TN 11 (07-07)

PR 01120.039 Ohio

A. PR 07-159 OHIO-Parent-Child Relationship Between Number Holder, Scotty W. F~ and Claimants Maurice D. W~ and Shuvonne C. P~ - REPLY Posthumous Paternity Action Your reference: S2D5G-6 Our reference: 07-0242

DATE: June 21, 2007

1. SYLLABUS

Although the paternity determination in this case was not made by an Ohio court, under the Ohio Parentage act, an Ohio court that is determining a parent-child relationship "shall give full faith and credit to a parentage determination made under the laws of this state or another state, regardless of whether the parentage determination was made pursuant to a voluntary acknowledgement of paternity, an administrative procedure, or a court proceeding."

As long as the Tennessee court order is consistent with that state's laws and was genuinely contested by parties with opposing interests, the claimant's may be entitled to child's benefits on the deceased number holder's record.

The relationship is effective as of the month of death since the right to inherit under the Ohio Parentage Act relates back to the death of the parent.

2. OPINION

I. INTRODUCTION

You asked us whether a parent-child relationship can be established between Scotty F~, the deceased wage earner who died in Ohio, and two minor claimants, Maurice D. W~ (Maurice) and Shuvonne C. P~ (Shuvonne), who reside in Tennessee. You further asked if a relationship is established, what is the effective date of benefit entitlement. For the reasons stated below, we conclude that a parent-child relationship can be established between Scotty F~ and the claimants Maurice and Shuvonne. However, if you find that the paternity order issued in Tennessee was not actually contested, you may want to do some additional development to rule out other family members as potential fathers of the children. We further conclude that, assuming the Agency accepts the orders of paternity, entitlement to child's benefits would begin in December 2004, the first month covered by the application in which all other requirements for entitlement were also met.

BACKGROUND

Scotty F~ was born on March 27, 1956. Maurice was born on August 17, 1994. Shuvonne was born on January 6, 1993. Maurice and Shuvonne have different mothers. Scotty F~ died on December 3, 2004, while domiciled in Ohio. Applications for child's insurance benefits on behalf of Maurice and Shuvonne were filed on December 15, 2004. On June 1, 2006, the Circuit Court of Franklin County, Tennessee, issued orders declaring that Scotty F~ was the father of Maurice and Shuvonne. The court orders were based on the testimony of Treila D~, Scotty F~' sister who obtained custody of Maurice W~ in 1997; Sheila P~, Shuvonne's mother; and Scotty F~' two brothers, Steve and Charles F~. In each paternity action, the administrator of Scotty F~' estate was named as the defendant, and the administrator appeared at the paternity hearing in each case.

Ms. D~ testified at the paternity hearing that Scotty F~ called her shortly after Maurice was born and informed her that he was Maurice's father. She also testified that Maurice physically resembled Scotty F~. Ms. P~ testified that she and Scotty F~ were having a sexual relationship during the time Shuvonne was conceived and that there was no other possible father. She also testified that Shuvonne physically resembled Scotty F~. Both Steve and Charles F~ testified that their brother, Scotty F~, acknowledged that he was the father of Maurice and Shuvonne on numerous occasions prior to his death. Steve and Charles F~ also testified that they had no objection to the court finding that Scotty F~ was the father of Maurice and Shuvonne. DNA testing performed on Maurice, Shuvonne and Steve and Charles F~ revealed a 99.99% probability that both Maurice and Shuvonne were paternally related to Steve and Charles F~. The court declared Scotty F~ to be Maurice and Shuvonne's father for purposes of inheritance and support "by clear and convincing proof."

In addition, affidavits from Shuvonne's mother and Steve and Charles F~ were submitted with the applications for child's benefits. These affidavits also state that Scotty F~ was the father of Maurice and Shuvonne. Also, Scotty F~' funeral program lists Maurice and Shuvonne as his children. However, no father is listed on either child's birth certificate, and, when he applied for disability insurance benefits, Scotty F~ stated that he had no children.

