Petition for Writ of Certiorari — Rushford v. Caines

@ Supreme Court, U.g.

FILED

Q1 650 oc 197"

No.

In The

Supreme Court of the United States

CONNIE RUSHFORD,

Petitioner,

V.

JUANITA CAINES, Individually and

as Executor of Estate of Curtis Fields, Deceased

and

FIRSTAR BANK N.A.,

Respondents.

On Petition For Writ of Certiorari

to the Ohio Supreme Court

PETITION FOR WRIT OF CERTIORARI

JOHN W. LEIBOLD

3006 North High Street

Columbus, Ohio 43202

(614) 267-5354

Counsel for Petitioner

lbhor

i

QUESTIONS PRESENTED

Where the use of DNA testing makes possible

an extraordinarily high degree of probability or

improbability of paternity, and where an Ohio statute

gives an illegitimate child a right to inherit from his or

her mother, but Ohio case law requires that a putative

father must have taken some affirmative step during

his lifetime to acknowledge paternity, is Equal

Protection denied?

Where illegitimate children are given the right

by statute to inherit from their mothers, but where an

illegitimate child can inherit from his or her father

only if the father has taken some affirmative step

during his lifetime to acknowledge paternity, is the

Equal Protection clause violated?

ii

PARTIES

The parties to this proceeding are those set

forth in the caption.

TABLE OF CONTENTS

Page

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i ciclisedeiiee gebbesbdvdnnuessoebboese ii

Pe II vsti ccctictsiccsccnicsnvndcicesersceusecccsesesees v

Opinions BENET evcccesevccvecsvvctorverececenensovescoressetonesens pte Os

PUTTIN ccvicccsccovevcosscecoee inisheeinepeielntienjavnlabeienbennes 1

Constitutional Provisions Involved .............:ssssssseeeees 1

SIE SE SEED ADIT ceceresecevccvececcorscnencvecoosovcescessorse 2

Reasons for Granting the Writ ...............csssseresscsseeees 6

I -wenbsldsdatvavrrscrcevsseveceseseverseseceoveveseoesszecese 22

Appendix A: Entry of the Supreme Court of Ohio

I SG SED cdentcisreesnececconcecevenoeees la

Appendix B: Opinion of the Court of Appeals of

Ohio, Tenth Appellate District

CES DO, DOOR): ccccceccsccccccescevcescseveres 2a

Appendix C: Opinion of the Probate Court of

Franklin County, Ohio (September

itr SEED sndecsusbeinvecbiocsrevienbbvincesounees lla

iv

Appendix D: Summary of the Utilization of Blood

Tests to Resolve Issues of

Parentage and Identity, by Richard |

H. Walker, M.D. (Excerpted from

DNA Parentage Testing, DNA

Diagnostics Center, Fairfield, Ohio .. 15a

Appendix E: U.S. National Vital Statistics

) Report. Vol. 49, No. 1: Births to

SIE ND cicdéninscgssjencitenenmntiins 26a

Vv

TABLE OF AUTHOR : TES

Page(s)

Cases:

Adkins v. McEldowney and Winfree and Riffee

(1981), 167 W.Va. 469, 280 S.E.2d 231

Alexander v. Alexander (1988), 42 Ohio Misc.2d

30, 537 N.E.2d 1310

Batchelder v. Boyd, 108 N.C.App. 275, 423

S.E.2d 810 (1992)

Beck v. Jolliff, 22 Ohio App.3d 84, 489 N.E.2d

Blanco Estate v. Blanco, 117 Mich.App. 281, 323

N.W.2d 671

Brinkley v. King, 549 Pa. 241, 701 A.2d 176

Brookbank v. Gray (1996), 74 Ohio St.3d 279,

*281, 658 N.E.2d 725, **726

Burnett v. Camden, 253 Ind. 354, 254 N.E.2d 199 .. 16

Caldwell v. Caldwell, 247 So.2d 1

Childress v. Secretary of Health & Human Serv.,

vi

Table of Authorities continued

Page(s)

Cases:

Crego v. Coleman (2000), 463 Mi. 248, 615

BEE SNE EE ccbctadicindsiaveuivvdcnduntaceteteienengienibtndabes 10

Estate of Duquesne v. Scherer, 29 Utah2d 95, 505

Fe CFO gavcivriersessavinietiniivereedicmsetincinantninetieiness 16

Estate of Erbe, S.Ct. SD (1990), 457 N.W.2d 867 ... 15

Estate of Pakarinen v. Pakarinen (1970) 287

Minn. 330, 178 N.W.2d 714 .........cccsscsssseeeseoers 16

Hess v. Sommers, 4 Ohio App.3d 281, 448 N.E.2d

GG cicccicvvetestivitatnenvsnsceerecncnusteursseecbidntinindevent 21

Hornbeck, Administratrix of Estate of Shawn

Shawn Simmons v. Fred W. Simmons (1994)

1994 WL 506620 (Conn. Super.)) ................ 15,19

In re Probate of Will and Codicils of John J. Flemm

(1975), 381 N.Y.S. 2d 573; 85 Misc.2D 855 ..... 16

Levy v. Louisiana, (1968), 391 U.S. 68. (88 S.Ct.

