To Whom It May Concern:
I need help! I thought that laws that govern our society were just and designed to help the people, especially kids; but that has not been the case for my daughter and one of her sisters. I have been battling a social security case since October of 2004. They are refusing to pay my daughter and her sister SSI survivor benefits because they say their biological father (Donnell Brice) is in fact not their father based off CA state law.
To give you a brief history my daughter Jordan Hardy-Brice was born May 28th 2003. At the time she was born I was 21 years and her father Donnell Brice was 28 years old. Donnell did not play an active role in my pregnancy nor was he the best father in the world. I can probably count on one hand that amount of times he saw our daughter before he was murdered on July 5th 2004 (a little over one year after Jordan was born). Call me naïve or even stupid but Donnell did not sign Jordan's birth certificate and at the time he died a court ordered judgment of paternity had not been established. After he was murdered was when the truth about the life and lifestyle Donnell had been living came to light.
July 6th 2004 was the first time Jordan met the other side of her family and it was also when I found out that Donnell had 3 other children by two women. A son Donnell Brice Jr. (age 8) and two daughters Sanai Brice and Island Brice, both age 1, the same age as my daughter Jordan. Donnell had 3 women pregnant (myself included) and had 3 little girls all born in the same year. Donnell was living with one woman (who bore two of his kids), and had myself as well as another woman on the side (none of us had any idea about the others or the kids until he died).
The next step was to get a DNA test since his name was not on Jordan's birth certificate (nor was it on one of her sisters). Donnell's mother authorized for his blood to be shipped to a lab so testing could be conducted. A week later the test came back 99.99999998% positive that he was in fact our kid's fathers. With that, I received a default judgment of paternity and had Jordan's birth certificate amended to reflect him as her father as well has modify her last name.
Shortly after that all three mother applied for social security benefits for our children because Donnell worked for well over 10 years. The only person approved for benefits for her two kids was the woman Donnell lived with. Myself, as well as Danielle Ross (the other woman) received letters that read “We cannot pay Jordan Hardy Brice” because she is not the child of Donnell Brice.” I was devastated and did not understand why. Testing clearly showed no other man possible could have fathered our child. It was then that I found out how cruel our system is.
According to CA Intestacy Law Donnell had to openly hold out our kids and receive them into his home which he did not because he was leading multiple lives. The law also states that a court ordered judgment of paternity as well as DNA testing must have been conducted during the lifetime of the father. This means that according to CA law our kids have no father and Donnell escaped his responsibilities as a father in both life and in death. This has to be the most discriminatory law I have ever heard of!
In a perfect world people meet, people marry and have kids and live happily ever after but unfortunately we live in the real world where people lie, people cheat, people marry and divorce, abuse kids, don't pay child support, don't care for or see their kids!
California's definition of being a father is less a question of biology and more one of family units and the existence of a parent-child relationship. In other words, California law does not equate natural parent status with biological parenthood such that a mere biological relationship is sufficient under California law to grant status as a natural parent. This is primarily out of the California legislature's interest in protecting the welfare of the child and the integrity of the family.
This is a joke! How is this protecting my child and integrity of our family? It's telling me that my child (deemed illegitimate) and our family do not matter. These laws are extremely outdated and do not reflect current times. There is really no such thing as nuclear families anymore. Kids are born out of wedlock everyday, father's dodge child support everyday, men have multiple kids in different states that they don't take care of everyday and some states make this okay. CA has made this okay in my case and many others similar to this.
My case is currently at the 9th circuit court of appeals and will probably be denied yet again but I cannot and will not live with this fate. Its makes it very hard to sleep at night knowing that our government makes this okay. I will no longer just lay down in defeat, if it takes every breath in me I will continue to fight until this law is changed. Not just for my daughter and her sister but for all the mothers and children who have been discriminated against and denied something that their kids should be entitled to (especially considering that government want to protect the kids). These children are INNOCENT and don't ask to be brought into this world. I have had to accept the consequences of my actions and take responsibly for my daughter. I was 21 (still a kid) having a kid. Had to learn to learn to be a mom, graduate college, get a job so I was not dependent on the system; and what ironic is that I pay into a system (SSI) that tells me that my kid does not matter. I don't know if this will reach the right person but if you read this and can help point me in the direction of where I need to go please do. I am begging for help! I don't know what it takes to get a law amended or changes but its something I must do during my lifetime. Help me please!

...
According to CA Intestacy Law Donnell had to openly hold out our kids and receive them into his home which he did not because he was leading multiple lives. The law also states that a court ordered judgment of paternity as well as DNA testing must have been conducted during the lifetime of the father. ...

I assume you are referring to

California Probate Code, Section 6453."
}For the purpose of determining whether a person is a "natural
parent" as that term is used in this chapter:
(a) A natural parent and child relationship is established where
that relationship is presumed and not rebutted pursuant to the
Uniform Parentage Act (Part 3 (commencing with Section 7600) of
Division 12 of the Family Code).
(b) A natural parent and child relationship may be established
pursuant to any other provisions of the Uniform Parentage Act, except
that the relationship may not be established by an action under
subdivision (c) of Section 7630 of the Family Code unless any of the
following conditions exist:
(1) A court order was entered during the father's lifetime
declaring paternity.
(2) Paternity is established by clear and convincing evidence that
the father has openly held out the child as his own.
(3) It was impossible for the father to hold out the child as his
own and paternity is established by clear and convincing evidence.
(c) A natural parent and child relationship may be established
pursuant to Section 249.5."




