wage earner was domiciled at the time of his or her death. Because NH was domiciled in South Dakota at the time of his death, South Dakota laws apply.

South Dakota laws of intestate succession provide that "an individual born out of wedlock is the child of that individual's birth parents," and that "[t]he identity of the father may be established . . . by a presentation of clear and convincing proof in the proceeding to settle the father's estate." S.D. Codified Laws § 29A-2-114(c) (2007); see also SSA POMS GN 00306.010 & record if the child is an heir to the parent's estate under relevant State law). Thus, the DOI decision in question must establish that NH was the Claimant's father by clear and convincing evidence.

"Clear and convincing evidence is evidence so clear, direct, weighty, and convincing as to allow the trier of fact [here, the Agency] to reach a clear conviction of the precise facts at issue, without hesitancy as to the truth." POMS GN 00306.630. The "clear and convincing," standard of proof, described as "highly probable," is a "more exacting measure of persuasion" than preponderance of evidence, the traditional measure of persuasion in civil cases, such as Indian probate proceedings before the DOI. See McCormick on Evidence, Title 12, Ch. 36, § 340 (6th ed.) (2006).

Generally, to establish paternity in Indian probate proceedings before the DOI, the standard of proof is less than that required by the South Dakota intestacy statute: Indian probate proceedings use a "preponderance of the evidence," 2 and any proceeding applying a "clear and convincing" standard is merely an "anomalous decision." See Estate of Ross, 44 IBIA 113, 121 (2007) (citing Estate of William Youpee, 28 IBIA 200, 202 (1995)); and Estate of Eckiwaudah, 27 IBIA 245, 250 (1995). Thus, the DOI decision comports with South Dakota law if it established NH's paternity by "clear and convincing" evidence and did not merely rely upon the preponderance of the evidence standard.

Here, the DOI AJ did not state whether she was using the "preponderance of the evidence" or the "clear and convincing" standard of proof. However, the ALJ stated that her decision on NH's surviving heirs was determined under South Dakota laws of intestate succession, which require clear and convincing proof. See S.D. Codified Laws § 29A-2-114(c) (2007). 3 Thus, the Agency could reasonably infer the ALJ applied the controlling "clear and convincing" standard of proof required under South Dakota law, and the claimant has inheritance rights in NH's estate under South Dakota Law.

If a child born out of wedlock has inheritance rights in a parent's estate under relevant state law, the parent-child relationship may be established back to the date of the child's birth. See 42 U.S.C. § 416(h)(2)(A); see also SSA POMS GN 00306.010 & 00306.055. Thus, Claimant is NH's child and heir as of her date of birth.

CONCLUSION

Based on the facts and relevant law, it is OGC's opinion that Claimant qualifies as the child of the NH, that relationship can be established as of Claimant's date of birth, and Claimant is eligible to receive survivor child's benefits on the NH's account.

Deana R. E~-L~
Regional Chief Counsel, Region VIII
By: ______________
Debra J. M~
Assistant Regional Counsel

B. PR 08-063 Request for Opinion Regarding Status of Child to a Number Holder Based on an Order Determining Heirs by the Department of the Interior in the State of South Dakota; NH Everett W~, xxx-xx-~

DATE: February 12, 2008

1. SYLLABUS

A South Dakota State court would find the Department of Interior's Order of Determination of Heirs sufficient to establish the NH's paternity of the child claimant. Thus, SSA would be justified in determining that the child was the NH's child under the laws of intestate succession of the State of South Dakota for purposes of section 216(h)(2)(A) of the Act.

Additionally, the State of South Dakota presumably accepted the order to establish "legitimation," as it issued a "new" as opposed to an "amended" birth certificate for Claimant. The relationship may be established as of the Claimant's date of birth.

2. OPINION

Question Presented

You requested an opinion on whether Calista M. S~ (Claimant) can qualify as the child of the Number Holder (NH), and whether that decision can be based on an Order issued by the Department of the Interior that Claimant is an heir of the NH. If so, you have also asked if the Order controls the effective date of the parent-child relationship, or whether the relationship would be established as of the child's birth date.

Short Answer

Based on the evidence currently before the Agency, we believe that Claimant qualifies as the child of the NH, and that the parent-child relationship can be established as of Claimant's birth date. 1

FACTS

According to information you provided, Claimant was born in Winner, South Dakota, on May 24, 1999. The birth certificate that Claimant's mother initially submitted with Claimant's application for a Social Security card identified Nadine S~ as her birth mother. 2 The birth certificate did not identify Claimant's father. Claimant's mother was never married to the NH. A new birth certificate, which Claimant's mother submitted in support of her second application for benefits, lists the NH as Claimant's father, and the claimant and the NH have the same surname.

