PR 01320.039 Ohio
A. 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
B. PR 84-037 Effect Of Order To Vacate Previous Order Vacating A Valid Adoption Ohio -- Stephen S~,~
Where a child is adopted by her step-father on June 6, 1983, and on August 19, 1983, the court on motion of the step-father declared the June 6 order "null and void", an April 27, 1984 order issued by the court on its own motion vacating the August 19, 1983 order has the effect of reinstating the original adoption order and establishes the relationship as of the date of the original adoption decree thus nullifying inheritance rights of the child from her natural father as of that date. (S~ Stephen, ~-- RAV (A~), to ARC, Programs, 08/27/84.)
You have asked the legal effect of an order of court vacating a prior order of court vacating a valid adoption. As discussed herein, we conclude that Amy S~C~ is not entitled to Social Security death benefits on the account of Stephen S~ because from June 6, 1983, a date prior to the death of Stephen S~, Amy was the adoptive daughter of Gregory C~.
Stephen S~ died domiciled in Ohio on June 25, 1983. He had a natural child, Amy S~, who was born in the State of Maine on July 2, 1972. At the time of his death, Mr. S~ was divorced from Amy's mother and remarried to the mother of Stacy ~. Stacy S~ was born on January 23, 1976; and decedent legally adopted her on May 22, 1981.
On June 6, 1983 Amy S~ was adopted by her stepfather, Gregory O~. According to the June 6 final decree of adoption, Amy S~ became Amy C~. There is no dispute as to the validity of the adoption.
On July 11, 1983, some weeks after Mr. S~'s death, Mr. C~ moved the probate court to vacate the final order of Amy"s adoption. On August 19, 1983, the probate court granted Mr. C~’s motion and vacated Amy's adoption. The consequent order, entered by the probate court on August 29,
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Final Decree of Adoption filed June 6, 1983, is null and void ....
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a Certified Entry along with the "new" birth certificate of Amy L. C~ be sent to the State of Maine..., and that the original birth certificate be recertified as the true and correct birth certificate for Amy L. S~.
On September 8, 1983 D. D. (S~) C~ , Amy's mother, filed an application for child's insurance benefits on the account of Stephen S~.
Upon being notified of a reduction in benefits for herself and Stacy due to Amy's qualifying for child"s benefits, Paulette S~, the wage earner's widow, filed with the probate court a motion for relief from judgment. By her motion Mrs. S~ sought to reinstate the original adoption of Amy by Mr. (according to a March 27, 1984 letter from her attorney to GLPSC).
In a memorandum opinion dated April 9, 1984 the probate court found that Mrs. S~ lacked standing to attack the vacation of the adoption, but it reconsidered the vacation on its own motion. The court concluded that it had had jurisdiction to vacate the adoption. However, it also concluded that its reasons for vacating Amy"s adoption were inappropriate. The court therefore granted the relief from judgment requested. The court ruled in pertinent part:
[I]t is further ORDERED that the adoption of June 6, 1983, be, and hereby is, reinstated and restored as the Final Order of Adoption of Amy L. C~ and further ORDERED that all birth records associated with the original adoption decree shall be restored to finalize the adoption of Amy L. C~.
This order is dated April 27, 1984 (according to a May 15, 1984 letter from Amy's attorney to the SSA).
Your question about Amy's entitlement to benefits on Mr. S~'s account is best answered by analyzing, chronologically, the effect of each of the three orders of the probate court. This analysis is accomplished by reviewing the language and intent of each of these orders.
The June 6, 1983 Order of Adoption
First, the order of adoption decreed that as of its date, June 6, 1983, Amy L. S~ became Amy L. C~). As you note in your memorandum to us, "the adoption proceeding was without defect and the adoption was valid." Consequently, as of June 6, 1983 Amy acquired rights to Mr. C~'s estate and lost all rights to Mr. S~'s estate. Ohio Rev. A final decree of adoption...shall have the following effects...:Code §3107.15(A). Therefore, we may conclude that on Stephen S~'s date of death, June 25, 1983, Amy was Amy C~ and not an heir of Stephen S~
The August 19, 1983 Order Vacating the Adoption
On August 19, 1983 the court declared its June 6 order of adoption to be "null and void" and ordered that Amy S~’s original birth certificate be "recertified" to the appropriate agency of the state of her birth, Maine. Since such recertification would have had the effect of removing any public record of Amy S~'s having been adopted by Gregory Carpenter (other than the adoption order itself which the court declared to be "null and void"), we must conclude that as of August 19, 1983 Amy was legally, and as a matter of law always had been, Amy S~, natural child of Stephen S~. That conclusion is buttressed by the court"s stated intention in vacating the adoption order to render Amy the heir of Stephen S~. Consequently, on August 19, 1983, Amy was considered to have been the child of Stephen S~ on the date of his death, June 25, 1983. As discussed below, however, the April 27, 1984 order nullified the August 19, 1983 order and its effect on the June 6 order of adoption.
The April 27, 1984 Order Vacating the August 19, 1983 Order
We now turn to the effect of the order of April 27, 1984. That order directed "that the adoption of June 6, 1983 be, and hereby is, reinstated..." (emphasis added). It also directed "that all birth records associated with the original adoption decree...be restored..." (emphasis added). Similarly, the words of the court"s April 9, 1984 memorandum are, "the court...orders the adoption of June 6, 1983 reinstated and of full effect." We discern from this language, and from the court's discussion of its reasons for vacating the August 19 order (particularly that restoring rights of inheritance at the expense of a parent-child relationship was not necessarily in Amy's best interests), that the court intended in April, 1984 to undo any effect of its August 19, 1983 order. In other words, we conclude that in April, 1984 the court intended that Amy be considered to have been Amy C~ from June 6, 1983, and continuously thereafter.
