TN 6 (10-07)

PR 01805.011 Florida

A. PR 11-002 Effect of Claimant’s Adoption by Claimant’s Grandparents on Claimant’s Eligibility for Child’s Insurance Benefits on the Number Holder’s Earnings Record – Florida Number Holder – Marie E~ Claimant – Lunadica E~

DATE: October 1, 2010

1. SYLLABUS

Florida law prevents a child from inheriting from a parent whose parental rights were terminated. However, under Florida law where a natural parent has died prior to the termination of any parental rights, and certain close relatives of the child, such as the child’s grandparents, thereafter adopts the child, the adoption does not affect the child’s inheritance rights from and through the deceased parent. In this case, the death certificate provided shows that the NH died on September 3, 2006, prior to the termination of her parental rights. A Florida court issued an order and judgment terminating NH’s parental rights (and the parental rights of claimant’s father) on October 26, 2006 which was after the NH's death. Therefore, the claimant’s inheritance rights from and through NH remained intact under Florida law the claimant is the number holder’s child for the purposes of child’s insurance benefits (CIB).

2. OPINION

QUESTION

You have asked whether the claimant, the number holder’s biological child, is the child of the number holder for the purposes of child’s insurance benefits when, after the number holder’s death, a state court terminated the number holder’s parental rights and the claimant’s grandparents adopted her.

OPINION

We believe the claimant is the number holder’s child for the purposes of child’s insurance benefits (CIB). Even though the claimant’s grandparents adopted her after the state court terminated the number holder’s parental rights, which occurred after the number holder’s death, the claimant would be able to inherit the number holder’s intestate personal property under Florida law, notwithstanding the termination of parental rights.

BACKGROUND

According to the information provided, Marie E~, the number holder (NH), gave birth to Lunadica E~ (Claimant) on September 5, 2002, and Social Security Administration (SSA) records indicate NH is claimant’s biological mother. NH died on September 3, 2006. NH’s death certificate indicates her domicile as Florida at the time of her death. Although proceedings to terminate NH’s parental rights apparently began before her death, a Florida court issued an order and judgment terminating NH’s parental rights (and the parental rights of Claimant’s father) on October 26, 2006, nearly two months after NH died. On November 27, 2006, the court granted the petition of Claimant’s maternal grandparents to adopt Claimant. On July 22, 2010, Claimant’s adoptive mother applied on Claimant’s behalf for CIB on NH’s earnings record.

DISCUSSION

To qualify for CIB on the earnings record of an insured individual who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2010). “Child” includes, among others, the natural child or adopted child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2010). A claimant may establish that she was an insured individual’s natural child by showing she could inherit the insured individual’s intestate personal property under the applicable State law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1) (2010). To determine the claimant’s inheritance rights, SSA applies the law of the State where the insured had his or her permanent home at the time of his or her death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4) (2010). In this case, NH’s death certificate shows she resided in Florida at the time of her death; thus, Florida law applies.

We believe Claimant would be able to inherit NH’s personal property under Florida intestacy law. Florida law states for the purposes of intestate succession that an adopted person is the descendant of the adopting parent and generally is not the descendant of his or her natural parents. See Fla. Stat. Ann. § 732.108(1) (2010); Program Operations Manual System (POMS) GN 00306.170. However, where a natural parent has died prior to the termination of any parental rights, and certain close relatives of the child, such as the child’s grandparents, thereafter adopt the child, the adoption does not affect the child’s inheritance rights from and through the deceased parent. See Fla. Stat. Ann. §§ 63.172(2), 732.108(1)(c) (2010). The documents provided show NH died in September 2006, prior to the termination of her parental rights on October 26, 2006. Claimant’s grandparents then adopted Claimant on November 27, 2006. Therefore, Claimant’s inheritance rights from and through NH remained intact under Florida law. See Fla. Stat. Ann. §§ 63.172(2), 732.108(1)(c). To the best of our knowledge, no Florida case law suggests Florida’s adoption or intestacy statutes would apply differently to Claimant’s case.

CONCLUSION

We believe Claimant would be able to inherit NH’s intestate property under Florida law because her natural mother died before a court terminated her parental rights, and Claimant’s grandparents adopted her. Thus, Claimant would be NH’s child for the purposes of CIB on NH’s earnings record.

Sincerely,

Mary A. S~
Regional Chief Counsel

By:_____________
Natalie L~
Assistant Regional Counsel

B. PR 07-215 Termination of Parental Rights, Florida Number Holder - Robert C. K~ Claimant - Kerry M. K~

DATE: September 14, 2007

1. SYLLABUS

Under the laws of Florida a child cannot inherit from a parent whose rights were terminated. If the child was receiving benefits prior to the termination of rights, the rules of reopening would apply to any effort to terminate Social Security entitlement.

2. OPINION

QUESTION

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.

ANSWER

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.

FACTS

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.

DISCUSSION

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).

CONCLUSION

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

By:
Laurie G. R~
Assistant Regional Counsel


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http://policy.ssa.gov/poms.nsf/lnx/1501805011
PR 01805.011 - Florida - 10/06/2010
Batch run: 10/06/2010
Rev:10/06/2010