TN 1 (10-10)

PR 01705.054 West Virginia

A. PR 11-001 Whether a Parent-Child Relationship Exists Between the Number Holder (Charles R. H~) and Sebrena A. H~, SSN: ~

DATE: March 4, 1999

1. SYLLABUS

Under West Virginia law various entrustment agreements through which the number holder terminated his/her parental rights as an adoptive parent over a child constitute an “annulment” of the child’s adoption. .

2. OPINION

INTRODUCTION

This memorandum is in response to your request for our opinion whether Sebrena A. H~ (Sebrena), who was an adoptive child of Charles R. H~ (number holder) until the number holder terminated his parental rights, can be established as child of the number holder under the Social Security Act, and if so, whether she would be eligible for child’s benefits on the number holder’s account as of September 29, 2002, twelve months prior to her Supplemental Security Income (SSI) application of September 29, 2003. Based on the evidence provided to us and our research, it is our opinion that the various entrustment agreements signed by the number holder do not eliminate Sebrena’s status as a “child” of the number holder and do not prevent her from recovering benefits on his earnings record as of September 29, 2002.

BACKGROUND

In or around June 1987, Sebrena was adopted by the number holder and his wife, Patricia H~. The number holder and Patricia H~ signed a voluntary entrustment agreement entrusting Sebrena into the care and custody of the Bedford County, Virginia Department of Social Services on January 12, 2000. The Bedford Juvenile and Domestic Relations District Court approved that agreement on May 16, 2000. The number holder and the County entered an Entrustment Agreement for Permanent Surrender of Child February 28, 2002. An order for Voluntary Termination of Residual Parental Rights was entered on July 23, 2002. Sebrena had no subsequent adoption.

The number holder filed an application for disability benefits on October 29, 2002. He was found to be disabled under the Act with an onset date of March 1, 2000, and an entitlement date of October 2001. He did not name Sebrena as his child on his disability application. Sebrena filed a Title XVI application for SSI on September 29, 2003. There was no application for benefits on the number holder’s record until Sebrena filed an application for Childhood Disability Benefits (CDB) on May 3, 2010.

DISCUSSION

Because Sebrena is seeking Child’s benefits (CIB) on the number holder’s account, the threshold question is whether she qualifies as the number holder’s child as that term is defined under the Social Security Act (the Act). The Act and its implementing regulations provide that CIB may be granted based on the earnings record of an insured individual who is entitled to disability benefits if the applicant is (1) the insured’s child, (2) dependent on the insured, (3) unmarried, and (4) under eighteen years of age. Social Security Act § 202(d)(1); 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2010). A “child” includes an adopted child. Social Security Act § 216(e); 42 U.S.C. § 416(e); 20 C.F.R. § 404.359 (2010). Section 216(h) of the Act provides the analytical framework that the Agency must follow for determining whether a child is the “child” of a number holder. See Section 216(h); 42 U.S.C. § 416(h) (2010). When a number holder is living, Section 216(h)(2)(A) directs the Agency to “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” Social Security Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A) (2010). Because the number holder is currently domiciled in West Virginia, that state’s laws apply to any benefits based on her May 3, 2010 application. Because the materials provided do not clearly indicate where the number holder was domiciled at the time of Sebrena’s September 29, 2003 SSI application, 1 and because the various entrustment agreements entered into near that date suggest that the number holder was then domiciled in Virginia, we have included an analysis of Virginia state law. If Sebrena cannot establish that she is the number holder’s “child,” as defined by the Act, she cannot qualify for CIB on the number holder’s earnings record.

  1. The Entrustment Agreements Will Not Prevent Sebrena From Recovering Benefits On The Number Holder’s Record Under Relevant West Virginia Law.

We believe that the entrust agreements signed by the number holder, terminating his parental rights over Sebrena, will not prevent Sebrena from recovering benefits on the number holder’s record. As noted above, adopted children are explicitly included as eligible CIB recipients so long as they meet the other requirements of the statue. Social Security Act § 216(e); 42 U.S.C§ 416(e) (2010). Similarly, under West Virginia law, adopted children generally hold rights of inheritance from their adoptive parents. W. Va. Code § 48-22-703(a) (2010). POMS RS 00203.035 states that entitlement to CIB based on a legal adoption will terminate of if the adoption is annulled, and that the effective date of termination is the month in which the annulment becomes effective. However, POMS GN 00306.001(C)(6) states that when the number holder's parental rights with respect to a child have been terminated, and the child has not been adopted by someone else, the child does not necessarily lose inheritance rights with respect to the number holder under State law.

Under West Virginia law, an order of adoption is a final order than can be appealed to the West Virginia Supreme Court of Appeals. W. Va. Code § 48-22-704(a) (2010). Unless an appeal is filed within six months of the date of the adoption order, the adoption may not be vacated on any grounds. W. Va. Code § 48-22-704(b) (2010). 2 Based on the information you provided, there is no evidence that Sebrena’s adoption was ever challenged. The subsequent entrustment agreements were not attacks on the validity of the original adoption. Furthermore, as no appeal of the adoption was taken within the six-month appeal period, the initial adoption order became an unappealable final judgment that cannot be vacated. W. Va. Code § 48-22-704(b) (2010). Accordingly, the entrustment agreements do not constitute an “annulment” of Sebrena’s adoption under West Virginia law.