DISCUSSION

The Social Security Act (the Act) provides for the payment of insurance benefits to a child of an individual who dies fully or currently insured if the child filed an application for Child's Insurance Benefits (CIB), was unmarried and under the age of eighteen at the time of application, and was dependent upon such individual at the time of his death. 42 U.S.C. § 402(d)(1). On December 15, 2004, when the CIB applications were filed, Maurice and Shuvonne were ten and eleven years old, respectively, and presumably unmarried. If they can establish that they are the natural children of Scotty F~, they will be considered to have been dependent on him. See, 20 C.F.R. § 404.361(a).

Maurice and Shuvonne must also meet the definition of "child" under the Act. The Act provides a number of ways for a claimant to meet the definition of "child" for benefit purposes. See 42 U.S.C. §§ 416(e), 416(h)(2)-(3). A claimant can be deemed to be the deceased wage earner's child upon proof that, prior to the wage earner's death, one of the following conditions was met: (1) the wage earner acknowledged in writing that the claimant was his child; (2) a court decreed the wage earner to be the claimant's father; or (3) a court ordered the wage earner to contribute to the claimant's support because the claimant was the wage earner's child. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100(B)(1). Additionally, a claimant is also deemed to be the deceased wage earner's child if the child meets two requirements: (1) he shows by evidence satisfactory to the Commissioner of Social Security that the wage earner is the child's father, and (2) the wage earner was either living with the child or contributing to the child's support at the time of death. See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100(B)(2). We have no evidence that, before his death, Scotty F~ acknowledged in writing that either Maurice or Shuvonne was his child, was decreed to be Maurice or Shuvonne's father, or was ordered to pay for support. Nor was Scotty F~ living with Maurice or Shuvonne or contributing to their support at the time he died. Therefore, none of these definitions apply in this case.

Maurice and Shuvonne could still be entitled to child's benefits as a natural child of Scotty F~ if it can be established that they could inherit property from him under state intestacy laws. If, under State law, a claimant can take intestate personal property as the deceased wage earner's child, he is considered the wage earner's child for Social Security benefit purposes. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); POMS GN 00306.001 (C)(1)(a). The Commissioner applies the law that would determine the devolution of intestate personal property by the courts of the State where the wage earner was domiciled at death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Scotty F~ was domiciled in Ohio when he died; therefore, Ohio intestacy laws apply to determine whether Maurice and Shuvonne could inherit from him as his children.

Under Ohio intestacy law, children born out of wedlock can inherit as if born in lawful wedlock. See OH ST § 2105.17. An out-of-wedlock child can establish a parent-child relationship pursuant to the Ohio Parentage Act. See OH ST § 3111 et seq.; POMS GN 00306.595(B). Under the Ohio Parentage Act, the claimant may bring a parentage action to determine the existence of a parent-child relationship and to obtain a declaration of parentage. See OH ST § 3111.04. Although there is conflicting case law, Ohio cases have found that parentage actions may be brought even when the putative father is deceased. See In re Estate of Hicks, 629 N.E. 2d 1086, 1088 (1993). The Ohio Parentage Act provides for judicial determination of paternity and allows any evidence relevant to the issue of paternity to be presented, including genetic testing results. See OH ST § 3111.10(C).

On June 1, 2006, about a year and a half after Scotty F~' death, the Circuit Court of Franklin County, Tennessee decreed that Scotty F~ was the biological father of Maurice and Shuvonne "by clear and convincing proof" "for the purposes of inheritance, support and any other lawful purpose." Although the paternity determination was not made by an Ohio court, under the Ohio Parentage act, an Ohio court that is determining a parent-child relationship "shall give full faith and credit to a parentage determination made under the laws of this state or another state, regardless of whether the parentage determination was made pursuant to a voluntary acknowledgement of paternity, an administrative procedure, or a court proceeding." Ohio Revised Code § 3111.02(B). Thus, Ohio courts would likely give decisive effect to the Tennessee paternity judgment in an heirship proceeding.

We note, however, that SSA is not necessarily bound by a state court decision of paternity. See POMS GN 00306.001(C)(3). Social Security Ruling (SSR) 83-37c, which adopts the holding in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), explains that the Commissioner must accept a state court determination of paternity where the following prerequisites are found: 1) an issue in a claim for social security benefits previously has been determined by a state trial court of competent jurisdiction; 2) such issue was genuinely contested before the state court by parties with opposing interests; 3) the issue falls within general category of domestic relations; and 4) resolution by the state trial court is consistent with the law enunciated by the highest court in the state.