On June 5, 2003, the NH, a domiciliary of South Dakota who had received an allotment of Indian land, died intestate. Claimant's mother thereafter filed an application for surviving child benefits for Claimant. The application showed an alleged child relationship of "other." The Agency denied Claimant's application for the following reasons: "Child illegitimate - cannot inherit - no ceremonial marriage - not deemed child." Claimant did not appeal the denial of her claim.

Meanwhile, in July 2003, the Agency received an application for disability benefits on the NH's behalf filed by three of his surviving children. The application, which the Agency granted, did not identify Claimant as the NH's child.

On June 2, 2004, after an evidentiary hearing, the United States Department of Interior issued an "Order Determining Heirs and Decree of Distribution" (Order) to settle the NH's Indian land allotments, which included property located on the Lower Brule, Rosebud, and Santee Reservations in South Dakota. The Order included the following findings of fact and conclusions of law:

Decedent [NH] never married, but he was the father of five (5) children;

No Last Will and Testament was submitted for probate in this [NH's] estate, and there is no substantial evidence to conclude that the decedent [NH] executed a Will;

At death, the decedent [NH] was survived by heirs at law . . . under the statutes of descent of the State of South Dakota [S.D. Codified Laws Ann 29A-2-103(1) (1995)]. . . .

For the purpose of determining the descent of land to the heirs of any deceased Indian, every Indian child, shall for such purpose be deemed the legitimate issue of his or her father.

The Order identified Claimant as one of NH's daughters, and thus a surviving heir entitled to a share of NH's Indian land allotments.

On June 12, 2006, the South Dakota Department of Health, through the Brule County Register of Deeds, issued a new "Certificate of Birth" that identified NH as Claimant's father and a file date of June 1, 1999 (seven days after Claimant's date of birth).

On July 20, 2007, Claimant's mother filed a new application for survivor benefits for Claimant.

On August 15, 2007, Claimant's mother completed a "Child Relationship Statement," in which she stated that:

  • NH listed Claimant as a dependent on a tax return 3;

  • written evidence (probate papers and statements from NH's mother and a social worker "used to get father's name on birth certificate through Lower Brule Tribal Court") showed that Claimant was NH's daughter; and

  • NH admitted orally to his mother than he was Claimant's parent.

On August 17, 2007, Wilma W~, NH's mother, signed a memorandum "To Whom It May Concern," in which she stated that:

My son [NH] orally informed [me] that he is the biological father of Calista M. S~-W~ [Claimant]. [NH] did assist with care for Calista by means of financial support, caring for her, keeping her at my home for periods of time, he did take responsibility as her father when it was possible. Other family members are willing to attest to this, if needed. Calista did make her permanent home with her mother Nadine S~.

To support Claimant's second application for survivor benefits, Claimant's mother submitted to the Agency the Order from the Department of Interior, the new Certificate of Birth, and the statement from NH's mother.

Legal Analysis

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A), provides that a child will be deemed to be the child of a deceased wage earner if he or she would be entitled to inherit under the laws of the state in which the wage earner was domiciled at the time of his or her death.

The facts presented establish that NH was domiciled in South Dakota at the time of his death.

South Dakota laws of intestate succession provide that "an individual born out of wedlock is the child of that individual's birth parents," and that "[t]he identity of the father may be established . . . by a presentation of clear and convincing proof in the proceeding to settle the father's estate." S.D. Codified Laws § 29A-2-114(c) (2007); see also SSA POMS GN 00306.010 & 00306.630 (a child born out of wedlock may be entitled to child benefits based on either parent's record if the child is an heir to the parent's estate under relevant State law). "Clear and convincing evidence is evidence so clear, direct, weighty, and convincing as to allow the trier of fact [here, the Agency] to reach a clear conviction of the precise facts at issue, without hesitancy as to the truth." POMS GN 00306.630. The "clear and convincing," standard of proof, described as "highly probable," is a "more exacting measure of persuasion" than preponderance of evidence, the traditional measure of persuasion in civil cases. McCormick on Evidence, Title 12, Ch. 36, § 340 (6th ed.) (2006).

