Lisa Perks v. Kenneth S. Apfel ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3512
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Lisa Perks, on behalf of Courtney *
Shea Bonhomme, a Minor Child, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Kenneth S. Apfel, Commissioner *
of Social Security, * [UNPUBLISHED]
*
Appellee. *
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Submitted: August 16, 2000
Filed: August 18, 2000
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Before BEAM, FAGG, and LOKEN, Circuit Judges.
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PER CURIAM.
Lisa Perks applied for a surviving child’s Social Security benefits on behalf of
her daughter, Courtney Shea Bonhomme, based on the earnings record of deceased
wage earner Joseph Bonhomme, who died one month before Courtney was born on
June 18, 1990. Perks now appeals the district court’s1 judgment affirming the
Commissioner’s denial of child survivor benefits. We affirm.
The Social Security statutes and regulations provide alternative methods of
proving paternity so as to establish a child’s eligibility for child survivor benefits. See
42 U.S.C. § 416(h); 20 C.F.R. § 404.355. Bonhomme and Perks never married, and
they never lived together. Bonhomme never acknowledged in writing that Courtney
was his child, he was never decreed by a court to be Courtney’s father, and he never
contributed to her support. Thus, Perks cannot establish paternity under the criteria set
forth in §§ 416(h)(2)(B) and (C). However, survivor benefits are also available to
children who have the right to inherit the wage earner’s intestate personal property
under the laws of his State of domicile, in this case, Missouri. See 42 U.S.C.
§ 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1). Missouri law provides that a child born out
of wedlock may inherit from her natural father if paternity is established by clear and
convincing proof following the father’s demise. See Mo. Rev. Stat. § 474.060(2);
Jones v. Chater, 101 F.3d 509, 511 (7th Cir. 1996). Clear and convincing evidence is
that which instantly tilts the scales in the affirmative, when weighed against opposing
evidence, and clearly convinces the factfinder of its truth. See State ex. rel. Hobbs v.
Tuckness, 949 S.W.2d 651, 656 (Mo. App. 1997).
Applying this standard, the Commissioner’s administrative law judge (ALJ)
denied Perks’s application for child survivor benefits. The ALJ discredited Perks’s
self-serving testimony as contradictory and unreliable, and he rejected other statements
submitted in support of the application as inconsistent and not credible. Noting that
Perks initially claimed that another man was Courtney’s father, until blood tests
excluded him, and that Bonhomme gave Perks no financial support during her
1
The HONORABLE SARA W. HAYS, United States Magistrate Judge for the
Western District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
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pregnancy and never told his family that he had fathered a child, the ALJ concluded
that paternity had not been established by clear and convincing evidence. Having
carefully reviewed the record, we conclude that the ALJ’s credibility findings must be
accepted, see Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990), and therefore the
ALJ’s decision is supported by substantial evidence on the record as a whole. See
Briggs v. Callahan, 139 F.3d 606, 608 (8th Cir. 1998) (standard of review).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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