TN 9 (01-12)
PR 01210.021 Louisiana
A. PR 12-028 Louisiana Law – Documentation Requirements for Child Relationship (NH Dernell, SSN ~) – REPLY
DATE: December 15, 2011
It was determined that the claimant proved by clear and convincing evidence that the child is the number holder’s child under Louisiana inheritance law. Therefore, the child is the number holder’s child for the purposes of receiving child’s insurance benefits under the Social Security Act (Act). The agency should not award benefits retroactively, however, because Louisiana law would not consider the child “legitimized” or the legal equivalent thereof.
This memorandum is in response to your request for a legal opinion on the evidence that Louisiana requires: (a) to establish a parent-child relationship involving a deceased, putative father, and (b) the circumstances in which benefits should be awarded retroactively following a determination that an individual is the child of a number holder and entitled to benefits. Specifically, you asked whether an application contains sufficient documentation to establish the parent-child relationship between the child and the deceased number holder and, if so, whether the agency should award retroactive benefits.
It is our opinion that the claimant proved by clear and convincing evidence that the child is the number holder’s child under Louisiana inheritance law. Therefore, the child is the number holder’s child for the purposes of receiving child’s insurance benefits under the Social Security Act (Act). The agency should not award benefits retroactively, however, because Louisiana law would not consider the child “legitimized” or the legal equivalent thereof.
As we understand the facts, Shalynell was born in July. Dernell (NH) died February 14, 2011, while domiciled in Louisiana. In June 2011, Sandra filed an application for Title II child’s benefits on Shalynell’s behalf, alleging that the NH was Shalynell’s father.
The evidence presented shows that Sandra was never married to the NH. At the time of Shalynell’s birth, Sandra was dating two different men, including the NH, who was married to another woman. Shalynell’s birth certificate lists Graylenn, as her father. In 2005, however, a court-ordered deoxyribonucleic acid (DNA) test excluded Graylenn as Shalynell’s biological father. Sandra claims that the NH verbally acknowledged Shalynell as his child about three years ago. She further stated that the NH intermittently supplied informal child support of about $40.00 per week and, shortly before his death, promised to provide health insurance for Shalynell. She added that the NH, at least occasionally, brought her into his home for visits with two of his other children.
Barbaram, the NH’s mother, stated that the NH never explicitly informed her that Shalynell was his child. However, Barbara stated that the NH personally told others, including Barbara’s husband and oldest son, that Shalynell was his child. Ladonna, the NH’s ex-wife, signed a written statement relating that the NH acknowledged Shalynell as his child. She also recalled that the NH brought Shalynell to his home for weekend visits with his two other daughters, a practice which began about two months before his death. Donavan, the NH’s cousin, provided a statement that the NH acknowledged Shalynell as his child. The NH’s obituary listed Shalynell as his child, but he left no will. In a petition for the appointment of an administrator, filed in July 2011, following the NH’s death, Eugene, the NH’s father, listed Shalynell as one of three illegitimate children that the NH “formally” acknowledged. Kernell, the NH’s twin brother, signed an affidavit of jurisdiction describing Shalynell as the NH’s illegitimate child. On July 5, 2011, a judge issued an order appointing Eugene and Barbara as administrators of the NH’s estate, based on the representations contained in these filings. The NH’s estate was solvent, with a net value of $12,294.85, according to an affidavit of valuation filed in court, and there is no indication that anyone contested or filed a legal objection to Shalynell’s status as the NH’s child.
Under the Act, a child of an individual who receives old-age or disability benefits is entitled to child’s insurance benefits if she (1) is that individual’s child for purposes of the Act, (2) files for benefits, (3) is unmarried, (4) is under the age of eighteen, and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Sandra can establish Shalynell’s entitlement to benefits by showing that state law would determine her to be the NH’s child for purposes of intestate succession. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a). Thus, we look to whether Shalynell could inherit the NH’s property under Louisiana law, the state where the NH maintained his primary domicile at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1).
