In a case where the claimant was awarded benefits as the child of the number holder based on the presumption of legitimacy but a subsequent DNA test showed a 99.9509% probability that another man was the claimant's father and order of divorce declared the number holder not to be the father, a Minnesota court would likely rule that the claimant cannot inherit from the number holder, based on that new evidence. The new evidence also provides a sufficient basis to reopen and revise the award of child's benefits on the number holder's account.

Additionally, the evidence provided is also sufficient for the court to rule that the other man is the claimant's father, that the relationship is retroactive to the birth of the claimant, and to permit the awarding of child's benefits on that worker's record.

Jordan G~ was awarded child's benefits, effective June 2006, on the record of Jeffrey G~. Mr. G~ was presumed to be Jordan's father because Mr. G~ was married to Jordan's mother at the time of Jordan's birth. However, DNA tests now show a 99.9509% chance that Paul F~ is Jordan's biological father. And, even more recently, Jordan's mother and Mr. G~ were granted a divorce, and the court found, in its order granting the divorce, that Mr. G~ is not Jordan's father.

An application has now been filed for child's benefits on Mr. F~ record, as well. You asked whether the DNA test is sufficient to rebut the presumption that Jordan is Mr. G~'s child, or whether SSA should continue to pay Jordan child's benefits on Mr. G~'s record, based on the presumption of legitimacy. We conclude that a Minnesota court would most likely rule, based on the DNA test results and other evidence in the record, that Jordan cannot inherit from Mr. G~ as his child. Therefore, the DNA test results provide a basis for reopening and revising the award of benefits on Mr. G~'s account. Furthermore, we believe that a Minnesota court would now likely find that Jordan is Mr. F~ child and that this finding would relate back to Jordan's birth, so that Jordan would be entitled to benefits on Mr. F~ account even before the DNA test results were obtained.

Background

Jordan's mother married Mr. G~ in 1984. Jordan was born during the marriage in 1997. Mr. G~ is listed as Jordan's father on Jordan's birth certificate and on Jordan's SS-5. Jordan was awarded child's benefits on Mr. G~'s record effective June 2006, based on an application filed that month.

In February 2007, DNA testing showed a 99.95% probability that Mr. F~ is Jordan's biological father. Jordan's mother has stated that she and Mr. G~ were separated at the time of Jordan's conception, and that she developed a relationship with Mr. F~ in 1995.

In October 2008, a court issued an order granting Jordan's mother and Mr. G~ a divorce. In the divorce order, the court found that Jordan was born during the marriage, but that Mr. G~ did not have sexual intercourse with Jordan's mother during the possible time of conception and that Jordan's mother did have sexual intercourse during that time with the person (presumably Mr. F~) who was determined, by blood tests, to have a probability of parentage of 99.95 %. The court found that "for these reasons and by the agreement of the parties" Mr. G~ "is not the biological father" of Jordan. The court ordered that Jordan's mother and Mr. G~ had joint custody of another child born during the marriage, who the court found is Mr. G~'s child. The court further ruled that, although Jordan "is not the child of" Mr. G~, the parties agreed that Jordan should accompany "his half-sister" when she is in Mr. G~'s custody.

You indicated that Jordan's mother plans to request that Jordan's birth certificate be amended. You informed us that Mr. F~ has asked to be named on the birth certificate and wants to rename Jordan's middle name (presumably using his own last name). However, you indicated that Jordan's mother was advised to complete the divorce proceedings before adjudicating the paternity issue in court. It appears that no separate paternity action has yet been filed.

You informed us that Jordan has bonded with both Mr. G~ and Mr. F~ and apparently considers Mr. G~ to be his "dad" and Mr. F~ to be his "father." You previously advised that Jordan was living part-time with his mother and part-time with Mr. G~ (which appears consistent with the divorce order), and that Jordan also sees Mr. F~ twice a week. Jordan does not have a relationship with Mr. F~ family, but he has a relationship with Mr. G~'s mother and sister.

Everyone involved is domiciled in Minnesota.

