TN 61 (09-16)

A. PR 16-151 Relative DNA Testing to Establish Paternity under Indiana law

Date: June 14, 2016

1. Syllabus

The numberholder (NH) was domiciled in Indiana at the time of his death; therefore, Indiana intestacy law governs whether the claimant could inherit from the NH as his child. Under Indiana law, a child may inherit from a parent regardless of the parent’s marital status. Indiana law provides that a presumption of paternity exists if a genetic test indicates that a man is the child’s biological father with at least a 99% probability. However, Indiana law does not contemplate a presumption of paternity when the DNA tests are based on the siblings of the alleged father. In this case, the presumption of paternity does not apply.

Nonetheless, Indiana law permits a finding of paternity in the absence of a statutory presumption where paternity is established by a preponderance of the evidence. We conclude that the DNA test results and other evidence provided by the claimant’s mother satisfies the preponderance of the evidence standard under Indiana law. The claimant could inherit from NH and you could reasonably find that the claimant is NH’s child for purposes of surviving child’s insurance benefits. Therefore, the claimant is eligible for child’s insurance benefits under Section 216(h)(2) of the Social Security Act.

2. Opinion

C~’s mother, C2~, applied for surviving child’s insurance benefits on the account of B~, a deceased numberholder (NH). You asked whether C~ is entitled to benefits on NH’s earnings record. We conclude that there is sufficient evidence to establish that NH is C~’s father under Indiana intestacy laws, thereby establishing a parent-child relationship under Section 216(h)(2) of the Social Security Act.

BACKGROUND

NH was domiciled in Indiana when he died on June XX, 2014. The minor claimant, C~, was born on May XX, 2002, to C2~. Although the birth certificate was not provided, C2~ indicated that the name of C~’s father is blank on his birth certificate and she was never married to NH.

In October 2015, C2~ applied on C~’s behalf for surviving child’s insurance benefits on NH’s earnings record. In support, the following evidence was submitted: (1) a letter from C2~; (2) a letter from T~, NH’s brother; and (3) DNA test results comparing C~’s DNA with that of T~ and C3~, NH’s brothers and C~’s alleged uncles.

C2~’s letter states that NH is C~’s father. According to C2~, she began dating NH in July 2001, NH helped organize a baby shower for her upon learning she was pregnant, although she was not living with him at the time, and NH visited her in the hospital once after the child’s birth, but he did not sign the birth certificate. Approximately two months after C~ was born, NH went to jail for two years. Upon his release in 2004, C2~ and NH were engaged and lived together for a short period, but later separated.

T~’s letter states that NH is C~’s father. According to T~, NH and C2~ dated for a year before C~ was born, although they did not live together at the time, and were engaged for six months after NH was released from jail. In addition, T~ states that NH helped organize a baby shower for C2~, NH had C~’s name tattooed on his neck, and NH “always knew [C~] was his son.”

The DNA report, dated November XX, 2015, indicates that the “probability of relatedness” between C~ and NH’s brothers, T~ and C3~, is 99.6% and the likelihood that the alleged uncles are C~’s biological relatives is 251 to 1.

DISCUSSION

The Social Security Act provides for the payment of surviving child’s insurance benefits to the child of an insured wage earner who is deceased. 42 U.S.C. § 402(d)(1). For the purpose of child’s benefits, a claimant is considered the insured individual’s child if he would inherit from the insured individual. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); see also POMS GN 00306.55(A). If the insured individual is deceased, the Agency applies the intestate succession laws of the State where the individual was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1); see also POMS GN 00306.001(C)(2)(a).

Because NH was domiciled in Indiana at the time of his death, Indiana intestacy law governs whether C~ could inherit from NH as his child. Under Indiana law, a child may inherit from a parent regardless of the parent’s marital status. See Ind. Code Ann. § 29-1-2-7(b). In addition, a child born out of wedlock can posthumously establish the right to inherit from the alleged father by filing a paternity suit within five months of the father’s death. Ind. Code Ann. § 29-1-2-7(b)(2)(B). However, the Agency does not require a claimant to bring a parentage action or establish paternity prior to the insured wage earner’s death; rather, the Agency will decide the paternity issue under the standard of proof that the State court would use in making the paternity determination. 20 C.F.R. § 404.355(b)(2).

Indiana law provides that a presumption of paternity exists if, inter alia, a genetic test indicates that a man is the child’s biological father with at least a 99% probability. Ind. Code Ann. § 31-14-7-1(3); see also POMS GN 00306.485(C). However, Indiana law does not contemplate a presumption of paternity when the DNA tests are based on the siblings of the alleged father. Therefore, this presumption of paternity does not apply.

Nonetheless, Indiana law permits a finding of paternity in the absence of a statutory presumption where paternity is established by a preponderance of the evidence. See Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. Ct. App. 1995) (“Paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence.”). A mother’s testimony may be received in evidence to establish paternity, but a judgment cannot be made based on such testimony alone; the testimony must be supported by corroborative evidence or circumstances. Inn. Code Ann. § 29-1-2-7(c); see also First Student, Inc. v. Estate of Meece, 849 N.E.2d 1156, 1164 (Ind. Ct. App. 2006) (intestacy statute “requir[es] that the mother’s testimony be corroborated by other evidence or circumstances”).

Here, C2~’s statement that NH is C~’s father is corroborated by the statement of T~, NH’s brother. In addition, while the DNA test results do not create a presumption of paternity, they establish a significant probability that NH’s brothers are biologically related to C~ and serve as additional evidence in support of C2~’s statement.¹ Under the preponderance of the evidence standard, we believe that Indiana courts would find that NH was C~’s biological father and that C~ could inherit from NH intestate. See In re Paternity of I.B., 972 N.E.2d 985, at *2 (Ind. Ct. App. 2012) (Table) (“In a paternity action, the testimony of the mother regarding an act of sexual intercourse with the defendant, coupled with the probability of pregnancy, is sufficient to support a determination that the defendant is the father of the child.”) (citing First Student, Inc., 849 N.E.2d at 1164). Therefore, we conclude that C~ is entitled to surviving child’s insurance benefits on NH’s account.

CONCLUSION

For the foregoing reasons, we conclude that the DNA test results and other evidence provided by C2~ satisfy the preponderance of the evidence standard under Indiana law to establish that C~ could inherit from NH intestate. Thus, you could reasonably find that C~ is NH’s child for purposes of surviving child’s insurance benefits.

Kathryn Caldwell

Acting Regional Chief Counsel

Region V, Chicago

Jean Godfrey

Assistant Regional Counsel

B. PR 09-049 Entitlement to Surviving Child Benefits - Rebuttable Presumption of Paternity Charles L~, Deceased Wage Earner; Jeramey S~, SSN ~

DATE: August 7, 2008

1. SYLLABUS

Because Indiana gives full faith and credit to the judgments of other states, that state would consider itself bound by Iowa's law stating that a child born during the marriage is presumed to be a child of that marriage. Since no evidence overcoming the presumption of paternity has been provided, the ex-husband of the claimant's mother is the established father under Iowa law.

Therefore, the child is not entitled to surviving child's benefits on the record of the deceased wage earner.

2. OPINION

You requested a legal opinion regarding whether a child who was allegedly conceived during a relationship between his mother and the deceased wage earner while the mother was married to another man is eligible for surviving child's insurance benefits on the deceased wage earner's record. Based upon the evidence presented and for the reasons discussed below, we believe the child is not entitled to benefits on the deceased wage earner's record.

FACTUAL BACKGROUND

The materials you provided indicate that Angela S~, the child's mother, reported that she was involved with the deceased wage earner, Charles L~, while she was separated from her husband, Steve S~. During the separation, Mrs. S~ stated she went to Indiana from Iowa in May 1996 and had a relationship with Charles L~. Mrs. S~ stated she became pregnant during that time, and was five months pregnant when she separated from Charles L~ and returned to her husband in Iowa. Jeramey S~ was born on December XX, 1997, in Cedar Rapids, Iowa. According to Mrs. S~, she and Mr. S~ separated again in 1998 and later divorced on February XX, 2001.

Upon our request, you obtained a copy of the divorce decree. In the divorce decree, filed in Iowa District Court, Jeramey was described as a child of the marriage. The decree provided that Mr. and Mrs. S~ would have shared physical custody of Jeramey as well as another child of the marriage. Mr. S~ was ordered to pay child support for both children, and was awarded the right to claim Jeramey on his income tax returns beginning in the year 2000 and every year thereafter. In addition, Mr. S~ was ordered to provide Jeramey's medical insurance.

The evidence you provided also shows that the wage earner passed away on May XX, 2005, while domiciled in the state of Indiana. Although Charles L~ was never legally declared to be Jeramey's father, Mrs. S~ informed the Field Office that she can provide the names of Mr. L~' mother, brother, and a friend who will sign statements that Charles L~ is the father of Jeramey S~. Their statements would be based on comments allegedly made by the deceased wage earner, and Jeramey's ethnicity. The deceased wage earner was Native American and Mrs. S~ describes Jeramey as "obviously Native American."

Analysis

Under the Social Security Act, a child may establish that he is a child of a wage earner and, thus, eligible to receive child's insurance benefits on his account if, under state law, he would be entitled to inherit from the deceased wage earner if the wage earner died intestate. See 42 U.S.C. § 416 (h)(2)(A); 20 C.F.R. § 404.355(a)(1). If the child cannot qualify for child's benefits based on the right to inherit under state law, he can establish that he is eligible for benefits if the deceased wage earner either acknowledged paternity of the child in writing, was decreed by a court to be the child's father, or was ordered by a court to pay child support for the child. See 42 U.S.C. § 416 (h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3).

The deceased wage earner died domiciled in Indiana. Therefore, Indiana's intestacy law is applicable in this case. See 20 C.F.R. § 404.355(b)(1).

Because Jeramey is under the age of 20, his paternity could have been established by law in a cause of action that was filed either during the putative father's lifetime or within five months after the putative father's death. See Ind. Code Ann. § 29-1-2-7(b)(2)(b). Paternity can also be established under this statute if the putative father executed a paternity affidavit as set forth in Ind. Code Ann. § 16-37-2-2.1. See Ind. Code Ann. § 29-1-2-7(b)(5). No action to establish paternity was filed and no affidavit has been provided.

