Jones for Jones v. Chater

• Decision Date: 26 November 1996
• Docket Number: No. 96-1849,96-1849
• Parties: , Unempl.Ins.Rep. (CCH) P 15637B Cynthia JONES, For Ivory B. JONES, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 509

101 F.3d 509

52 Soc.Sec.Rep.Ser. 244, Unempl.Ins.Rep. (CCH) P 15637B

Cynthia JONES, For Ivory B. JONES, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security,

Defendant-Appellee.

No. 96-1849.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 2, 1996.

Decided Nov. 26, 1996.

Charles F. Hickman, Laura K. Grandy, Lorraine Kay Cavataio (argued), Mathis, Marifian, Richter & Grandy, Belleville, IL, for Plaintiff-Appellant.

W. Charles Grace, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, John Lee (argued), Department of Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and BAUER and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

A dependent child of a wage earner is entitled to "child's insurance benefits" under the Social Security Act if the wage earner is insured under the Act and dies, becomes disabled, or reaches the age of 65. 42 U.S.C. § 402(d). Problems of determining entitlement sometimes arise when, as in the present case, the wage earner (Ivory Claxton) dies and was not married to the child's mother (Cynthia Jones). The Act contains an exhaustive list of methods of establishing entitlement to child insurance benefits in such a case: proof that the wage earner would have been married to the child's mother but for a technical deficiency in the marriage; a written acknowledgment of paternity by the wage earner; a judicial decree that the wage earner was the child's father, provided the decree was issued before the wage earner died; a court order that the wage earner contribute to the support of the child because the wage earner was the child's parent; a determination by the Social Security Administration, based on satisfactory evidence, that the wage earner was the parent of the child and was living with or contributing to the child's support when the wage earner died; or proof that the child was entitled to inherit from the wage earner under the law of intestate succession of the wage earner's state of domicile. 42 U.S.C. §§ 416(h)(2)(A), (C). Jones sought to establish an entitlement to benefits for her 11-year-old son, Brandon Jones, by the last two of these methods--proof of paternity under state intestate statute (§ 416(h)(2)(A)), and paternity plus support (§ 416(h)(3)(C)(ii)). The Social Security Administration turned down her application on the ground that she had proved neither paternity nor support. The district court upheld the denial of benefits.

Claxton was domiciled in Missouri, and Missouri's intestate succession statute requires, so far as bears on this case, clear and convincing evidence of paternity. Mo.Ann.Stat. § 474.060(2). But that is all that the statute requires; unlike the method of establishing entitlement that we are calling "paternity plus support," there is no requirement of proving that the father ever provided any support to the child. Proof of paternity is easier under the "paternity plus support" method than under the Missouri statute, because proof by a preponderance of evidence is all that is required under the former method, and that is, of course, a lesser burden than proof by clear and convincing evidence. Brown v. Bowen, 847 F.2d 342, 345-46 (7th Cir.1988); Imani v. Heckler, 797 F.2d 508, 511-12 (7th Cir.1986). Oddly, we cannot find a case that holds that a preponderance of the evidence is all that the paternity plus support method requires; nor does the Social Security Act, or the regulations under it, prescribe a standard of proof, although the Act does make clear that the claimant for benefits bears the burden of persuasion. 42 U.S.C. § 405(g). But we have no doubt that preponderance of the evidence is the proper standard, as it is the default standard in civil and administrative proceedings, Steadman v. SEC, 450 U.S. 91, 101 n. 21, 101 S.Ct. 999, 1007 n. 21, 67 L.Ed.2d 69 (1981); see also Director v. Greenwich Collieries, 512 U.S. 267, ----, 114 S.Ct. 2251, 2257-58, 129 L.Ed.2d 221 (1994), and no reason for a different standard in paternity-plus-support cases has been suggested or occurs to us. On the contrary, the fact that proof of support is required as well as proof of paternity is an argument for a lower standard of proof than under statutes that require proof of paternity by clear and convincing evidence but require no evidence at all of support.

The administrative law judge got this wrong; he required proof of paternity by clear and convincing evidence under both the paternity and the paternity-plus-support methods. He compounded his error by equating "clear and convincing" to "beyond a reasonable doubt." These are serious errors. While Jones indeed failed to prove Claxton's paternity beyond a reasonable doubt, the evidence of his paternity is very strong and might well be found to have satisfied the clear and convincing standard, and, all the more, the preponderance standard. It is undisputed that Claxton (who was married to, and had children by, another woman) was having an affair with Jones when she became pregnant with Brandon. In 1981, after she became pregnant, she moved to California to be with her mother. Brandon was born, and shortly afterward Claxton visited him and the mother in California and bought clothes, groceries, and other items for him. At Claxton's urging, the mother moved with the baby back to St. Louis and the two of them lived in an apartment over Claxton's grocery store. Claxton saw Brandon, and bought him clothes and toys, from time to time. In 1989 or 1990, Cynthia Jones moved with her son to Illinois. Claxton died in 1991 without having seen either Cynthia or Brandon, or provided any financial or other tangible assistance to Brandon, after their move to Illinois. Brandon testified at the benefits hearing that Claxton had told him that he was his father and that he believed it.

Claxton's widow, testifying against paternity, speculated that if her husband had given money or goods to Brandon it was purely because of the disinterested generosity for which he was known. She did not testify that her husband was not Brandon's father--only that he didn't know whether he was or not, and speculated that her husband's brother, or perhaps one of the employees of the grocery store, might be Brandon's father--might have impregnated Jones when they were living in the apartment above the store. But Brandon had already been born when he and his mother returned from California and moved into the apartment.

Although the administrative law judge's determination that Claxton was not the father cannot stand, because he applied the wrong standard of proof and the error is not harmless, we cannot reverse the determination that Jones has failed to establish entitlement by the state intestate statute method. The reason is that she has abandoned her reliance on this method in this court. E.g., Harris v. City of Marion, 79 F.3d 56, 59 (7th Cir.1996); Griman v. Makousky, 76 F.3d 151, 153 (7th Cir.1996); Doherty v. City of Chicago, 75 F.3d 318, 326 (7th Cir.1996). Although her main brief contains a couple of references to the administrative law judge's having applied the wrong standard to determining paternity under the state intestate statute, the statute is not cited in either of her briefs; the statement of the issues presented does not mention the statute; and the only request for relief is that we remand for a redetermination of paternity under the preponderance of the evidence standard, a standard applicable to the "paternity plus support" method of establishing entitlement to child insurance benefits but not to the state intestate statute method. At argument, one of the judges said that he had a problem with the administrative law judge's handling of the state intestate method, even though Jones's lawyer did not: "I know you don't [have a problem with it], I do," the judge said. Jones's lawyer agreed that the administrative law judge had misapplied the Missouri statute, but she did not request relief from that error. The appellee's lawyer, when his turn to speak came, stated that the state intestate method was...