Discussion

Under section 216(h)(2) of the Social Security Act, a child is entitled to benefits on the earnings record of an insured individual if the child could inherit the insured's property as his or her natural child under the intestacy laws of the state in which the insured was domiciled at the time of the application. 42 U.S.C. § 416(h)(2); see also 20 C.F.R. § 404.355(a)(1). If state inheritance law requires a court determination of paternity, the Agency does not require the claimant to obtain a court determination, but decides paternity using the standard of proof that the state court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355. If a child would not qualify as a child of the insured under the State law in effect at the time the child's application was filed, the Agency must look at all versions of State law that were in effect from the first month for which the child could be entitled to benefits up until the time of the final decision and apply the version of State law that is most beneficial to the child claimant. 20 C.F.R. § 404.355(b)(3). Here, we must determine whether Jordan still could inherit from Mr. G~, as well as whether Jordan could now inherit from Mr. F~

To inherit from Mr. G~ as his child, Jordan would need to rely on the Parentage Act's presumption of paternity based on Mr. G~'s marriage to his mother at the time of his birth. See MINN. STAT. ANN. § 257.55(1)(a). However, we believe that a Minnesota court would likely find that Mr. F~, rather than Mr. G~, is Jordan's father under the Parentage Act, based on the new evidence now available.

We note first that the divorce decree would not be decisive in such a case. A court determination of non-paternity is usually binding for all purposes. See MINN. STAT. ANN. § 257.66(1). However, the Minnesota Supreme Court has held that, if the child is not a party to a paternity action, the child is not bound by the decision in that case and can bring a separate action to establish paternity. See Johnson v. Hunter, 447 N.W.2d 871, 874, 876 (Minn. 1989). Here, it does not appear that Jordan was a party to the divorce proceeding. Nor was he represented in that action. Therefore, Jordan would not be bound by any finding in the court's order and could attempt to inherit from Mr. G~ under the Parentage Act based on the presumption of paternity. Nevertheless, it appears that, even if the court were to consider the issues anew, the court would still likely find that Mr. F~, rather than Mr. G~, is Jordan's father.

The Minnesota Supreme Court has recently held that, in an inheritance action:

When a party benefits from a Parentage Act presumption of paternity and relies on that presumption to establish paternity in a probate proceeding, the party has chosen to establish paternity under the Parentage Act, as expressly authorized by the Probate Code. See Minn. Stat. § 524.2-114. In such a situation, the provisions of the Parentage Act must apply in their entirety.

Estate of Jotham, 722 N.W. 2d 447, 452 (Minn. 2006). The Court further held that a court can entertain an effort to rebut a presumption of paternity in an inheritance proceeding only if "the party seeking to rebut a paternity presumption would not be barred by the standing or timeliness requirements in [MINN. STAT. ANN. §] 257.57 from bringing an action to declare the nonexistence of the presumed father-child relationship." Estate of Jotham, 722 N.W. 2d at 455. The time for bringing an action to establish Mr. G~'s non-paternity lapsed, at the latest, in 2001 (three years after Jordan's birth). See MINN. STAT. ANN. § 257.57(1)(b) (presumption of paternity based on marriage to mother of child lapses three years after the child is born). After that time, no one could bring an action to establish that Mr. G~ is or was not Jordan's father. While SSA ignores time limits placed on claimants for establishing paternity, 20 C.F.R. § 404.355(b); POMS GN 00306.075(B)(3), we have confirmed with the Office of Income Security Programs that SSA does not ignore state law time limits for establishing non-paternity. Therefore, the court would not consider an allegation that Mr. G~ is not Jordan's father.

However, while an action to establish non-paternity is time-barred, an action to establish paternity based on DNA evidence can be brought at any time by the child, the child's mother, or the man alleging himself to be the father based on the presumption arising from the DNA test results. WIS. STAT. ANN. § 257.57(2)(1). Therefore, Jordan, Jordan's mother, or Mr. F~ could, in theory, bring an action at any time to assert that Mr. F~ is Jordan's real father (which effectively would also establish that Mr. G~ is not the father). Although we did not find any cases directly on point, it appears that any one of these individuals could potentially assert, in the inheritance proceeding for Mr. G~, that Mr. F~ is Jordan's real father. In this way, the inheritance court would be able to consider that someone other than Mr. G~ is Jordan's father under the Parentage Act. See Dorman v. Steffen, 666 N.W.2d 409, 411-12 (Minn. App. 2003) (actions to establish paternity may be brought at any time, even though the effect is to declare the non-paternity of a presumed father and the action is brought past the time to bring an action to establish non-paternity of a presumed father).

