TN 56 (05-17)

PR 01105.054 West Virginia

A. PR 17-070 Are Claimants Entitled to Surviving CIB on the Record of NH Whose Parental Rights were Terminated Prior to His Death-WV law?

Date: March 27, 2017

1. Syllabus

The number holder (NH) was domiciled in West Virginia when he died, therefore, we look to the West Virginia law to determine whether the claimants could inherit from the NH as his children. The West Virginia intestate law broadly provides that a child may inherit from the parent if a parent-child relationship exists between them. In this case, the claimants may only inherit from the NH if their parent-child relationship survived the termination of parental rights of the NH. According to the West Virginia law, a parent-child relationship does not survive the termination of parental rights. We believe that the West Virginia law would not recognize a parent-child relationship between the NH and the claimants following the termination of the NH’s parental rights, and thus does not allow the claimants to inherit from the NH through intestacy. Therefore, we believe that the claimants are not entitled to surviving child’s insurance benefits on NH’s record.

2. Opinion

QUESTION PRESENTED

You asked us to determine if claimants, minors A~ and S~, would be able to inherit from C~ (NH) pursuant to West Virginia intestacy law, and thus entitled to surviving child’s insurance benefits on the record of the NH when the NH’s parental rights were terminated with respect to the claimants prior to his death?

CONCLUSION

We believe that West Virginia law would not recognize a parent-child relationship between the NH and the claimant following the termination of the NH’s parental rights, and thus does not allow the claimants to inherit from the NH through intestacy. Therefore, we believe that the claimants are not entitled to surviving child’s insurance benefits on NH’s record.

BACKGROUND

On January XX, 2011, the Circuit Court of C~ County, West Virginia issued a final Dispositional Hearing Order (Order) permanently terminating the parental rights of NH with respect to the claimants. The NH’s parental rights were involuntarily terminated pursuant to West Virginia’s Child Welfare Act on the grounds of abuse and neglect. Although the Order appears to continue the NH’s child support obligations to his other biological children with a different biological mother, the Order does not continue the NH’s child support obligations to the claimants. The Order also awards physical and legal care, custody, and control of the claimants to their biological mother, J~. On August XX, 2016, the NH died in his state of domicile, West Virginia.

On September XX, 2016, the claimants’ biological mother, J~, filed an application on the record of the NH for surviving child’s benefits on behalf of the claimants. The claimants were not adopted by a third party during the NH’s lifetime.

DISCUSSION

To qualify for child’s insurance benefits on the earnings record of an insured individual who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d);

20 C.F.R. § 404.350(a)(1). A claimant can qualify as the insured individual’s natural child if the claimant could inherit from the insured individual as his child. See Act § 216(h)(2)(A);

20 C.F.R. § 404.355(a)(1), (b). To determine if a claimant could inherit from the insured individual, the Social Security Administration applies the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because NH was domiciled in West Virginia when he died, we look to West Virginia law to determine whether the claimants could inherit from the NH as his children. Act § 216(h)(2)(A); 20 C.F.R. § 404.355 (b)(4).

Neither the West Virginia’s intestacy code nor cases interpreting the code specifically address whether a child may inherit from a parent following the termination of parental rights where the child is not subsequently adopted.1 West Virginia intestate law more broadly provides that a child may inherit from his parent if a parent-child relationship exists between them. See W. Va. Code § 42-1-3a (1995) (permitting a decedent’s descendants to inherit from the decedent through intestate succession); W. Va. Code § 42-1-1(5) (defining as descendant of an individual as all his descendants with the relationship of a parent and child as defined by the code); W. Va. Code § 42-1-1(26) (defining a parent as “any person entitled to take, or who would be entitled to take if the child died without a will.”).2 Thus, here, the claimants may only inherit from the NH if their parent-child relationship survived the termination of parental rights of the NH.

Under West Virginia law, a parent-child relationship does not survive the termination of parental rights. See In re Cesar L., 221 W. Va. 249 (2007) (finding a biological mother who voluntarily relinquished her parental rights lacked standing to contest a child’s disposition order in an abuse and neglect proceeding); In re A.H., No. 12-462, 2012 WL 4069567 (Sept. 7, 2012) (finding a biological father whose rights were involuntarily terminated lacked standing to contest a child’s disposition order in an abuse and neglect proceeding).

In re Cesar, the Supreme Court of Appeals of West Virginia (the state’s highest court) held that “a final order terminating a person’s parental right, as a result of either an involuntary termination or voluntary replenishment, completely severs the parent-child relationship, and as a consequence of such order of termination, the law no longer recognizes such person as a “parent” with regard to the child(ren) involved in the particular termination proceeding.” Id. at 258-59 (further stating that termination of parental rights “relieves such person of all the rights and privileges, as well as duties and obligations, considered to be ‘parental rights’” and “the person who formerly possessed such parental rights loses his his/hers status as the child’s parent”) (emphasis added); In re A.H., 2012 WL 4069567 at *3-4 (applying In re Cesar to cases involving involuntary termination of parental rights). Although In re Cesar addresses a parent’s standing to contest a dispositional order in an abuse and neglect case, we believe that West Virginia’s Supreme Court of Appeals would extend its broad and sweeping holding that the termination of parental rights completely severs the parent-child relationship to matters involving intestate succession.

Thus, we believe that the statutes and cases referenced herein dictate that the termination of parental rights severs the parent-child relationship such that the child no longer has the right to inherit from that parent under West Virginia intestacy law. Thus, we believe that the claimants are not entitled to surviving child’s insurance benefits on NH’s record.


Footnotes:

[1]

. Pursuant to West Virginia’s Adoption Act, an adopted child can no longer inherit through intestate succession from his biological parent after the issuance of the adoption order. See W. Va. Code § 48-22-70 (2001) (stating “[f]or the purpose of decent and distribution, from and after the entry of such order of adoption, a legally adopted child shall inherit from and through [adoptive parents] . . . ., but such child shall not inherit from any person entitled to parental rights prior to the adoption”) (emphasis added). This provision of West Virginia’s Adoption Act does not address the inheritance right of children, like the claimants here, who are not adopted by a third-party following the termination of a biological parent’s rights and remain in the sole custody of their other biological parent.

[2]

. The West Virginia intestacy code does not define the term “child” generally, and instead addresses specific factual circumstances in which an individual is considered the child of a decedent for the purposes of intestate inheritance (e.g., half-blood relatives, afterborn heirs, children born out of wedlock, posthumous children). See W. Va. Code §§ 42-1-3(e)-(f), 42-1-5 through 42-1-8. As stated above, West Virginia’s intestacy code does not address whether a child may inherit from its parent following the termination of parental rights.


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PR 01105.054 - West Virginia - 05/30/2017
Batch run: 05/30/2017
Rev:05/30/2017