1509); rehearing 393 U.S. 898 (89 S.Ct. 65) .... 15

Lewis v. Eustler, 4 Ohio St. 354, 1854 WL 83

COB) (IBGE)... .ccciccrciccdecocedecscoscsscnpnoencnesicosessess 11

Lowell v. Kowalski, (1980), 380 Mass. 663, 405

IN.B.2d 2B ..ccccccsocccccccccccccccscsovcssonessosesesvssesece 16

Lucas v. Handcock (1979) 266 Ark. 142, 583

S.W.2G 41 ..ccccccorerccsoercvsvecsovescooceceosescosserecesees 18

vii

Table of Authorities continued

Page(s)

Cases: ee

M.A. v. Estate of A.C., T.A. and G.A. (1993), 274

N.J. Super. 245, 643 A.2d 1047 ..............ccceeeee 13

Mitchell v. Freuler, (1979), 297 N.C. 206, 254

DDE TOR ccscecessscisevecsscvsesescvesensosscectontooossceses 16

Moore v. Dague (1975), 46 Ohio App.2d 75. 354

TEBE SED. ceccisivccsncvevssonies phcldatadlircnpenndeneiidialiieces 8

Pace v. Louisiana State Employees Retirement

System (1995), 94-1027 (La. 1/17/95), 648

URUNEE BUDTEEE cuinncondcdumuiiiessevbdiasduineieeensideunnnanes 14,18

Pettiford v. Frazier (1970), 226 Ga 438, 175

SRE SUDUE . didcchcnicinncniissnesitvesdilcbisapinbitidabacenseeses 16

Poulos v. McMahan, (1980), 250 Ga. 354, 297

Se IRD iin ites caper etntddewncsectisentiiasnssitnness 16,17

Ramon v. Califano, (1980), 493 F.Supp. 158 ........... 16

Shangreau v. Babbitt, 68 F.3d 208 (8 Cir.

cI. Gndendieniianieneusiabeanbineoneniesabinneiiebinveied 16

Strahan v. Strahan (1969), 304 F.Supp. 40 ............. 19

Taylor v. Hoffman (2001), 209 W.Va. 172, 544

PREECE dccdiisibindandiicdiepiesapiiainendiinneytiamntaiaationts 13

Trimble v. Gordon (1977), 97 S.Ct. 1459 ............. 12,14

Tuan Anh Nguyen v. Immigration & Naturalization

A, TE GEA. BID cccccccnticededisntstcictsvcsscceies 21

viii

Table of Authorities continued

Page(s)

Cases:

Weinbacher v. Duclos, 661 A.2d 988 — ...........scceceeee 19

White v. Harms, 504 F.Supp. (C.D. Ill. 1980) ........... 16

White v. Randolph, 59 Oh. St.2d 6, 391 N.E.2d

TEE sulacinidecinisindnipinhatauabeireninanismacininivede 8,10,18

Williams v. Commissioner of Internal Revenue

I, re I BD eivicscctterccacssesentccvejeetons 16

OTHER AUTHORITIES:

A Rae Te TEE Riscihienninnnctansstaniomianpioninitincinvoriiamecees 1

Ge GB. BID iicicccticcnesenittntaiccetsitasscntinaventionnes 6

SO aati 7

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CBG BIE siviisntsticeciicnnctiisiinnionsintiintinisitaniuiintiiaisa 20

Re Ee chet Gitinisccieintniissatuiineahisisnbaanniincdian 20

Ce UD: encenateincicilesstciiiipeesininaiecealsiainccdiisicinini 19

QE BR hag creeetinicscitiowncinsiiensndicensatiiitiittinanania 20,21

GRRE, BBRAIG cncosiecisscecsiaisiiniergnioninenbichiensiciitaiaaitns 20

{

ix

Table of Authorities continued

Page(s)

Cases:

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CRA. DBA E ED icdsccicvscscovecrssscsieticceccscccsssesosscocseses 20

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BIBLIOGRAPHY:

The DNA Paternity Test: Legislating the

Future of Paternity Actions, 7 Journal Law

& Health I, Shapiro, Reiffler and Cassome

Scientific Testing and Proof of Paternity:

- Some Controversy and Key Issues for

Family Law Counsel, 57 Louisiana Law

Review 379 (1997)

1

Petitioner Connie Rushford respectfully prays that

this Court grant a writ of certiorari to review the

judgment and opinion of the Ohio Supreme Court

entered July 25, 2001 and the Court of Appeals of

Ohio, Tenth Appellate District Opinion filed March 30,

2001.

OPINIONS BELOW

The September 21, 2000 opinion of the Franklin

County Probate Court is set out at Appendix C, page

lla.

The March 30, 2001 Opinion of the Court of

Appeals of Ohio, Tenth Appellate District, which is

reported at 2001 WL 310006 (Ohio App. 10th Dist.) is

set out at Appendix B, page 2a

The entry of the Supreme Court of Ohio overruling

the motion for certification filed July 25, 2001, which

is reported at 92 Ohio St.3d 1444, 751 N.E.1d 482,

(North Eastern Reporter in a table captioned ‘Supreme

Court of Ohio Motion Tables’) is set out at Appendix A,

page la.

