You have asked whether a Florida circuit court order terminating the paternal rights
of the number holder with regard to the child claimant effectively terminated the
parent-child relationship between the two and ended the claimant's right to receive
benefits on the number holder's earnings record.
The Florida court order severed the parent-child relationship between the number holder
and the claimant and terminated the claimant's right to receive benefits on the number
holder's earnings record. If number holder requested termination of benefits within
four years of an initial determination favorable to the claimant, the case can be
re-opened and benefits terminated.
According to the information we received, Robert C. K~, the number holder (NH), submitted
a January 16, 2007 order from the Circuit Court of the Fifth Judicial Circuit In and
For Hernando County, Florida. The order purported to terminate NH's parental rights
to Kerry M. K~ (Claimant), his adopted child. Based upon the order, NH requested that
Claimant be removed from his account. The order was based on an agreement between
NH and Claimant's mother and the testimony of the parties.
To qualify for child's benefits on the earnings record of an insured individual, a
claimant must be that individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1)
(2007). "Child" is defined as the child, adopted child or stepchild of an insured
individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2006). To establish her status
as the adopted child, Claimant must qualify as NH's adopted child under the adoption
laws of the state or foreign country where the adoption took place. See 20 C.F.R. § 404.356 (2007). Claimant must further show that she was dependent upon
the insured. 20 C.F.R. § 404.360 (2007). A claimant who was legally adopted by the
insured before he or she became entitled to benefits is considered dependant upon
the insured. 20 C.F.R. § 404.362(a) (2007). The information we received does not show
whether Claimant was validly adopted in Florida by NH or whether Claimant was adopted
before NH became entitled to benefits. If Claimant is receiving benefits on NH's account,
this determination may already have been made.
Whether the adoption was valid or not, the court's order effectively terminated any
relationship between the NH and Claimant. See Ponton v. Tabares, 711 So. 2d 125 (Fla. 1998) (where father executed voluntary consent to termination
of parental rights he no longer had a parental relationship to the child and had no
obligation to support the child). A termination of parental rights ends a parent-child
relationship. Id. When the legal relationship is severed, a child is no longer considered a lineal
descendant of a parent to inherit via intestate succession. See In re Estate of Mooney, 395 So.2d 608, 6609 (Fla. App. 1981). In Ponton, the court declined a request to recommend to the legislature that Florida law be
changed so that a parent's support obligation would continue after termination of
parental rights. 711 So. 2d at 126. The court reasoned that the rights of the child
were better served by a total severance of all ties to the terminating parent than
retaining the right to receive support. Id. Representation of the child by a guardian ad litem is not required in a voluntary
termination of parental rights in Florida. See FLA. R. JUV. P. FORM 8.984. Accordingly, we believe the court order terminating NH's
parental rights was valid.
The facts we received do not permit us to determine whether a previous entitlement
determination favoring Claimant, if there was such a determination, can be re-opened.
The Agency's regulations provide several options for reopening a determination favorable
to Claimant. First, the regulations provide that a determination, revised determination,
decision, or revised decision may be reopened for any reason within 12 months of the
date of the initial determination. See 20 C.F.R. § 404.988(a). Thus, the Agency may reopen a determination made less than
twelve months before receiving NH's request to re-open based upon the Florida court
order terminating his relationship with Claimant.
Should the Agency be unable to reopen the favorable determination because more than
12 months have elapsed between the determination and NH's request, the regulations
permit the Agency to reopen a determination within four years of the initial determination,
provided there is good cause. See 20 C.F.R. § 404.988(b). The regulations provide that there is good cause to reopen
a determination or decision if "new and material evidence is furnished." 20 C.F.R.
§ 404.989(a)(1). In this case, the Agency has received a valid court order severing
NH's relationship with Claimant. Such evidence would most certainly qualify as "new
and material evidence," and thus, the Agency could find "good cause" to reopen the
initial favorable determination in accordance with 20 C.F.R. § 404.988(b). Finally,
the regulations provide that a determination, revised determination, decision, or
revised decision may be reopened at any time if it was obtained by fraud or similar
fault. See 20 C.F.R. § 404.988(c)(1).
The Florida court order terminating NH's parental relationship with Claimant appears
valid. Accordingly, the order would provide a basis for reopening the determination
finding Claimant entitled to child's insurance benefits based on NH's record, as long
as the request followed any initial determination by no more than four years.
Mary Ann S~
Regional Chief Counsel
Laurie G. R~
Assistant Regional Counsel