Louisiana law permits the child of a deceased father to establish paternity by presenting clear and convincing evidence of the parent-child relationship. See La. Civ. Code Ann. art. 197. Louisiana refers to “the legal relationship between a child and his parent” as “filiation.” See id. § 178. Louisiana law provides that proof of paternity establishes “filiation,” i.e., a parent-child relationship between the NH and Shalynell. See La. Civ. Code Ann. art. 178-179. Establishing filiation to a deceased father, by clear and convincing evidence, entitles the child to inherit from the father, id., and, therefore, to be considered his child under the Act, see 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). Louisiana courts view clear and convincing evidence as an “immediate standard falling somewhere between ‘the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard.’” Comeaux v. City of Crowley, 793 So. 2d 1215, 1220 (La. 2001) (citation omitted). Functionally, “[t]he burden of proof by clear and convincing evidence requires a party [to show] that the fact or causation sought to be proved is highly probable, i.e., much more probable than its non-existence.” Gibbs v. Delatte, 927 So. 2d 1131, 1140 (La. Ct. App. 2005); accord Sudwischer v. Estate of H~, 705 So. 2d 724, 731-32 (La. 1997) (describing burden in identical terms in relation to proof of filiation by illegitimate children). Louisiana courts have recently expressed a preference that persons attempting to prove paternity by clear and convincing evidence provide genetic testing results. See Dep’t of Soc. Serv., Office of Family Support v. Drew, 70 So. 3d 1011, 1013 (La Ct. App. 2011) (alluding to the inherent uncertainties in determining filiation absent scientific evidence). Sandra did not proffer any genetic evidence substantiating that Shalynell is the NH’s child.
Louisiana courts have also, however, relied upon evidence such as birth certificates and testimony that an individual informally acknowledged or treated a child as his own, to establish a parent-child relationship. See Jenkins v. Mangano Corp., 774 So. 2d 101, 104-05 (La. 2000) (financial support and uncontroverted testimony by individuals lacking pecuniary interest in litigation established paternity); Ratliff v. LSU Bd. of Supervisors, 38 So. 3d 1068, 1077 (La. Ct. App. 2010) (birth certificates and testimony). As stated, while the NH was not listed as Shalynell’s father on her birth certificate, Sandra has provided significant evidence that shows he made an informal acknowledgment. Louisiana law allows proof of filiation by showing clear and convincing evidence that a father made an informal acknowledgement. See Chatelain v. State, Dep’t of Transp. & Dev., 586 So. 2d 1373, 1378 (La. 1991); accord J~, 774 So. 2d at 104-05; S~, 705 So. 2d at 731-32 see also La. Civ. Code Ann. art. 197, cmt. (c) (explaining that “all relevant evidence is admissible to prove paternity,” including “informal acknowledgment”).
Informal acknowledgment encompasses activities of the alleged father such as acceptance of the child in “formal writings or in public or private conversations”; educating the child; living with the mother at the time of conception; rearing the child in his own home; naming the child in a will; assigning his surname to the child; and “holding the child out in the community as his own.” C~, 586 So. 2d at 1379. Louisiana courts typically are reluctant to find informal acknowledgement “for purposes of filiation unless the father has recognized the child as his own unequivocally and on several occasions.” Id. (collecting cases). Put differently, “an informal acknowledgment of filiation must be unequivocal and sufficiently frequent so that there is little doubt the alleged father truly believed he was the father of the child.” Id. (encapsulating holding of Succession of M~, 346 So. 2d 1345, 1350-51 (La. Ct. App. 1977)). Thus, we analyze the evidence to determine whether Sandra has proven by clear and convincing evidence that the NH made an informal acknowledgment.