JURISDICTION

The decision of the Ohio Supreme Court was

entered on July 25, 2001. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the United States

Constitution provides as follows:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

2

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

STATEMENT OF THE CASE:

CAVEAT: PETITIONER CONNIE RUSHFORD

HAS NOT YET BEEN AFFORDED A HEARING

BUT BELIEVES THAT THE FACTS AS RELATED

HERE WILL BE PROVEN AT SUCH TIME AS

SHE IS AFFORDED A HEARING.

Curtis Fields, Draxie Ray (now Draxie Archey) and

Ray Blair all grew up in a small neighborhood outside

Pikeville, Kentucky. Draxie Ray and Curtis Fields

dated each other for some time and then drifted apart.

Draxie Ray and Ray Blair then began to date and

eventually married. The Blair family moved to

Wyandotte, Michigan. Ray Blair was then inducted

into the United States military and served in Korea

during the Korean Conflict. While in Korea Ray Blair

wrote to his wife, Draxie, and said that he would not

be coming home because he had found a Korean

sweetheart. Draxie then went back to Pikeville for a

time and she and Curtis Fields renewed their

acquaintance. Draxie and Curtis had sexual relations

and, as a result, Connie Rushford was conceived ’.

Ray Blair then changed his mind and came back home

. Ray Blairs military records might have proven

impossibility of access to Draxie at the time of conception, but

those military records were destroyed in a fire at a government

facility which stored military records.

3

to Draxie. Notwithstanding that Curtis Fields was in

fact the biological father of Connie, the birth certificate

issued by the State of Kentucky recited that Ray Blair

was the father. Ray and Draxie Blair, with Connie,

then moved back to Michigan.

Curtis Fields came to Ohio and won several

million dollars in the Ohio lottery. Curtis Fields died

alone in his home in Columbus on December 30,

1999. Because he died alone, his body was taken to

the Franklin County morgue, where blood samples

were drawn. Curtis Fields’s will was admitted to

probate March 2, 2000. In his will Curtis Fields

recited that he had no children. Testator Fields left

the property of his estate to his sister, Juanita Caines,

and the residuary estate to Firstar Bank as Trustee

under a trust dated December 12, 1996. Juanita

Caines was also named as Executor.

Through marriage, Petitioner Connie Blair became

Connie Rushford and now lives in Wyandotte,

Michigan. Connie had never known until Curtis

Fields died that Curtis Fields was her biological father.

She received an anonymous letter postmarked March

14, 2000, in which this message appeared:

“This letter is not to cause any confusion or

hardship to you but only to advise you that you

may be the heir to this estate. If you want to

pursue this matter, you should contact a probate

attorney in Franklin County, Ohio.

This attorney would advise you of your rights and

what steps need to be taken to prove you are the

heir to this estate.

God Bless you.”

4

The Petitioner immediately made inquiries of her

mother, Draxie Archey, who told Connie that her real

father was Curtis Fields. Connie then learned that

other members of the family knew that Curtis Fields

was her father but, amazingly, the information had

always been kept from Connie. |

Petitioner then drove to Columbus to initiate the

necessary proceedings to claim her inheritance from

her father, Curtis Fields. The undersigned counsel, in

investigating the facts of this case, telephoned Adron

Fields (who also lives in Wyandotte, Michigan), the

brother of Curtis Fields, who confirmed to this counsel

that Connie was indeed the daughter of Curtis Fields.

On March 29, 2000, Petitioner filed a will contest

action in Franklin County Probate Court. The

Respondent, Juanita Caines as Executor and

individually, filed an answer April 24, 2000 in which

she denied that Connie Rushford was the daughter of

Curtis Fields and usserted other defenses, including a

12B defense, and defenses of misjoinder, statute of

limitations, and, importantly, the defense that

Petitioner lacked standing to maintain the action and

that the Court had no jurisdiction to hear the action.

On April 26, 2000, Petitioner filed a motion to

request release of the blood samples of the

deceased Curtis Fields to a DNA laboratory for

testing, expecting that the DNA testing would

establish paternity. By Memorandum Contra filed

June 30, 2000, Respondent Juanita Caines vigorously

contested the effort to obtain DNA testing of the blood

samples.

On June 12, 2000, Petitioner filed a determination

of heirship action in Franklin County Probate Court in

an attempt to establish paternity directly pursuant to

5

the provisions of O.R.C. Chapter 2123. Again in that

action, the Petitioner sought an order to cause the

blood samples of Curtis Fields to be submitted for

DNA testing and again, Respondent Juanita Caines,

acting both individually and as Executor filed an

answer on June 24, 2000 in which she affirmatively

asserted that Connie Rushford was not the daughter

of Curtis Fields and in which she again pleaded 12B

defenses, misjoinder, failure to file within the statute

of limitations, laches, and lack of jurisdiction.

On August 18, 2000, the Respondent Juanita

Caines filed a motion for leave to file Motion to

Dismiss and a Motion to Dismiss.

On September 21, 2000 the Franklin County

Probate Court, without having held any hearing,

evidentiary or otherwise, issued one Entry in the will

contest action, (being Case No. 471842 WC) and in the

determination of heirship action (Case No. 471842-A)

in which the Court sustained the motion to dismiss as

to the will contest action and the motion to dismiss as

to determination of heirship action.

On October 10, 2000, the Petitioner took an

appeal to the Court of Appeals of Ohio, Tenth

Appellate District, which affirmed the trial court, but

for somewhat different reasons than those stated by

the trial court.