That is not the end of the matter, however, because the Agency does not require that a child obtain a court order of paternity. Rather, the Agency decides the issue of paternity using the standard of proof the state court would use to determine paternity. See 20 C.F.R. § 404.355(b)(2). Under Indiana law, paternity must be established by a preponderance of the evidence. See Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. App. 1995) (paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence). Thus, if Jeramey could establish paternity according to the evidentiary requirements of Indiana law, he would be deemed a natural child of the deceased wage earner and would be entitled to child's benefits on the deceased wage earner's account. See 20 C.F.R. § 404.355(a)(1). Evidence regarding Jeramey's paternity from Mr. and Mrs. S~'s divorce in Iowa would be considered by Indiana courts. The Iowa divorce decree between Mr. and Mrs. S~ implicitly addressed the paternity of Jeramey. We believe Indiana courts would look to it for guidance on this issue and would give full faith and credit to the Iowa divorce decree. Indiana courts would consider themselves bound by such judgments so long as the state court which issued the order had jurisdiction over the subject matter and the relevant parties. See Ind. Code Ann. § 31-14-19-1 (West 2008); Lucas v. Estate of Stavos, 609 N.E. 2d 1114, 1116, 1120 (Ind. Ct. App. 1993), modified by Stidham v. Welchel, 698 N.E.2d 1152, 1155-56 (Ind. 1998). In assessing whether another state's jurisdiction was proper, the Indiana courts look to the substantive law of the other state. See id. at 1117. In this case, jurisdiction was proper. Mr. and Mrs. S~ were domiciled in Iowa at the time of the child's birth and when they divorced. In Iowa, a child born during the marriage is presumed to be a child of that marriage. See Iowa Code Ann. § 600B.41A; Calendar v. Skiles, 591 N.W. 2d 182 (Iowa 1999). Therefore, Jeramey is presumed to be Mr. S~'s child under Iowa law. See Iowa Code Ann. § 598.31. Iowa allows presumed paternity to be overcome, but requires that a formal action be filed. See Iowa Code Ann. § 600B.41.A. Mrs. S~ did not file an action to overcome paternity in Iowa.

Indiana law recognizes a divorce decree as a determination of paternity and precludes, except in extraordinary circumstances, a husband and wife from later challenging an explicit or implicit finding of paternity in the context of a dissolution action. See In re Marriage of Huss, 888 N.E. 2d 1238, 1242 (Ind. 2008) (citing Russell v. Russell, 682 N.E. 2d 513, 518 (Ind. 1997) ("In many cases, the parties to the dissolution will stipulate or otherwise explicitly or implicitly agree that the child is a child of the marriage. In such cases, although the dissolution court does not identify the child's biological father, the determination is the legal equivalent of a paternity determination in the sense that the parties to the dissolution . . . will be precluded from later challenging that determination, except in extraordinary circumstances."). The Iowa divorce decree would be entitled to full faith and credit by Indiana courts, and Indiana law would require a showing of extraordinary circumstances to overcome that presumption. No evidence of extraordinary circumstances has been presented.

If a cause of action was filed in Indiana, a paternity finding based on Mrs. S~'s testimony could be used to establish inheritance rights, but only if sufficient corroborative evidence or circumstances exist to support her testimony. See Ind. Code. Ann. § 29-1-2-7(b) and (c); Burnett v. Camden, 254 N.E. 2d 199, 201 (Ind. 1970), reh'g denied 255 N.E. 2d 650 (Ind. 1970). Mrs. S~ has stated that she can provide statements from the deceased wage earner's relatives/friends stating that the deceased wage earner was the child's father. This evidence combined with Mrs. S~'s testimony that she was not living with her husband and was involved with the deceased wage earner at the time she became pregnant would likely not satisfy the Indiana intestacy statute based on a review of other similar cases which had stronger evidence of paternity. See Green v. Estate of Green, II, 724 N.E. 2d 260, 265 (Ind. Ct. App. 2000) (where alleged father's unequivocal designation of putative heir as his son on signed documents was found to constitute corroborative evidence); Matter of Estate of Hendren, 459 N.E.2d 437, 442 (Ind. Ct. App. 1984) (evidentiary requirement of intestacy statute was met where paternity finding was based upon putative father's written acknowledgment of paternity); S.M.V v. Littlepage, 442 N.E. 2d 103, 110 (Ind. Ct. App. 1982) ("No facts are disclosed in the evidentiary materials from the proceedings on the motion for summary judgment which would indicate that (1) paternity of the decedent had been established during his lifetime; or (2) Bonham and S.M.V. had married and he had acknowledged the paternity of the Child; or (3) Bonham had acknowledged the paternity of the Child in writing; or (4) that there was past performance of Bonham's obligation). Indiana courts have routinely required that there be written acknowledgement by the putative father to establish paternity posthumously.

Conclusion

We conclude that Jeramey S~, who was born during the marriage of Mr. and Mrs. S~, could not inherit the intestate property of Charles L~, the deceased wage earner. Because Indiana gives full faith and credit to the judgments of other states, and because no evidence overcoming the presumption of paternity has been provided, Mr. S~ is Jeramey's established father under Iowa law. Based upon the information provided, we do not believe the child is entitled to surviving child's benefits on the record of the deceased wage earner.

Kristi A. S~
Acting Chief Counsel, Region VII
By Jennifer L. M~
Assistant Regional Counsel

C. PR 06-196 MOS-Indiana: Possible Reopening of Initial Award to Child Entitled under § 216(h)(3) - REPLY Number Holder: Scott S~ (~) Claimant: Cassandra L. J~ (~) Your Reference: S2D5G6; S~, S. Our Reference: 06-0051

DATE: July 14, 2006

1. SYLLABUS

SSA does not have to follow an Indiana court's finding of paternity in a case where the issue was not genuinely contested and SSA was not a party to the action.

In such a case, subsequent DNA testing showing the number holder is not the children's father and the mother's statement that he was not the father would constitute new and material evidence to permit reopening.

2. OPINION

Child's insurance benefits (CIB) were awarded to Cassandra J~ (Cassandra) on the account of wage earner Scott S~ (Mr. S~), based on a court finding that Mr. S~ was Cassandra's biological father. You asked whether information submitted to the Agency after benefits were awarded constitutes new and material evidence sufficient to warrant reopening of the determination made on Cassandra's application. In that regard, you asked whether Social Security Ruling (SSR) 83-37c, which adopts the ruling in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), requires the Agency to accept the trial court's paternity finding. We conclude that the Agency need not accept the trial court's paternity finding in the present case, because the issue was not genuinely contested at the trial court level. We also conclude that the additional information submitted after the award of benefits is new and material and justifies reopening of the earlier determination.

BACKGROUND

Tyler J. J~ (Tyler) was born on July XX, 1992. Cassandra was born March XX, 1994. Their mother, Amy J~ (Ms. J~), never married Mr. S~. In August 1994, Ms. J~ filed petitions in the Marion County, Indiana Superior Court, asking the court to declare Mr. S~ the father of Tyler and Cassandra and to order Mr. S~ to pay child support. The petitions to establish paternity for Tyler and Cassandra state that Ms. J~ was unmarried when each child was conceived. Mr. S~ was served with notice of the proceedings, but he did appear at the court hearing. In 1996, the trial court entered a decree of paternity, finding that Mr. S~ was the father of both children and ordering him to pay child support. Since Mr. S~ did not appear, the court's decree was a default judgment.

Mr. S~ never complied with the child support obligation imposed by the court, and Cassandra never lived with him. At some point, Ms. J~ apparently told Mr. S~ that he might not be Cassandra's father. In April 2001, Mr. S~ filed a motion with the trial court for relief from the judgment which found him to be Cassandra's father and ordered him to pay child support. At that time, Mr. S~ also asked the court to order blood tests. The trial court denied Mr. S~' motions, thus allowing their earlier paternity finding to stand. In August 2001, however, Ms. J~ voluntarily had DNA testing performed, which showed a zero percent probability that Mr. S~ was Cassandra's biological father.

On September XX, 2001, Mr. S~ filed another motion to set aside the default judgment. With his motion, Mr. S~ submitted the DNA test report and a Request for Admissions, which allegedly contains answers written by Ms. J~, although the form is signed by her attorney. On the request for admissions, Ms. J~ indicated that she previously told the trial court Mr. S~ was Cassandra's father, but she now stated under oath that he was not Cassandra's father. She further indicated that she had voluntarily taken Cassandra for DNA testing to determine her parentage and that the DNA test report excluded Mr. S~ as Cassandra's father. Ms. J~ denied making a statement in the presence of a deputy prosecutor that she had made a mistake in alleging that Mr. S~ was Cassandra's father and that she agreed the paternity judgment as to Cassandra should be set aside.

On December XX, 2001, the trial court denied Mr. S~' motion to set aside the earlier judgment. In January 2002, Mr. S~ filed a Motion to Correct Error with the Indiana Court of Appeals. In an unpublished decision, the court of appeals affirmed the trial court's denial of Mr. S~' motion. Sparks v. Jackson, No. 49A05-0202-JV-63 (Ind. App. October 23, 2002), 2002 Ind. App. LEXIS 1797. Mr. S~ filed a petition for transfer with the Indiana Supreme Court, which was denied. Scott v. Jackson, 2003 Ind. LEXIS 94. The reasons for denying Mr. S~' petition were not published.

Mr. S~ died on June XX, 2004. At the time of his death, he was domiciled in Indiana. Angela L~ (Ms. L~) filed an application for CIB on Mr. S~' account on behalf of her daughter, Abigail S~ (Abigail). Abigail was awarded CIB effective with the month of Mr. S~' death. Ms. J~ filed a CIB application on behalf of Tyler and Cassandra, which resulted in CIB being awarded to both of them, their entitlement apparently based on the trial court's 1996 decree of paternity. When Tyler and Cassandra began receiving CIB, Ms. L~ was notified of their entitlement, as their entitlement resulted in a decrease in the amount of Abigail's monthly benefit under the family maximum. On March XX, 2005, Ms. L~ asked the Agency to reopen Tyler and Cassandra's claims. At that point Ms. L~ submitted a copy of Mr. S~' Motion to Correct Error and a copy of his Petition to Transfer. In her letter requesting reopening, Ms. L~ indicated that DNA testing had been performed which showed Mr. S~ was not Cassandra's biological father. Ms. L~'s request to reopen the determinations on Tyler and Cassandra's claims was denied on May XX, 2005, because the Agency concluded that the evidence she had submitted was insufficient to show that the determinations were erroneous.

