Appeal from the United States District Court for the Western District of Wisconsin. No. 84-C-397 -- Barbara B. Crabb, Judge.
Before WOOD, JR., and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
WOOD, JR., Circuit Judge. Plaintiff-appellant Marilyn A. Schaefer, on behalf of her minor daughter Deanne M. Schaefer, appeals the district court's decision denying Deanne Schaefer surviving child's benefits under the Social Security Act (the "Act"). The court, upholding the final decision of the Secretary of Health and Human Services (the "Secretary"), concluded that Deanne Schaefer was not entitled to draw child's insurance benefits from her natural father's account. We affirm the decision of the district court.
Deanne Schaefer was born on June 13, 1981. David A. Kroll, the Wisconsin-domiciled wage earner who was later adjudged to be Deanne's natural father, was present at the hospital at the time of her birth. On his way home from the hospital, Kroll was killed in an automobile accident. Kroll and Marilyn Schaefer were unmarried at the time of Deanne's birth, although they were engaged to be married. Kroll had acknowledged his paternity to numerous individuals; he had never, however, executed a written acknowledgement nor had any court adjudicated the matter. Additionally, Kroll had never lived with Marilyn Schaefer nor had he contributed to her support, although there was evidence the Kroll was in tending to provide for the medical costs incurred by the pregnancy and birth and for Deanne's support until she reached the age of majority. On October 6, 1981, Evangeline A. Kroll, the personal representative of David Kroll's estate, and Marilyn Schaefer filed a joint petition for a determination of paternity in state court. The court determined that, under Wis. Stat. Ann. § 767.51 (West 1981 and 1985 Supp.), Kroll was Deanne's natural father, and, accordingly, ordered that a new birth certificate be issued listing Kroll as the father, The Secretary has acknowledged the validity of this determination.
Merilyn Schaefer also sought surviving child's insurance benefits for her daughter pursuant to the Act. She argues her daughter is entitled to these benefits under two theories. First, a dependent "child" of a deceased wage earner who has filed an appropriate application is entitled to such benefits under the Act. See 42 U.S.C.A. § 402(d) (west 1983 and 1985 Supp.).*fn1 The plaintiff argues that Deanne is Kroll's child for purposes of 42 U.S.C.A. § 416(h)(2)(A) (West 1983) which provides:
In determining whether an applicant is a child or parent of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or, if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.
The plaintiff concedes that under the Wisconsin intestacy laws in effect on the date of Kroll's death her daughter would not have been entitled to inherit from her biological father based on a posthumous determination of paternity. At the time of Kroll's death, the Wisconsin statute regulating intestate succession for illegitimate children provided:
An illegitimate child or his issue is entitled to take in the same manner as a legitimate child by intestate succession from and through (a) his mother, and (b) his father if the father has either been adjudicated to be such under ss. 52.21 to 52.45, or has admitted in open court that he is the father, or has acknowledged himself to be the father in writing signed by him.
Wis. Stat. Ann. § 852.05(1) (West 1971).
Kroll had neither executed a writing nor had he acknowledged paternity in open court. Furthermore, at the time of his death, Wisconsin law (Wis. Stat. ch. 52) did not provide for posthumous paternity proceedings. See In re Estate of Blumreich, 84 Wis. 2d 545, 267 N.W.2d 870, 873 (1978), appeal dismissed sub nom. Caldwell v. Kaquatosh, 439 U.S. 1061, 59 L. Ed. 2d 26, 99 S. Ct. 822 (1979).
The plaintiff notes, however, that effective July 1, 1981 (eighteen days after Kroll died), section 852.05(1) was amended to read:
An illegitimate child or the child's issue is entitled to take in the same manner as a legitimate child by intestate succession from and through his or her mother, and from and through his or her father if the father has either been adjudicated to be the father in a paternity proceeding under ch. 767, or has admitted in open court that ...