On May 8, 2001 Petitioner took an appeal to the

Ohio Supreme Court on a motion to certify. The Ohio

Supreme Court declined jurisdiction to hear the case

and dismissed the appeal without an opinion.

6

The constitutional issue first became apparent in

the Franklin County Probate Court’s Decision of

September 21, 2000 which was appealed to the Tenth

District Court of Appeals. The Equal Protection issues

were raised on the sixth, seventh and eighth

assignments of error in the Court of Appeals (see

Appendix B, pages 5a, 6a).

REASONS FOR GRANTING THE WRIT

If Petitioner Connie Rushford, as an illegitimate

child had sought to claim inheritance rights from her

mother, she would have standing to contest her

mother’s will. O.R.C. § 2105.17 expressly confers that

right. It provides as follows:

“Children born out of wedlock shall be capable of

inheriting or transmitting inheritance from and to

their mother, and from and to those from whom

she may inherit, or to whom she may transmit

inheritance, as if born in lawful wedlock.”

Petitioner Rushford however has sought to claim

inheritance rights from her deceased father, Curtis

Fields, and Ohio courts hold that Rushford has no

standing to contest the Fields will because Fields took

no affirmative steps during his lifetime to acknowledge

paternity of Rushford. This result stands as a

mandate in Ohio courts and governed the case at bar

even though the Franklin County coroner holds Fields’

blood samples which are available for DNA testing.”

2 _ A federal statute requires states to provide for and to

instet upon genetic testing in contested patermily cases. 42

U.S.C. § 666(a)(5).

7

The use of DNA testing has made proof of

fatherhood so positive, leaving so little doubt, that the

old rules of law founded in antiquity which distinguish

between mother and father in determining parentage

of a child born out of wedlock must be discarded. The

Equal Protection Clause mandates that courts allow

proof of fatherhood to be made by DNA testing. The

_ Equal Protection Clause demands that courts no

longer require proof of paternity to be dependent

upon acts of or declarations of the alleged father

during his life. The Equal Protection Clause requires

that proof of fatherhood may not be made more

stringent than that required to prove motherhood,

regardless of whether such standard of proof is

required by statute or indicated by case law. *

The urgent need for this Court to address the

problem of illegitimate births as requested in this

Petition is illustrated by the fact that in 1999, 34.1%

_ of the live births in Ohio or 51,657 births were to

unwed mothers, while in the United States the figures

were 33% or 1,308,560. There is in addition to these

figures those births to mothers who were married, but

where the father is someone other than the husband,

which is the case at bar.‘

The Franklin County Probate Court in the case at

bar said in its Entry of September 21, 2000:

* A lengthy article on the subject of discrimination on the

basis of illegitimacy as denial of Constitutional rights is found

at 38 AL.R3d 613

* — See the chart found at Appendix E showing the growth of

births to unwed mothers over the last decade.

8

“* * * The decedent never conferred a right of

inheritance on the Plaintiff. A father may confer

the right of inheritance on an illegitimate child by

several means: providing for the child in the will;

adopting the child; acknowledging paternity; and

designating the child as an heir at law. Plaintiff

alleges she is the illegitimate child of the decedent.

* * * It is the conclusion of this Court that the

Plaintiff lacks standing to bring a Will Contest

action in the estate of Curtis Fields.”

The Tenth Appellate District Court of Appeals of

Ohio repeated the same litany and cited Moore v.

Dague (1975), 46 Ohio App.2d 75.

The same holding was announced by the Ohio

Supreme Court in White v. Randolph (1979), 59 Ohio

St.2d 6, 391 N.E.2d 333, where Justice Holmes said

in his Decision:

“In Ohio, a child born out of wedlock is capable of

inheriting from and through his mother, R.C.

2105.17, but may inherit from his father only

upon certain circumstances. As pointed out in

Moore, supra, the father may legitimize an

illegitimate child by afterwards marrying the

mother of the illegitimate child and acknowledging

the child as his. R.C. 2105.18. Further, the

natural father of an illegitimate child may confer

upon such child a right of inheritance from such

father by several means: (1) by formal

acknowledgement in Probate Court that the child

is his with consent of the mother [R.C. 2105.18];

(2) by designating the illegitimate child as his heir-

at-law (RC. 2105.15); (3) by adopting the

9

illegitimate child; and (4) by making a provision

for the child in his will.”

“Appellant concededly cannot meet any of the

above criteria. However, appellant contends that

the equal protection clause requires that she be

permitted to inherit from decedent if she can

establish with sufficient competent evidence that

decedent is, in fact, her father. In the cases

considering this general issue before us, it has

been rather uniformly pointed out that the

rationality of the classification must be examined

in light of the legitimate state purposes to which it

is related:

“It has long been recognized in Ohio that proof of

paternity, especially after the death of the alleged

father, is difficult, and peculiarly subject to abuse.

One of the resultants of such abuse would be the

instability of land titles in real estate left by

intestate fathers of illegitimate children.

“As noted, Trimble, supra, raised the question of

whether the class which was_ discriminated

against was over-inclusive in light of the avowed

statutory purpose. The court answered in the

affirmative. While we may envision situations in

which persons placed within certain statutory

classes may be victims of invidious discrimination,

we do not believe that appellant has presented

such a situation under the Ohio statutes in the

case at bar.