DISCUSSION

The regulations allow reopening and revision of a final determination for any reason within 12 months of the initial determination and upon a showing of good cause within four years from the date of the initial determination. 20 C.F.R. §§ 404.987, 404.988. Good cause exists where new and material evidence is submitted. 20 C.F.R. §§ 404.989. New evidence is evidence that was not a part of the claims file at the time of the final determination. POMS GN 04010.030A. New evidence is material if it relates back to the date of the initial determination and shows facts that would have resulted in a conclusion different from the conclusion originally reached. POMS GN 04010.030A. If reopening would be unfavorable to the claimant, as it would be to Cassandra in this case, the Agency can reopen only if an affirmative action in writing was taken on the new evidence by the appropriate person in SSA within four years of the initial determination. POMS GN 04010.030C. Here, since it has been less than four years since the initial determination was made on Cassandra's claim, POMS GN 04010.030 does not bar reopening, even though reopening would be unfavorable to Cassandra. The DNA Parentage Test Report, the admissions completed by Ms. J~ and signed by her attorney, and the court documents showing that Mr. S~ sought to have the paternity decree vacated, although in existence prior to SSA's initial determination, were not a part of the claims folder when the initial determination was made. Thus, they meet the definition of "new" evidence. Therefore, we proceed to the question of whether the new evidence is material, i.e., would it have resulted in a different decision on Cassandra's application if it had been included in the claims folder at that time.

Section 202(d) of the Social Security Act (the Act), provides for entitlement to CIB for a "child" of an insured wage earner who is deceased. 42 U.S.C. § 402(d). The Act provides that, in determining whether a claimant is the wage earner's child, the Agency applies the law that would apply in determining the devolution of intestate property by the courts of the State in which the wage earner was domiciled at his death. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). If, under State law, the claimant could take intestate personal property as the wage earner's child, she is deemed to be the wage earner's child for Social Security benefit purposes. Id; POMS GN 00306.001B. If the claimant is not a "child" under the intestate succession laws, the Act allows alternative methods for the child to establish entitlement. See 42 U.S.C. §§ 416(h)(2)(B), 416(h)(3). Your memorandum indicates that Cassandra's entitlement is based on 42 U.S.C. § 416(h)(3), which provides in part that a claimant is deemed to be the wage earner's child if a court has decreed the wage earner to be the child's parent. See 42 U.S.C. § 416(h)(3)(A)(i)(II). Thus, it appears that the initial determination finding Cassandra entitled to CIB on Mr. S~' account was premised on the trial court's decree of paternity. Therefore, we must consider whether SSA must accept the trial court's finding of paternity in determining whether Cassandra is Mr. S~' child for CIB purposes. If SSA must defer to the trial court's finding, a finding which has not been vacated, then it is reasonable to conclude that the new evidence is not material, as it would not have changed the result, and Cassandra's claim should not be reopened. On the other hand, if SSA need not accept the trial court's decree of paternity, it may be that the new evidence is material and a reopening is appropriate.

When determining whether to accept a trial court's findings on domestic relations issues, we look to SSR 83-37c, which adopted the ruling in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Although SSA is not bound by a state trial court's decision in a case where the Commissioner was not a party, SSA must give deference to a trial court's decision where the following prerequisites are met: (1) an issue in a claim for Social Security benefits was previously determined by a State court of competent jurisdiction; (2) the issue was genuinely contested in State court by parties with opposing interests; (3) the issue falls under the general category of domestic relations law; and (4) the findings of the State trial court are consistent with the law enunciated by the State's highest court. SSR 83-37c. Here, there is no dispute as to the first and third requirements. With regard to the fourth requirement, the trial court's decree of paternity is in accord with Ind. Code Ann. § 31-14-8-2, which states, "If a man who is the alleged father in a paternity action under this article fails to appear for a hearing relating to the man's paternity, the court shall enter a default order against the man upon a showing that the man received notice of the hearing." Thus, the trial court properly entered the default decree of paternity in the present case.

We conclude, however, that the second requirement of SSR 83-37c was not met, i.e., the issue of paternity was not genuinely contested by parties with opposing interests in the proceeding before the trial court. The trial court resolved the issue of paternity on the basis of Ms. J~'s allegation of paternity and the fact that Mr. S~ did not appear at the hearing to present opposing testimony or evidence. Although the fact that a putative father is served with notice of the proceedings and does not appear might arguably be considered a knowing waiver of the opportunity to contest the action under some circumstances, we conclude that such was not the case here. See Memorandum from OGC Region VII to Assistant Regional Commissioner, PCO, Effect of a Default Judgment entered After the Death of Defendant which Awarded Child Support Benefits and Ordered that the Defendant's name be Entered on the Birth Certificate of an Illegitimate Child upon the Social Security Entitlement of an Illegitimate Child (June 26, 1996). Here, it appears that Mr. S~, by failing to appear at the court hearing even though he was served, may not have been aware of the consequences of a default judgment and, therefore, did not knowingly waive his opportunity to contest the issue of paternity. This conclusion is supported by the information that he never made any child support payments whatsoever and, even before DNA testing demonstrated he was not Cassandra's biological father, he asked the trial court to order blood tests to determine paternity and to grant him relief from the judgment. He also vigorously pursued relief from judgment at the appellate court level. Moreover, we note that requirement, as stated in Gray and SSR 83-37c, is that the issue was "genuinely contested" in State court by parties with opposing interests. Gray, 474 F.2d at 1373; SSR 83-37c. Thus, even if one could assume that Mr. S~ knowingly waived the opportunity to contest the issue of paternity, that does not equate to a genuine contest on the issue. The trial court entered the paternity decree because Mr. S~ did not appear. It did not resolve the issue of paternity upon presentation of evidence by parties with opposing interests. Therefore, we conclude that SSA need not accept the trial court's decree finding Mr. S~ to be Cassandra's father.

It is true that Mr. S~ attempted to contest the issue of paternity by filing motions with the trial court on two occasions for relief from the decree and child support order, and by appealing the trial court's denial of his second motion to the Indiana Court of Appeals and the Indiana Supreme Court. We do not have any written decisions explaining the reasoning of the trial court in denying Mr. S~' motions or explaining why the Court of Appeals affirmed the trial court's decision not to grant relief or why the Indiana Supreme Court denied transfer. It is clear, however, that such actions were based on procedural issues, not on an adjudication of the issue of paternity on the merits. Common sense dictates that, had these courts considered the issue of paternity on the merits, they would have vacated the decree of paternity based on the new DNA test results showing zero probability of fatherhood and Ms. J~'s statement that Mr. S~ was, in fact, not Cassandra's biological father. This is particularly true, since an Indiana statute provides that such test results are conclusive evidence if they exclude a party as the biological father. Ind. Code Ann. § 31-14-6-3.

Our conclusion that the courts did not consider the issue of paternity on the merits is also bolstered by the court filings you provided. The documents entitled "Appellant's Petition to Transfer" and "Motion to Correct Error" both indicate that the trial court's decision not to set aside the paternity finding and child support order were grounded on Indiana caselaw that, based on public policy considerations, disfavors disturbing such judgments, except under very specific circumstances. See In re Marriage of M.E. and D.E., 622 N.E.2d 578, 581-83 (Ind. App. 1993) (reversing trial court's denial of motion to set aside paternity finding where there was evidence of fraud, but noting that a challenge to a support order on the basis of non-paternity without externally obtained clear medical proof should be rejected as outside the equitable discretion of the trial court); In re Matter of Paternity of R.C., 587 N.E. 2d 153, 157 (Ind. App. 1992) (reversing trial court's denial of motion for hearing to set aside paternity finding where there was fraud on the court); Fairrow v. Fairrow, 559 N.E.2d 597, 599-600 (Ind. 1990) (finding putative father entitled to relief from child support judgment where test results excluding him as the father were later obtained independent of court action and in the course of ordinary medical care, not for the purpose of avoiding the child support obligation). See also, Pinter v. Pinter, 641 N.E.2d 101, 104-05 (Ind. App.1994) (acknowledging that, had the blood test results been before the court initially, the court would have been precluded from finding that the putative father was the child's biological father, but nevertheless holding that modification of judgment of paternity was not justified where evidence supported the conclusion that the mother had mistakenly believed putative father was the biological father and where blood tests were conducted independent of court action but with the explicit intention of determining paternity); In re Paternity of K.M., 651 N.E.2d 271, 276 (Ind. App. 1995) (holding that a person challenging an otherwise valid order establishing paternity, without medical proof inadvertently obtained through ordinary medical care, should be denied relief as outside the equitable discretion of the trial court). Since the trial court's denial of Mr. S~' motions and the higher courts actions did not make any finding on the merits as to the issue of whether Mr. S~ was Cassandra's biological father, we conclude that the issue of paternity was never resolved during the course of contested legal proceedings. Thus, the Agency is not required to accept the trial court's finding that Mr. S~ was Cassandra's father.

Having determined that the Agency need not accept the trial court's paternity finding, we consider whether the new evidence submitted after the determination on Cassandra's CIB application is material. If consideration of the new evidence would have resulted in a different outcome, i.e., if it would have led to a determination that the evidence did not prove Mr. S~ was Cassandra's biological father, it is material and reopening is permissible. POMS GN 04010.030A. If the Agency chooses not to be bound by the trial court's decree of paternity and its order to pay child support, then CIB entitlement based on the deemed child provisions in subdivisions II and III of 42 U.S.C. §§ 416(h)(3)(A)(i) are not available. Cassandra also cannot be deemed to be Mr. S~' child based on the provisions in 42 U.S.C. § 416(h)(3)(A)(i)(I), as Mr. S~ never acknowledged paternity in writing, or 42 U.S.C. § 416(h)(3)(A)(ii), as Cassandra was not living with Mr. S~ and Mr. S~ was not contributing to Cassandra's support prior to his death. The only remaining possible basis for finding Cassandra to be Mr. S~' child hinges on whether she could inherit his intestate property as his child. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). If, under State law, Cassandra could take intestate personal property as the wage earner's child, she is deemed to be the wage earner's child for Social Security benefit purposes. Id; POMS GN 00306.001A.

