TN 3 (10-06)

PR 01215.031 Nevada

A. PR 07-013 LEGAL OPINION: Eligibility for Child's Insurance Benefits for Amber L. S~

DATE: November 14, 2006

1. SYLLABUS

Although Nevada statutes clearly state that an order terminating parental rights completely severs the parent-child relationship, terminating all rights and obligations of both parent and child; in a case where the claimant was named as a child of the marriage in the divorce decree between the number holder and the claimant's mother the claimant can still qualify as a child for benefit purposes under Section 216(h)(3) of the Social Security Act.

2. OPINION

You have asked whether the claimant Amber L. S~ can qualify for child's insurance benefits on the account of the deceased wage earner, Matthew S. W~, even though a Nevada state court terminated Mr. W~'s parental rights.

SUMMARY OF EVIDENCE

The claimant's parents, Feather R. B~ (formerly W~) and Matthew W~, married in the State of Nevada in November 1996. The claimant was born on October 30, 1997.

On July 29, 1998, the claimant's parents divorced. In the Findings of Fact and Conclusions of Law filed on July 29, 1998, a Nevada state court found that Feather R. W~ and Matthew W~ were married in November 1996 and "[t]hat there is (1) minor child the issue if this marriage, to-wit: AMBER L. S~. . ." The court then found that Feather and Matthew W~ had agreed that Matthew W~'s parental rights of the minor child would be terminated. In the Divorce Decree issued on July 29, 1998, the court terminated Matthew W~'s parental rights. After that decision, the claimant was never adopted by anyone.

Matthew W~ died in October 2005 while domiciled in Nevada. His widow and three children are receiving survivor benefits on his account.

ANALYSIS

A "child" of an individual who dies fully or currently insured under the Social Security Act (the Act) is entitled to child's insurance benefits if he or she:

(1) is the insured worker's child, as defined in 42 U.S.C. § 416(e);

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18, or is under a disability which began before he or she attained age 22, or is a full-time elementary or secondary school student and had not attained the age of 19; and

(5) was dependent upon the insured worker at the time of the worker's death.

42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2006); Program Operations Manual System (POMS) GN 00306.001(A). If a child is the worker's natural child, the child is considered dependent upon the worker. 20 C.F.R. § 404.361(a); POMS GN 00306001(B).

Under 42 U.S.C. § 416(h)(2)(A) of the Act, a claimant may prove that he or she is the "child" of the insured worker if he or she could inherit the worker's property as the worker's child under the law of intestate succession of the state where the worker was domiciled at the time of his death. See also 20 C.F.R. § 404.355(a)(1); POMS GN 00306.001(C)(1)(a).

Matthew W~ died while domiciled in Nevada. Nevada law provides that a "parent and child relationship" includes all rights, privileges and obligations existing between parent and child, including rights of inheritance. Nev. Rev. Stat. § 128.015. See State by Welfare Div. of Dep't of Human Resources v. Vine, 662 P.2d 295, 297-98 (Nev. 1983) (discussing Nev. Rev. Stats. Chapters 127 (adoption), 128 (termination of parental rights) and 424 (foster homes)) Further, an order terminating parental rights completely severs the parent-child relationship, terminating all rights and obligations of both parent and child." Id.

Athough the claimant would not be able to qualify as Mr. W~'s child under 42 U.S.C. § 416(h)(2)(A), she could still qualify as his child under 42 U.S.C. § 416(h)(3)(C). That section provides that an applicant is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2), shall be deemed to be the child of the insured individual if:

(C) in the case of a deceased individual-

(i) such insured individual-

(I) had acknowledged in writing that the applicant is his or her son or daughter,

(II) had been decreed by a court to be the mother or father of the applicant, or

(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter,

and such acknowledgment, court decree, or court order was made before the death of such insured individual, or

(ii) such insured individual is shown by evidence satisfactory to the Commissioner of Social Security to have been the mother or father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died.

On July 29, 1998, the Nevada court issued a finding of fact that the claimant was the "issue" of the marriage between Matthew W~ and Feather R. W~. The claimant has not been adopted by another individual. Thus, it appears that Mr. W~, the "insured individual" had been "decreed by a court to be the father" of the claimant (despite the termination of his parental rights). Cf. Duncan o/b/o Peterson v. Sec'y of HHS, 1994 U.S. Dist. LEXIS 19030, *11-15 (W.D. Mich.) (holding that biological children whom deceased father had acknowledged in writing qualified as "children" under the Social Security Act even though a state court had terminated the father's rights). Thus, the claimant can be deemed Mr. W~'s child under 42 U.S.C. § 416(h)(3)(C)(i)(II), and deemed dependent upon the NH at the time of his death pursuant to 42 U.S.C. § 402(d)(3) of the Act.