10

“In conformity with the dictates of Trimble, we

believe that the Ohio statutory provisions present

a reasonable middle ground for the recognition of

certain categories of illegitimate children of

intestate men. Through these laws inheritance

rights may be reasonably recognized without

jeopardizing the orderly settlement of estates or

the dependability of titles to property passing

under intestate laws.

“Clearly, the Ohio classification scheme is

rationally related to the legitimate state purpose of

assuring efficient disposition of property at death

while avoiding spurious claims. * * *”

The use of DNA testing for purposes of

determining paternity however emasculates the

reasoning announced in White v. Randolph, and

similar cases throughout the United States. Paternity

is no longer difficult to prove, but rather is easily

proven in an expeditious manner and with an

extraordinarily high degree of probability seldom seen

in judicial forums. The Michigan Supreme Court in

Crego v. Coleman (2000), 463 Mi. 248, 615 N.W.2d

218, speaking through Judge Markman, opined that

current testing methods can determine the probability

of paternity to 99.999999% accuracy. DNA testing

can be rapidly done with almost a positive proof. DNA

testing would result in elimination of spurious claims

and would not detract from the stability of land titles

of real estate left by intestate fathers of illegitimate

children.

The disparate treatment of an illegitimate child

inheriting from his mother as compared to his father

is succinctly illustrated in Brookbank v.Gray (1996),

11

74 Ohio St.3d 279, *281, 658 N.E.2d 725, **726

where Justice Resnick said:

“In Ohio, a child born out of wedlock is capable of

inheriting from and through his mother, R.C.

2105.17, but may inherit from his father only

under certain circumstances. As pointed out in

Moore [v. Dague (1975), 46 Ohio App.2d 75, 76-

77, 75 0.0.2d 68, 69, 345 N.E.2d 449, 450],

supra, the father may legitimize an illegitimate

child by afterwards marrying the mother of the

illegitimate child and acknowledging the child as

his. R.C. 2105.18. Further, the natural father of

an illegitimate child may confer upon such child a

right of inheritance from such child by several

means: (1) by formal acknowledgement in

Probate Court that the child is his with consent of

the mother (R.C. 2105.18); (2) by designating the

illegitimate child as his heir-at-law (R.C. 2105.15);

(3) by adopting the illegitimate child; and (4) by

making a provision for the child in his will.

“ “It has long been recognized in Ohio that proof of

paternity, especially after the death of the alleged

father, is difficult, and peculiarly subject to abuse.

One of the resultants of such abuse would be the

instability of land titles of real estate left by

intestate fathers of illegitimate children.’ “ Id at

8, 13 0.0.3d at 4-5, 391 N.E.2d at 334.”

This rule in Ohio harkens back to the 1854 case

of Lewis v. Eustler, 4 Ohio St. 354 where Justice

Ranney said:

“ees

12

“Very good reasons, founded upon public policy,

and growing out of the uncertainty that must

generally attend the paternity of the illegitimate

child, can be given, for cutting him off from all

connection with the paternal line. To this

necessity, he must submit. But no doubt can

exist as to the identity of the mother. The child is

necessarily reared by her; and between them, as

well as between the child and her other children,

must grow up those strong ties which bind near

kindred to each other. However sternly the law

may declare that there is no relationship, nature

will assert her supremacy, and stamp the

declaration as unfounded.”

Trimble v. Gordon (1977), 42 U.S. 762, 97 S.Ct.

1459 comes close to governing the situation in the

case at bar. Trimble held that provisions of an Illinois

probate statute (as opposed to cases) which allowed

children born out of wedlock to inherit by intestate

succession only from the mothers, whereas children

born in wedlock could inherit by intestate succession

from both mothers and fathers denied Equal

Protection. The Trimble court went on to say that

classification based on illegitimacy was required to

bear a rational relationship to a legitimate state

purpose.

Here, Petitioner Rushford is asking this Court for

a Writ of Certiorari in order to decide on the merits

that the Equal Protection Clause is violated by Ohio

case law which holds that an illegitimate child who

seeks to inherit from his or her father may do so only

if the father has taken affirmative action during his

lifetime to designate the child as his. The offensive

inequality is accentuated by the fact that an Ohio

statute would permit the illegitimate child to inherit

13

from his or her mother. The use of DNA testing

obliterates all reasonable distinction between mother

and father in determining parentage and no longer

bears a rational relationship to legitimate state

purposes. The predominant law of the land is now

about 15 years behind science in the establishment of

paternity.

‘Ironically, a Franklin County, Ohio Probate Court

decision dated December 15, 1988, Alexander uv.

Alexander, 42 Ohio Misc.2d 30, 537 N.E.2d 1310°

held that a child born out of wedlock who seeks to

inherit from his putative father’s estate may prove his

paternity by genetic testing and the probate court

may permit disinterment of the putative father to

effect such a test. This case has been cited and

discussed throughout the nation 45 times on this

subject. Yet, when the case at bar came before the

same Court, but a different Judge, a different result

was obtained and the Ohio Court of Appeals and the

Ohio Supreme Court refused to adopt the holding of

Alexander.