Under the intestate succession laws of Indiana, where Mr. S~ was domiciled at death, an illegitimate child can inherit if: the deceased's paternity was established under a legal cause of action brought before the putative father's death or within five months after his death; the putative father married the mother and acknowledged that the child was his child; or the putative father executed a paternity affidavit in accordance with Ind. Code Ann. § 16-37-2-2.1. See Ind. Code Ann. § 29-1-2-7(b); POMS GN 00306.485. Here, although the paternity was established under a legal cause of action prior to Mr. S~' death, we have determined that SSA need not accept the court's finding of paternity because the issue was not genuinely contested. Therefore, we may treat this case as if no such court determination exists. As such, SSA should make a paternity determination using the standard of proof which the State court would use. 20 C.F.R. § 404.355(b)(2).

Indiana law provides for the application of certain statutory presumptions in paternity cases, none of which are applicable in the present case. See POMS GN 00306.485C; Ind. Code Ann. §§ 31-14-7-1, 31-14-7-2. Absent the existence of circumstances giving rise to one of the statutory presumptions, paternity may be established by a preponderance of the evidence. See POMS GN 00306.485C; Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. App. 1996) ("Paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence."). The Indiana legislature has approved the use of genetic testing as evidence in paternity proceedings, and, in particular, has approved the use of genetic testing to exclude an individual as the biological father. See Ind. Code Ann. § 31-14-6-3 (results of genetic tests and finding of expert are admissible in paternity proceedings and constitute conclusive evidence if the results and finding exclude a party as the biological father); Ind. Code Ann. § 31-14-7-1 (presumption of paternity where genetic testing indicates at least a 99% probability that the man tested is the child's biological father); Ind. Code Ann. § 31-14-6-1 (court shall order blood or genetic testing upon motion of any party to paternity action); Ind. Code Ann. § 31-14-6-3 (allowing a party to object to admission of genetic test results); Ind. Code Ann. § 31-14-6-5 (dealing with chain of custody of blood and genetic specimens). Indiana courts have also approved of the use of such tests and have essentially equated genetic tests to blood tests. Clark v. Gossett, 656 N.E.2d 550, 553 (Ind. App. 1995) (combined DNA genetic test results and blood antigen results were "blood or genetic testing" within meaning of statute providing for admissibility); Baker v. Wagers, 472 N.E.2d 218, 219 (Ind. App. 1985) (use of red blood cell antigen and enzyme tests); Kennedy v. Wood, 439 N.E.2d 1367, 1373 (Ind. App. 1982) (use of blood grouping tests).

In light of the Indiana paternity law discussed above, we believe that the new evidence, when combined with the evidence in the claim folder at the time of the Agency's determination on Cassandra's claim, fails to establish by a preponderance of the evidence that Mr. S~ was Cassandra's biological father. The DNA Parentage Report, dated September XX, 2001, indicates that when DNA probes of Cassandra and Mr. S~ were tested, there was a 0% probability of paternity. These results were interpreted by the Associate Director of DNA Diagnostics Center as excluding Mr. S~ as Cassandra's biological father. Under Indiana statute, such evidence would constitute conclusive evidence that Mr. S~ was not Cassandra's father. See Ind. Code Ann. § 31-14-6-3. See also Pinter v. Pinter, 641 N.E. 2d 101, 105 (Ind. App. 1994) (blood test excluding paternity of putative father was "clear, direct, and convincing medical evidence of nonpaternity"). Ms. J~'s subsequent statement, under oath, that Mr. S~ was not Cassandra's biological father offset her prior allegation that he was Cassandra's father. The decree of paternity is of very little probative value, as it was entered in default after Mr. S~ did not appear for the hearing. We conclude that, had the new evidence been in the claim folder prior to the Agency's determination on Cassandra's claim, the Agency would not have found sufficient proof to establish that Cassandra was entitled to CIB as a "child" of Mr. S~. Because the Agency's determination would have been different if the new evidence had been in the claim folder, that new evidence is material, and the determination on Cassandra's claim may be reopened.

CONCLUSION

We conclude that the Agency is not bound by the Indiana trial court's decree of paternity because the issue was not genuinely contested in the trial court. We further conclude that the evidence obtained after the determination on Cassandra's claim is new and material evidence sufficient to justify reopening of the determination.

D. PR 05-135 Reply - INDIANA-Whether DNA tests are sufficient evidence to rebut the presumption that a child born to a married woman is the legitimate child of her husband; NH SSN: ~ Your reference: S2D5G6 (M~, R.) Our reference: 05-0076

DATE: April 15, 2005

1. SYLLABUS

In Indiana, DNA testing showing a probability equal to or exceeding the 99% evidentiary standard that the number holder is the claimant's father is sufficient to rebut the presumption of paternity by the mother's husband.

2. OPINION

Danielle M~ applied for child's insurance benefits on behalf of her two children, Justin and Memarie M~, on the account of her father-in-law, Rickey E. M~ (hereinafter “Rickey Sr.”). Since 1992, Danielle M~ has been married to Rickey L. M~ (hereinafter “Rickey Jr.”), Rickey Sr.'s son. Danielle and Rickey Jr. have continuously lived together, and Rickey Jr. is listed as the father on the birth certificates of Justin and Memarie. You asked whether Danielle has presented sufficient evidence to overcome the presumption under Indiana law that the children born of the marriage are Rickey Jr.'s children, not Rickey Sr.'s children. We conclude that Indiana would consider the children to be Rickey Sr.'s and that they may, therefore, be entitled to child's insurance benefits on his account.

FACTS

Rickey Sr., born April XX, 1952, is father to Rickey Jr., born August XX, 1975. On July XX, 1992, Rickey Jr. (then aged 16) married Danielle E~, born September XX, 1976 (then aged 15). On June XX, 1993, Justin was born to Danielle. Rickey Jr. was named as Justin's father on the birth certificate. On October XX, 2000, Memarie was born to Danielle. Rickey Jr. was named as Memarie's father on the birth certificate.

In March 2003, Rickey Sr. applied for disability benefits and was later awarded benefits effective November 2002. Rickey Sr. did not list any children on his application.

DNA test results dated February XX, 2004, indicate that, with respect to both Justin and Memarie, Rickey Jr. could not be their father and that there was a 99.99% probability that Rickey Sr. was their father. On March XX, 2004, Danielle applied for child's insurance benefits on behalf of Justin and Memarie (hereinafter “the children”) on Rickey Sr.'s account. In March 2004, Danielle admitted to sexual contact with both her husband and her father-in-law during the times the children were conceived. But, in June 2004, she stated that she was not having relations with her husband at the time of her children's conception. In June 2004, Rickey Jr. gave a statement that he could not “perform” as a husband on different occasions and Danielle explained that she let Rickey Jr. be named on the children's birth certificates because he was still her husband. Danielle submitted a copy of a personal check, written by Rickey Sr. to Danielle, on August 6, 2004, for the amount of $100.00, with the words “child care” written in the memo space. Rickey Sr. refused to submit any statements.

DISCUSSION

Entitlement to Child's Insurance Benefits-In General

The child of an individual entitled to old-age or disability benefits is entitled to child's insurance benefits (CIB), as relevant here, when he or she has filed for benefits, is under age 18, and was dependent on the disabled individual at the time of the application. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). To determine entitlement as a wage earner's natural child, SSA first applies the law that would determine devolution of intestate personal property by the courts of the State where the wage earner was domiciled at the time the claimant files an application, or the State in which the wage earner was domiciled at the time of his death. 42 U.S.C. § 416(h)(2)(A). If, under State law, the claimant could take intestate personal property as the wage earner's child, he or she is considered the wage earner's child for Social Security benefit purposes. Id.; 20 C.F.R. § 404.355(2004). When a child is considered a “natural child” under SSA's definition, the child is presumed to be dependent on the parent, unless he or she has been legally adopted by someone other than the insured. 20 C.F.R. § 404.361(2004). Because the wage earner is a resident of Indiana, the question is whether an Indiana court would consider Justin and Memarie to be the wage earner's children for purposes of intestate succession.

If the children do not qualify for CIB based upon the right to inherit under State law, they nevertheless could establish eligibility as the natural children of Rickey Sr. if Rickey Sr., as their biological father, either acknowledged paternity in writing, was decreed by a court to be the children's father, or was ordered by a court to pay child support to the children. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3). The children could also establish by some other evidence that Rickey Sr. is their natural father, as long as they could also show that he was either living with them or contributing to their support at the time Danielle M~ filed their applications. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

Indiana Law Applied to these Claims

Indiana law provides that an illegitimate child who is less than 20 years old may inherit from his or her father as a descendent if paternity is established by law in a cause of action, if the “putative father marries the mother of the child and acknowledges the child to be his own,” or if the “putative father executes a paternity affidavit.” I.C. § 29-1-2-7. Although Indiana requires illegitimate children to bring an action to establish paternity by a father unwilling to execute a paternity affidavit, SSA does not apply State law requirements that a child obtain a court determination of paternity. Rather, SSA would decide paternity using the standard of proof that the State court would use to determine paternity. 20 C.F.R. § 404.355(b)(2) (2004).

Because the M~ children have not obtained a court order of paternity, SSA must consider Indiana's standards for establishing paternity. Indiana law provides that a man is presumed to be the biological father of any child born to his wife during their marriage. I.C. § 31-14-7-1(1) (West 2001); see also POMS GN 00306.485. The same statute further provides that a man is presumed to be the biological father of a child if he undergoes a “genetic test that indicates with at least a ninety-nine percent (99%) probability that the man is the child's biological father.” Id. at (3). Therefore, the facts of this case present conflicting presumptions of paternity under the statute-Rickey Jr. is presumed to be the father because he was married to Danielle, and Rickey Sr. is presumed to be the father because genetic test results indicate with greater than 99% probability that he is the children's biological father.

