TN 8 (03-11)
PR 01320.017 Indiana
A. PR 11-087 MOS-State: Indiana – Court Order Vacating Order of Adoption – number holder Janice S. D~ – claimant Lukas R. D~ – REPLY
DATE: April 21, 2011
In determining whether a claimant is a “legally adopted child,” the agency applies the adoption laws of the state in which the adoption took place. In this case, the adoption took place in Indiana, therefore, the regulations require that the agency apply the laws of Indiana in determining the validity of the adoption. The adoption was effectively annulled under Indiana law in December 2010. Claimant Lukas R. D~ is not entitled to benefits under the record of Janice R. D~ and benefits should be terminated as of December 2010.
You have asked us to review whether Lukas R. D~’s entitlement to child’s insurance benefits on the record of Janice R. D~ should be terminated because the Indiana Supreme Court vacated Janice’s adoption of Lukas. You have further inquired as to the effective date of any such termination. For the reasons stated below, we believe that the Supreme Court’s decision rendered the adoption null, so that Lukas was no longer entitled to benefits after the date of the order annulling the adoption.
In January 2008, an Indiana probate court issued an adoption decree ordering the adoption of Lukas by Janice. You have informed us that, effective February 2008, the agency made benefit payments to Lukas on Janice’s record.
Two weeks after the probate court issued the adoption decree, Lukas’s natural mother moved to vacate the decree on the grounds that the decree was void. On December 16, 2010, the Indiana Supreme Court granted the motion and vacated the adoption decree.
Under the Social Security Act (“Act”), only an insured individual’s “child” can qualify for child’s benefits on the insured’s earnings record. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1). An insured’s “legally adopted child” is her “child” for the purposes of the Act. 42 U.S.C. § 416(e); 20 C.F.R. 404.354. However, a child will no longer be entitled to benefits if the adoption is annulled. See POMS 00203.035(B)(3). The POMS provide that “[e]ntitlement to a child’s benefit based on a legal adoption will terminate if the adoption is annulled.” POMS RS 00203.035(B)(3). One program opinion has expressed concern that the annulment of an adoption does not appear in the regulations relating to the termination of benefits. See POMS PR 01320.001, citing 20 C.F.R. § 404.352(b). Technically speaking, benefits are not terminated in these circumstances in the sense of ending due to a terminating event listing of the Act or regulations. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.352(b). Social Security Ruling 91-6 explains the reason for this termination is that an annulment of an adoption causes “the adoption [to be] invalidated and determined never to have legally existed.” SSR 91-6. Strictly speaking, a child whose adoption was annulled was never actually entitled to benefits that he may have received by virtue of the adoption. However, instead of stopping benefits and charging an overpayment, SSA merely stops paying benefits. It is our understanding that this was a policy choice to prevent unfairness to the child.
In determining whether a claimant is a “legally adopted child,” the agency applies the adoption laws of the state in which the adoption took place. 20 C.F.R. § 404.356. In the case at hand, the adoption took place in Indiana. Therefore, the regulations require that the agency apply the laws of Indiana in determining the validity of the adoption. See 20 C.F.R. § 404.356.
Lukas’s adoption was effectively annulled under Indiana law. The Indiana Supreme Court granted Lukas’s natural mother’s Indiana Trial Procedure Rule 60(b) motion to vacate the adoption as void. That procedural rule allows a court to vacate a judgment on a number of grounds, including that “the judgment is void.” Ind. Trial Pro. R. 60(B)(6). Under Indiana law, “[a] void judgment is one that, from its inception, is a complete nullity and without legal effect.” Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998) (internal quotations removed, emphasis added). Therefore, in granting the motion to vacate the adoption decree as void, the Indiana Supreme Court was in essence declaring the adoption “a complete nullity.”
Because the Indiana Supreme Court rendered the adoption “a complete nullity,” the adoption is considered annulled under the POMS. See POMS RS 00203.035(B)(3). A number of other program opinions have also concluded that a court order to vacate an adoption annuls an adoption for purposes of the POMS. See POMS PR 01320.003, 01320.005, 01320.019, 01320.029. Therefore, benefits should not be paid after the date of the court order annulling the adoption. POMS RS 00203.035(B)(3). The Indiana Supreme Court order vacating the adoption decree was dated December 16, 2010. Therefore, Lukas should not be paid benefits on Janice’s record after December 2010.
