TN 41 (07-16)

PR 01310.019 Kansas

A. PR 16-113 State of Kansas – Eligibility for Auxiliary Child’s Benefits for Non-Biological Child Between Time of Birth and Adoption and Continuing

Date: April 12, 2016

1. Syllabus

The number holder (NH) is domiciled in the state of Kansas; therefore, we look to the Kansas intestacy law to determine if the child is the child of the NH. Under the Kansas Parentage Act, the NH is the presumed parent of the claimant from the time of the claimant’s birth through the time of his adoption. The NH formally adopted the claimant in the District Court of Wyandotte County, Kansas. The NH has recognized the claimant as his child since his birth; therefore, the NH is a presumed parent of claimant and claimant would be entitled to inherit from the NH under Kansas intestacy law. The claimant was eligible for child’s benefits on the record of the NH since the date of his birth.

2. Opinion

QUESTION PRESENTED

On February XX, 2015, the numberholder C~ (the NH) adopted N~ (claimant). You requested a legal opinion as to claimant’s eligibility for auxiliary benefits as the child of the NH between the time of his birth and adoption.

SUMMARY

Under the Kansas Parentage Act, the NH was the presumed parent of claimant from the time of claimant’s birth through the time of his adoption. Since the time of his birth, claimant could inherit from the NH as the child of the NH under state intestacy law. Accordingly, claimant was entitled to auxiliary benefits as the child of the NH from the time of his birth and continuing.

FACTUAL BACKGROUND

On November XX, 1978, the NH was born in Cedar Rapids, Iowa, as J~, a female.

On May XX, 2002, the NH married E~.

On April XX, 2009, upon a petition by the NH, the District Court of Douglas County, Kansas, issued an order changing the NH’s name to C~.

In a letter dated July XX, 2010, C2~, M.D., the NH’s primary-care physician, stated that the NH had undergone gender reassignment from female to male and noted that an amended birth certificate was being sought.

On September XX, 2010, the State of Iowa issued a birth certificate showing the NH’s name as C~ and his sex as male.

On June XX, 2011, in Lawrence, Kansas, the NH married E2~ (E2~). On the certificate of marriage, the NH is listed as the groom, and E2~ is listed as the bride. The certificate shows a marriage license was issued in Douglas County, Kansas, on April XX, 2011.

On June XX, 2014, claimant was born in Lawrence, Kansas, to E2~. Claimant’s birth certificate shows E2~ as his mother and the NH as his father, though claimant was neither the biological or adopted child of the NH. The NH, E2~, and claimant have resided together in Lawrence, Kansas, as a family since claimant’s birth.

On June XX, 2014, the NH protectively filed for auxiliary child’s benefits for claimant, and E2~ protectively filed for benefits as the NH’s spouse with a child-in-care.

On February XX, 2015, the NH formally adopted claimant in the District Court of Wyandotte County, Kansas.

On May XX, 2015, E2~ withdrew her application for spouse’s benefits after the agency asked the NH to provide proof of divorce from E~.

ANALYSIS

Federal Law

Under the Social Security Act (the Act), an individual may be eligible for child survivor’s insurance benefits if: (1) he is the “child” of the insured, as defined in the Act; and (2) he was “dependent upon” the insured at the time of application. See section 202(d) of the Act, 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. For the purposes of child’s insurance benefits, “child” is defined as the natural child, legally adopted child, stepchild, or grandchild or stepgrandchild of the insured individual. See sections 202(d)(1) and 216(e) of the Act, 42 U.S.C. §§ 402(d)(1), 416(e); see also 20 C.F.R. §§ 404.350, 404.354-59.

Under one method for determining whether an applicant qualifies as the “child” of an insured worker, the agency applies the law governing “the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files” the application. See section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A);1 see also 20 C.F.R. §§ 404.355(a)(1), (b) (if the insured is living, apply state law where insured had permanent home at the time of the application); Program Operations Manual System (POMS) GN 00306.001(C) (determining what state law applies). In this case, the state of domicile is Kansas, where the NH has his true, fixed, and permanent home. See 20 C.F.R. § 404.303; POMS GN 00305.001. Therefore, whether claimant may be considered the child of the NH for purposes of child’s benefits must be determined under Kansas intestacy law. See 20 C.F.R. § 404.355(a).

Kansas Law

For purposes of determining intestate succession, the Kansas Probate Code defines the term “children” to include biological children, including posthumous children; children adopted as provided by law; and children whose parentage is or has been determined under the Kansas Parentage Act (KPA), Kan. Stat. Ann. §§ 23-2201 et seq.,2 See Kan. Stat. Ann. § 59-501; see also Reese v. Muret, 150 P.3d 309, 311-12 (Kan. 2007) (in a probate action, determining parentage under the KPA).