We assume that Jordan would not assert that Mr. F~ is his real father if he were attempting to inherit from Mr. G~ as his son. However, if Jordan were attempting to inherit from Mr. G~ as his son under the Parentage Act, then, according to the Jotham decision, all provisions of the Parentage Act would apply to the case. Estate of Jotham, 722 N.W. 2d at 452. Under the Parentage Act, Jordan's mother would be made a party to the action, if still living and subject to the jurisdiction of the court where the inheritance proceeding would be held (which she would be at least at this point in time). See WIS. STAT. ANN. § 257.60. Although we did not find any cases on this specific issue, we assume that, under the holding in the Jotham decision and under the plain language of the Parentage Act, Jordan's mother would be made a party to the inheritance proceeding on Mr. G~'s estate, not as a potential heir, but as a necessary party under the Parentage Act, since Jordan would be proceeding under that Act to establish paternity.

Once Jordan's mother were made a party to the action she would, presumably, assert that Mr. F~, and not Mr. G~, is Jordan's father, since to take any other position would be inconsistent with her position in the divorce proceeding against Mr. G~. In fact, she may now be estopped from taking any other position. See Markert v. Behm, 394 N.W.2d 239, 241-42 (Min. App. 1986) (ex-wife precluded by collateral and equitable estoppel, as well as res judicata, from challenging ex-husband's paternity where she was party to prior divorce action finding him to be the child's father). At that point, Mr. F~ would also be made a party to the action. See MINN. STAT. ANN. § 257.60 (any man alleged to be the biological father shall be made a party to the action if subject to the court's jurisdiction). If SSA credits the information provided to us, it appears that Mr. F~ would not contest the allegation that he is Jordan's father.

Since Jordan's mother would be asserting that Mr. F~, rather than Mr. G~, is Jordan's father, and since it appears from the information you provided that Mr. F~ would also try to establish that he is Jordan's father, the court would be faced with competing presumptions of paternity: (1) the presumption, under MINN. STAT. ANN. § 257.62(5)(b), that Mr. F~ is Jordan's father, based on the DNA test results; and (2) the presumption under MINN. STAT. ANN. § 257.55(a)(1), that Mr. G~ is Jordan's father because Mr. G~ was married to Jordan's mother at the time of Jordan's birth.

Under the Parentage Act, "[i]f two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls." MINN. STAT. ANN. § 257.55(2). Under Minnesota law, none of the presumptions is necessarily weightier or controlling. See Witso v. Overby, 609 N.W.2d 618, 620-21 (Minn. App. 2000), aff'd 627 N.W.2d 63 (Minn. 2001), cert. denied 534 U.S. 1130 (2002). However, the case law is instructive as to which factors courts consider most important in determining which presumption should control in particular cases.

In In re C.M.G., 516 N.W.2d 555 (Minn. App. 1994), the court found that, on the particular facts of that case, the presumption of paternity based on a declaration of parentage was weightier than the presumption of paternity based on blood/DNA testing. In that case, the man who had executed the declaration of parentage wanted to be the father and was willing and able to support the child; the child viewed that man as his father and had bonded with him, as well as the man's parents; and the man presumed to be the father based on blood/DNA test results did not want to develop a paternal relationship with the child. Id. at 561.

In Paternity of BJH v. MTH, 573 N.W.2d 99 (Minn. App. 1998), both the man who was married to the child's mother and the man who was the biological father, according to blood tests, petitioned to be the child's father. The court ruled in favor of the biological father. The court listed several reasons for its decision, including the fact that the man was the biological father; he wanted a relationship with the child; he introduced the child as his own; there were doubts about the continued stability of the marriage between the mother and the other man; the child would eventually want to know his biological father; and the child was young enough to establish a relationship with the biological father, even though he had spent the majority of his life to that point with the other man. Id. at 103.

In State v. Thomas, 584 N.W.2d 421 (Minn. App. 1998), neither the man presumed to be the father based on blood tests nor the man presumed to be the father based on marriage wanted to be named as the father of the child at issue. In that case, the court also found that the biological father should be adjudicated to be the father, since he could not avoid his obligation to support his child by arguing that another man would be a better parent. The court also noted that there is a policy of not impairing blood relationships and that the marriage between the mother and the man presumed to be the father based on marriage had ended. Id. at 425.