We first discuss evidence indicating that Shalynell is the NH’s child. To reiterate, to satisfy the clear and convincing standard of proof, an individual must show that the “fact or causation sought to be proved is highly probable, i.e., much more probable than its non-existence.” G~, 927 So. 2d at 1140. Sandra admitted that she was dating both the NH and Graylenn, when she conceived Shalynell. DNA results, however, eliminated Graylenn as Shalynell’s father, and Sandra has articulated a plausible reason for listing Graylenn on the birth certificate, i.e., the NH was married to another woman at the time of Shalynell’s birth, and Sandra wished to avoid a potentially difficult confrontation with his spouse. See La. Civ. Code Ann. art. 197 & cmts. (a), (b) (establishing that child may prove filiation with individual despite presumption of paternity by another man and may even demonstrate filial relationships with more than one man), id. cmt. (c) (ascribing great importance to DNA evidence); accord D~, 70 So. 3d at 1013 (determining that DNA evidence satisfied clear and convincing standard of proof). Thus, Sandra’s statement and the DNA evidence create a negative inference that the NH is Shalynell’s father. Put differently, if only Graylenn and the NH could have been Shalynell’s father, then Graylenn’s exclusion necessarily leads to the conclusion that the NH was Shalynell’s father. Other evidence includes Sandra’s allegations that the NH acknowledged Shalynell, provided some limited financial support, and brought her into his home. Numerous family members’ statements—specifically, those of Barbara, the NH’s mother; Ladonna, the NH’s ex-wife; Forte, the NH’s cousin; Eugene, the NH’s father; and Kernell indicate that they understood Shalynell to be the NH’s child. C~, 586 So. 2d at 1379; accord La. Civ. Code Ann. art. 197, cmt. (c). The NH appears to have told Ladonna, Forte, Eugene, and his older brother that Shalynell was his child. Eugene, and Kernell indicated that Shalynell was the NH’s child when they listed her in the court paperwork for the NH’s estate. Notably, although the NH’s estate was solvent, there is no suggestion in the record that any party filed a legal objection to Shalynell’s status as the NH’s child. Finally, the NH’s obituary describes Shalynell as his child.
We next discuss evidence militating against a finding that Shalynell is the NH’s child. First, the birth certificate lists Graylenn as her father. Louisiana law specifies that “[a] man may, by authentic act or by signing the birth, certificate, acknowledge a child, . . . creat[ing] a presumption that the man . . . is the father.” La. Civ. Code Ann. art. 196. The evidence does not show that the NH acknowledged Shalynell in writing. Louisiana law prefers proof of paternity through genetic testing, see D~, 70 So. 3d at 1013, but there are no DNA test results directly corroborating NH’s relationship to Shalynell. Although the NH allegedly promised to procure insurance for Shalynell shortly before his death, he never did so. While Sandra quite evidently pursued a child support action against Graylenn, she never sought such legal enforcement against the NH, despite his relatively meager voluntary assistance. By Sandra’s own admission, the NH did not consistently acknowledge Shalynell until 2008, approximately twelve years after her birth and three years after DNA testing excluded Graylenn as her father. The NH’s legitimate children also apparently harbored some doubts regarding Shalynell’s parentage, as they suggested that she should obtain a blood test after the NH’s death.
We look at the evidence presented as a whole and find that it represents “highly convincing” proof of filiation, i.e., it is “much more probable than [not]” that Shalynell is NH’s child, G~, 927 So. 2d at 1140, because credible evidence reveals that “the [NH] . . . recognized [Shalynell] as his own unequivocally and on several occasions,” C~, 586 So. 2d at 1379.
You also asked us to analyze whether Shalynell is entitled to retroactive benefits. Louisiana law does not explicitly answer the question whether an act that grants inheritance rights operates prospectively from the date of the act or retroactively to the date of birth. In order for a child to be entitled to retroactive benefits extending prior to the date the claimant proved the parent-child relationship, the state law that granted legitimacy or inheritance rights to the child must make those rights retroactive for some period. See 42 U.S.C. § 416(h)(2)(A); Program Operating Manual Instructions RS 00203.010, GN 00306.050, GN 00306.085. In Social Security Ruling (“SSR”) 85-17, the agency determined that the courts have consistently distinguished between state statutes that legitimate children and those that merely confer inheritance rights. 1985 WL 56848, at *2 (1985). SSR 85-17 recognizes that state statutes that legitimize a child tend to be given retroactive effect, whereas statutes that confer inheritance rights without legitimizing the child generally operate only prospectively. See id. Thus, we must determine whether Louisiana law provides that the NH’s informal acknowledgment legitimized Shalynell, and if so, whether the legitimation applied retroactively. Otherwise, Shalynell is entitled to benefits retroactive only to the date the record evidence first proved filiation by clear and convincing evidence.