You requested an opinion addressing whether claimant was a child of the NH between the time of his birth and the adoption by the NH. Because the provisions of the KPA are construed in a gender-neutral manner, it is not necessary to analyze the gender of the NH.3 See Frazier v. Goudschaal, 295 P.3d 542, 558 (Kan. 2013) (finding that the KPA is “gender-neutral, so as to permit both parents to be of the same sex.”); but see POMS GN 00306.495 (summarizing Kansas intestacy law and describing numerous ways the parent-child relationship may be established by the “natural mother”). Kansas caselaw also strongly endorses protecting the presumed-parent-and-child relationship regardless of the biological connection between the parent and child. See, e.g., In re Marriage of Ross , 783 P.2d 331, 338-39 (Kan. 1989) (finding DNA evidence is not conclusive and that the presumed father, who had no biological connection to the children, was indeed the children’s father under the KPA); Reese, 150 P.3d at 315 (noting “paternity is both broader and deeper than genetics.”); Frazier, 295 P.3d at 553 (“A harmonious reading of all of the KPA provisions indicates that a female can make a colorable claim to being a presumptive mother of a child without claiming to be the biological or adoptive mother.”); Kan. Stat. Ann. § 23-2207 (A mother may establish a parent-child relationship by “giving birth to the child or under this act.”) (emphasis added) (formerly designated as Kan. Stat. Ann. § 38-1113); Kan. Stat. Ann. § 23-2220 (“Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship.”) (formerly designated as Kan. Stat. Ann. § 38-1126).

Kan. Stat. Ann. § 23-2208(a)(4) provides for a presumption of parentage when the parent has “notoriously or in writing” recognized the child. See Frazier, 295 P.3d at 556 (noting the KPA permits the creation of presumptive motherhood through written acknowledgement); see Ross, 783 P.2d at 334 (finding that the presumed father was the children’s father, in part, because he recognized them notoriously and in writing by consenting to his name on the birth certificate, supporting the children throughout their lifetime, and declaring his paternity in legal documents). The written acknowledgement need not be in any particular form. See Kan. Stat. Ann. § 23-2208(a)(4); Matter of Kuhn’s Estate, 626 P.2d 794, 795 (Kan. 1981) (birth certificate); In the Matter of the Marriage of Phillips, 58 P.3d 680, 681, 685-86 (Kan. 2002) (finding acknowledgements of paternity on a birth certificate and a divorce petition were entitled to same deference as statutory forms for acknowledgement of paternity). An acknowledgment of parentage creates a permanent parent-child relationship that may be ended by court order. See Kan. Stat. Ann. § 23-2208(b); In the Matter of the Marriage of Phillips, 58 P.3d at 681, 685-86. Where there are no conflicting presumptions of parentage, the presumption may be rebutted only by clear and convincing evidence or by a court decree establishing parentage of the child by another person. See Kan. Stat. Ann. § 23-2208(b); POMS GN 00306.495.

On June XX, 2014, the NH asserted paternity as claimant’s father on his birth certificate. See Kuhn’s Estate, 626 P.2d at 795 (finding paternity established where decedent recognized the child by obtaining and paying for the birth certificate). Claimant’s middle and last name is the same as the NH’s first and last name. The same month, the NH identified claimant as his child on the application for child’s benefits. See POMS GN 00306.105(A)(1) (an application for Social Security benefits filed by the wage earner and listing the child as his child constitutes a written acknowledgment of paternity under section 216(h)(3) of the Act). Additionally, the Adoption Decree states that claimant and the NH, as well E2~, have resided together as a family since claimant’s birth in June 2014, and the NH has supported, reared, and educated claimant. Because the NH has recognized claimant as his child since his birth, the NH is a presumed parent of claimant and claimant would be entitled to inherit from the NH under Kansas intestacy law. Therefore, claimant was eligible for child’s benefits on the record of the NH and has been since the date of his birth.See POMS GN 00306.050 (A child with inheritance rights is considered to be legitimate from birth).

CONCLUSION

Claimant was eligible to receive child’s auxiliary benefits on the NH’s record since his birth on June XX, 2014.