The presumption of paternity in favor of the husband of the mother can be rebutted in several circumstances. See Minton v. Weaver, 697 N.E.2d 1259, 1260 (Ind. Ct. App. 1998). In Minton, the husband and the wife testified that they did not have sexual intercourse during the time the child was conceived, and the wife and the putative father testified that they did have intercourse during the relevant time. DNA tests revealed a 99.97% probability that the putative father, not the husband, was the father of the child. In these circumstances, the Indiana court held that “[a] DNA test of another man which indicates a 99.97% probability that the man is a child's father combined with uncontradicted evidence that the man had sexual intercourse with the mother at the time the child must have been conceived is. . . the type of direct, clear, and convincing evidence which can rebut the marriage presumption.” Id.

The ruling in the Minton case closely, but not exactly, parallels the facts of the instant claim. In this case, like Minton, the DNA test results indicate with a high degree of probability that the putative father was the biological father. This case does not present the same additional evidence as the court relied on in Minton, i.e., lack of intercourse with the husband and admission of the putative father to intercourse with the mother. However, Indiana has not required these additional factors where the DNA evidence was as strong as it is in this claim. In the case of Cochran v. Cochran, 717 N.E.2d 892 (Ind. Ct. App. 1999), during the dissolution of a marriage, the husband requested DNA testing and, upon receiving test results that excluded the husband as the father of one of the children, the court issued a decree that the child was not a child of the marriage. The Cochran court did not find the DNA evidence to be insufficient because the husband did not deny intercourse with the wife during the time of conception, but treated the DNA tests as conclusive. The Supreme Court of Indiana has indicated in at least two cases that the policy expressed in the statutes favors identifying biological fathers, not in enforcing paternity when the husband is not the natural father of a child born to a wife. See Russell v. Russell, 682 N.E.2d 513, 517 n.7 (Ind. 1997); In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992). Therefore, we conclude that an Indiana court adjudicating the paternity of the M~ children would conclude that Rickey Sr. is their father and that they could inherit from him as his children, were he to die intestate. Accordingly, they may be considered the insured's children and entitled to CIB on his account.

If the children were not able to inherit as children of Rickey Sr., they would not be able to establish entitlement under any alternative method. No court has decreed Rickey Sr. to be their father, he has not been ordered by a court to pay child support, and he has not acknowledged paternity in writing. See 20 C.F.R. § 404.355(a)(3)(2004). The single check submitted by Danielle from Rickey Sr. with a notation for “child care” does not constitute a written acknowledgement of paternity, as any grandfather could provide his son's family with financial assistance for necessities like child care. Further, although Danielle and the children could clearly show by some other evidence (the DNA tests) that Rickey Sr. is their natural father, it does not appear that they could show that Rickey Sr. was living with them or contributing to their support at the time they applied for benefits. See 20 C.F.R. § 404.355(a)(4) (2004).

CONCLUSION

Justin and Memarie M~ should be considered to be the natural children of Rickey E. M~ (Rickey Sr.). Indiana law recognizes the value of DNA tests of paternity beyond any presumption of paternity raised by Rickey L. M~'s (Rickey Jr.'s) marriage to their mother and would not hold Rickey L. M~ to be their father where DNA tests exclude him.

E. PR 02-207 Validity of Genetic Testing Using DNA of Deceased Wage Earner's Parents to Establish Paternity Under Indiana Law Wilmott D. B~, SSN ~

DATE: January 24, 2002

1. SYLLABUS

The results of testing using DNA material from the child's alleged paternal grandparents, although not establishing a presumption of paternity under Indiana law, would be considered as evidence in an Indiana paternity proceeding, in addition to any other relevant evidence. Absent evidence that the numberholder was the only son of his parents who was likely to have fathered the child, it is doubtful that Indiana courts would find that the child was his child based solely on the evidence currently of record. Additional documentation is recommended to rule out any likelihood that another family member could have fathered the child.

2. OPINION

You asked whether the State of Indiana would find Ashley M. S~ to be the child of deceased wage earner Wilmott D. B~ for inheritance purposes based on results of testing using the DNA of the deceased wage earner's parents. We conclude that the test results, without further evidence, probably would not suffice to establish paternity by a preponderance of the evidence. However, we believe that an Indiana court would consider the test results in addition to any other relevant evidence in making a paternity determination. We recommend further development.

FACTS

On November XX, 1984, Brenda J. S~, gave birth to Ashley M. S~. No father was identified on the birth certificate. However, Wilmott B~, the wage earner, signed forms as the alleged father relinquishing parental rights, and consenting to the adoption of Ashley S~ (which never occurred). The form, however, contained a caveat providing that, “I further realize that my signature to this document is not an admission that I am either the legal, or alleged father of said child.” Mr. B~, who was domiciled in Indiana, died on August XX, 1994, having never been married to Brenda S~. During his life, Mr. B~ neither lived with, nor provided financial support for Ashley S~. On June XX, 2000, Brenda S~ filed an application on behalf of Ashley S~ for child's insurance benefits on the wage earner's account. Her initial application was denied, and on reconsideration Brenda S~ submitted DNA test results from Labcorp. The tests yielded a 99.99% probability that Kay J. B~ and Lehnford B~, the parents of the wage earner, were the biological grandparents of Ashley S~.

DISCUSSION

An applicant for child's insurance benefits must be the wage earner's “child” as that term is defined by the Social Security Act. 42 U.S.C. § 416(e), 416(h)(2-3). To determine entitlement as a wage earner's natural child, SSA first applies the law that would determine devolution of intestate personal property by the courts of the state where the wage earner was domiciled at death. 42 U.S.C. § 416(h)(2)(A). If, under state law, the claimant could take intestate personal property as the deceased wage earner's child, she is considered the wage earner's child for Social Security benefit purposes. Id. Because the wage earner was domiciled in Indiana at the time of his death, the question is whether an Indiana court would consider Ashley S~ to be the wage earner's child for purposes of intestate succession.

The POMS properly describes Indiana law as providing that children born out of wedlock can posthumously establish the right to inherit only if the paternity cause of action is filed before or within five months after the father's death. Ind. Code. Ann. § 29-1-2-7(b)(2); POMS GN 00306.080. However, in November 1998, SSA's regulations were changed to provide that, even if state law requires such a paternity action, we will not require the claimant to bring the parentage action or establish paternity prior to the wage earner's death. 20 C.F.R. § 404.355(b)(2). Rather, SSA will determine the paternity claim by using the standard of proof that the state court would use as a basis for a determination of paternity. Id.

The POMS accurately describes Indiana law as creating certain statutory presumptions of paternity. POMS GN 00306.080. Under Indiana law, paternity is presumed if the alleged father undergoes a blood test that indicates with at least a 99% probability that the man is the child's biological father. Ind. Code Ann. § 31-14-7-1(4). However, the statute does not mention blood testing of the parents of the alleged father, and therefore, here, the grandparents' test results would be insufficient to establish this statutory presumption for paternity of the wage earner under Indiana law.

However, as the POMS also recognizes, Indiana law permits a finding of paternity notwithstanding the absence of a statutory presumption where paternity is established by a preponderance of the evidence. See Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. App. 1995) (paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence); H.W.K. v. M.A.G., 426 N.E.2d 129, 133 (Ind. App. 1981) (same). Under the preponderance of the evidence standard, Indiana courts have considered the results of genetic test results and concluded that they, along with other evidence, provided sufficient evidence of paternity. See Minton v. Weaver, 697 N.E.2d 1259, 1260 (Ind. App. 1988) (finding that DNA evidence, combined with evidence of mother and alleged father's sexual activity and mother and husband's lack of sexual activity was clear and convincing evidence to rebut presumption that husband was father). Therefore, We conclude that the results of testing using DNA material from alleged paternal grandparents, although not establishing a presumption of paternity, would be considered as evidence in an Indiana paternity proceeding, in addition to any other relevant evidence.

Although the DNA test results submitted by Brenda S~ constitute evidence that the Indiana courts would consider in determining paternity, they do not, standing alone, establish that Ashley S~ is the natural child of the wage earner. As set forth above, absent the presumption of paternity, Indiana law requires a preponderance of the evidence establishing paternity. Although probative because of the high probability (99.99%), the results demonstrate only that Ashley S~ is biologically linked to the alleged grandparents' family. They do not rule out the possibility that the wage earner may have a brother who could be the natural father.

Here, the claim is bolstered somewhat by Mr. B~'s signing of the form, relinquishing his parental rights and consenting to the adoption of Ashley S~. However, absent additional evidence that the wage earner did not have a brother who had access to the child's mother and could be the natural father, it is doubtful whether this evidence would be sufficient to satisfy the preponderance of the evidence standard for paternity. We recommend that you attempt to develop further evidence to ensure that the wage earner did not have a brother who could be Ashley S~'s father. We believe that a statement from Lehnford and Kay J. B~ (the alleged grandparents) that the wage earner had no brothers would suffice to meet the preponderance of the evidence standard. If there are brothers, however, statements should be obtained from those having knowledge about whether the brothers had access to Brenda S~ around the time of conception. Such statements might be obtained from the brothers, other members of the B~ family, Brenda S~, or members of her family with whom she was close. After the additional evidence is secured, if it appears to establish that no brother of the wage earner is likely to be the father, the preponderance of the evidence standard will have been met and Ashley S~ should be found to be the wage earner's “child” under the Act.

CONCLUSION

We conclude that the Indiana courts would allow consideration of valid DNA tests of paternal relatives as evidence concerning paternity. However, absent evidence that the wage earner was the only son of his parents who was likely to have fathered the child, we conclude that it is doubtful whether the Indiana courts would find that Ashley S~ was the wage earner's natural child based solely on the evidence currently of record. Additional documentation is recommended to rule out any likelihood that other family members could have fathered the child.

Thomas W. C~
Chief Counsel, Region V

By: Sara E. Z~
Assistant Regional Counsel

F. PR 03-007 Reply - Can Corvetta W~ be Entitled to Child's Benefits on the Account of Leslie J. D~ (DIB recipient living in Indiana; Paternity Order Previously Issued In Illinois Court); NH SSN: ~

DATE: September 27, 2002

1. SYLLABUS

It is not clear whether, under Indiana law, the child claimant could establish inheritance rights based on an Illinois Court Order of Parentage and Support. Further development would be needed to determine what evidence, if any, the Illinois judgment was based upon. However, the child has established entitlement based on the NH's record based on her ability to inherit from him under Indiana law. She has established paternity with the corroborative evidence she has, i.e., the signed latter from the NH, and her mother's probable testimony.