It is not entirely clear how a court would weigh the factors in this case. Jordan has developed a relationship with both men and considers one to be his "dad" and the other to be his "father." Some factors weigh in favor of finding that Mr. G~ should be named the father, since Jordan lives part-time with Mr. G~, whereas he sees Mr. F~ twice a week but does not live with him; and Jordan has a relationship Mr. G~'s mother and sister, but does not have a relationship with Mr. F~ family. However, the court seems to weigh the biological relationship very heavily, and seems to find that the biological father should be named as father unless the biological father does not want to be the child's father and another man who is presumed to be the father is willing and able to be the child's father and has developed a relationship with the child. See In re C.M.G., 516 N.W.2d 555; Paternity of BJH, 573 N.W.2d 99; Thomas, 584 N.W.2d 421. Here, if you credit the evidence in the record, it appears that Mr. F~ would like to be named as Jordan's father. Furthermore, it appears that Mr. G~ does not want to be considered Jordan's father, since he has agreed to a court order finding that he is not Jordan's father. Based on these facts, we believe that a Minnesota court would likely find Mr. F~ should be named Jordan's father under the Parentage Act.

Thus, it is likely that, in an inheritance proceeding on Mr. G~'s estate, the probate court would consider the competing presumptions of paternity and find that Mr. F~, rather than Mr. G~, is Jordan's father. Under Minnesota law, a determination of the existence or nonexistence of the parent and child relationship under the Parentage Act is determinative for all purposes, and the court must order a new birth record be issued consistent with the determination. MINN. STAT. ANN. § 257.66(1)-(2) (West 2007). Thus, any determination under the Parentage Act that Mr. F~ is Jordan's father would "legitimate" Jordan and relate back to his birth. For these reasons, the DNA test results would provide a basis for reopening the award of benefits on Mr. G~'s account and denying that claim for benefits. See 20 C.F.R. §§ 404.988(b), 989(a)(1) (determination can be reopened within four years based on new and material evidence); POMS GN 04010.030.

By the same token, if Jordan attempted to inherit from Mr. F~ as his son, the court would likely conclude that the DNA evidence, together with other evidence of record, is sufficient to find that Jordan is Mr. F~ child under the Parentage Act. Since that finding would relate back to Jordan's birth, he would be entitled to benefits on Mr. F~ record even before the DNA tests were performed. See POMS GN 00306.050 (child legitimated after birth is considered legitimate from birth). Accordingly, it would be reasonable to reopen the award of benefits on Mr. G~'s account, based on the DNA evidence and the other new evidence, and find that Mr. F~, rather than Mr. G~, is Jordan's father.

Conclusion

In sum, we conclude that a Minnesota court would likely rule that Jordan cannot inherit from Mr. G~ as his child, based on the new DNA and other evidence provided. The new evidence, therefore, provides a sufficient basis to reopen and revise the award of benefits on Mr. G~'s account. We further conclude that a Minnesota court would likely find that Jordan should be considered Mr. F~ child, for purposes of inheritance, and for all purposes, relating back to his birth. Therefore, Jordan would be eligible for benefits on Mr. F~ account as his child even before the DNA test results were obtained.

Donna L. C~

Regional Chief Counsel, Region V

By:_____________________________

Suzanne D~

Assistant Regional Counsel

PARENT AND CHILD — FEDERAL DEFINITION OF "CHILD" — COURT DECREE OF PATERNITY — MINNESOTA

A judgment in default of paternity is not binding on the Secretary absent clear and convincing evidence of paternity (including blood test results), since the Minnesota Supreme Court would sustain a collateral attack against such a judgment and would find the evidence insufficient to establish paternity as against a deceased wage earner. (P~, Howard Jr., ~ — RAY (M~), to ARC, 06/21/83.)

I. QUESTION PRESENTED

You have asked whether the intestacy law of Minnesota confers child status from the date of a court order of paternity or from the date of birth of the child found to have been fathered.

II. ANSWER

If the court that entered the paternity judgment had proper jurisdiction, and complied with state law, the judgment confers child status on Steven P~ from the date of his birth. Further development is necessary to determine if the trial court had proper jurisdiction and complied with state law.