This conclusion is consistent with opinions recently issued by the Office of the General Counsel for Regions IX and VII in similar cases. See PolicyNet - POMS PR 01215.031 Nevada: A. PR 06-298 Legal Opinion: Eligibility for Child's Insurance Benefits for Joseph Jason C~, Formerly Known as Bruce Robert G~, II (August 31, 2006) (concluding that claimant qualified for child survivor benefits even though Nevada court had terminated parental rights of number holder where same court order identified the number holder as the claimant's "natural father"); see also Memorandum from Regional Chief Counsel, Kansas City, to Assistant Regional Commissioner, Management and Operations Support, Kansas City, Inheritance Rights of Children Whose Parent's Parental Rights Were Terminated . . ., (June 14, 2006) (concluding that, even though court order terminated parental rights of deceased number holder and children were unable to inherit under Missouri state law, children still qualified for child's survivor benefits because same order had decreed number holder to be the natural father of both children).

Therefore, the claimant qualifies for child's survivor benefits.

B. PR 06-298 LEGAL OPINION: Eligibility for Child's Insurance Benefits for Joseph J. C~, Formerly Known as Bruce R. G~, II

DATE: August 31, 2006

1. SYLLABUS

Under the laws of both California and Nevada a child cannot inherit from a parent whose rights were terminated.

In this specific case, the child may be able to qualify for benefits under the Federal Deemed Child Provision since a Nevada court decreed the number holder to be the child's father prior to the number holder's death.

2. OPINION

You have asked whether Joseph J. C~, formerly known as Bruce R. G~, II, has inheritance rights under California law even though his father, Bruce R. G~, surrendered his parental rights in Nevada in December 1996.

SUMMARY OF EVIDENCE

The claimant was born on November 21, 1994. His birth certificate identifies the NH as his father. On December 16, 1996, the District Court for Clark County, Nevada, issued an order terminating NH's parental rights. The court order also changed the claimant's name to Joseph J. C~. The Court's order identifies the NH as the "natural father" of the claimant. The Claimant was never adopted. The NH died on March 12, 2005, while domiciled in California. Patrice C~, the claimant's mother, applied for child's insurance benefits on his behalf. (Both the claimant and Patrice C~ reside in Florida.)

ANALYSIS

A "child" of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he or she:

(1) is the insured worker's child, as defined in 42 U.S.C. § 416(e);

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and

(5) was dependent upon the insured worker at the time of the worker's death.

42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2006); Program Operations Manual System (POMS) GN 00306.001(A). If a child is the worker's child (meeting the first requirement), the child is considered dependent upon the worker, satisfying the fifth requirement. 20 C.F.R. § 404.361(a).

Under 42 U.S.C. § 416(h)(2)(A), a claimant may prove that he or she is the "child" of the insured worker if he or she could inherit the worker's property as the worker's child under the law of intestate succession of the state where the worker was domiciled at the time of his death. See also 20 C.F.R. § 404.355(a)(1); POMS GN 00306.001(C)(1)(a). Here, NH died in the State of California.

In California, a child cannot inherit from a natural parent whose rights have been terminated. Jackson v. Fitzgibbons, 25 Cal. Rptr. 3d 478, 482 (Cal. App. 4th 2005) (where the parent-child relationship has been terminated by the court, the child is no longer considered the "issue" of the natural parent for purposes of intestate succession).

The same is true in the State of Nevada, the state where the NH's rights were terminated. Nevada law provides that a "parent and child relationship" includes all rights, privileges and obligations existing between parent and child, including rights of inheritance. Nev. Rev. Stat. § 128.015. See State by Welfare Div. of Dep't of Human Resources v. Vine, 662 P.2d 295, 297-98 (Nev. 1983) (discussing Nev. Rev. Stats. Chapters 127 (adoption), 128 (termination of parental rights) and 424 (foster homes): "We believe that these various statutory provisions adequately demonstrate the legislative intention to have an order terminating parental rights completely sever the parent-child relationship, terminating all rights and obligations of both parent and child").

However, since the Nevada court decreed NH as the claimant's "natural father" before NH's death, and the claimant has not been adopted by another individual, the claimant can be deemed NH's child under 42 U.S.C. § 416(h)(3)(C)(i)(II), and deemed dependent upon NH at the time of his death pursuant to 42 U.S.C. § 402(d)(3). See Memorandum from Regional Chief Counsel, Kansas City, to Assistant Regional Commissioner, Management and Operations Support, Kansas City, Inheritance Rights of Children Whose Parent's Parental Rights Were Terminated . . ., (June 14, 2006). Thus, the claimant qualifies for child's survivor benefits.


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PR 01215.031 - Nevada - 05/05/2011
Batch run: 05/05/2011
Rev:05/05/2011