Under the Act, every unmarried minor child of an insured individual entitled to disability insurance benefits is entitled to child’s insurance benefits. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1). However, to receive child’s insurance benefits, the applicant must qualify as the insured individual’s “child,” as defined by section 216(e), and be dependent on the insured individual at the time she filed her application. See id.; 20 C.F.R. § 404.350. Under section 216(e) of the Act, the term “child” includes “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1), 42 U.S.C. § 416(e)(1). Section 216(h)(2)(A) of the Act explains that an applicant is the insured’s child if she could inherit intestate from the insured under the laws of the State where the insured lived at the time the applicant filed her application for benefits. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a).

Where an applicant does not meet the definition of “child” under section 216(h)(2) of the Act, the agency may nonetheless deem the applicant to be the insured’s child. Social Security Act § 216(h)(3), 42 U.S.C. § 416(h)(3). The agency will deem such applicant to be the child of the insured if, before the insured’s most recent period of disability began, any of the following circumstances existed: (i) the insured acknowledged in writing that the applicant is her son or daughter; (ii) a court decreed the insured to be the applicant’s mother or father; or (iii) a court ordered the insured to contribute to the support of the applicant. Social Security Act § 216(h)(3)(B)(i), 42 U.S.C. § 416(h)(3)(B)(i); 20 C.F.R. § 404.355(a). Alternatively, the applicant may be deemed the insured’s child if there is evidence the insured was the mother or father of the applicant and the insured was either living with the applicant or contributing to her support at the time the applicant applied for benefits. Social Security Act § 216(h)(3)(B)(ii), 42 U.S.C. § 416(h)(3)(B)(ii); 20 C.F.R. § 404.355(a).

An applicant’s entitlement to benefits on the insured’s record may terminate if someone other than the insured legally adopts the applicant during the insured’s lifetime. See Program Operations Manual System (POMS) GN 00306.165. The applicant’s entitlement to benefits on the insured’s record continues if (i) the adoption did not cut-off the applicant’s inheritance rights as the insured’s child under State intestacy laws, and (ii) the insured was living with the applicant or contributing to her support at one of the points where the applicant could be deemed dependent on the insured.^[1] POMS GN 00306.165.A; POMS GN 00306.007.A; see also 20 C.F.R. § 404.361(b) (setting out criteria for establishing dependency on the insured when the applicant was adopted by someone other than the insured). However, the applicant need not establish dependency if the applicant’s adoption occurred after an applicable point at which the agency could deem her dependent on the insured. POMS GN 00306.165.B.^[2]

If the applicant’s adoption cut off her inheritance rights in the insured’s estate but the applicant can satisfy the dependency requirement of POMS GN 00306.165.A, the applicant may be still be entitled to child’s benefits if she meets the requirements of section 216(h)(3) of the Act, 42 U.S.C. § 416(h)(3). POMS GN 00306.165.C.

 

Pursuant to section 6451(a) of the California Probate Code, an adoption severs the parent-child relationship between an adopted person and his or her natural parents unless the adoption was by the spouse of either natural parent or after the death of either natural parent. Cal. Prob. Code § 6451(a).

Additionally, in California, a child cannot inherit from a natural parent whose rights have been terminated. Jackson v. Fitzgibbons, 25 Cal. Rptr. 3d 478, 481-82 (Cal. Ct. App. 2005) (where court terminated the parent-child relationship, the child is no longer considered the “issue” of the natural parent for purposes of intestate succession); see also POMS PR 01805.006.A (finding that, in “California, a child cannot inherit intestate from a parent whose rights have been terminated by court order”).