III. DISCUSSION

A. MINNESOTA INTESTACY LAW

Minnesota intestacy law, as amended in 1971 confers inheritance rights on a person who has been determined by a court of competent jurisdiction to be the natural child of a deceased man. Minn. Stat. Ann. §525.172 (1975). The paternity suit to make such a determination may be brought even after the death of the alleged father. Weber v. Anderson, 269 N.W.2d 892 (Minn. 1978). The plaintiff in a Minnesota paternity suit brought after the death of the putative father must prove the case "by clear and convincing evidence." Id.

The court order in the claims file was entered in a paternity suit which was brought after the death of wage earner Howard P~, Jr.E-239 A/N. While the order indicates no appearance by Howard P~ personal representative, if the court had proper jurisdiction, the judgment may nevertheless be valid to declare Steven P~ a child and heir of Howard P~ for the purpose of intestate succession. Minn. Stat. Ann. §525.172. Such finding under state law would confer "child" status under the Social Security Act.

As we interpret the Minnesota statute, id., any such determination is retroactive to the birth of the child The reason is, the statute states that

"An illegitimate child shall inherit from his mother the same as if born in lawful wedlock, and also . . . from the person who has been determined to be the father of such child in a paternity proceeding before a court of competent jurisdiction;

Minn. Stat. Ann. §525.172 (emphasis added). This statute has been held sufficient to impart the status of "child" of a wage earner under §216{h)(2}(A} of the Social Security Act. "Ronald K. N~,CL-8-12 A/N ~," RA V {Helps} to Hearing Examiner, BHA, SSA Minneapolis, Minnesota (Fischer),

Although the grammar of the foregoing quote is not completely unambiguous, we interpret the final clause as meaning that a court order of paternity, by a court of competent jurisdiction, confers legitimate child status as if born legitimate, i.e., the same status as conferred on the illegitimate child vis-a-vis its mother. Cf. also, POMS GN 00306.140(A) {showing Minnesota as one state in which an act of legitimation of a child dates back to the child's birth).

Therefore, the court order in this matter, if valid, confers the status of parent and child from date of birth of Steven P~.

B. Federal Law

The general rule regarding state lower court determinations is that the Secretary, in making determinations of family status under State law for purposes of the Social Security Act, need not afford controlling weight to a state trial court decision where the Secretary was not a party. As noted in Cain v. Secretary of Health, Education and Welfare, 377 F.2d 55, 58 (4th Cir. 1967):

The Secretary was under no constitutional compulsion to give full faith and credit to the state court decree; he was only under a statutory compulsion to determine what "the courts" of South Carolina would find in regard to Mr. C~ marital status at the time he died Where, as here, the [State] Supreme Court has not had occasion to declare the law, the Secretary may follow the decision of a nisi prius court; but if he believes its decision to be in conflict with what the [State] Supreme Court "would find" were the point presented to it, he may disregard that lower court's decision .... 377 F.2d at 58.

The Sixth Circuit has set forth principles upon which to decide when the Secretary must accept a state trial court decision on family status. In Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), the court used language to the effect that the Secretary was "not free to ignore an adjudication of a state trial court where it is fair and consistent with the law as enunciated by the highest court of the State." Id. at 1373. However, despite the non-mandatory language "not free to ignore," the court in Gray mandated that the Secretary accept the particular state lower court determination there because the state lower court decision met four tests tending to ensure reliability. The Gray court stated:

We therefore hold that the Secretary should have accepted the determination made by the State court. Such a holding is proper in the present case where the following prerequisites are found: 1) An issue in a claim for social security benefits previously has been determined by a State court of competent jurisdiction; 2) this issue was genuinely contested before the State court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State. 474 F.2d at 1373 (emphasis added).

The Social Security Administration has adopted the language of Gray setting forth the four criteria for acceptance of a lower court judgment by the Secretary. Our central office has approved a draft ruling incorporating the language of Gray, scheduled to be published in July (copy attached hereto). However, neither that draft ruling nor the language in Gray requires that all four criteria be met to bind the Secretary to a state trial court decision, ^[1] but where the criteria are met, the Secretary will be bound, at least in Ohio.

In the instant case, the claimant obtained a decree of paternity after the death of the wage earner. Such a finding is permitted in Minnesota, if supported by "clear and convincing evidence." Weber v. Anderson, 269 N.W.2d 892 (Minn. 1978). However, the Minnesota trial court obviously entered a default judgment against deceased wage earner P~, i.e., there was not only no contest, but unlike Larry G~,E-157 A/N ~, RA V {H~) to ARC-Programs (W~) 7/8/82, there was no appearance by the estate or representative of the deceased wage earner.