If we were to conclude otherwise, that this last order meant that Amy became Amy C~ only as of April 27, 1984, then, to be consistent, since the original adoption order is concededly valid, we also would have to conclude that she had become Amy S~ again only as of August 19, 1983 - nearly one month after Stephen"s death and too late to claim benefits on his account. See note 2, supra. In other words, it appears that no matter how we analyze the facts, if we analyze them consistently Amy must be found to be ineligible for benefits on Stephen S~'s account.
We believe that the court's April 27, 1984 order was intended to declare Amy to be the adoptive daughter of Gregory C~ as of June 6, 1983. If the court did not have jurisdiction so to declare, it equally lacked jurisdiction to vacate the adoption in the first place. No matter how we analyze the facts, we must conclude that Amy was, on the date of her natural father"s death, the adoptive daughter of Gregory
C. PR 82-022 Inheritance Rights - Ohio: Maxine R. V~, SSN ~
DATE: July 9, 1982
INHERITANCE RIGHTS — By An Adopted Child — Illinois SYLLABUS
Barring any evidence of relinquishment or forfeiture of rights by a natural parent, adoption of a child by a step-parent who is the spouse of the natural parent neither affects or terminates the rights and obligations of the natural parent to the child, nor extinguishes the inheritance rights as between the natural parent and child. (V~, Maxine R. - ~ - RA V (E~) OGC to ARC - 7/9/s2)
You have inquired in your memorandum concerning the above captioned matter as to whether Randall L. G~ (hereafter Randall) has retained "inheritance rights from his natural mother" despite his adoption by Richard L. G~, his mother's husband (i.e., Randall's stepfather). The pertinent facts as we understand them, based on our review of the three documents with which you have provided us (i.e., memorandum dated 3/18/81 from District Office, Lima, Ohio; Application for Child's Insurance Benefits; and Randall's birth certificate), are as follows: Randall was born to Maxine V~ (nee E~ ) on October 13, 1964. We have no information whatsoever concerning the natural father. Sometime following Randall's birth, his mother (Maxine) married Richard L. G~, who subsequently allegedly adopted Randall. 1/
Adoption is a legal proceeding by means of which the relationship of parent and child is created between persons who are not so related by nature. In re Adoption of G~, 63 Ohio Misc. 22, 409 N.E.2d 1067 (1980). Pursuant to Ohio law, the effect of adoption is:
(A) * * * (1) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological or other legal parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and his relatives, including his biological or other legal parents, so that the adopted person thereafter is a stranger to his former relatives for all purposes including inheritance . Ohio Rev. Code Ann. section 3107.15 (Page) (emphasis added).
This statutory language clearly indicates, barring any evidence of the relinquishment or forfeiture of the rights of a natural parent, that adoption of a child by a stepparent (i.e., the spouse of a natural parent) neither affects or terminates the rights and obligations of the natural parent to the child, nor extinguishes the inheritance rights as between the natural parent (i.e., the spouse of the adopting parent) and the child. See Mancino v. Smith, 201N.E.2d 93 (1964). Thus, in the present case, there being no evidence or indication that Maxine V~ either relinquished or forfeited her rights as Randall's natural parent, we have concluded that Randall's right to inherit from and through his mother has not been affected by his adoption by Richard L. G~ .
Furthermore, in light of the aforementioned statutory language, we do not believe it is necessary to submit for our consideration and review cases which simply involve adoption of a child by a stepparent (i.e., the spouse of the natural parent). (See POMS section GN 00306.300, formerly CM section 2435.5.) You should, however, continue to submit matters involving more complicated factual situations or those in which there is reason to believe that the natural parent's rights may have been terminated.
1/ We have not seen or reviewed any of the papers filed by or, with the court in connection with the aforementioned alleged adoption.
This provision states, in pertinent part: 1) ...to relieve the biological...parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and...his biological... parents...for all purposes including inheritance ....
If we were to construe the August 19 order as affecting Amy's status. only as of that date, August 19, undoing but not nullifying the adoption, then our Inquiry would end without any analysis of the April 27, 1984 order. In that case we would simply conclude that on June 25, 1983, the date of Mr. S ~'s death, Amy was Amy C~, adoptive daughter of Gregory C~, and ineligible to make any claim on the account of Stephen S~.
We cannot, however, conclude that the August 19 order was void from its inception. The court specifically held in its April 9, 1984 memorandum opinion that the August 19 rescission of the adoption was within its jurisdiction. Nevertheless, if the court had jurisdiction to nullify the June 6 adoption order, it similarly had jurisdiction to rescind that nullification and restore the June 6 adoption order as if it never had been avoided. Thus, with respect to the question whether the August 19 order was void or voidable, what is controlling is that when a court avoids a judgment that judgment becomes of no force and effect, regardless of whether it was valid at the outset. Cf. City of Marion v. Sickles, 152 N.E.2d 813, 817 (Ohio App. 1957) (quoting 92 C.J.S. "Void" at p. 1023) ("The natural meaning of the word "voidable" imports a valid act which may be avoided...and thus that which is voidable operates to accomplish the thing sought to be accomplished until the fatal vice in the transaction has been judicially ascertained and declared").