Rhonda J. Wheeler

Deputy Chief Counsel, Region VII

By: Assistant Regional Counsel

B. PR 98-503 Request for Review of the Validity of Adoption of a Child by the Grandparents of the Child Where the Biological Mother Retains Full Parental Rights Under Kansas Law

DATE: March 27, 1998

1. SYLLABUS

There is no Kansas case law that would allow a biological parent to maintain full parental rights while simultaneously allowing the adoption by someone other than the spouse of the biological parent. In fact, the Kansas Supreme Court has held that an adoption creates a new legal status of parent and child for the adoptive parents and adopted child and that the child no longer remains the child of its natural parents. Therefore, an adoption decree that would allow the biological mother to remain the legal parent would be invalid under Kansas law.

2. OPINION

You have asked for our legal opinion on issues regarding the adoption of Jesi L. R~, by the number holder Gerald W. R~ and his wife, Ardith R~, Jesi's grandparents. The adoption decree specifies that the natural parents have consented to the adoption. The decree states, however, that Jesi's biological mother, Deena L. R~, remains the legal parent also. Moreover, Jesi continues to live with his biological mother. You have asked us if the adoption is valid under Kansas law.

The Commissioner is bound by a state court determination where all of the following prerequisites are met: a. an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; b. this issue was genuinely contested before the State court by parties with opposing interests; c. the issue falls within the general category of domestic relations law; and d. the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See SSR 83-37c, adopting the Sixth Circuit Court of Appeals decision in Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973); See also Memorandum: "Effect of a Default Judgment Entered after the Death of Defendant which Awarded Child Support Benefits and Ordered that the Defendant's Name be Entered on the Birth Certificate of an Illegitimate Child upon the Social Security Entitlement of an Illegitimate Child," Region VII, June 26, 1996.

If all four of the above criteria are not met, the Office of General Counsel has clarified that the Commissioner is free to accept or reject a State court determination. See GC Legal Op., "Child's Status under North Dakota Law," Region VIII, March 28, 1990; GC Legal Op., "Mutual Acknowledgment of Paternity in Michigan," Region V, March 11, 1985.

In this case, the first and third criteria are clearly met. The adoption decree was decided by a court of competent jurisdiction, the District Court of Osborne County, Kansas, K.S.A. 59-2126, and a decree of adoption falls within the general category of domestic relations law.

With respect to the second criterion, it has been argued that "a knowing waiver of the opportunity to contest can compensate for the absence of a contest." See GC Legal Op., "Child's Status under North Dakota Law," Region VIII, March 28, 1990; GC Legal Op., "Mutual Acknowledgment of Paternity in Michigan," Region V, March 11, 1985. In this case, the adoption decree clearly states that both the biological parents consent to the adoption. Consequently, the second criterion is also met.

The fourth criterion, however, is not met. Kansas law provides that "Upon adoption, all rights of birth parents to the adopted person, including their right to inherit from or through the person, shall cease, except the rights of a birth parent who is the spouse of the adopting parent. An adoption shall not terminate the right of the child to inherit from or through the birth parent." K.S.A. 59-2118(b). We can find no case in Kansas that would allow a biological parent to maintain full parental.. rights while simultaneously allowing the adoption by someone other than the spouse of the biological parent. On the contrary, the Kansas Supreme Court recently stated that an adoption "creates a new legal status of parent and child for the adoptive parents and adopted child, [and that] the child no longer remained the child of its natural parents." Sowers v. Tsamolias, 941 P.2d 949, 950 (Kan. 1997).

Consequently, we believe that the adoption decree is invalid under Kansas law.


Footnotes:

[1]

. . An applicant who satisfies the requirements of section 416(h)(2)(A) of the Act is also deemed dependent upon the insured individual. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her . . . .”); Social Security Ruling 77-2c (“[W]here state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life and at his death.”).

[2]

. . The KPA was transferred, without substantive changes, from Kan. Stat. Ann. §§ 38-1110 et seq., in 2011.

[3]

. . The State of Kansas does not recognize gender reassignment. See In re: Estate of Gardiner, 42 P.3d 120, 137 (Kan. 2002) (person who undergoes gender reassignment retains his or her original gender). Although the previous practice of the Kansas Office of Vital Statistics was to allow amendment of a birth certificate to change sex, see Kan. Admin. Regs. § 28-17-20(b)(1)(A)(i) (2013) (Sex may be amended “with a medical certificate substantiating that a physiological or anatomical change occurred.”), that office does not currently allow such amendment. See http://www.kdheks.gov/vital/ amend_birth_adults.html (last visited May 6, 2015).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501310019
PR 01310.019 - Kansas - 07/07/2016
Batch run: 07/07/2016
Rev:07/07/2016