The default judgment here thus defeats at least one of the Gray criteria — contested case. The default judgment casts some doubt on two of the remaining three Gray criteria - court of competent jurisdiction and consistency with state law.

In Donald E. C~ , NCIF A/N~, RA V (D~) to ARC-Programs (W~} 7/2/82, a Minnesota default judgment was found insufficient to bind or persuade the Secretary because it violated two of the Gray court's tests ^[2] and because the default judgment was based on the same evidence which had previously been rejected by the Secretary.

We believe that our inquiry should be more specific: whether the Minnesota Supreme Court "would find" that the default judgment in this case was a valid and binding judgment under Minnesota law. Cain v. Secretary, supra; Legory v. Finch, 424 F.2d 406, 409 (3rd Cir. 1970); Collins v. Celebrezze, 250 F.Supp. 37, 42 (S.D.N.Y. 1966), In Collins, id., the court stated that a state court judgment determining marital status

. . . shall be the measure of federal rights under the Social Security Act, . . except upon proof of extra- ordinary facts and circumstances which would impel the state courts to sustain an attack upon the previous finding.

Such a rule makes sense under the Social Security Act. If the courts of a state "have found" a person to be an heir of a wage earner that person is an heir under state law unless the judgment is defective. Where a person is an heir under state intestacy law, the Social Security Act deems that person a "child." Section 216{h){2){A). If the state courts of Minnesota were deciding on the devolution of the estate of this wage earner, the proper question is would the state Supreme Court treat claimant as a "child" of the deceased wage earner because of the default trial court judgment finding paternity on the part of the deceased wage earner. ^[3] Certainly, the Gray court itself thought that that was the proper determination because in Gray the court stated:

In the present case the right of the child to Social Security benefits is controlled by the Ohio law of intestate succession of personal property. We have no doubt that an Ohio probate court, in determining an issue of intestate succession would follow an adjudication of legitimacy made by an Ohio Court of Common Pleas in a contested divorce case.

We are convinced that the Supreme Court of Ohio would hold, under the facts of the present case, that the right of Tamara L. Gray under the Ohio law of intestate succession would be controlled by the decision of the Common Pleas Court in the contested divorce proceedings. 474 F.2d at 1372-73 (emphasis added).

From the above quote and the foregoing discussion, we conclude the Gray court meant its language pertaining to criteria as an explanation why the state trial court's determination in that case would be binding on the wage earner's estate under Ohio law. The criteria set forth by the Gray court, if met, would bind the Secretary to a state lower court determination of paternity because such a judgment would be valid and binding against the wage earner and his estate thereby granting "child" status under Section 216 (h)(2)(A).

In our opinion, where one or more of the Gray criteria are not met, we should still look to the law of the state to determine whether the paternity judgment would nevertheless be valid and binding against the wage earner or his estate. In this particular case, we should look to Minnesota law pertaining to judgments in general and default judgments in particular to ascertain whether this default judgment is valid arid binding with respect to the deceased wage earner's estate.

C. Minnesota Law of Judgments

The Minnesota law on default judgements in paternity actions has recently been announced by the Minnesota Supreme Court.

As background the Minnesota Supreme Court has been urging the Minnesota trial courts and the Minnesota legislature to consider the use of blood tests in paternity actions. See State of Minnesota on behalf of Ortloff v. Hanson, 277 N.W.2d 205, 207 (Minn. 1979); Howells v. McKibben, 281 N.W.2d 154, 158 & n.3 (Minn. 1979); State of Minnesota on behalf of Hastings v. Deny, 296 N.W.2d 378, 379-80 (Minn. 1980). The reason is the belief of that Court "that blood-test procedures provide the most reliable means for making the determination of paternity more accurate and efficient." Ortloff v. Hanson, supra, 277 N.W.2d at 206.