Louisiana intestacy law, referenced above, provides that when a person dies without a valid will, “the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him.” La. Civ. Code Ann. art. 880. A comment following article 880 states that “[o]nce a relationship is proven by blood or adoption, the succession rights of such a relative are established without reference to the legitimacy of that relationship.” Id., cmt. (c). Because Sandra has proven Shalynell’s filiation to the NH by clear and convincing evidence of informal acknowledgment, her succession rights have been established without reference to that relationship’s legitimacy. The evidence presented does not show that Shalynell was the NH’s legitimate child.
Furthermore, in 2004, Louisiana amended and reenacted numerous codes and statutes to reflect the change in terminology from “legitimate child” to “child born of marriage” and from “illegitimate child” to “child born outside of marriage.” See 2004 La. Acts 26 (Enactment of New Terminology Relative to the Status of Children), available at http://www.legis.state.la.us/ leg_docs/04RS/CVT2/ OUT/0000LIZ3.PDF. While the law before 2004 provided for the “legitimation” of children, the legislature deleted this term in favor of the “acknowledgement” of children. See id. Applying current Louisiana law, we cannot state that the proof of informal acknowledgment Sandra presented had the effect of rendering Shalynell a “child born of marriage,” because the NH and Sandra indisputably were never married. Instead, as detailed above, Louisiana law provides that proof of paternity establishes “filiation,” i.e., a parent-child relationship between the NH and Shalynell. See La. Civ. Code Ann. art 178-179. Louisiana law does not, however, suggest that establishing filiation equates to legitimizing a child. Moreover, Louisiana law does not explicitly resolve whether an act that establishes paternity or filiation or that grants inheritance rights operates prospectively from the date of the act or retroactively to the date of birth. Because Louisiana law provides no basis for the agency to establish the parent-child relationship retroactively to Shalynell’s birth, she is not entitled to retroactive benefits under 42 U.S.C. § 416(h)(2)(A).
Because Louisiana law provides no basis for the agency to establish retroactively the parent-child relationship between the NH and Shalynell, the effective date of the parent-child relationship is the date that Shalynell first met all of the requirements for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). The Act provides that the child of an individual entitled to disability insurance benefits shall be entitled to child’s insurance benefits beginning with the first month in which the child meets the criteria for child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(a)(2). If the child meets all of the requirements for entitlement to child’s insurance benefits before an application is filed, the child is entitled to receive retroactive benefits for no more than the six-month period immediately preceding the month in which the application was filed. See id. § 404.621(a)(2). The benefits begin with the first month in the six-month period throughout which she meets the requirements for entitlement. See id. §§ 404.352(a)(2), 404.621(a)(2).
On these facts, and as explained above, we concluded that Sandra proved by clear and convincing evidence that Shalynell is the NH’s child. We conclude that the evidence shows that Sandra established Shalynell’s filiation to the NH by clear and convincing evidence in July 2011, when Eugene, and Kernell filed the petition for the administration of the intestate NH’s estate. Their decision to list Shalynell as the NH’s child in legal paperwork reinforces the apparently widespread belief within the NH’s family that Shalynell is the NH’s child and, concomitantly, Sandra’s credibility. Shalynell’s inclusion in the petition for the appointment of the administrator had immediate legal consequences, given the solvency of the estate and the lack of a will. Accordingly, we believe the evidence of informal acknowledgment and filiation became clear and convincing only in July 2011, when Eugene, filed the petition for administration.
Although the question is close, we advise that the agency treat Shalynell as the NH’s child for purposes of determining her entitlement to benefits. However, the agency should not award retroactive benefits because the evidence of filiation became clear and convincing only in July 2011, and Louisiana law offers no basis for us to find legitimation.