Here, a Department of Interior Administrative Law Judge (ALJ) held an evidentiary hearing to determine the NH's heirs for purposes of distributing the NH's Indian land allotments. In a decision dated June 2, 2004, the ALJ found that Claimant was the NH's daughter; an heir to those portions of the NH's estate containing Indian land allotments in South Dakota; and the legitimate issue of the NH. See 25 U.S.C.A. § 372 (2007). Generally, to establish paternity in Indian probate proceedings before the Secretary of the Interior, the standard of proof is less than that required by the South Dakota intestacy statute: Indian probate proceedings use a "preponderance of the evidence,"4 and any proceeding applying a "clear and convincing" standard is merely an "anomalous decision." See Estate of R~, 44 IBIA at 121 (citing Estate of William Y~, 28 IBIA 200, 202 (1995)); and Estate of E~, 27 IBIA at 250.

The ALJ did not state whether she was using the "preponderance of the evidence" or the "clear and convincing" standard of proof. However, the ALJ stated that her decision on surviving heirs was in accordance with the laws of descent of South Dakota, which require clear and convincing proof. And, as in a prior OGC opinion related to this issue, notice was given to all interested parties and there is no evidence that the decision was administratively appealed. See Memorandum from Regional Chief Counsel, Denver (L~ and P~), to Regional Commissioner, Denver, Questionable Child Relationship - South Dakota (March 22, 1993). Moreover, the State of South Dakota presumably accepted the order to establish "legitimation," as it issued a "new" as opposed to an "amended" birth certificate for Claimant. See S.D. Codified Laws §§ 34-25-13.1(1) (2007) (indicating that a new birth certificate will issue where a "court of competent jurisdiction" determines paternity) and 34-25-15 (indicating a new birth certificate is issued "upon receipt of a court order . . . determining paternity of a child").

Thus, based upon relevant law and the facts presented, we believe that the Claimant is eligible to receive Title II child's benefits on the NH account.

CONCLUSION

Based on the evidence provided, Claimant qualifies as the child of the NH, and that relationship can be established as of Claimant's date of birth.

Deana R. E~-L~
Regional Chief Counsel, Region VIII
By: ______________
Debra J. M~
Assistant Regional Counsel

1 OGC's opinion is based upon the unique facts presented in this case. Decisions issued by the Department of Interior in South Dakota may not always satisfy the requirements for determining parent-child relationships under the Social Security Act. Each of these decisions must be made on a case-by-case basis.

2 The file does not contain a copy of the original birth certificate.

3 The file does not contain the tax return or other written corroboration of this statement.

4 "Under the preponderance of the evidence standard, the moving party has the burden of showing that the existence of a fact is more probable than its non-existence." Estate of Ross, 44 IBIA at 120.

C. PR 93-001 Use of Genetic Testing to Establish Parent-Child Relationship Posthumously in South Dakota

1. SYLLABUS

Under South Dakota intestacy law, the identity of the father of an out of wedlock child may be established by the subsequent marriage of the parents, by a written acknowledgement by the father during the father's lifetime, by a judicial determination of paternity during the child's lifetime, or by the presentation of clear and convincing proof in the proceeding to settle the father's estate. Genetic test results establishing a probability of paternity of 99.99% are more than adequate to constitute clear and convincing proof.

2. OPINION

This will respond to your memorandum of October 19, 1993, requesting an opinion regarding entitlement to child's benefits on the record of a deceased wage earner whose paternity was established by genetic testing conducted after his death. The record indicates that the wage earner, Steven D. W~ , a resident. of South Dakota, died on April 2, 1992. His fiancé, Cynthia T~ , subsequently gave birth on November 28, 1992, to a daughter, Mayce J. T~ . Genetic testing conducted by Biogenetic Services Inc. after Steven W~ 's death, indicated a 99.99% probability that Mr. W~ was the father of Mayce J. T~ . On the basis of the genetic testing results, the South Dakota Circuit Court for the Third Judicial District determined that Mr. W~ was the father of Mayce J. T~ and issued an order to that effect on September 14, 1993. You have asked whether, under the court order establishing paternity, Mayce J. T~ acquires inheritance rights in the estate of Steven W~ such that she is entitled to children's benefits under Section 216(h) (2) (A) of the Social Security Act (hereinafter "the ACE"). As outlined more fully below, we conclude that, by virtue of the court order establishing that Steven W~ "is the true and natural father of Mayce T~ ," under South Dakota law, Mayce T~ is an heir of Steven W~ 's and, therefore, satisfies the requirements of Section 216(h) (2) (A) of the Act.

