# Petition for Writ of Certiorari — Rushford v. Caines

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1081

## Text

@ 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
CTR, BN Ee hickttcisinesnnsnnceniscinaitiontapinsindsanachions 6,19
Re Pca svicapintenmniatinsinianiceictnidiianinenionianeds 21
CRD EE SE vinceniesintinnedincnpiaienestnthisbeainbannineéa 5,20,21
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:
TRE, BEER EGS sccccevescsccccsvesssccvecsecssevescceccsszeoseoves 21
CRA. DBA E ED icdsccicvscscovecrssscsieticceccscccsssesosscocseses 20
CTA. PR EAAMEILED soscwercssscecssccovenvecassovtenevezdosess 20
GAR, BBE E Re BO reccessesevercessossesevesccevssssonsrveesvsevesdes 20
Cs BBE Bbc AS cocncnevecsecececnevevecconvreccssonsosconossosses 20
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0690%3A1. Public record. Not legal advice.