We sought assistance from the Office of the General Counsel (OGC), Region IV, to determine whether the Tennessee court's paternity order was consistent with Tennessee law. They informed us that, for purposes of intestate succession in Tennessee, a person born out of wedlock is a child of the father if the paternity is established by adjudication before the death of the father or is established thereafter by clear and convincing proof. See TENN. CODE. ANN. § 31-2-105(a)(2) (2007); see also POMS GN 00306.635; Bilbrey v. Smithers, 937 S.W.2d 803, 808 (Tenn. 1996). Because SSA decides a claimant's paternity by using the standard of proof that the State would use as the basis for a determination of paternity, clear and convincing proof is the standard to be used in this case. The Tennessee Supreme Court has explained that to be "clear and convincing," evidence "must produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Fruge v. Doe, 952 S.W.2d 408, 412 n.2 (Tenn. 1997). "Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992).

In this case, there has been a paternity adjudication by the Circuit Court of Franklin, Tennessee. OGC Region IV informed us that there is no reason to believe that this order is inconsistent with Tennessee law or that the court did not use the proper standard of clear and convincing proof when determining paternity in this matter. The court considered the oral testimony of Maurice's custodial guardian, Shuvonne's mother, and Scotty F~' brothers. And, OGC Region IV informed us that there is nothing in Tennessee law that states that this evidence should have been found "inadmissible" or that the court cannot rely on such evidence to establish paternity after the death of the father. In McDowell v. Boyd, No. 01A01-9509-CH-00413, 1997 WL 749470 (Tenn. Ct. App. 1997), a case involving a posthumous paternity dispute, the court indicated that parentage may be proved using several different types of evidence. In addition to direct evidence of paternity through blood tests, the courts may consider: (1) the declarations and conduct of the child's biological mother, (2) acknowledgment by the father, (3) family resemblance, and (4) evidence concerning access, opportunity and capacity to have children. Id. at *2. This is the same type of evidence used by the court to determine that Scotty F~ was the biological father of Maurice and Shuvonne. We also note that the court did not call into the question the credibility of any of the witnesses. Given the precedent in McDowell, Region IV concluded that he court's consideration of the evidence was appropriate and that the court's orders finding that Scotty F~ was the father of Maurice and Shuvonne are consistent with Tennessee law.

The court also considered the DNA tests revealed a 99.99% probability that Maurice and Shuvonne were paternally related to Scotty F~' brothers. The Tennessee statute provides that a rebuttable presumption of the paternity of an individual is established by blood, genetic, or DNA testing showing a statistical probability of that individual at 95% or greater. TENN. CODE ANN. § 24-7-112(b)(2)(B); see also GN 00306.635. A nearly conclusive presumption of paternity is established if blood, genetic, or DNA testing show that the statistical probability of paternity is 99% or greater. TENN. CODE ANN. § 24-7-112(b)(2)(C). Tennessee law does not distinguish between establishing paternity for legitimation purposes, child support purposes, or intestate succession purposes. Specifically, Tennessee's domestic relations law states that "[t]ests for parentage in actions arising pursuant to this part or in any actions to determine parentage shall be conducted pursuant to § 24-7-112," which covers paternity tests. TENN. CODE. ANN. § 36-2-309(a) (emphasis added).

There is no statute or case law that specifically addresses the acceptability of the results from a DNA test conducted on a relative; however, OCG Region IV previously opined that the Tennessee courts would treat DNA test results from a child and the number holder's parents as probative and would accept such tests that revealed a 99.99% probability of grandparentship along with other evidence as clear and convincing proof of paternity. See POMS PR 01115.047A. Therefore, we believe that the Tennessee court was correct to accept the DNA test results in this case along with the other evidence presented as clear and convincing proof of paternity. The evidence submitted could be used by SSA to establish clear and convincing evidence of paternity between Scotty F~ and Maurice and Shuvonne under Tennessee law.