Section 216(h) (2) (A) of the Act provides that, in determining whether an applicant is the child of an insured individual for purposes of disability benefits under Title II, the Secretary shall apply the law that would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual is domiciled at the time the application for benefits is filed. An applicant who, under the applicable State law, would have the same intestate inheritance rights as a child of the insured individual, will be deemed to be a child of the insured individual for purposes of Title II benefits. In this case, the insured individual., Mr. Steven W~ , was apparently domiciled in South Dakota at the time that he filed application for disability benefits. We therefore look to South Dakota law regarding intestate succession and inheritance to determine whether Mayce J. T~ may properly be considered to be Mr. W~ 's heir.

Section on 29-1-15.1 of the South Dakota Codified Laws (SDCL) provides, in pertinent part, as follows:

Any person born out of wedlock shall inherit from and through his parents . . in the same manner as if the parents had been married. * * *' The identity of the father may be established by the subsequent marriage of the parents, by a written acknowledgment by the father during the child's lifetime, by a judicial determination of paternity during the child's lifetime, or by the presentation of clear and convincing proof in the proceeding to settle the father's estate."

Emphasis added.

We note that the proceeding resulting in the court order establishing paternity was filed against the estate of Steven W~ . Consequently, it appears to satisfy the requirement that the posthumous paternity determination be made "in a proceeding to settle the father's estate." Also, the genetic testing results are more than adequate to constitute "clear and convincing proof." The South Dakota Supreme Court has explained what is required to constitute "clear and convincing" proof, by stating that:

The measure of proof required by this designation falls somewhere between the rule in ordinary civil cases and the requirement in our criminal procedure, that is, it must be more than a mere preponderance, but not beyond a reasonable doubt. It is that measure or degree of proof which will produce in the mind of the trier of fact a fair belief or conviction as to the allegation sought to be established.

Claymore v. Johnson, 405 N.W.2d 650, 655 (S.D. 1987) citing Brown v. Warner, 107 N.W.2d 1, 4 (S.D. 1961).

As noted above, the genetic testing established a probability of paternity of 99.99%. This is clearly sufficient to satisfy the requirement for "clear and convincing" proof. 4 Thus, the requirements of § 29-1-15.1, SDCL, have been met, and, pursuant to that section of State law, Mayce J. T~ is the legal heir of Steven W~ . Consequently, she qualifies as his "child" for Title II benefit purposes under § 216(h) (2) (A) of the Act. We hope this information assists you in appropriately resolving this matter.

You have also asked whether the current guidance provided in the POMS regarding child status determinations for Title II benefit purposes in South Dakota needs to be revised. That guidance, contained in POMS GN 00306.080, enumerates a number of ways in which a child may acquire the status of "child" for benefit purposes. One of these enumerated ways provides that such status is acquired when "paternity is established by an adjudication before the father's death, or is established thereafter by...clear and convincing proof." Emphasis added. While this guidance appears to be consistent with current South Dakota state law as referenced above, you may wish to revise it to reflect the conclusive effect given to genetic testing under SDCL § 25-8-7.1.

Lastly, you have asked whether the advent of reliable genetic testing for paternity has changed the laws regarding legitimation in other States. Many States do, of course, now recognize genetic testing as valid evidence of paternity. Whether paternity determinations in any particular State result in inheritance rights or legitimation is, however, a separate question, and one which can only be answered by reference to the particular law of the State involved.


Footnotes:

[1]

1OGC's opinion is based upon the facts presented in this case. DOI decisions may not always satisfy the requirements for determining parent-child relationships under the Social Security Act.

[2]

"Under the preponderance of the evidence standard, the moving party has the burden of showing that the existence of a fact is more probable than its non-existence." Estate of Ross, 44 IBIA at 120.

[3]

As in a prior OGC opinion related to this issue, notice was given to all interested parties and there is no evidence that the decision was administratively appealed. See Memorandum from Regional Chief Counsel, Denver, to Assistant Regional Commissioner, Denver, Request forOpinion Regarding Status of child to a Number Holder Based on an Order Determining Heirs by the Department of the Interior in the State of South Dakota; NH Everett W~, xxx-xx-~ (February 12, 2008); Memorandum from Regional Chief Counsel, Denver to Regional Commissioner, Denver, Questionable Child Relationship - South Dakota (March 22, 1993).

[4]

South Dakota statute specifically permits the establishment of paternity through genetic tests "that are generally accepted within the scientific community for the conclusive determination of paternity probability." SDCL § 25- 8-7.1, emphasis added. Thus, South Dakota refers to genetic testing as "conclusive." "Conclusive" proof is, of course, greater proof than that demanded by the "clear and convincing" requirement.


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PR 01115.046 - South Dakota - 09/26/2012
Batch run: 09/26/2012
Rev:09/26/2012