Regional Chief Counsel
Mark J. Mendola
Assistant Regional Counsel
B. PR 01-090 Establishing Precedents for Using Information from Child's Birth Certificate as Written Acknowledgment or Proof of Court Order of Paternity
DATE: November 20, 2000
To determine if there is written acknowledgement under 216(h)(3), the opinion provides the requirements in each State in Region VI for entry of a father's name on a BC.
This memorandum is in response to your request for our review and comments concerning a draft of the Regional Transmittal to Program Operations Manual System (POMS) GN 00306.120. It is our understanding that it is the practice of Management Operations Support to provide a POMS Regional Transmittal to establish precedent opinions applicable to specific states within a region. A Regional Transmittal is designed to determine for each state within Region VI whether an illegitimate child's birth certificate (BC) may constitute evidence of written acknowledgment, or a court order, of paternity where the father's name is on the BC. We suggest several changes to your draft POMS Regional Transmittal. We have researched the law to verify the current status of each state's requirements for entry of a father's name on a BC and also have included where applicable a summary of any changes in a state's law during approximately the past twenty years. As explained below, we believe the transmittal should appear as shown on the attachment.
As indicated in your draft, Louisiana has no provisions dealing with either the child's surname or entry of the father's name on a BC.
There is no evidence that the NH actually completed any formal acknowledgment satisfying Louisiana’s statutory requirements. See La. Civ. Code Ann. art. 196 (requiring act of authentication as condition precedent to formal acknowledgment). Formal acknowledgement yields a presumption of filiation. Id. Presumably, Eugene , used the word “formally” in a lay or colloquial sense.
The facts do not show that the NH established a parent-child relationship with Shalynell by any of the other common methods. See 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (explaining that child may establish requisite relationship by showing that he or she is a natural child, legally or equitably adopted child, stepchild, grandchild, or step-grandchild). Also, Shalynell cannot be deemed NH’s child pursuant to 42 U.S.C. § 416(h)(3)(C) and 20 C.F.R. § 404.355(a)(3) because the evidence does not disclose that the NH ever acknowledged Shalynell in writing or that a court ever decreed her to be the NH’s child or ordered the NH to pay child support on her behalf.
Louisiana’s intestate succession statutes do not answer the question of under what circumstances a child, such as Shalynell, may inherit from a number holder. See La. Civ. Code Ann. art. 880 provides that that, absent a will, an individual’s property “devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or adoption, and in favor of his spouse not judicially separated from him . . . .” La. Civ. Code Ann. art. 888 provides that “[d]escendants succeed to the property of their ascendants,” “in equal portions and by heads if they are in the same degree” and “by roots if all or some of them succeed by representation.” Thus, we will not substantively address these statutes. As discussed below in the body of the opinion, however, the intestate succession statutes do factor in the separate question whether Shalynell is entitled to retroactive benefits.
2005 La. Acts 192, § 1 technically superseded C~, which set forth the legal framework for analysis under former article 209 of the Louisiana Civil Code. See 2005 La. Acts 192, §1. La. Civ. Code Ann. art 197, which provides the current framework, continues to require that a child prove paternity by clear and convincing evidence. Indeed, comment (c) to article 197 explicitly cites approvingly to former article 209, which C~ authoritatively construed. Comment (c) also cites favorably to I~ and S~, both of which applied C~. J~, 774 So. 2d at 103-04; Sudwischer, 705 So. 2d at 731-32. Thus, C~, at minimum, remains highly persuasive as the most expansive and reasoned elaboration regarding informal acknowledgment by Louisiana’s highest court.
The evidence does not show that the NH supplied health insurance for his legitimate children.
Only the NH’s daughters seem to have maintained doubts regarding Shalynell’s status as the NH’s child. While the record does not disclose any basis for their suspicions, they had the most to lose by Sandra proving Shalynell’s filiation to the NH since then their inheritance would be diminished. We find it probative that the evidence does not show that either daughter objected to the petition for administration, which listed Shalynell as the NH’s child.