For the above reasons, we conclude that Lukas R. D~’s entitlement to benefits under the record of Janice R. D~ terminated as of December 2010.
Donna L. C~
Regional Chief Counsel, Region V
Assistant Regional Counsel
B. PR 11-065 Request for an Opinion on the Effect of Termination of Adoptive Parental Rights on Inheritance Rights and Social Security Benefits in Region V States
DATE: February 28, 2011
The laws of all six states that comprise Region V state that after an insured individual’s parental rights have been terminated with respect to his adopted child, the child is no longer a legally adopted child of the insured. Accordingly, the child would not be eligible for child’s benefits on the insured’s account.
You asked us to research the laws of the states in Region V to determine the right of children to inherit from their adoptive parents after the termination of parental rights, for purposes of a child’s potential entitlement to Social Security benefits. As discussed more fully below, we believe the proper analytical framework in such instance is to determine the effect of termination of parental rights of adoptive parents on the children’s status as the legally adopted children of the adoptive parents under state law. Our review of such laws indicates that, in all Region V states, termination of parental rights completely and permanently severs the legal parent-child relationship such that the child is no longer a legally adopted child of the adoptive parent.
Section 202(d) of the Social Security Act (the Act) provides for the payment of child’s insurance benefits to a child (as defined in section 216(e) of the Act) of an insured individual. The applicant must show, among other things, that he is the insured’s child based on a recognized relationship. See Section 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). Under the Act and regulations, the term “child” means a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. See Section 216(e) of the Act; 20 C.F.R. § 404.354. To determine whether an applicant is the insured’s legally adopted child, SSA considers whether the applicant was legally adopted by the insured under the adoption laws of the state or country where the adoption took place. See 20 C.F.R. § 404.356; see also POMS GN 00306.135.
You requested an opinion on the effect of termination of parental rights of an adoptive parent on the inheritance rights of an adopted child. Your request appears to be based on the fact that a natural child may be eligible for child’s benefits if he could inherit from his natural parent under state inheritance laws. See Section 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(a)(1). However, the Act and regulations apply different tests for a natural child and for an adopted child. Section 216(h)(2)(A) states, in relevant part:
In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply such law as would be applied in determining 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 application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death. . . .Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.
Our research reveals that the test set forth in section 216(h)(2)(A) applies only to a natural “child,” not to a “legally adopted child,” which is a different term of art under the statute. See Section 216(e) of the Act (“The term ‘child’ means (1) the child or legally adopted child of an individual. . .”). Rather, an applicant’s status as a legally adopted child is determined solely by looking to state adoption laws. See 20 C.F.R. § 404.356.
This is evident from the language of 20 C.F.R. §§ 404.355 and 404.356, the regulations which pertain to the eligibility requirements for a natural child and a legally adopted child, respectively. See Section 205(a) of the Act (granting Commissioner general rulemaking authority to “adopt reasonable and proper rules and regulations” in order to establish right to benefits under the Act); Heckler v. Campbell, 461 U.S. 458, 466 (1983) (Congress has “conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Social Security] Act”) (internal quotation and citations omitted). Section 404.356 states, in relevant part: “You may be eligible for benefits as the insured’s child if you were legally adopted by the insured. . . .We apply the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws described in § 404.355, to determine whether you are the insured’s legally adopted child.” In contrast, section 404.355 states that SSA applies state inheritance laws to determine an applicant’s eligibility for benefits as an insured’s natural child.
