Illinois Probate Court Paternity Determination —

Where there is no indication that the probate court proceedings were adversarial in nature, SSA is not bound by the court order. (H~, Leonard G., RAV—(A~), to ARC, Progs, 7/17/87)

You have asked whether the Social Security Administration (SSA) is bound by a determination of the Probate Court of St. Clair County, Illinois dated June 3, 1986 that the wage earner, Leonard G. H~, is the father of LaTina L~. For the following reasons, we conclude that SSA need not consider itself bound by this court order, but that further investigation seems warranted. We recommend that OIG be asked to investigate this matter.

Facts

LaTina L~ was born to Alethia H~ on June 14, 1983. The birth certificate does not name the father, but it shows the father's age as 23. Leonard H~ was born in 1920.

As you state in your memorandum to us, on November 29, 1983 Leonard H~ filed a claim for child's benefits on behalf of LaTina, accompanied by a written acknowledgment of paternity. However, LaTina's mother, Alethia stated that Frederick L~, not Leonard H~, was LaTina's father. Both Alethia H~'s mother and Frederick L~'s mother stated their belief that Frederick L~, not Leonard H~, was LaTina's father. Frederick L~ could not be located. On the basis of all of this information, you denied Leonard H~'s claim for child's benefits on behalf of LaTina.

Leonard H~ filed another such claim on October 29, 1986. This time he supported his claim with a court order of paternity, temporary guardianship papers, and a corroborative statement from Alethia H~. The court order, dated June 3, 1986, provides in full:

Department of Children & Family Services has filed this petition alleging Leonard H~ Sr. is the father of Latina ~. Leonard H~ Sr. has admitted in open court that he is the natural father of Latina L~. For the purpose of establishing paternity and for determining custody this court recognizes that the natural father of Latina L~ is Leonard H~ Sr.

Subsequent to entry of this court order, Alethia H~ recanted her statement that Leonard H~ is LaTina's father. She signed a statement that Frederick L~ is LaTina's father and that Leonard H~ paid her $50 to name Leonard H~ as LaTina's father. A Report of Contact signed by Toni M. J~ and dated March 31, 1987 states that Alethia H~ is "terrified of" Leonard H~. Ms. J~ seems to believe that the $50 and her fear induced Alethia H~ to corroborate Leonard H~'s paternity in the first place.

We have garnered some other possibly pertinent facts from the claims folder. In 1983 the Illinois Department of Public Aid was investigating Leonard H~ for fraud. We cannot determine from the claims folder the results of that investigation. Leonard H~ claims to have fathered 29 children. The mothers all are related to one another (sisters, aunts, etc.). LaTina would be C8 on his Social Security account.

C1, Cynthia H~, also was born to Alethia H~. Her birth certificate shows Leonard H~ to be her father and Leonard acknowledged paternity in writing. In December 1982 Fredrick L~ acknowledged paternity of Cynthia in writing, and his mother signed a statement that she is Cynthia's grandmother. Although Cynthia's benefits on Leonard H~'s account were suspended for a period of time, on August 17, 1983 a claims authorizer at the Great Lakes Program Service Center determined that the evidence was "not strong enough to overturn our [SSA's] original determination" that Leonard H~ was Cynthia's father.

Applicable Law

Section 216(h)(3)(A)(II) states that an individual shall be deemed to be the child of the wage earner if a court has so decreed. The federal courts have required the Secretary generally to accept such a determination of a state court:

Although the Secretary is not bound by the decision of a State trial court in a proceeding to which he was not a party, we hold that he is 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.

Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973); accord Dennis v. Railroad Ret. Bd., 585 F.2d 151, 154 (6th Cir. 1978). However, federal courts have qualified the above rule as applying only when the following circumstances are present:

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.

Id.

Discussion

SSA is bound by law to deem Leonard G. H~ to be LaTina's father unless one of the four prerequisites quoted above is absent. The first and third prerequisites are met. Since the probate court apparently resolved no legal issues, we have no reason to believe that the fourth prerequisite - that the probate court's decision be consistent with state law - is not also met.

We do, however, question whether the second prerequisite is met: we see no indication that the probate court proceedings here were adversarial in nature or that the issue of LaTina's paternity was "genuinely contested." On the contrary, the evidence obtained by SSA suggests that the state court order may have been procured by fraud.

Based on the evidence noted in your memorandum to us, as well as the additional facts recited above, we recommend further investigation of this matter. In our judgment, the possibility here of fraud and duress - and perhaps also fraud with respect to one or more of the other children receiving benefits on this wager earner's account - would warrant a complete investigation by our Office of the Inspector General.