...
... These laws are extremely outdated and do not reflect current times. There is really no such thing as nuclear families anymore. ... CA has made this okay in my case and many others similar to this. ...

I beg to differ. There are still people who refrain from sex before marriage. I don't mean to condemn your youthful indiscretion, and I understand that your child was not responsible for that, but to say that "everybody does it, so it must be ok; and therefore it must be the law of the land" is a weak argument.

Yes those are the exact laws I speak of. I appreciate your response but if I am not mistaken I was asking for help therefore if you did not have anything to say that would be helpful, there was really no need to respond. I applaud those who refrain from sex until they are married and maybe I did make a generalization in saying everyone is doing it. My point in saying that was to show that the way we as a people live now is much different than the way my parents (who are still married and had 5 children, and their parents lived). When you have divorce rates at %, TV shows that promote who wants to marry a millionare, and the bachelor, and all of real house wives of NY, ATL, MIAMI, etc. Society has made marriage and the union of family a joke!
That's not to say that there aren't people who truly love one another and want to raise families but I am not speaking of those people (who are no longer the norm).
I was not one of those people who waited and I do not regret the decisions I have made. The issue at hand is my daugther who is the innocent party in the situation. She by CA probate code does not have a father and is therefore not entitled to his benefits. This is something I will continue to fight and seek HELP for in doing so. Thank you!

Yes those are the exact laws I speak of. I appreciate your response but if I am not mistaken I was asking for help therefore if you did not have anything to say that would be helpful, there was really no need to respond. I applaud those who refrain

... She by CA probate code does not have a father ...
The California Probate Code is one of several reasons she doesn't have a father. Another reason: he is dead.


... and is therefore not entitled to his benefits. ...
Actually, I wouldn't be adverse to trying to help you, but if I can't be persuaded that the California code is wrong, how can the 9th Circuit be persuaded? Therefore I was playing the devil's advocate.

Im going to add something here. When you post on AMHD it is a public board and the thread is public also. So once its posted you do not control it nor have a say as to who posts to it. AK_lawyer is a respected member of long standing here. But anyone that visits can post or comment on the thread.

Thanks, that was helpful. Now I know I need do some additional research and come up with better more persuasive argument. That's all Im asking for. You're insight is appreciated.

Thanks. I realize that anyone can post and I will get both negative and positive responses. I'm not trying to offend or upset AK_lawyer or anyone else. I'm looking for help. AK_lawyer gave me more info regarding my argument & that was appreciated

Let me add that years ago when I first decided I would not give up I did find one regulation that has helped me thus far. It's the reason why the 9th circuit of appeals has yet to make a decision (vacted) and sent my case back to the district court for more clarification as they did not answer the question of why I am denied with this 1998 regulation to take into effect.
It's and SSA regulation added in 1998, 20 C.F.R 404.355(b)(2). The regulation eliminates the state law requirement that a court order of paternity must be entered during the fathers lifetime. It states that SSA "will not apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period measured from the workers death or the child's birth, or have been started or completed before the workers death.
Based off that alone my daughter would qualify because I do have a judgement of paternity that indicates Donnell Brice as my child's father, and her birth certificate reflects his name as her father. That is all I would have needed to walk in an SSA office today and qualify for benefits. Whether he openly held her out or spent one moment of time with her wouldn't be an issue. She would have been approved.

Will you read the answer I just added please. Your thoughts? Thanks!

So why was the regulation not applied in your case?

That's what Im trying to figure out. I went through and re-read all the documents from the district court and the 9th circuit who kicked back the case and this is what I gather. The district court denied me based off the probate code and once I appealled again the 9th circuit didn't want to make a decision on the case because they said the district court failed to acknowledge the 1998 SSA regulation I presented to them. On the documents I have dated December 2010 the district court responded by saying I was not denided because of the judgment of paternity being presented after death, I was denided because I did not provide enough clear and convincing evidence.

The part that especially bothers me is on page 12 of the district courts response which quotes the uniform parentace act. The part in particular Im talking about is: The court order of paternity must be entered during the lifetime of the father. If the court order was not entered during the fathers lifetime, there must be clear and convinving evidence that the father openly held the child out as his own, or, if it was impossible for the alleged father to openly hold out the child as his own there must be clear and convinving evidence.

The apppelle is saying that I failed to establish Jordan as Donnell child not because I received a judgement of paternity after Donnell death, but because I lack clear and convincing evidence and for that reason the 9th circuit should uphold their decision.

Now if I'm not mistaken had Donnell been alive (and I had a judgement of paternity as well as a birth certificate that reflected his name as her father which I do now) and not spent one minute of his time with her before he died Jordan would receive SSI benefits. All I would have needed was my judgement and her birth certificate and I would have been approved, no questions asked. Those pieces of documentation would be all the clear and convincing evidence that I needed.