NOTE: The standard of proof under Indiana law is a preponderance of the evidence, per POMS GN 00306.485.

2. OPINION

Cyrea S~ filed a claim for child's benefits on behalf of Corvetta W~, on the account of Leslie J. D~, who has been receiving disability insurance benefits (DIB) since March 1998. You have asked whether the Indiana courts would give full faith and credit to the Illinois Court's Order of Parentage and Support, which found Mr. D~ to be the natural father of Corvetta, such that Corvetta would be entitled to inherit based upon that Order, and could thus qualify for child's benefits as a natural child of Mr. D~. We conclude that it is not clear from the evidence available whether the Illinois Order would suffice for Corvetta to establish inheritance rights under Indiana law. However, Corvetta would be entitled to inherit as a natural child would under Indiana law based on her separate ability to establish paternity, and, therefore, she does qualify as Mr. D~'s child for purposes of entitlement to child's benefits.

BACKGROUND

After Corvetta applied for child's benefits on July XX, 2001, Mr. D~'s wife, Mrs. Marcia D~ received notice that the benefits she was receiving for Jamari and Jamal D~ would be reduced to pay Corvetta's claim. Mr. D~ filed a statement with the Commissioner on August XX, 2001, denying that he is the father of Corvetta and objecting to the payment of benefits to her based on his record. Prior to Corvetta's application, Mr. D~ had been found to be the natural father of Corvetta and ordered to pay monthly support to her by the Domestic Relations Division of the Circuit Court of Cook County, Illinois. Though the paternity finding was made pursuant to a default hearing, Mr. D~ did appear in Court prior to the final resolution of the paternity and support matter. Although Ms. Cyrea S~, Corvetta's mother, claimed that blood testing was done in relation to that Order, the Court documents do not reflect that such testing was done. Ms. S~ has expressed a willingness to provide blood testing, but Mr. D~'s wife claims that Mr. D~ cannot afford this testing. The file also contains a handwritten letter which appears on its face to be a letter from Mr. D~ to Corvetta, in which he states “now that you know I'm your Father I want you to know that I love you.” He states that she looks like him, and he signs “Daddy Leslie.”

DISCUSSION

Under the Social Security Act, Corvetta may establish that she is the child of Mr. D~ and that she is thus eligible to receive child's benefits on his account, if, under Indiana law, she would be entitled to inherit from Mr. D~ as one of his children if he were to die intestate. See 42 U.S.C. § 416(h)(2)(A) (2001); 20 C.F.R. § 404.355(a)(1), (b) (2001). If Corvetta did not qualify for child's benefits based upon the right to inherit under state law, she could establish that she is eligible for benefits if Mr. D~, as Corvetta's biological father, either acknowledged paternity of Corvetta in writing, was decreed by a court to be Corvetta's father, or was ordered by a court to pay child support to Corvetta because she is his child. See 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a)(3). Corvetta also could establish by some other evidence that Mr. D~ is her natural father, as long as she could also show that he was either living with her or contributing to her support at the time she filed her application. See 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a)(4).

State Inheritance Law

We first consider whether Corvetta would be entitled to child's benefits based on Indiana's intestate inheritance law. See 42 U.S.C. § 416(h)(3). In the file, it is noted that Mr. D~ is a current resident of Indiana. In analyzing whether a child is entitled to benefits as a natural child of a living DIB beneficiary, the intestacy law applied is that which would be applied in the state where the number holder was domiciled when the child's application for benefits was filed. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (3); Program Operations Manual System (POMS) GN 00306.001C.2.a; GN 00306.075B.2.a. It appears from the file that Mr. D~ was domiciled in Indiana as of July XX, 2001, the protective filing date of Corvetta's claim. Notice of Corvetta's claim was mailed to the same Indiana address which Mr. D~ listed on his subsequent statement to the Commissioner. The intestacy law of Indiana is therefore applied to determine Corvetta's claim.

As you have indicated, Corvetta may have paternal inheritance rights with respect to Mr. D~ under Indiana law, because his paternity has been established by law in a cause of action. See Ind. Code Ann. § 29-1-2-7(b)(2)(A), (d) (West 2001); POMS GN 00306.080, Indiana. Such rights would be sufficient for Corvetta to be deemed Mr. D~'s child for the purpose of awarding child's benefits. See 20 C.F.R. § 404.355(a)(1), (b). The cause of action in this case, however, occurred in Illinois, and appears to have resulted in a default finding. You have asked whether the Indiana courts would recognize the Illinois Order for the purposes of conferring inheritance rights on Corvetta.

We have previously opined that Indiana courts generally will give full faith and credit to another state's paternity determination. Memorandum from Reg. Chief Counsel, Chicago, to Ass't Reg. Comm'r-MOS, Chicago, Effect In Indiana of an Out-of-State Paternity Finding-Jordan Thomas, at 2 (Nov. 12, 1998). Indiana courts would consider themselves bound by such judgments so long as the state court which issued the paternity order had jurisdiction over the subject matter and the relevant parties. See Ind. Code Ann. § 31-14-19-1 (West 2001); Lucas v. Estate of Stavos, 609 N.E.2d 1114, 1116, 1120 (Ind. Ct. App. 1993), modified by Stidham v. Welchel, 698 N.E.2d 1152, 1155-56 (Ind. 1998). In assessing whether another state's jurisdiction was proper, the Indiana courts look to the substantive law of that other state. See id. at 1117; Podgorny v. Great Cent. Ins. Co., 311 N.E.2d 640, 644 (Ind. Ct. App. 1974) (citation omitted). In this case, subject matter jurisdiction was proper. Mr. D~ was adjudged the father of Corvetta by the Cook County Circuit Court of Illinois, and, in Illinois, the Circuit Courts have jurisdiction over paternity actions. See Ill. Comp. Stat. 750 § 45-9(a) (West 2001).

As we noted in our earlier Memorandum, the Indiana Supreme Court clarified that, contrary to the Lucas Court's holding, Lucas, 609 N.E.2d at 1117, judgments rendered where personal jurisdiction was lacking are void, not merely voidable. Stidham, 698 N.E.2d at 1154-55. In other words, the Indiana courts will not consider such a judgment operable merely because it has not yet been formally challenged and adjudged void. Thus, it is critical to examine the validity of personal jurisdiction in a state court paternity action when inheritance rights turn on that paternity ruling.

Personal jurisdiction may be obtained in Illinois through proper service of process. In re Marriage of Schmitt, 747 N.E.2d 524, 530 (Ill. App. Ct. 2001) (citation omitted). The Order of Parentage from Illinois indicates that Mr. D~ was satisfactorily served. Though he was served by substitution, rather than in person, the Court documents noted the same Illinois address for Mr. D~ as he listed for himself during a subsequent appearance, so no defects in service are apparent. A judgment from a court of general jurisdiction with no apparent jurisdictional defects is presumed valid. See Podgorny, 311 N.E.2d at 643-44, 644 n.2.

In any event, objections to personal jurisdiction are waived in Illinois when a party makes an appearance before the Court and files a substantive motion, but does not make a specific objection to personal jurisdiction at that appearance. Ill. Comp. Stat. 735 § 5/2-301(a), (a-5) (West 2001); see also Weierman v. Wood Landscaping, Inc., 630 N.E.2d 1298, 1300-01 (Ill. App. Ct. 1994) (any action by a defendant which recognizes the case as being in court constitutes a waiver of his jurisdictional challenge unless the action is solely an objection to jurisdiction); Poplar Grove State Bank v. Powers, 578 N.E.2d 588, 593 (Ill. Ct. App. 1991) (“A defendant who asks for affirmative relief on the merits from the trial court waives objections to the court's in personam jurisdiction over him.”).

Mr. D~ appeared in the Illinois Court to file a motion requesting blood testing after the Court found him to be Corvetta's father. This appearance, though it came after the Court made its paternity finding, came before the Court entered its final judgment. The Illinois Supreme Court has held that a circuit court's determination of paternity is not a final judgment where that court reserved various support matters for future determination. Ex rel. Franson v. Micelli, 666 N.E.2d 1188, 1190 (Ill. 1996). In finding Mr. D~ to be Corvetta's father, the Circuit Court reserved for continued hearing matters of support, retroactive support, and health insurance, so the Court's initial paternity finding was not a final judgment. See id. A Court document indicates that a support order was entered in April 1999, prior to Mr. D~'s motion filing. However, the Court's official “Support Order” indicates that the “Establishment of Support” and “Judgment” occurred subsequent to Mr. D~'s motion filing and pursuant to his presence in Court. Therefore, prior to the entry of the Illinois Court's final judgment of paternity, Mr. D~ appeared before that Court without objecting to personal jurisdiction, and thus waived his right to so object. Cf. Bradshaw v. Pellican, 504 N.E.2d 211, 213-14 (Ill. Ct. App. 1987) (defendant who made special appearance to object to personal jurisdiction after default judgment of paternity and entry of support order nonetheless waived objection when he also took a step which invoked the court's jurisdiction), cited with approval in In re Marriage of Verdung, 535 N.E.2d 818, 822 (Ill. 1989) (noting cases where participation in proceedings validated court's personal jurisdiction). Thus, the Illinois Court's judgment that Mr. D~ was Corvetta's natural father was made with proper subject matter and personal jurisdiction and would be entitled to full faith and credit in Indiana courts. See Ind. Code Ann. § 31-14-19-1; Podgorny, 311 N.E.2d at 644 (citation omitted).