Conclusion

Legally, because the court order at issue appears not to have been entered following proceedings in which Leonard H~'s claim to be LaTina's father was genuinely contested, SSA need not consider itself bound by the court order. Since in our view your decision must rest on your weighing available evidence, and since that evidence is conflicting, we strongly recommend a full OIG investigation of the wage earner and his relationship to LaTina and to the other seven children for whom he claims benefits.

PARENT AND CHILD — Court order of support

A court order incorporating the terms of a settlement between the parties in a paternity action in proceedings in which the putative father was represented by an attorney and the court was obliged under Illinois law to consider probable evidence of paternity among other things is sufficient that the wage earner was "ordered by a court to contribute to the support of the applicant because the applicant is his or her son or daughter" pursuant to Section 216(h)(3)(A)(i)(III) of the Social Security Act. (L~ William F.,— RAV (M~), to ARC, 08/24/83.> OD 2018 - OH

I. Question Presented:

This is with reference to your request for a legal opinion concerning the applicability to this case of an earlier opinion of this office. Rosemary P~ applied for child's insurance benefits on behalf of her son, Joseph A. L~~ on April 27, 1982. The application is based on the account of a retire wage-earner, William F. L~ You have asked whether the Regional Attorney's opinion in the matter of L. G~ on the record of Delmar, B~ A/N~, RA V (P~ to Reg. Rep. BRSI (B~), 6/24/69 is applicable to the instant case.

II. Answer

We believe that Delmar B~ supra, is distinguishable, and that the Illinois court order to William L~ ordering payment to Rosemary P~ was made in part to support Joseph because Joseph L~ was the child of William L~.

III. Discussion:

A. Federal Statutory Background

Under Section 216(h)(3)(A)(i)(III), of the Social Security Act, 42 U.S.C. §416(h)(3)(A)(i)(III), an applicant may be deemed the child of an individual if the applicant is the biological child of the individual ^[1] and if the individual "has been ordered by a court to contribute to the support of the applicant because the applicant is his son or daughter." See POMS GN §§00306.185, 00306.200. The legislative history of Section 216(h) (3)(A) - (i)(III) indicates that its purpose was to entitle a child to benefits "without regard to whether he has the status of a child under State inheritance laws if the father was supporting the child or had the legal obligation to do so." 1965 U.S. Code Cong. & Ad. News 1958. The legislative history also reiterates the purpose of child's benefits — to replace support lost by a child when his father retires, dies, or becomes disabled. 1965 U.S. Code Cong. & Ad. News 2050.

We agree with you that it would be inappropriate to construe §216(h)(3)(A) (i)(III), as Delmar B~, supra, appears to construe it to require the putative father's admission of paternity or a judicial finding of paternity. Rules of statutory construction support that interpretation. "A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another .... "C. Sands, Statutes and Statutory Construction §46.06 (1973).

Section 216(h)(3)(A)(i)(I) provides for entitlement to child's benefits through a written acknowledgment. Section 216(h)(3)(A)(i)(II) provides for entitlement to child's benefits through a court decree of paternity. Therefore, reading §216(h)(3)(A)(i)(III) as requiring either an acknowledgment or court decree of paternity would render the subsection superfluous, since any child who satisfied its conditions would also satisfy the conditions of one of the other above-cited subsections. Insofar as Delmar B~, supra, construes §216(h)(3)(A)(i)(III) to require either a written acknowledgment of paternity or a judicial finding of paternity, it is overruled.

B. Illinois Statutory Background

Moreover, we agree with you, based on Illinois law, that the court order incorporating the settlement in this case constitutes a court order for support. The Illinois Paternity act contains a specific provision dealing with settlement of paternity actions when, as here, paternity is not acknowledged. Ill. Rev. Stat., ch. 40, §1360 (Section 9A of the Illinois Paternity Act) states, in full:

In cases where the putative father has not acknowledged paternity and where the parties have requested a settlement, the court shall review the proposed settlement in light of the allegations made, the probable evidence and the circumstances of the parties. If the court is satisfied the best interests of the child and of the parties will be served by entry of an order incorporating the settlement, and if it is satisfied that the financial security of the child is adequately provided for and that the child and its mother are not likely to become public charges, it may enter an order to that effect. The order may be directed to the defendant, or the mother, or both.

Important in our consideration is the fact that this statute imposes several duties on the trial court: 1) to review the proposed settlement in the light of allegations, probable evidence, and circumstances of the parties; 2) trial court must satisfy itself that best interests of child and of parties will be served by entry of an "order incorporating the settlement;" 3) satisfy itself that financial security of the child is provided for; and 4) satisfy itself that child and mother will not become public charges. If the trial court satisfies all those prerequisites "it may enter an order to that effect," i.e., incorporating the settlement. Implicit in these prerequisites is the requirement that "the probable evidence" should support the allegations of paternity and considered as a whole, paternity is likely.