The fact that SSA does not apply time limits on when a judgment of paternity is entered should null and void any additional clear and convincing evidence required. My judgement and birth certificate are clear and convincing regardless of them being issued after his death.

Its almost like the appelle is twisting the verbage of what the uniform act is saying. "If the court order was not entered during the fathers lifetime(which means I never obtained one at all as well as a birth certificate) I would need clear and convincing evidence that he openly held Jordan out and received her into his home.

The law does not state that if a court order was entered after the lifetime of the father you must provide that in addition to clear and convincing evidence that the child was openly held out.

That's where I am at right now, waiting to see what the 9th circuit says based off the district courts response. I know you're busy and Im throwing a lot a you (taking away from your real cases) but any insight is appreciated. Thanks again!

I responded had to post it in another question because it was too long. Thanks again for reading my story (or drama).

...
Thats where I am at right now, waiting to see what the 9th circuit says based off of the district courts response. I know youre busy and Im throwing a lot a you (taking away from your real cases) but any insight is appreciated. Thanks again!


It appears to me that the district court judge clearly erred and wrote that response in an effort to make his or her previous decision not look so bad.

Good luck and let us know when, hopefully, you win the appeal.

Thanks, I truly hope it does.

Okay so the documents I have dated 12/16/10 was the Appellees petition for a panel rehearing. The petition concluded: "Because the outcome of this appeal rests on whether the Claimant satisfied her burden of proof under California law, not on the time-limit issue discussed by the Court in its Nov 2, 2010 disposition, the commissioner requests that the court grant this petition for a panel rehearing and affirm the judgment of the district court."

The Nov 2nd document was the 9th circuit remanding my case back to the Commissioner to give the angecy an opportunity to clarify its interpretation of 20 C.F.R. 404.355(b)(2) in light of the regulatory language identified above.

Update: I just found out via mail (yesterday) that SSA's request for rehearing was denied last week. My case will now be transferred back to the district court.

I really have no ideal if this is a good thing or a bad thing. I wish I would have gone to law school so I can understand what the heck is going on here. I think it's a good thing though if the 9th circuit denied the commissioners request for rehearing right?

I have updated info, have no clue what it means though.

... I think its a good thing tho if the 9th circuit denied the commissioners request for rehearing right?

Right. The 9th Cir. Decision was decided by, I think, a 3-judge panel. What the Commissioner was asking for was a rehearing by the entire court. That isn't going to happen and the panel's decision will stand (unless appealed to SCOTUS - not likely).

It's been a while since I practiced before the 9th Circuit Court. So I guess I'm a bit rusty. But are you saying the court (as opposed to attorneys for the government) did a "response" which tried to justify it's decision?

Yes I think that's what I am saying. On Nov 2nd the circuit judges (Fisher and Bybee) and district judge (Strom) viewed my appeal which was alleging that the district court erred in affirming the administrative law judges decision to deny Jordans survivor benefits case. The judges felt that agency did not address the precise language of 20 C.F.R 404.355(b)(2) and they hesitated to impose a construction without giving the agency an opportunity to clarify its interpretation of the law. They remanded it back to the commissioner to give them an opportunity to clarify with further proceedings consistent with this disposition.

On Dec 16 2010 Andre Birotte Jr (United States Attorney) responded to the Nov 2nd request from the 9th circuit requesting an apellee's petition for a panel rehearing. They petitioned the panel to rehear this appeal because material points of law and fact were overlooked in the courts Nov 2nd memorandum. Specifically the court remanding for clarification of agency policy on a point of law that would not apply to the facts of the benefits claim at issue in this appeal.

They say that because the commissioner reached the merits of claimants claim under the applicable state law, adjudication of the claim did not turn on the 1st sentence of 20 C.F.R 404.355(b)(2). The salient factor was the absence of evidence required to establish rights under section 6453(b) of the CA probate code not the timing of judgment issued by the family court. Because these material points of law and uncontested fact determine the outcome of this claim, and further policy explanation of the state time limit policy expressed in 20 C.F.R. would not change the outcome. The commissioner respectfully requested that the panel rehear this appeal and affirm the decision of the district court.

As of last week the 9th circuit denied the commissioners appeal. And my case has been transferred back to the district court.

This is why I am hoping this is a good sign.

Im thinking the 9th circuit agrees with my side a little (the commissioner still didn't answer the question) in the sense that they did not apply the 1998 SSA policy to my case. Under the SSA a child may qualify for benefits under one of several methods:

(1) applying state law on devolution of intestate property of the insured domicile at the time of death 416(h)(2)(A) or
(2)establishing paternity "before the death of such insured individual" through a written acknowledgement of patenity by the insured, a court decree, or a court order to pay child support. 42 U.S.C. 416(h)(3)(c)(I).

Now if you take the 1998 SSA policy into effect that they will not apply any state inheritance law requirement that an action to establish paternity must be taken within a specified period measured from the workers death or the child's birth. I would qualify under number 2.

You're right it was an Attorney for the district court that responded trying to justify the decision and petition the panel for rehearing. That appeal was denied. I explained in detail below. Still barely understand, hope its good thing though.