ROBIN C. v. Schweiker

Decision Date10 February 1982
Docket NumberCiv. No. 80-306-D.
Citation532 F. Supp. 677
PartiesROBIN C., o/b/o Stacey D. v. Richard SCHWEIKER, Secretary, Health and Human Services.
CourtU.S. District Court — District of New Hampshire

Jay L. Hodes, Manchester, N.H., for plaintiff.

W. Stephen Thayer, III, U.S. Atty., Concord, N.H., for defendant.

OPINION AND ORDER

DEVINE, Chief Judge.

The instant action was brought pursuant to 42 U.S.C. § 405(g), which grants federal courts the authority to review final decisions of the Secretary of Health and Human Services regarding Social Security benefits. The minor child herein seeking to secure Child Insurance benefits, 42 U.S.C. § 402(d)(1), et seq., through the initiation of this action by her mother, is alleged to be the issue of a decedent who was a fully insured wage earner for Social Security purposes.

The decision of the Administrative Law Judge denying plaintiff benefits under the Social Security Act ("Act"), became the final decision of the Secretary on June 9, 1980, when the Appeals Council declined further review of the case. The relevant facts of this case were all previously stated in this Court's Opinion and Order dated March 20, 1981, and shall not be here repeated.

The applicable law, § 202(d) of the Act, 42 U.S.C. § 402(d), provides for the payment of child's insurance benefits to every unmarried child, under age eighteen, of an individual who dies fully insured if such child has filed an application for such benefits, 42 U.S.C. §§ 402(d)(1)(A) and (B), and was dependent on the individual at the time of his death. 42 U.S.C. § 402(d)(1)(C)(ii). A legitimate or legally adopted child is deemed legitimate and therefore automatically entitled to benefits under the Act. 42 U.S.C. § 402(d)(3). An illegitimate child may achieve the status of a legitimate child (and hence be deemed dependent and thus entitled to benefits) if he can make one of four showings:

1) That the infant is the child of a marriage rendered invalid by some legal insufficiency 42 U.S.C. § 416(h)(2)(B);
2) That the deceased wage earner had (a) acknowledged the infant claimant in writing as his or her son or daughter, or (b) been decreed by the court to be the claimant's parent, or (c) been ordered by a court to support the claimant on the basis of parenthood 42 U.S.C. § 416(h)(3)(C)(i);
3) That the deceased wage earner was actually living with or contributing to the support of the infant claimant at the time of the wage earner's death (shown by evidence satisfactory to the Secretary) 42 U.S.C. § 416(h)(3)(C)(ii);
4) That the infant would be entitled to inherit personal property from the deceased wage earner under the law that would be applied in determining the devolution of intestate personal property by the courts of the wage earner's state of domicile at death 42 U.S.C. § 416(h)(2)(A); Mathews v. Lucas, 427 U.S. 495, 514, n. 17, 96 S.Ct. 2755, 2766, 49 L.Ed.2d 651 (1976).

Allen v. Califano, 456 F.Supp. 168, 170 (D.Md.1978). The ALJ found that the child did not meet the requirements of the first three criteria and was precluded from meeting the fourth because of the statutory bar presented by N.H. RSA 561:4.

The Court found the Secretary's decision was supported by substantial evidence regarding the first three questions, and therefore the New Hampshire intestacy statute was drawn into question. Plaintiff had specifically alleged in the complaint that the statute here at issue, N.H. RSA 561:4, which is addressed to children born of unwed parents, was violative of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. As this Court found said statute had not previously been challenged on these grounds, and we found the issues compelling and determinative of the case before us, in the interest of comity this Court certified the question to the New Hampshire Supreme Court pursuant to N.H. RSA 490:App. Index, Rule 21.

The New Hampshire Supreme Court responded by order file-dated with this Court on December 7, 1981, in which the state court declined to answer the question certified. Thus, having previously allowed the New Hampshire Supreme Court the first opportunity to construe the New Hampshire statute at issue, this Court must now determine its constitutionality.

As has been previously stated by the New Hampshire Supreme Court, "the problems resulting from the separation of the increasing number of unwed parents who have been living together for a period of time as man and wife are rapidly emerging. The legislature has seen fit as yet only to deal in partial fashion with these problems...." Locke v. Ladd, 119 N.H. 136, 140, 399 A.2d 962 (1979). N.H. RSA 561:4, together with N.H. RSA 457:42 (legitimation by marriage), 460:29 (this statute, which provides for legitimation by the putative father, was challenged in Locke v. Ladd, supra), and Chapter 168-A (allowing the mother, child, and certain other parties to bring a paternity action), appear to constitute the full framework concerning the rights of children born out of wedlock.