In the New Jersey case of M.A. v. The Estate of

A.C., T.A. and G.A. (1993), 274 N.J. Super. 245, 643

A.2d 1047 the Court held that for purposes of

inheritance, a putative child of a decedent may compel

DNA testing in order to determine whether the

decedent was his biological father even though mother

was married to another man at the time of the child’s

birth. Trimble v. Gordon (1977), 97 S.Ct. 1459 was

cited in the opinion.

’ This case was appealed to the Court of Appeals of Ohio,

Tenth District, Franklin County, 1989, 54 App.3d 77, 560

N.E.2d 1337 in which the court noted that the underlying case

in the Probate Court had been dismissed by stipulation,

thereby making the appeal moot.

14

In Pace v. Louisiana State Employees Retirement

System (1995), 94-1027 (La. 1/17/95), 648 So.2d

1302, the Louisiana Supreme Court held that

classification which barred illegitimate children who

had not been judicially filiated prior to the father’s

death from receiving survivor's benefits did not

present a reasonable opportunity for assertion of

children’s claims and did not substantially further

state the interest in avoiding litigation of stale or

‘fraudulent claims. The Court discussed the Franklin

County, Ohio case of Alexander v. Alexander, supra,

and other cases saying that:

“The advances in genetic testing have been

recognized by courts across the nation. For

example, Alexander v. Alexander (1988), 42 Oh

Misc.2d 30, 537 N.E.2d 1310 (Probate Ct.

Franklin Co. 1988), took judicial notice of the

accurancy of DNA testing. * * * Additionally,

courts have found that DNA tests performed on

the deceased putative father’s relatives can

determine paternity posthumously. See, e.g.,

Tipps v. Metropolitan Life ins. Co., 768 F.Supp. 577

(S.D. Tex. 1991) and In re Estate of Rogers, 245

N.J. Super. 39, 583 A.2d 782 **1310 (App.Div.

1990). The reasoning behind these cases is not

foreign to our jurisprudence. For example, in

Sudwischer v. Estate of Hoffpauir, 589 So.2d 474

(La. 1991), the plaintiff brought a filiation action

in order to establish her relationship to the

decedent during the course of a succession

proceeding. Relying on existing civil discovery

rules, this court held that collateral parties could

be ordered to submit to a blood test for DNA

comparison purposes.”

15

In Hornbeck Administratrix of the Estate of Shawn

Simmons v. Fred W. Simmons (1994) 1994 WL 50662

(Conn. Super.)) the Court ordered DNA testing by the

exhumation of the deceased whose estate was being

administered and of the father named on the

deceased’s birth certificate and exhumation of the

body of the father named on the deceased's birth

certificate in order to establish or exclude paternity.®

In the case of Estate of Erbe, 457 N.W.2d 867

(S.Ct. SD (1990), the majority of the court held that an

illegitimate child does not inherit from his putative

father’s estate unless the parents have intermarried,

or the father has acknowledged him as his child or

adopts him in his family * * *.”

Denial to illegitimate children of the right to

recover for wrongful death of their mother on whom

they were dependent constituted an _ invidious

discrimination against them in violation of the Equal

Protection Clause. Levy v. Louisiana, 391 U.S. 68

(1968).

There is no uniformity throughout the states in

applying the rule of equal protection to situations

where an illegitimate child attempts to claim

inheritance rights or other rights through the putative

father.

The issue of disparity of treatment of illegitimate

children who claim benefits from or through mother

vis-a-vis their father occurs most frequently in

inheritance cases, social security cases and wrongful

death cases.

6 This case became the subject of a Law Review Article,

Connecticut Probate Law Journal cited 10 Conn. Prob. L.J. 41

16

The reason most generally stated is that it is difficult

to determine paternity, but easy to determine

maternity and most states abide by this distinction.

Blumreich v. Kaquatosh (Wisconsin), 267 N.W.2d 870,

84 Wis.2d 545; White v. Harris (Missouri) 504 F.Supp.

153; Ramon v. Califano (Texas) 493 F.Supp. 158;

Childress v. Secretary of Health & Human Services

(Georgia), 679 F.2d 623; Mitchell v. Freuler (North

Carolina), 254 S.E.2d 762; Pettiford v. Frazier

(Georgia), 226 Ga. 438, 175 S.E.2d 549; Poulos v.

McMahan (Georgia), 250 Ga. 354, 297 S.E.2d 451’;

Lowell v. Kowalski (Massachusetts) 380 Mass 663,

405 N.E.2d 135; Shangreau v. Babbitt (Minnesota), 68

F.3d 208 (8 Cir. 1995); Burnett v. Camden (Indiana),

253 Ind. 354, 254 N.E.2d 199; Cox v. Schweiker

(Georgia), 684 F.2d 310; Caldwell v. Caldwell (Florida),

247 So.2d 1; Williams v. Commissioner of Internal

Revenue (Missouri), 523 F.Supp. 89; Estate of

Pakarinen v. Pakarinen (Minnesota), 287 Minn. 330,

178 N.W.2d 714; Estate of Duquesne v. Scherer (Utah),

29 Utah2d 95, 505 P.2d 779; Blanco Estate v. Blanco

(Michigan) 117 Mich.App. 281, 323 N.W.2d 671.