Unlike cases where paternity is acknowledged or found, an order incorporating such settlements under Section 9A of the Illinois Paternity Act, quoted above, is final and may not later be reopened or supplemented. In Fitzgerald v. Theisin, lO1 Ill. App.3d 193, 427 N.E.2d 1044 (2nd Dist. 1981) the court stated:

Read in pari materia Sections 9 and 9A establish a legislative design wherein fathers who have either acknowledged paternity or have been adjudicated the father are subject to supplementary orders for support, maintenance, education, and welfare of their children under Section 9. Putative fathers who have not acknowledged paternity and have not been adjudicated the father of the child but enter into settlements with the mother are not subject to supplementary orders... 427 N.E.2d at 1046.

Finally, because Section 9A of the Illinois Paternity Act phrases the outcome as a court "order" incorporating the settlement, we believe payments made pursuant thereto are payments made pursuant to a court order. Hence, we believe they are payments because the wage earner "has been ordered by a court to contribute to the support of" the applicant within the meaning of Section 216(h)(3)(A)(i)(III) of the Act.

C. Court Order In This Case

Under the Order entered in this case, filed on October 27, 1966, incorporating the settlement dated October 7, 1966, the court ordered wage earner, by name, to pay $4,000.00 to claimant's mother. The settlement, incorporated by the court order, makes clear that the payments to be made by the wage earner are to claimant's mother "individually and on behalf of herself and her minor child, called Joseph A. L. ..." While that indicates that the settlement was not for the child alone, the settlement also declares that claimant's mother and the wage earner "are desirous of entering into a settlement to provide for the support and maintenance of said minor child,..." (emphasis added).

Hence, we conclude that payments under the court order incorporating this settlement were, at least in part, for the support of claimant here. As such it satisfies the. identification requirement of POMS G 00306.185. final question is whether the payments were ordered "because the applicant [was] his son or daughter."

D. The Delmar B~ Opinion

In a case involving a child of a decedent claiming under Section 216(h)- (3)(C)(i)(III), (substantially identical to Section 216(h)(3)(A)(i)(III) for our purposes) this office stated that a settlement agreement without acknowledgment of paternity, even though incorporated into a court order, did not comply with section 216(h)(3)(C)(i)(III) because "there was no tenable basis for concluding that this was an order directing the decedent to contribute to the support of the child-claimant because she was his daughter." Delmar B~ A/N, RA V (P~~) to BRSI, Chicago Payment Center (B~) 6/24/69(emphasis in original).

Because the judicial functions necessary before a settlement can be incorporated into a court order in Illinois are documented in this case, we believe that payments in this case were ordered because of the allegations of paternity, the probable evidence (the court heard the mother's testimony and blood test results had been sent to the court and are contained in the file), and because the child and mother would thereby not become public charges. In sum, payments were ordered because the claimant was most likely the child of the wage earner.

With respect to this particular case, we note that court docket entries show that the putative father, William L~, obtained counsel and was represented throughout the entire proceeding. Most important, the docket testimony of the complaining witness, Rosemary P~, with both counsel present, before approving the settlement agreement. Considered with the fact that blood test evidence was also in the court file, we believe that this settlement was approved by the court, under Section 9A of the Illinois Paternity Act, because William L~ was most likely the father of claimant Joseph L~

We have reexamined the Delmar B~ claims folder. There is no indication that the court therein evaluated the evidence as mandated by Section 9A of the Illinois Paternity Act. While the opinion, supra, appears to be correct based on the facts therein, we believe that a settlement of a paternity action prior to judgment, such as this one, may be made by both parties for a variety of reasons, e.g., desire of the putative father to avoid a final determination (with its potentially greater financial obligations) or publicity, or extreme need of the mother and illegitimate child, etc. Those reasons may or may not be related to whether or not the putative father is the biological father of the child. But, we believe that the scheme of Section 9A of the Illinois Paternity Act, requiring a judge to consider certain matters including the probable evidence, before entering an order incorporating the settlement evinces a legislative intent that the court approve a settlement and order support pursuant thereto when the defendant is the father of the child, i.e., because he is the father of the child. ^[2] Cf. Social Security Ruling 67-59.

Therefore, we believe that our opinion in Delmar B~ A/N ~ RA V (P~) to Reg. Rep. BRSI (B~ 6/24/69 should be distinguished ^[3] insofar as it infers that an order incorporating a settlement under Section 9A of the Illinois Paternity Act' may never be considered an order for support "because he was his child."

In sum, we conclude that the Illinois court order entered in this case under Section 9A of the Illinois Paternity Act may be considered an order for support because claimant was William L~ son, and therefore entitling Joseph L~ to benefits under Section 216(h)(3)(A)(i)(III) of the Act.