In a similar case, the Agency considered the effect of a second adoption on an adopted child’s continued entitlement to benefits. In that matter, which also arose out of West Virginia, the Agency determined that because the second adoption did not annul the original adoption, the child continued to be entitled to benefits based on his former adoptive parent’s earnings after the second adoption, and specifically noted that under West Virginia law an adoption can be revoked or annulled only on appeal during the statutory six-month period or on the adopted minor’s own petition filed within twelve months of her reaching majority age. See SSR 91-6. Neither of those actions were taken and, accordingly, the child was able to receive benefits from his original adoptive parent even though the subsequent adoption terminated all parental rights of his original adoptive parent. SSR 91-6; W. Va. Code § 48-22-703(a) (2010).

We believe that the entrustment agreements in this case do not constitute an “annulment” of Sebrena’s adoption as that term is defined under West Virginia law. Therefore, we believe that if Sebrena is otherwise qualified under the Act to receive benefits on the number holder’s record, the entrustment agreement will not bar her from receiving those benefits for any applications she filed while the number holder was domiciled in West Virginia.

  1. The Entrustment Agreements Will Not Prevent Sebrena From Recovering Benefits On The Number Holder’s Record Under Relevant Virginia Law.

Virigna law generally provides that, absent any specific contrary provision in the agreement, an order terminating residual parental rights terminates the rights of the parent to take from the child, but “shall not otherwise affect the rights of the child . . . to take from or through the parent[.]” Va. Code Ann. § 64.1-5.1(5) (2010). The entrustment agreements in this case contain no specific provision addressing either party’s taking or inheritance rights, and, accordingly, would not prevent Sebrena from taking CIB based on the number holder’s record. Therefore, the relevant question is which, if any, of the various entrustment agreements signed by the number holder constitutes an annulment of Sebrena’s adoption under Virginia law.

Virginia’s law regarding the finality of adoption decrees mirrors the West Virginia law described above Va. Code Ann. § 17.1-405(3)(g) (2010). But if no such appeal is filed within six months of the entry of a final order of adoption, then the adoption becomes final for all purposes and shall not be subject to attack “for any reason.” Va. Code Ann. § 63.2-1216 (2010). As noted above, based on the information you provided, there is no evidence that Sebrena’s adoption was ever challenged, let alone challenged within the six-month appeals period allowed under the Virginia statute. As further noted above, the subsequent entrustment agreements in this case were not attacks on the validity of the original adoption. Therefore, the entrustment agreements are not “annulments” of the original adoption under Virginia law.ove. Under Virginia law, an adoption may be appealed to the Virginia Court of Appeals.

We believe that the entrustment agreements in this case do not constitute an “annulment” of Sebrena’s adoption as that term is defined under Virginia law. Therefore, we believe that if Sebrena is otherwise qualified under the Act to receive benefits on the number holder’s record, the entrustment agreement will not bar her from receiving those benefits for any applications she filed while the number holder was domiciled in Virginia.

3. Date of Entitlement.

The regulations provide that if the number holder is living and the first month of the entitlement is September 1981 or later, a child is entitled to benefits beginning with the first month covered by her application in which the child meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(2) (2010). Sebrena met the requirements as of as of October 2001, the number holder’s DIB entitlement date. However, the child was not “covered by” an application until it was filed on September 29, 2003. The regulations further provide that a child may receive retroactive benefits based on the earnings record of a person entitled to disability benefits for up to twelve months preceding the date of the application if all other requirements are met. 20 C.F.R. § 404.621(a)(1). Therefore, benefits may be paid retroactively for twelve months prior to September 29, 2003. 3 See POMS GN 00204.030(B)(5). See POMS GN 00204.030(B)(5).

CONCLUSION

For the reasons stated above, it is our opinion that none of the various entrustment agreements through which the number holder terminated his parental rights over Sebrena constitute an “annulment” of Sebrena’s adoption under Virginia or West Virginia law. Therefore, Sebrena is considered the number holder’s child for purposes of the Social Security Act and eligible to receive benefits on his earnings record if she is otherwise qualified under the Act as of September 29, 2002. See Sections 216(h)(2)(A); 402(d)(1).

Eric K~

Regional Chief Counsel

By:______________________

Adam S~


Footnotes:

[1]

The provided materials indicate that the Agency had only one conversation with the number holder’s wife and that since that contact, the number holder has refused to cooperate or communicate with the Agency.

[2]

An exception to the general six-month appeals period is that the adopted minor herself can petition to vacate the adoption within twelve months of attaining majority. W. Va. Code§ 48-22-704(g). There is no evidence in the materials that Sebrena ever filed such a petition.

[3]

While Sebrena’s September 2003 application was solely a Title XVI SSI application, not a Title II Childs Benefits application, POMS SI 00601.035 states “when a claimant .