Child Born Out of Wedlock Covered : Court Widens Scope of Survivor Benefits

A child is entitled to survivors’ Social Security benefits after the death of the father, even though he died before marrying the mother or learning of the pregnancy, a federal appellate court decided Monday in an Orange County case.

The decision, which suggested that some legal distinctions based on illegitimacy may be unconstitutional, provides retroactive benefits for Ariana Smith, 4, of Laguna Niguel.

Social Security officials had repeatedly denied the claims filed by the mother, Lauretta Kay Smith, 36.

“It was denied five times, I think,” Smith said. “I just kept saying, ‘I know I’m right in my heart,’ and we kept going. And we finally won.

“She’s 4 now, and we applied when she was 3 weeks old.”

Ariana’s father, Robert Hossler, apparently committed suicide in July, 1982, according to the opinion issued Monday by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco. He and Smith were divorcing other spouses when they met and began living together. Smith received test results confirming her pregnancy the day after Hossler’s death.

“We both wanted the child so badly, but we both were waiting for our divorces to become final,” Smith said. “It wasn’t something we wanted to advertise before he died.”

The decision reversed a denial of benefits--$300 to $500 a month--by the Department of Health and Human Services.

The department said no benefits were payable unless Hossler knew of Ariana’s conception and showed an intent to contribute to her support.

The appellate court decided that proof of intent was not required. Most parents aware of a pregnancy do not buy baby items before the third month of pregnancy, the judges noted.

‘Unusual Facts’

Smith’s lawyer, A. Orrin Friedman of Santa Ana, said his research showed no similar cases involving such “unusual facts.” The court’s opinion referred to the question as one “of first impression in any (federal appeals court).”

The losing lawyer, Joseph Stein, deputy regional counsel for the Department of Health and Human Services in San Francisco, could not be reached for comment.

Ariana will now share benefits with a half-sister, Robyn, 7, of Phoenix.

Robyn was born during Hossler’s first marriage. His former wife since has remarried, Smith said.

“Her mother sends the 7-year-old here from Arizona several times a year,” said Smith, who remains single. “We want the sisters to get to know each other and spend time together.”

The ruling means that the Social Security benefits will be divided equally between the two children, “the way it should have been in the first place,” Smith said.