The opinion of the court was delivered by: Crowley, District Judge.
MEMORANDUM OPINION AND ORDER
In this action, plaintiff, on behalf of her daughter, seeks
judicial review of the Social Security Administration's final
denial of child's survivor benefits under §§ 202(d) and 216(h) of
the Social Security Act (the Act), 42 U.S.C. § 402(d) and
416(h). After her application was denied, plaintiff had a hearing
before an Administrative Law Judge (ALJ) and his decision of
denial was approved by the Appeals Council. Jurisdiction is based
here on 42 U.S.C. § 405(g). The matter is now before the Court on
cross motions for summary judgment.
Plaintiff is seeking surviving child's benefits on behalf of
her minor daughter, Donna Cooper, from the account of Nelson
Bluitt, the deceased natural father of the daughter. Mr. Bluitt
died in July, 1977. Plaintiff's original application was filed on
August 22, 1977. The ALJ ruled that plaintiff had not
satisfactorily demonstrated that Bluitt was the natural father of
Donna. The Appeals Council summarily approved this decision.
However, plaintiff claims that the ALJ ignored one statutory
basis of eligibility for Donna, misconstrued the law he did
consider and erroneously evaluated the evidence.
The Act provides several methods by which a child born to unwed
parents may attain "child" status. 42 U.S.C. § 416(h)(2) and (3).
The parties agree that the ALJ failed to consider one basis of
entitlement found in § 216(h)(2)(A) of the Act,
42 U.S.C. § 416(h)(2)(A). That section provides
that if the child is entitled to inherit personal property from the
decedent under the law of the decedent's domicile at death (here,
Illinois), then the child is entitled to survivor's benefits under the
Act. Plaintiff argues that the failure to consider § 216(h)(2)(A)
is grounds for reversal and the Secretary argues that the section did
not apply because there was no applicable Illinois inheritance law to
apply. The arguments focus on a recent amendment to the Illinois
In response to Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459,
52 L.Ed.2d 31 (1977), the Illinois Legislature passed a statute
regarding the inheritance rights of illegitimates. The amendment
was enacted September 12, 1978, but it "applies to the estates of
decedents dying before, on or after its effective date."
Ill.Rev.Stat. ch. 110 1/2, § 2-2 (1979). Under this law, children
of unwed parents are permitted to inherit from their natural
fathers where paternity is established by inter alia "clear and
The Secretary claims that an Illinois Appellate Court limited
the retroactive effect of the amendment so that it should not
apply in this case. In In re Estate of Rudder, 78 Ill.App.3d 517,
397 N.E.2d 556 (1979), the court held that an illegitimate child
can inherit from the father who died before September 12, 1978,
only if the estate is not yet closed. Thus, a petition to re-open
an estate was denied. Here, the Secretary argues that since there
is no indication that the Estate of Nelson Bluitt was open, the
probate amendment does not apply.
The Court, however, agrees with plaintiff that the Rudder case
is inapplicable. That decision was expressly based on the strong
preference for finality in the administration of estates. 78
Ill.App.3d at 519-20, 397 N.E.2d at 558. In this case, plaintiff
is not making a claim against Bluitt's estate; she is seeking
benefits not subject to probate. Thus, this could not be a case
of re-opening and relitigating claims against a closed estate.
Moreover, plaintiff has brought to the Court's attention a
decision by the Secretary, that this Court affirmed, in which the
Appeals Council retroactively applied the Illinois probate
section at issue here. For these reasons, the Court concludes
that the 1978 amendment to Ill.Rev.Stat. § 2-2 is applicable to
this case. Since the ALJ and Appeals Council failed to consider
this issue as mandated by § 216(h)(2)(A) of the Act,
42 U.S.C. § 416(h)(2)(A), the Secretary's decision must be reversed.
Plaintiff also argues that the record contains enough evidence
to meet the "clear and convincing" standard in the Illinois
statute so that Donna would be entitled to inherit property from
Bluitt, and, therefore, also entitled to survivor's child
benefits. Specifically, plaintiff notes: the statements of
Bluitt's mother and sister (with whom he lived) and of
plaintiff's mother relating that Bluitt had orally acknowledged
paternity; plaintiff's testimony and Bluitt's sister's statement
that Bluitt acknowledged paternity in writing to Public Aid; and
that Bluitt paid child support weekly for eleven years.
The insistence by the ALJ on the actual writing demonstrates a
basic misconception of the best evidence rule. To prove the
contents of a document, it must be produced only if it exists.
The document was destroyed by fire at the public aid office.
Plaintiff certainly cannot be held accountable for its
destruction. The secondary evidence she introduced more than
satisfied the rule. Fed.Rules of Evid. 1004.
This Court finds the evidence overwhelming that Nelson Bluitt
was the natural father of plaintiff's daughter. All the testimony
and statements by plaintiff, her relatives and Nelson Bluitt's
relatives unequivocally establish that Bluitt was Donna Cooper's
natural father. These statements, although hearsay, recounted
acknowledgements by Bluitt of his paternity of Donna. They were
clearly admissible and reliable. Fed.Rules of Evid. 803(19),
803(24) and 804(4). The only statement that is not unequivocal is
that of Bluitt's son who lives in California, but he merely says
that he never heard his father mention Donna. In light of all
this evidence, the failure to produce a document of written
acknowledgement is insignificant. Further, all the evidence
indicates that a writing did exist, but was destroyed in a fire
at a public aid office.
The Secretary's insistence on the production of a written
acknowledgement not only has delayed benefits for Donna, but has
been a matter of extreme frustration for Mrs. Cooper. Her anxiety
can only be expressed by her own testimony at the hearing:
[ALJ] Q: Well, it's a matter of proof. See, you're
the one that has to prove that he — that he
acknowledged that — that he was the
[Mrs. Cooper] A: Well, that's all the proof I had,
and that — and they got burned up, so how — what
else can I do?. . . . They keep telling me still
bring the proof. How can I bring the proof? I can't
go to the grave and tell the man come up and sign
that paper over. . . . I said Nelson Bluitt signed
that paper. He signed, and it got burned up. I said
then I'll be — I'll be crazier than the peoples
that's asking me ...