The case of Poulos v. McMahan, supra, contains

what appears superficially to be an erudite discussion

by Georgia Supreme Court Presiding Justice Marshall

on the issue of inheritance rights of illegitimate

children. Justice Marshall describes in detail “the

tergiversations” of the United States Supreme Court

and says:

7 In 1991, Georgia statutes were amended to provide that

a child born out of wedlock may inherit from or through his

father by the filing of appropriate court results of genetic

testing establishing at least a 97% probability of paternity and

the same is not overcome by clear and convincing evidence.

0.C.G.A. § 53-4-4(c)(2)(A) and (B). Sardy v. Hodge, 264 Ga

548, 448 S.E.2d 355

17

“On many occasions, the United States Supreme

Court has been presented with the issue of

whether a_ statutory discrimination against

illegitimate children is constitutional. See Mills v.

Habluetzel, 456 U.S. 91,. 102 S.Ct. 1549, 71

L.Ed.2d 770 (1982); Lalli v. Lalli, 439 U.S. 259, 99

S.Ct. 518, 58 L.Ed.2d 503 (1978); Trimble v.

Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d

31 (1977); Matthews v. Lucas, 427 U.S. 495, 96

S.Ct. 2755, 49 L.Ed.2d 651 (1976); Beaty v.

Weinberger, 478 F.2d 300 (5" Cir. 1973),

summarily affd., 418 U.S. 901, 94 S.Ct. 3190, 41

L.Ed.2d 1150 (1974); Jimenez v. Weinberger, 417

U.S. 628, 94 S.Ct. 2496, 41 L.Ed.ld 363 (1974);

New Jersey Welfare Rights Org. v. Cahill, 411 U.S.

619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973); Griffin

v. Richardson, 346 F.Supp. 1226 (D.Md. 1972),

summarily affd., 409 U.S. 1069, 93 S.Ct. 689, 34

L.Ed.2d 660 (1972); Davis v. Richardson, 342

F.Supp. 588 (D.Conn. 1972), summarily affd., 409

U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972);

Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35

L.Ed.2d 56 (1973); Weber v. Aetna Cas. & Sur. Co.,

406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768

(1972); Labine v. Vincent, 401 U.S. 532, 91 S.Ct.

1017, 28 L.Ed.2d 288 (1971); Glona v. Amer.

Guarantee & Liab. Ins. Co., 391 U.S. 73, 88 S.Ct.

1515, 20L.Ed.2d 441 (1968); Levy v. Louisiana,

391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436

(1968). [FN1]”

Justice Marshall then proceeds to weave his own

conclusion through those cases and holds that

notwithstanding any unconstitutionality of the Georgia

18

statute, that because there could have been, but was

not an adjudication of paternity during the decedent's

lifetime, the illegitimate child was not entitled to

inherit from his father. Rushford is distinguished

because Rushford did not learn that Fields was her

father until after Fields’ death. This is why the

comment by the probate court in Rushford that

Rushford had not made her claim within five years

after she became eighteen makes no sense.

The efficacy of the DNA test is recognized by

Louisiana (Pace v. State of Louisiana, 648 So.2d 1302

(1995)) where Judge Dennis said:

“*** The strength of the asserted state interest in

preventing the prosecution of stale or fraudulent

claims is undercut by the countermanding state

interest in insuring the genuine claims for child

support are satisfied.”

West Virginia has recognized that regardless of

whether the denial of inheritance rights of an

illegitimate child to or from its father is compelled by

statute or case law, it is still violative of equal

protection. Adkins v McEldowney and Winfree uv.

Riffee (1981), 167 W.Va. 469, 280 S.E.2d 231.

Arkansas follows this same holding in Lucas uv.

Handcock (1979), 266 Ark. 142, 583 S.W.2d 491.

The rationale carried forward from antiquity in

inheritance cases and as reiterated in White v.

Randolph, supra, is that illegitimate children should

not be permitted to inherit from their fathers unless

the putative father had taken affirmative steps during

his lifetime to acknowledge paternity because of (1) the

Shot EES

DS ARTY 5 Sa FOTN

19

abuse resulting from false claims, (2) the instability of

land titles; and (3) delay of the administration of

decedent estate. The use of DNA testing is quick in

the production of positive results and therefore

negates all such rationale. The only rationale that

DNA testing does not defeat is that of a state policy

encouraging the institution of marriage. Strahan uv.

Strahan, (1969), 304 F.Supp. 40 (U.S.D.C. W.D. La.

(1969)) cert. denied, 404 U.S. 949, 92 S.Ct. 284.

Connecticut intestate statutes do not discriminate

between children born in wedlock or out of wedlock.

Weinbacher v. Duclos, 661 A.2d 988.

The Ohio statute of descent and distribution now

includes the child born out of wedlock as well as the

legitimate child, if the parent-child relationship has

been established prior to the death of the father

pursuant to the Parentage Act as contained in O.R.C.

Chapter 3111; Beck v. Jolliff, 22 Ohio App.3d 84, 489

N.E.2d 825 (C.A. Ohio, Knox County 1984), motion to

certify to the Ohio Supreme Court overruled April 3,

1985 (Case No. 85-151).

Ohio statute and case law constitutes a hodge-

podge of inconsistent rules with regard to rights of

illegitimate children.