While the court orders appear consistent with state laws, it is not entirely clear whether these matters were genuinely contested before the state court by parties with opposing interests as required by Gray, 474 F.2d at 1373. Although Scotty F~' estate was named as defendant in both actions, and although the administrator of his estate was present at the hearings in both cases, it is not clear that the estate, or any other party, contested the findings of paternity. Nor is it clear that the estate had any opposing interest or that there were any significant assets in the estate that might prompt some opposition to a finding of paternity. If SSA finds that the paternity actions were not genuinely contested, the Agency need not accept the paternity judgment based on the holding in Gray v. Richardson. However, the Agency could still find that Maurice and Shuvonne are entitled to child's benefits based on Ohio's intestate inheritance law if paternity could be shown by clear and convincing evidence. See POMS GN 00306.595(D); see also Memorandum from Regional Chief Counsel, Chicago, to Ass't Reg. Comm.-PCO, Southeastern Program Service Center, Child's Claim on the Account of Jack B. Blankumsee, at 3 (November 15, 1999) (we believe that the clear and convincing evidence standard of proof should be applied in posthumous paternity cases based on Ohio court's suggestion that it would require a heightened standard of proof in Brookbank v. Gray, 658 N.E.2d 724, 727, 729 (Ohio 1996)).

There are good reasons here to question the court's judgment. For instance, Scotty F~ denied that he had any children when he filed an application for disability insurance benefits. In addition, the DNA test conducted on Scotty F~' brothers indicated that there was a 99.99% chance the putative father was paternally related to the brothers, but did not rule out the possibility that Scotty F~' brothers or other male relative could be the natural father of Maurice and/or Shuvonne. Finally, Steve and Charles F~ did not state that they did not have sexual intercourse with the mother of Maurice or the mother of Shuvonne. If SSA does not believe the evidence currently establishes clear and convincing proof, the Agency could attempt to obtain additional information in order to make this factual determination. See POMS GN 01010.410(A)(1) (discussing need to make a reasonable effort to obtain evidence necessary to determine entitlement). For instance, you could verify whether Scotty F~ had other brothers or male relatives besides Steve and Charles who could be the father of Maurice and/or Shuvonne. In addition, you could obtain statements from knowledgeable persons about whether Steve or Charles F~, or any other male relative of Scotty F~, had sexual intercourse with the childrens' mothers around the time of conception. If such evidence is secured and appears to establish by clear and convincing evidence that no other relative of Scotty F~ is likely to be the father, then pursuant to 42 U.S.C. § 416(h)(2)(A), Maurice and Shuvonne would be considered Scotty F~' children under the Act.

You also asked us to identify the appropriate date of entitlement, assuming paternity is established. Entitlement to child's benefits, if the insured is deceased, begins the first month covered by the application in which all other requirements for entitlement are also met. See 20 C.F.R. § 404.352(a). Once paternity is established, the right to inherit relates back to the date of the parent's death. See National City Bank of Cleveland v. Ford, 36 Ohio Misc. 60, 66 (1973). Accordingly, December 2004 would be the earliest date of entitlement. Accordingly, if all requirements were met in December 2004, when the CIB applications were filed, Maurice and Shuvonne may be entitled to benefits as of the date of Scotty F~' death.

IV. CONCLUSION

We conclude that the Tennessee court orders of parentage are consistent with Tennessee law. However, it is not entirely clear that the matters were genuinely contested by parties with opposing interests. If the Agency finds that the matters were not genuinely contested, the Agency would not be bound by the court orders, but could find that the claimants are Scotty F~' children if there is clear and convincing evidence. We note that the current evidence could be used by SSA to establish clear and convincing proof of parentage and that Ohio courts would allow consideration of valid DNA tests of a sibling as evidence concerning paternity. However, it may be advisable to obtain additional documentation in order to rule out any likelihood that another brother or male relative could have fathered Maurice or Shuvonne. If the Agency finds that Scotty F~ is the father of Maurice and Shuvonne, they would be entitled to CIB as of December 2004.

Donna L. C~
CHIEF COUNSEL, REGION V

By: ____________________
Anne Kenny K~
Assistant Regional Counsel


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PR 01120.039 - Ohio - 07/23/2007
Batch run: 01/27/2009
Rev:07/23/2007