The statute at issue here, N.H. RSA 561:4, provides:

Inheritance of Children Born of Unwed Parents. The heirs of a child born of unwed parents in the ascending and collateral lines shall be the mother and her heirs; and children both of unwed parents and the issue of such children shall be heirs of the mother and her kindred.

The minor child in this case falls within the purview of this statute as she is the offspring of unwed parents. The clear result of applying said statute is that should unwed parents die intestate, the child may only inherit from the mother and her kindred, not from the father (or his kindred). Such is a limitation placed on all children born out of wedlock except where either N.H. RSA 457:42 or N.H. RSA 460:29 are applicable.

N.H. RSA 457:42 states:

Marriage of Parents. Where the parents of children born before marriage afterwards intermarry, and recognize such children as their own, such children shall be legitimate and shall inherit equally with their other children under the statute of distribution.

(Emphasis added.) "A child can be legitimated under N.H. RSA 457:42 only when his natural parents intermarry." Hansen v. Hansen, 119 N.H. 473, 475, 402 A.2d 1333 (1979). The only other statute which may effectuate a change in the right of a child of unwed parents from the status set forth in N.H. RSA 561:4 is N.H. RSA 460:29, which states:

Petition to Legitimate Child.
I. The putative father of any child born out of wedlock may apply by a verified written petition filed in a special proceeding in the superior court of the county in which he resides, praying that such child be declared legitimate. The mother, if living and available, shall be a necessary party to the proceeding, and the full names of the father, mother and the child shall be set out in the petition. If it appears to the court that the petitioner is the father of the child, the court may thereupon declare and pronounce the child legitimated; and the full names of the father, mother and the child shall be set out in the court order decreeing legitimation of the child.
II. The effect of legitimation shall be to impose upon the father all the obligations which fathers owe to their lawful issue and to entitle such child by succession, inheritance or distribution to real and personal property by, through, and from his father and mother as if such child had been born in lawful wedlock. In case of death and intestacy, the real and personal estate of such child shall be transmitted and distributed according to RSA 561 as if he had been born in lawful wedlock.

(Emphasis added.) Thus, the only two statutory provisions by which the child of unwed parents can inherit from his intestate father (or his kindred) are either where the natural parents intermarry subsequent to the birth of said child or where the putative father brings a legitimation petition in state court. The Court notes that while there are procedures available under N.H. RSA Ch. 168-A for the mother, the child, or certain other parties to bring a petition to establish the putative father's paternity, the successful result of said proceeding only establishes the father's liability for the cost of the pregnancy and support of the child, and does not implicate, influence, or alter the child's standing vis-avis the devolution of the father's estate should the father die intestate.1

"Our inquiry under the Equal Protection Clause does not focus on the abstract `fairness' of a state law, but on whether the statute's relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment." Lalli v. Lalli, 439 U.S. 259, 273, 99 S.Ct. 518, 527, 58 L.Ed.2d 503 (1978). A review of the New Hampshire statutory framework concerning the right of an illegitimate child to inherit from his or her putative father leads the Court to the inextricable conclusion that the wholesale exclusion created by N.H. RSA 561:4 is unconstitutional. "The Illinois statute in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents." Id. at 273, 99 S.Ct. at 527.

Under the New Hampshire statutes, the only other avenue besides intermarriage which may lead a child born out of wedlock to inherit from the intestate father's estate is found in N.H. RSA 460:29. As noted above, the procedure set forth therein only provides for the initiation of the action by the putative father. Such a distinction is not persuasive enough to cause a different result from that reached in Trimble v. Gordon, supra. Such a narrow exception cannot be found to "`grant to illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate children,'...

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2 cases
  • In re J.W.
    • United States
    • New Hampshire Supreme Court
    • 3 d3 Julho d3 2019
    ...law treated a child born out of wedlock differently from a "legitimate" child in certain respects. See, e.g., Robin C. v. Schweiker, 532 F. Supp. 677, 679 (D.N.H. 1982). For example, a child born out of wedlock whose parents died intestate could "only inherit from the mother and her kindred......
  • Schuster v. Thraen
    • United States
    • U.S. District Court — Virgin Islands
    • 10 d3 Fevereiro d3 1982

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