ANALYSIS

To be considered an insured’s “child” for benefit purposes, the Act, federal regulations, and POMS look to whether the applicant could inherit from the insured under the intestacy laws of the State where the insured lived when the applicant applied for benefits. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.350(1), 404.355(a)(1); POMS GN 00306.001.C.1.a. Here, the NH was domiciled in California when E~ applied for benefits, but E~ could not inherit from the NH under California’s intestacy laws for two reasons. First, the NH’s parental rights were terminated effective August XX, 2014, and a child cannot inherit intestate from a natural parent whose rights were terminated. See Jackson, 25 Cal. Rptr. 3d at 481-82. Second, even if a Court had not already terminated the NH’s parental rights, E~’s May XX, 2015 adoption severed the parent-child relationship between her and the NH for purposes of intestate succession. See Cal. Prob. Code § 6451(a).^[3]

 

If the agency does not consider an applicant to be a “child” of the insured under State intestacy laws, it may nonetheless deem the applicant to be the insured’s child under section 216(h)(3) of the Act. See Social Security Act § 216(h)(3)(B), 42 U.S.C. § 416(h)(3)(B); 20 C.F.R. §§ 404.350(a)(1), 404.355(a)(3)-(4); POMS GN 00306.100.B.

Section 216(h)(3)(B)(i) of the Act provides that the agency will deem the applicant to be the insured’s child if the insured acknowledged in writing that the applicant is her child, and the insured made such acknowledgement before her period of disability began. See Social Security Act § 216(h)(3)(B)(i)(I), 42 U.S.C. § 416(h)(3)(B)(i)(I); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100.B.1. An applicant’s birth certificate satisfies the written acknowledgement requirement of section 216(h)(3)(B)(i) if it bears the insured’s signature as informant and identifies the insured as the applicant’s parent. POMS GN 00306.120.A.

Here, E~’s birth certificate bears the NH’s signature as “parent or other informant” and identifies the NH as E~’s mother. Further, the NH signed the birth certificate on April XX, 2009, prior to the date the NH’s period of disability began on August XX, 2012.^[4] E~ may therefore be deemed the NH’s child under section 216(h)(3)(B)(i) of the Act. See Social Security Act § 216(h)(3)(B)(i)(I), 42 U.S.C. § 416(h)(3)(B)(i)(I).^[5]

Although someone other than the NH adopted E~, E~ may still establish entitlement on the NH’s record under section 216(h)(3) of the Act if she can demonstrate that the NH was living with her or contributing to her support at one of the three points identified in POMS GN 00306.007. See POMS GN 00306.165.C (where the applicant is adopted by someone other than the insured, the applicant can still establish entitlement if the agency deems her to be the insured’s child under section 216(h)(3) of the Act and she meets the dependency criteria of POMS GN 00306.165.A).

E~ meets this dependency requirement because she was living with the NH on August XX, 2012 when the NH’s period of disability began, a point at which the agency will find dependency. POMS GN 00306.007.A. Because the agency deems E~ to be the NH’s child under section 216(h)(3) of the Act and she meets the criteria for dependency, E~ is entitled to child’s insurance benefits on the NH’s account.

 

CONCLUSION

To receive child’s insurance benefits on the NH’s record, E~ must establish that she is the NH’s “child” notwithstanding her adoption by someone other than the NH. Because E~ cannot inherit from the NH under California’s intestacy laws, she is not the NH’s “child” under section 216(h)(2) of the Act. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.350(1), 404.355(a)(1); POMS GN 00306.001.C.1.a.

However, the agency will deem E~ to be the NH’s child under section 216(h)(3) of the Act because, in signing E~’s birth certificate as her mother, the NH acknowledged in writing that E~ is her child before the NH’s period of disability began. See Social Security Act § 216(h)(3)(B)(i)(I), 42 U.S.C. § 416(h)(3)(B)(i)(I); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100.B.1; POMS GN 00306.120.A. Additionally, E~ meets the dependency requirement because she was living with the NH on August XX, 2012 when the NH’s period of disability began. Accordingly, E~ is entitled to child’s insurance benefits on the NH’s account. See POMS GN 00306.165.C.

 

Margaret Branick-Abilla

Assistant Regional Counsel, Region IX