Full faith and credit requires Indiana to give the Illinois judgment the same effect as it would be given by Illinois. See Omni Micro, Inc. v. Hyundai Elecs. Am., 571 N.E.2d 598, 600 (Ind. Ct. App. 1991). The Indiana courts would look to the law of the rendering state to determine the effect of the judgment. See In Re Paternity of JWL, 672 N.E.2d 966, 967-68 (Ind. Ct. App. 1996), aff'd 682 N.E.2d 519 (Ind. 1997). Illinois law allows for, in fact requires, a valid paternity judgment by default, where the alleged father is properly served but fails to appear, and where the testimony of the mother may have been, but was not necessarily, heard. See 750 Ill. Comp. Stat. Ann. § 45/14(f) (West 2002). Further, under Illinois law, a child can inherit based upon an authenticated copy of a paternity judgment that was obtained during the father's lifetime. 755 Ill. Comp. Stat. Ann. § 5/2-2; see In Re Estate of Lucas, 508 N.E.2d 368, 374 (Ill. Ct. App. 1987), appeal denied, Lukas v. Am. Nat'l Bank and Trust Co. of Chicago, 515 N.E.2d 111 (Ill. 1987). Thus, the Illinois courts would give decisive effect to Mr. D~'s paternity judgment in an heirship proceeding, and the Indiana courts should allow the judgment to be considered in an intestacy proceeding there. See Omni Micro, Inc., 571 N.E.2d at 600. However, Indiana substantive law also must be considered to discern whether the Illinois Order would satisfy the statutory requirements for establishing inheritance rights in Indiana. See JWL, 672 N.E.2d at 968 (where the Court turned to address the effect of a foreign paternity finding under Indiana substantive law after determining the effect the foreign state would accord the finding); see also Lucas, 609 N.E.2d at 1120, n.5, 1122 (following parallel principle in a wrongful death action rather than an intestacy proceeding).

Indiana's intestacy statute requires that paternity be “established by law” to allow an illegitimate child of a man to inherit the same as would legitimate child(ren). Ind. Code Ann. § 29-1-2-7(b)(1)-(3) and (d). In 1962, the Indiana Court of Appeals held that, in order to inherit under the “established by law” standard, the child's paternity must have been established in a judicial proceeding brought for that purpose in a court of law having jurisdiction to determine the issues. Thacker v. Butler, 184 N.E.2d 894, 897 (Ind. Ct. App 1962), transfer denied by 188 N.E.2d 418 (Ind. 1963). The Illinois Court's finding of Mr. D~'s paternity of Corvetta was made pursuant to a paternity proceeding, so the nature of the judicial proceeding seems to satisfy the “established by law” standard set forth in Thacker, 184 N.E.2d at 897. However, further development would be needed to determine whether the Illinois Order violates the evidentiary standard of the Indiana intestacy statute. The Indiana intestacy statute states that a mother's testimony alone cannot be used to establish paternity which will be relied upon to establish inheritance rights; corroborative evidence or circumstances must support the mother's testimony. Ind. Code Ann. § 29-1-2-7(c). It is not clear what evidence, if any, was used to establish paternity in the Illinois court. The Order Prove-Up in the file suggests that some evidence was considered. If, however, the Illinois Court's paternity finding was strictly a default finding, it does not appear that this would suffice to establish inheritance rights in Indiana. Although Indiana allows for default findings of paternity against alleged fathers who receive notice of paternity hearings but who fail to appear, Ind. Code Ann. § 31-14-8-2; see also Stidham, 698 N.E.2d at 1153, 1156 (finding a default paternity action was void because of lack of personal jurisdiction), the intestacy statute specifically indicates that a mother's testimony alone would not suffice to prove paternity for the purposes of establishing inheritance rights. Ind. Code Ann. § 29-1-2-7(b), (c).

Thus, although the Illinois Order of Parentage was made with proper subject matter and jurisdiction, and would thus be entitled to the full faith and credit of Indiana courts, it does not clearly conform with Indiana's evidentiary requirements for paternity that has been established by law for the purposes of establishing inheritance rights. Ind. Code Ann. § 29-1-2-7(b), (c). We have thus concluded that further development would be needed to determine whether the Illinois Order would suffice to establish Corvetta's inheritance rights in Indiana. However, it appears that Corvetta could separately meet the evidentiary standards set forth in the intestacy statute were she to bring a paternity action in Indiana. As noted above, the Agency does not require a claimant to actually file a paternity suit where that suit would otherwise be necessary to establish inheritance rights under state law; rather we “will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.” 20 C.F.R. § 404.355(b)(2). Thus, if Corvetta could establish paternity according to the evidentiary requirements of Indiana law, that would suffice for her to establish inheritance rights under Indiana law, and she would thus be deemed a natural child of Mr. D~ under Social Security law and entitled to child's benefits under his account. 20 C.F.R. § 404.355(a)(1).

In Indiana, a paternity finding which is based on the mother's testimony may be used to establish inheritance rights, but only if corroborative evidence or circumstances supported that testimony. Ind. Code Ann. § 29-1-2-7(b) and (c); see also Burnett v. Camden, 254 N.E.2d 199, 201 (Ind. 1970), reh'g denied 255 N.E.2d 650 (Ind. 1970). Corvetta's mother would undoubtedly testify that Mr. D~ is her father, and Corvetta possesses a signed letter from Mr. D~ in which he states unequivocally that he is her father. The handwriting in the letter from “Daddy Leslie” to Corvetta essentially matches Mr. D~'s handwriting on the Motion he filed in Illinois Court in May 1999. Thus, on its face, this letter appears to be authentic. Thus, it appears Corvetta would be able to establish paternity sufficient for establishing inheritance rights in Indiana courts. See Green v. Estate of Green, II, 724 N.E.2d 260, 265 (Ind. Ct. App. 2000) (where alleged father's unequivocal designation of putative heir as his son on signed documents was found to constitute corroborative evidence); Matter of Estate of Hendren, 459 N.E.2d 437, 442 (Ind. Ct. App. 1984) (evidentiary requirement of intestacy statute was met where paternity finding was based upon putative father's written acknowledgment of paternity). Furthermore, the Supreme Court of Indiana has indicated that the intestacy statute also allows for the use of a paternity finding which is based on “corroborative” evidence or circumstances alone, i.e., the mother's testimony is not essential. See Burnett, 255 N.E.2d at 651 (“As we noted in our original opinion, the inheritance statute specifies the quantum of proof necessary, to wit: the evidence of the mother and/or other corroborative evidence or circumstances.”) (emphasis added). Thus, even if Corvetta's mother were not to provide testimony indicating that Mr. D~ is Corvetta's father, the letter alone would suffice to prove paternity for the purpose of establishing inheritance rights in Indiana. See Burnett, 255 N.E.2d at 651; Hendren, 459 N.E.2d at 442.

Thus, based on her ability to establish paternity with the corroborative evidence she has, i.e., the letter from Mr. D~ acknowledges paternity, and her mother's likely testimony, it appears that Corvetta would be able to establish her right to inherit from Mr. D~ under Indiana law. See Ind. Code. Ann. § 29-1-2-7(b), (c), and (d); Hendren, 459 N.E.2d at 442. She therefore has established entitlement to child's benefits on Mr. D~'s account. 42 U.S.C. § 416(h)(2)(A).

You have asked whether the Commissioner may challenge the Illinois Court's Order based on the question of whether the paternity issue was genuinely contested in the Illinois Court. The Commissioner's decision to award child's benefits to Corvetta does not require resolution of this issue. As you have acknowledged, the Commissioner should accept state court determinations on matters of domestic relations where, among other things, the issue was genuinely contested by parties with opposing interests. See Social Security Ruling (SSR) 83-37c, 1983-1991 Soc.Sec.Rep.Ser. 127 (1983), adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); POMS GN 00306.001.C.3. However, in this case, the Agency is not relying on the Illinois judgment to establish the child relationship. Rather, the Agency is relying on Indiana inheritance law to establish the child relationship. You also have indicated that you are trying to establish a biological relationship pursuant to 42 U.S.C. § 416(h)(3). Such an analysis also is not necessary in this case, since we have determined that Corvetta is entitled to child's benefits pursuant to Indiana inheritance law. 42 U.S.C. § 416(h)(2)(A). So long as Corvetta could establish paternity according to the evidentiary requirements of the Indiana intestacy statute, we need not determine whether SSA would consider the Illinois judgment or the written acknowledgment sufficient to establish the child relationship under Federal standards.

CONCLUSION

We conclude that it is not clear, under Indiana law, whether Corvetta could establish inheritance rights based upon the Illinois Order; further development would be needed to determine what evidence, if any, the Illinois judgment was based upon. However, we conclude that Corvetta W~ has established entitlement to child's benefits on Mr. D~'s account, because she can inherit from him under Indiana law based on her ability to establish paternity with the corroborative evidence she has, i.e., the signed letter from Mr. D~ in which he acknowledges that he is her father, and her mother's probable testimony.

We note that it appears that original documents from the claims file were sent to our office. We are returning those documents to you now. We further note, incidentally, that the child support enforcement documents indicate that Mr. D~ (who apparently receives DIB) was working at Oak Lawn Lodge, in Oak Lawn, Illinois, as least as of October 1, 2000.

Thomas W. C~
Chief Counsel, Region V

By: Sara E. Z~
Assistant Regional Counsel

G. PR 03-028 Use of Sibling DNA Testing as Evidence to Meet the Indiana Intestacy Laws, Holly M~ SSN: ~ (Terry W~, D/W/E), Our Reference Number: 03-P-004

DATE: November 5, 2002

1. SYLLABUS

DNA tests of the deceased NH's siblings, establishing a 99.99% probability of paternity, along with evidence that the child's mother did not have contact with the NH's male siblings, satisfy the preponderance of the evidence standard employed in Indiana to establish paternity. Absent other evidence to the contrary, the courts of Indiana would likely find that paternity is established.

2. OPINION

You asked that we give an opinion concerning whether the State of Indiana would allow DNA testing of the siblings of a deceased number holder to be used as evidence to meet Indiana Intestacy Laws. You also asked whether such DNA testing of siblings could be used to establish paternity where the putative father is deceased. For the reasons that follow, we believe that Indiana courts would allow consideration of valid DNA tests to be used as evidence to establish paternity under the Indiana Intestacy Laws. We also believe that Indiana Courts will likely find that the DNA tests, which established a 99.99% probability that the deceased is the father of Holly M~, satisfy the preponderance of the evidence standard employed in Indiana to establish paternity. Thus, absent other probative evidence to the contrary, we believe that the Courts of Indiana would likely find that paternity is established.