Moreover, in October 1998 SSA issued final rules amending its regulations to clarify how the agency determines an applicant’s status as a natural child or as a legally adopted child. See 63 Fed. Reg. 57590 (Oct. 28, 1998). In these rules, SSA made it very clear that “[o]ur policy for determining whether an applicant qualifies as the ‘child’ of an insured individual has always been that we apply State law on inheritance rights to determine the status under the Act of a natural child, i.e., biological child, and State law on adoption to determine the status of a child legally adopted by the insured.” 63 Fed. Reg. at 57592. These rules further explain:
[S]ection 216(h)(2)(A) provides that the status of an applicant for benefits as a child (as opposed to a legally adopted child, a stepchild, or other type of individual who can qualify under section 216(e) of the Act as a “child” for purposes of section 202(d) of the Act) is determined by applying the law on devolution of intestate personal property that would be applied by the courts in the State of the insured individual’s domicile. This is a test for the status of a natural child.
The legislative history of sections 216(e) and 216(h)(2)(A) shows that Congress intended us to use section 216(h)(2)(A) to determine the status of natural children. [Discussion of legislative history omitted.] Thus, since the first provision for paying benefits to children of an insured worker, there has been a clearly defined distinction between natural children and adopted children and clearly defined conditions for determining the status of an adopted child, which conditions are not affected by section 216(h)(2)(A).
Along with the structure of the Act and the legislative history of provisions defining “child,” we have consistently interpreted the State intestacy law provisions of section 216(h)(2)(A) as not applying to children legally adopted by the insured individual….In the present §404.354, we state that a child may be related to the insured as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. In §404.355, we explain the conditions for eligibility as a natural child, which include applying State inheritance law, and in §404.356 we state the requirement for eligibility as a legally adopted child.
Id. (emphases added). By the very strong language of these final rules, SSA has stated unequivocally its longstanding policy that, for purposes of determining “child” status, it applies the state inheritance laws described in section 216(h)(2)(A) of the Act to natural children, and state adoption laws to legally adopted children. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845 (1984) (agency’s interpretation of an ambiguous statute which it administers may be entitled to substantial deference). The agency has incorporated this policy in its regulations at 20 C.F.R. §§ 404.355 and 404.356, respectively. We were unable to find a provision in the POMS that addresses this issue. We believe it may be helpful for the agency to implement a substantive POMS provision incorporating language similar to that in the regulations and the comments to the regulations to clarify this point.
There are numerous precedential opinions that determine an applicant’s status as a legally adopted child by applying state adoption laws. See, e.g., POMS PR 01310.016(B) (PR 05-129), PR 01310.016(C) (PR 04-232), PR 01310.016(D) (PR 04-046), PR 01310.017(A) (PR 08-094), PR 01310.017(B) (PR 05-071), PR 01310.025(A) (PR 02-030), PR 01310.039(A) (PR 04-130), PR 01310.055(A) (PR 02-118).
Since an applicant’s relationship as a natural child of an insured individual is established by showing he could inherit the insured’s personal property as the insured’s child under state inheritance laws, it follows that when the parental rights of a natural parent are terminated, we consider how that affects the child’s inheritance rights. By the same reasoning, since an applicant’s relationship as a legally adopted child of an insured individual is established by showing he was legally adopted by the insured under state adoption laws, it follows that when the parental rights of an adoptive parent are terminated, we consider how that affects the child’s status as the legally adopted child of the adoptive parent.
Thus, when determining whether an adopted child is eligible for child’s benefits in a case where the adoptive parent’s parental rights have been terminated, the question is whether the child is still considered the legally adopted child of the adoptive parent under state law. Here, we are looking only at initial entitlement, i.e., whether termination of the parent-child relationship prior to an application for child’s benefits on the account of the adoptive parent would preclude an award of benefits. If, however, the child is already receiving benefits on the adoptive parent’s account, termination of the adoptive parent’s parental rights is not a terminating event that would end the child’s entitlement. See POMS RS 00203.035(B)(3) (entitlement ends only if adoption is annulled). As outlined below, in all six states in Region V, an adopted child is conferred the same legal status as a natural child. Also, termination of parental rights completely and permanently severs the parent-child relationship. Thus, we conclude that, under the laws of all Region V states, a court order terminating the parental rights of an adoptive parent effectively terminates the adoptive parent-child relationship such that the child is no longer the legally adopted child of the adoptive parent.