In Wessels v. Swanson, 289 N.W.2d 469 (Minn. 1979), the Minnesota Supreme Court specifically addressed the matter of default judgments in paternity cases. In that case, the Court upheld the default judgment of paternity entered against the defendant because he "advanced no reason for his failure and neglect to file an answer and to appear at trial and he failed to act with due diligence after receiving notice of entry of the judgment." 298 N.W.2d at 470

However, in an unusual move,. the Minnesota Supreme Court then went on to hold that if defendant submitted to blood tests within 90 days and could show the trial court a likely meritorious defense, the default judgment would be vacated, and otherwise the default judgment would be affirmed. 289 N.W.2d at 470. The Court set forth its rationale in the following language:

We are cognizant, however, not only of the financial burden placed upon defendant as a result of the adjudication of parentage, but also of the even more significant consequences of the adjudication both for him and the other persons affected by it. Such consequences require that an adjudication of paternity be based on the most reliable kind of evidence available. In two decisions released in the last few months, we have recognized that recently developed and highly sophisticated blood- grouping tests may furnish such evidence and have urged the legislature to consider the matter of blood testing in the context of paternity actions. In this case we have concluded that if such tests furnish reliable evidence substantiating defendant's denial of paternity, such evidence would furnish a reason justifying relief from the operation of the judgment pursuant to R. 60.02(6).

289 N.W.2d at 470 (citations omitted).

As noted above, the Minnesota Supreme Court has also held, in Weber v. Anderson, supra, that a paternity action for inheritance purposes may be brought after the death of the putative father, but clear and convincing proof of the deceased's paternity must be adduced. 269 N.W. 2d at 895.

To our knowledge, the Minnesota Supreme Court has not addressed the matter of a default judgment of paternity against a dead putative father or his estate. We are convinced that, if presented with such a case, the Minnesota Supreme Court "would find" that the default judgment should be reopened, upon motion of the defendant's estate, in order to accomplish, at a minimum, any blood testing which could be done at that time, unless the proceedings leading to the default judgment disclosed such blood tests and their results, or proof that such blood tests are unavailable, ^[4] along with other evidence constituting "clear and convincing" evidence.

We base our interpretation of what the Minnesota Supreme Court "would find" on two facts: First, the unusual action of the Minnesota Supreme Court in permitting the defendant in Wessels v. Swanson, supra, to open a default judgment just held to be valid if the defendant would submit to blood tests and those tests indicated that defendant was probably not the father. Such a flexible interpretation of Minnesota's Rules of Civil Procedure indicates a very strong feeling by the Court that blood tests are the best evidence of paternity and should be required in every conceivable paternity case.

Second, the concern expressed by the Minnesota Supreme Court in Weber v. Anderson, supra, over the possibility of fraudulent paternity actions against deceased putative. fathers leads us to believe that the Minnesota Supreme Court would remand the first default judgment against a deceased putative father, on motion of the estate, ^[5] for a determination of what blood-test proof would be available, if any. Then, if any such proof were available, the Minnesota Supreme Court would require whatever was available to uphold the default judgment against a collateral attack.

D. Conclusion

Because, in our opinion, the Minnesota Supreme Court would sustain a collateral attack against a default judgment of paternity against a deceased wage earner, the Secretary may disregard the default judgment in the claims file, standing alone. See Cain v. Secretary, supra; Collins v. Celebrezze, supra; cf. also, Gray v. Richardson, supra.

Moreover, in the absence of other evidence rising to the "clear and convincing" standard, Weber v. Anderson, supra, the Minnesota Supreme Court "would find" the evidence insufficient to establish paternity as against a dead man and the Minnesota Supreme Court "would remand" the case for a determination of the feasibility of blood-tests and for the examination of comparative blood samples or medical records, if feasible.

In the situation we find this case before SSA, the default court order — is not adequate to prove paternity by the deceased wage earner, by itself or in connection with other evidence in the claims file. Therefore, SSA must further develop the facts surrounding the entry of the default judgment. ^[6] And, in the event that the court entering the default judgment has no evidence of comparative blood tests or of the unavailability of such tests, SSA should determine if such tests would be feasible where the putative father is deceased and require them if feasible, or require claimant to provide other evidence that would prove paternity on the part of deceased wage earner, Howard P~, Jr. by "clear and convincing" evidence.

 

"Of the four prerequisites listed in Gray for a state trial court decision to be binding on the federal Government when interpreting a federal statute, three were definitely present in this case .... " 585 F.2d at 155.

We do not believe that Dennis meant to extend Gray to hold that each of the four criteria is necessary before the Secretary will be bound, and we have found that the Secretary should accept a decision in an uncontested case where the other criteria were met and the estate of the deceased wage earner did not contest the entry of an order of paternity. Larry G~, supra.