As seen earlier, in Ohio a child born out of

wedlock is capable of inheriting by or through its

mother. O.R.C. § 2105.17, supra. In Ohio, the term

“children” as used in the wrongful death statute

(O.R.C. § 2125.02), includes all natural and adopted

children whether legitimate, legitimated,

acknowledged or illegitimate. A child born out of

wedlock is not foreclosed from recovering damages for

wrongful death of the child’s putative father simply

20

because paternity was not established during the

putative father’s lifetime. Brookbank v. Gray, 74 Ohio

St.3d 279, 658 N.E.2d 724 (S.Ct. Ohio 1996).

O.R.C. § 2123 is generally regarded as the

determination of heirship chapter. Whenever property

passes by laws of intestate succession or under a will

to a beneficiary not named in such will, proceedings

may be had in the probate court to determine the

persons entitled to such property. It is under this

chapter and these statutes that Petitioner Rushford

filed the second action in Franklin County Probate

Court. The decedent Curtis Fields made Respondent

Firstar Bank the residuary beneficiary and it was for

this reason that Petitioner Rushford joined Firstar

Bank as a party. Necessary parties are the surviving

spouse, the legatees, the devisees, heirs and

distributees. (O.R.C. § 2123.02). The action may be

filed by the executor, administrator or any other

person who believes it is necessary to determine who

are or were the heirs of a deceased person. (O.R.C. §

2123.02 and 2123.06). After a hearing, the Probate

Judge shall find and adjudge who are or were the

heirs or next-of-kin of the deceased and entitled to

inherit the estate of the deceased.

Another Ohio statute, O.R.C. § 3111. is generally

called the “Parentage Act”. Actions under this statute

are ordinarily brought in the juvenile court. (O.R.C. §

3111.06). Under O.R.C. § 3111.04 an action to

determine the existence or non-existence of the father-

child relationship may be brought by the child. Under

this chapter of the Ohio code, genetic tests may be

ordered (O.R.C. § 3111.09(A)(1) and genetic tests are

admissible (O.R.C. § 3111.10, 3111.12). It is in this

chapter that limitation of action language is found.

oP RE AEE 8 Ne ARR PORE ME TO REM NY

21

In O.R.C. § 3111.05 it is provided that an action to

determine the father-child relationship may not be

brought later than five years after the child reaches

eighteen years of age. Neither of the actions filed by

Petitioner Rushford in Franklin County Probate Court

were filed pursuant to this chapter. The Probate

Court borrowed the five year statute of limitations

from this chapter, however.

Petitioner Rushford's complaint to the Franklin

County Probate Court to contest the will was brought

pursuant to O.R.C. § 2107.71. A will contest action

raises the single and ultimate issue of whether the

writing produced is a last will or codicil of the

deceased testator. Hess v. Sommers, 4 Ohio App.3d

281, 448 N.E.2d 494. Petitoner Rushford's petition to

Franklin County Probate Court to determine heirship

was brought pursuant to O.R.C. § 2123 and not

pursuant to O.R.C. § 3111.

In the recent case of Tuan Anh Nguyen uv.

Immigration and Naturalization Service, 121 S.Ct.

2053, this Court considered an appeal by Nguyen

from an order of the Immigration and Naturalization

Service rejecting his citizenship, which appeal Nguyen

made to defeat a deportation order. Nguyen claimed

that the statute violated equal protection by providing

different citizenship ruies for children born abroad

and out-of-wedlock depending on whether the citizen

parent is the mother or the father. This Court held

that the gender based classification of the immigration

statutes withstands equal protection scrutiny if it

serves important governmental objectives and the

discriminatory means employed are substantially

related to the achievement of those objectives. One of

the governmental interests served was the

determination to insure that the child and the citizen

22

parent have some demonstrated opportunity to

develop a relationship that consists of real, every day

ties, providing a connection between child and citizen

parent and in turn, the United States.

This Court then observed that while DNA testing

would provide the proof of biological relationship, it

would not by itself insure father-child contact during

the child's minority.

Nguyen is further distinguishable by the fact that

determination of entitlement to citizenship is a very

different thing from determination of entitlement to

inheritance. Entitlement to inheritance requires only

the establishment of biological parenthood.

It has been argued by Respondent Juanita Caines,

Curtis Fields’ Executor that Petitioner Rushford

cannot be heard to challenge the declaration of

paternity by Ray Blair made on the birth certificate.

The presumption that a child conceived or born

during marriage is a child of the marriage may be

overcome by clear and convincing evidence.

Batchelder v. Boyd, 108 N.C.App. 275, 423 S.E.2d 810

(1992) and Brinkley v. King, 549 Pa. 241, 701 A.2d

176

CONCLUSION

The use of DNA testing has made proof of

fatherhood so positive, leaving so little doubt, that the

old rules of law founded in antiquity which distinguish

between mother and father in determining parentage

of a child born out of wedlock must be discarded. The

Equal Protection Clause mandates that proof of

fatherhood may be made by DNA testing and may not

23

be required to be dependent upon acts of or

declarations of the alleged father during his life, and

must not be made more stringent than that required

to prove motherhood, regardless of whether such

standard of proof is required by statute or indicated

by case law.

For the above reasons, a writ of certiorari should

issue to review the entry of the Ohio Supreme Court.

Respectfully submitted,

JOHN W. LEIBOLD

3006 North High Street

Columbus, Ohio 43202

(614) 267-5354

Counsel for Petitioner