Illinois: Once adopted, a child attains the status of a natural child of the adoptive parents. See In re M.M., 619 N.E.2d 702, 708 (Ill. 1993). Upon a court order terminating parental rights, parents are relieved of all parental responsibility for the child and are deprived of all legal rights as respects the child. See 705 Ill. Comp. Stat. 405/2-29(2) (Juvenile Court Act); 750 Ill. Comp. Stat. 50/17 (Adoption Act). From the child’s perspective, the parent whose parental rights have been terminated no longer exists, and the situation is as if parent has died. See In Interest of C.B., 583 N.E.2d 107, 108 (Ill. App. Ct. 1991).
Indiana: Upon adoption, an adoptive parent becomes “the actual parent of the child.” Lipginski v. Lipginski, 476 N.E.2d 924, 927 (Ind. Ct. App. 1985). A court order terminating parental rights has the effect of permanently terminating “all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, parenting time, or support” pertaining to the parent-child relationship, and the parent’s consent to the child’s adoption is not required. See Ind. Code § 31-35-6-4(a).
Michigan: Adoptive parents are treated as though they are the birth parents of the adoptee under the law. Mich. Comp. Laws § 710.60(1). If a person’s parental rights are terminated by the court, the child is placed in the permanent custody of the court and is legally available for adoption. See Mich. Comp. Laws §§ 710.41, 712A.19b(1). The state foster care program places and supervises children who are permanent court wards. See Mich. Dep’t of Human Servs., Foster Care Program, http://www.michigan.gov/dhs/0,1607,7-124-5452_7117-14769--,00.html (last visited Jan. 10, 2011). The former parent is not obligated to pay child support or to reimburse the state for foster care expenses. See Mich. Comp. Laws § 712A.18(2) (parent reimbursement provision does not apply when child is in permanent custody of court).
Minnesota: Adoption creates a legal parent-child relationship with all the rights and duties of birth parents and legitimate child. Minn. Stat. § 259.59 (subd. 1). “Upon the termination of parental rights all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent shall be severed and terminated and the parent shall have no standing to appear at any further legal proceedings concerning the child.” Minn. State. §260C.317, subd. 1.
Ohio: An adopted child is legally considered as if he were a legitimate blood descendant of the adoptive parents. Ohio Rev. Code § 3107.15(A)(2). Once a person’s parental rights are terminated, permanent custody of the child vests in the public children services agency (PCSA) or private child placing agency (PCPA). See Ohio Rev. Code §§ 2151.353, 2151.414, 2151.415; In re C.T., 895 N.E.2d 527, 530-31 (Ohio 2008). The PCSA/PCPA places children in substitute care (i.e., foster care) or adoptive placement. See Ohio Admin. Code §§ 5101:2-42-04, 5101:2-42-05, 5101:2-48-16(V); Ohio Dep’t of Jobs & Family Servs., Foster Care, http://jfs.ohio.gov/ families/foster_care/index.stm (last visited Jan. 12, 2010). The former parent is not obligated to pay for the cost of care incurred while the child is in the permanent custody of the PCSA/PCPA. See Ohio Admin. Code §§ 5101:2-42-09(J) (permanent custody by voluntarily surrender), 5101:2-47-21(C)(1)(e) (provision for reimbursement by federal government under Title IV-E of Social Security Act).
Wisconsin: Adoption creates the same legal parent-child relationship as a natural parent-child relationship. Wis. Stat. § 48.92(1). “Termination of parental rights” is defined as “pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed.” Wis. Stat. § 48.40(2). “An order terminating parental rights permanently severs all legal rights and duties between the parent whose parental rights are terminated and the child. . .” Wis. Stat. § 48.43(2).
For the reasons discussed above, we conclude that, under the laws of all six states that comprise Region V, after an insured individual’s parental rights have been terminated with respect to his adopted child, the child is no longer a legally adopted child of the insured. Accordingly, the child would not be eligible for child’s benefits on the insured’s account.
Donna L. C~
Regional Chief Counsel, Region V
Assistant Regional Counsel