BACKGROUND

Terry W~, the deceased number holder, was domiciled in Indiana on March XX, 1987, when he died. Terry is alleged to be the father of Holly M~, a child born on October XX, 1984, in Indiana.

According to the file, Wanda M~, Holly's mother, applied for child's benefits on behalf of Holly on April XX, 2002.

The evidence in the file shows that, on November XX, 2000, Wanda, Holly and Terry W~'s brothers, Danny and Jerry, and sister, Patricia H~, each submitted to DNA testing which was performed by the Laboratory Corporation of America. The DNA tests concluded a 99.99% probability that Terry is the father of Holly compared to untested, unrelated men. The Combined Paternity Index was 10,093 to 1.

Although the mother alleges that Terry W~ is Holly's father, Terry W~ never acknowledged Holly in writing. The mother alleges however, that she and Terry acknowledged Holly to family members. Terry was married to someone else at the time of Holly's conception and birth, but his wife knew of the relationship between Terry and Wanda.

Wanda indicated that there was more than one man in her life at the time of Holly's conception, and one of the men was proven not to be Holly's father. Wanda reported that she knew of only one brother of Terry, but did not know where he was. She never knew of the deceased sister or other brother. The claims file indicates that there appears to be “strong evidence” that Wanda did not have contact with Terry's male siblings. Wanda has worked with Medicaid to establish paternity of her daughter, and the file does not indicate any allegation that Terry's brothers could be potential fathers of Holly.

DISCUSSION

Section 202(d) of the Social Security Act provides for the payment of benefits to the “child” of an insured wage earner who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that “[i]n determining whether an applicant is the child” of an insured person, “the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state” where the insured individual is domiciled at the time of application or death. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R. § 404.355(a)(1), (b)(1) (2000); POMS GN 00306.001(A). Terry W~ was domiciled in Indiana when he died; therefore, Indiana intestacy laws apply to determine whether Holly M~ could inherit from him as his child.

The POMS properly describes Indiana law as providing that children born out of wedlock can posthumously establish the right to inherit only if the paternity cause of action is filed before or within five months after the father's death. Ind. Code. Ann. § 29-1-2-7(b)(2); POMS GN 00306.485. However, in November 1998, SSA's regulations were changed to provide that, even if state law requires such a paternity action, we will not require the claimant to bring the parentage action or establish paternity prior to the wage earner's death. 20 C.F.R. § 404.355(b)(2). Rather, SSA will determine the paternity claim by using the standard of proof that the state court would use as a basis for a determination of paternity. Id.

As the POMS recognizes, Indiana law permits a finding of paternity notwithstanding the absence of a statutory presumption where paternity is established by the preponderance of the evidence. See Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. App. 1995) (paternity actions are civil proceedings and the alleged father must be proved to be such by a preponderance of the evidence); H.W.K. v. M.A.G., 426 N.E.2d 129, 133 (Ind. App. 1981) (same). Under the preponderance of the evidence standard, Indiana courts have considered the results of genetic test results and concluded that they, along with other evidence, provided sufficient evidence of paternity. Cf. Minton v. Weaver, 697 N.E.2d 1259, 1260 (Ind. App. 1988)(finding that DNA evidence, combined with evidence of mother and alleged father's sexual activity and mother and husband's lack of sexual activity was clear and convincing evidence to rebut presumption that husband was father).

The POMS also accurately describes Indiana law as creating several presumptions of paternity, one of which is relevant to our analysis. POMS GN 00306.485. If the man undergoes a blood test that indicates with at least 99% probability that the man is the child's biological father, paternity is presumed. Id. Under Indiana law, paternity is presumed if the man undergoes a blood test that indicates with at least a 99% probability that the man is the child's biological father. Ind. Code Ann. § 31-14-7-1(4). While the presumption does not specifically refer to genetic testing, we have previously advised that genetic testing results of the biological father indicating a 99.96% probability of paternity, was most likely sufficient evidence to create a presumption of paternity or was at least sufficient to establish paternity by a preponderance of the evidence.

Both the Indiana legislature and courts have considered, and apparently approved, genetic testing to show paternity. Although the Indiana statute which sets forth the various situations giving rise to presumptions of paternity does not specifically provide that genetic testing results are sufficient to create a presumption, other statutes seem to equate genetic testing with blood testing. For example, Indiana law provides that, upon motion of any party, a court shall order all the parties to a paternity suit to undergo blood or genetic testing. See Ind. Code Ann. § 31-14-6-1. Similarly, it provides that a party may object to the admissibility of genetic test results. See Ind. Code Ann. § 31-14-6-2. The statute also contemplates the chain of custody of blood or genetic specimens taken for testing. See Ind. Code Ann. § 31-14-6-5. Indiana courts have likewise considered genetic test results and appear to equate them with blood tests. See Clark v. Gossett, 656 N.E.2d 550, 553 (Ind. App. 1995) (paternity blood test, which combined DNA genetic results with blood antigen results, were “blood or genetic testing” within meaning of statute providing for admissibility).

Thus, we believe that Indiana courts would admit DNA testing of the decedent's siblings to establish paternity. As noted above, the POMS properly describe Indiana Intestacy Laws as creating a presumption of paternity if valid DNA tests establish a 99% likelihood of paternity. GN 00306.485 (Indiana). The POMS and Indiana statutory law do not address any presumption when DNA testing establishes the likelihood of paternity on the basis of DNA testing performed on the siblings of a decedent. Id.; see also Ind. Code. Ann. § 31-14-7-1(4). However, noting scientific advances, other state courts have determined that genetic testing of a putative father's relatives can be reliable evidence of paternity. E.g., Estate of Wilkins, 184 Misc.2d 218, 222 (Niagra County Surrogate Court 2000) (posthumous DNA testing of decedent's collateral living relatives can be probative evidence of paternity); Pace v. Louisiana State Employees Retirement System, 648 So.2d 1302, (La. 1995) (“courts have found that DNA tests performed on the deceased putative father's relatives can determine paternity posthumously,” collecting cases); Lach v. Welch, 1994 WL 271518 at *5 (Conn. Super. June 13, 1994) (“DNA fingerprinting may also be utilized to effectively establish a 'probability' of paternity by testing relatives of the unavailable parent,” citing scientific studies). Here, the DNA test results (in the absence of evidence to the contrary we presume that the laboratory meets the standards set out in the Indiana statutes), concluded a 99.99% probability that Terry is the father of Holly M~, but these results are based upon DNA testing of Terry's siblings. This probability was calculated in comparison to an untested, unrelated men, apparently leaving the possibility that a related man is as statistically likely as Terry to be Holly's father. However, Holly's mother indicated that she did not know of other siblings besides one brother, and did not know the whereabouts of the one brother about whom she knew. Moreover, the claims file indicates that there appears to be strong evidence that Wanda did not have contact with Terry's male siblings, and Medicaid, which has worked with Wanda to establish paternity, has not suggested that any of Terry's brothers could be potential fathers to Holly. We believe, this evidence, if verified, would be sufficient to rule out Terry's male relatives as Holly's father (assuming Terry had no other close male relatives).

Moreover, as the POMS explains, even when a presumption does not apply, a finding of paternity can be established by a preponderance of the evidence. POMS GN 00306.485 (Indiana). Court cases in Indiana have further considered factors beyond the statutory presumptions in evaluating claims of paternity. See Collins v. Wise, 296 N.E.2d 887 (Ind. App. 1973) (even where there is evidence of intercourse with more than one man near the time of conception, mother's testimony alone may establish paternity); Minton, 697 N.E.2d at 1260 (finding that DNA testing of another man indicating a 99.97% probability that he rather than the spouse is the father, combined with uncontradicted evidence the other man had sexual intercourse with the mother when the child was conceived considered clear and convincing evidence which rebutted the marriage presumption). The POMS explain that the testimony of the mother, supported by corroborative evidence or circumstances including blood test results, is still evidence concerning paternity even if the results do not establish a statutory presumption or completely rule out the paternity claim. POMS GN 00306.485.

We believe that the Indiana courts would also allow consideration of the sibling blood tests as probative of the question of paternity. We have found no Indiana case that addressed whether DNA evidence taken from siblings of the deceased could be used to establish paternity. However, in Minton, the court stated that “[i]t is possible that other evidence can constitute direct, clear, and convincing evidence capable of rebutting the marriage presumption. A DNA test of another man which indicates a 99.97% probability that the man is a child's father combined with uncontradicted evidence that the man had sexual intercourse with the mother at the time the child must have been conceived is an additional type of direct, clear, and convincing evidence which can rebut the marriage presumption.” Minton, 697 N.E.2d at 1260. Given that Minton required clear and convincing evidence to rebut a marriage presumption, we believe that Indiana courts would consider the DNA test results of the siblings of the child's putative father as sufficient evidence to establish paternity under the lower, preponderance of the evidence standard that would apply in this case. Indeed, in Collins, the court stated that the mother's testimony alone, even when there is evidence of intercourse with another man, can establish paternity. Collins, 296 N.E.2d at 889.

In this case, the DNA results taken from the mother, Holly, and two brothers and a sister of Terry, the deceased, show a 99.99% probability that Terry is the father of Holly, compared to untested, unrelated, random men. Indiana courts will likely consider this as relevant evidence to making a paternity determination. In addition to this evidence, Indiana courts may find other evidence relevant as well including: the strong evidence that Wanda did not have contact with the male siblings of Terry, that Terry's wife knew of the relationship between Terry and Wanda, that at least one of the men Wanda was having sex with was proven not to be Holly's father, and that Medicaid has not pursued the possibility that Terry's brothers were not potential fathers.

CONCLUSION

For the foregoing reasons, we believe that it is proper to consider the DNA test results of the two brothers and one sister of Terry W~, to determine whether Mr. W~ was the father of Holly. While we believe DNA test results and other evidence likely satisfy the preponderance of the evidence standard necessary to support the paternity claim, Indiana courts may find that the preponderance of the evidence does not support the claim.

Lucille G. M~
Acting Regional Chief Counsel

By: Curt P. M~
Assistant Regional Counsel

Footnotes:

[1]

^{. .} We contacted the laboratory of record to seek clarification regarding the probative value of the DNA test results regarding the likelihood that NH is C~’s biological father. However, the laboratory was unwilling to provide clarification due to confidentiality concerns.