PR 01805.012 Georgia
A. PR 09-182 Impact of Surrender of Parental Rights on Eligibility of Children – Georgia
DATE: September 28, 2009
In Georgia, while the Number Holder's surrender of rights ends all parental rights, the child retains all rights, including the right to inherit, until he is adopted by someone else.
You asked whether two child claimants may be eligible for child's insurance benefits on the record of the number holder who signed a surrender of parental rights/release for adoption prior to the date she was found entitled to disability insurance benefits where the children were adopted by another individual after the number holder's date of entitlement.
We believe the children are eligible for child's insurance benefits on the record of the number holder. We believe a Georgia court would likely find that the number holder's surrender of parental rights did not cut off the children's intestate inheritance rights prior to adoption.
According to the materials provided, Terrie B~, the number holder (NH), filed for disability benefits on August 23, 2006. NH listed two children on her application, James W. B~ and Jessica L. B~ (C1 and C2). The Social Security Administration (SSA) approved NH's claim in March 2009, with August 2005 as the date of entitlement. NH signed documents titled "Surrender of Rights/Final Release for Adoption" for each child on June 21, 2005. These documents did not purport to cut off inheritance rights of the children or obligations from NH to the children, but only surrendered NH's control and rights over the children. By decree dated September 21, 2005, the Hart County, Georgia, Superior Court approved the adoption of C1 and C2 by the wife of their biological father.
To qualify for child's insurance benefits on the earnings record of an insured individual who qualifies for disability insurance benefits, a claimant must be the insured individual's "child." See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2009). "Child" may include the natural child, adopted child, or stepchild of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2009). One way to determine whether a claimant is an insured individual's child for purposes of Title II is for a claimant to show he would be entitled to a share of the insured individual's intestate personal property under the law of the state in which the insured individual was domiciled at the time the application was filed. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2009). NH was domiciled in Georgia at the time of C1 and C2’s application for child's insurance benefits on NH's record. Therefore, Georgia law applies in determining whether C1 and C2 are the children of NH for the purpose of intestate succession under section 216(h)(2)(A) of the Act.
Under Georgia law, a child of an individual who dies without a will is entitled to a share of the decedent's estate. See Ga. Code Ann. § 53-2-1(c)(1) (West 2009); see also Ga. Code Ann. § 53-1-2(9) (West 2009) (defining "heir" as an individual who survives the decedent and is eligible to inherit the property of the decedent not disposed of by will). Georgia law further provides that "a decree of adoption terminates all legal relationships between the adopted individual and his relatives, including his parent, so that the adopted individual thereafter is a stranger to his former relatives for all purposes, including inheritance . . . ." Ga. Stat. Ann. § 19-8-19(a)(1) (West 2009); see Ga. Stat. Ann. § 53-1-8 (West 2009) (Georgia inheritance statute referencing § 19-8-19 regarding the effect of a decree of adoption on rights of inheritance). This statute indicates the decree of adoption, issued September 1, 2005, rendered C1 and C2 no longer the children of NH for the purposes of intestate succession in Georgia.
However, SSA found NH entitled to disability insurance benefits as of August 2005, one month prior to the decree of adoption. Program Operation Manual System (POMS) GN 00306.165 states: "If the adoption occurred before the child's application is filed, but the application has retroactivity to a point before the adoption at which all entitlement requirements are met, the adoption has no effect on determining the child's entitlement." According to the information you made available, SSA established NH's application of August 23, 2006, as retroactive to August 2005 for entitlement.
The question then becomes whether NH's surrender of rights, signed June 21, 2005, before both her entitlement to benefits and the adoption decree, terminated the inheritance rights of C1 and C2 under Georgia law. Under the Act, the deciding factor is whether the child may continue to inherit under state intestacy law; the statute specifies the criterion as "the same status relative to taking intestate property as a child," not whether the individual is in fact a legal "child" under state law. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). Thus, the critical factor is terminating intestate inheritance rights, not terminating the parent-child relationship.
Under Georgia law, an unrevoked surrender of parental rights renders the surrendering natural mother no longer the legal mother. The relevant statute defines "legal mother" as "the female who is the biological or adoptive mother of the child and who has not surrendered or had terminated her rights to the child." Ga. Stat. Ann. § 15-11-2 (10.2) (West 2009). In regard to inheritance, "if a parent of a child dies without the relationship of parent and child having been previously terminated by court order or unrevoked surrender of parental rights to the child, the child's right of inheritance from or though the deceased parent shall not be affected by the adoption." Ga. Stat. Ann. § 19-8-19. However, a mother’s mere surrender of her parental rights does not mean that the child has no inheritance rights from his mother. On the contrary, Georgia case law indicates that further court action is necessary to terminate a child's inheritance rights.
We have not found any Georgia case law wherein a court applied the Georgia intestacy statute to a child seeking to inherit from a parent who had surrendered rights, but prior to any adoption of the child. However, a child's share to a parent's assets under the intestacy statute is a child’s right . See Ga. Code Ann. § 53-2-1(c)(1). Georgia law considers taking under the intestacy statute a form of support, as is made clear by the preference for the spouse or child to take from an estate ahead of other creditors for "support and maintenance." Ga. Stat. Ann. § 53-3-1(c) (West 2009). Generally, in support situations, Georgia courts preserve the right of the child to a parent's assets after a surrender of rights but before adoption. In Department of Human Resources v. Cowan, the Georgia Court of Appeals held that a father's surrender of rights and consent to adoption, where the adoption had not been finalized, did not relieve him of an obligation to pay child support. See 469 S.E.2d 384, 386 (Ga. Ct. App. 1996). A more recent case quotes Cowan with approval, while acknowledging the statutory language that a mother is no longer the "legal mother" after a surrender of rights. See In the Interest of A.C., 642 S.E.2d 418, 421 (Ga. Ct. App. 2007). "[A] parent cannot contract away the obligation to support her children. A court order is required to alter the statutory obligation of a parent to support her child." Id. Thus, we believe a Georgia court would not take away a child's right to avail himself of a biological parent's assets, including inheritance under the intestacy statute, simply because another statute declares that, after surrendering rights, the biological parent is no longer the legal parent.
These cases are consistent with Georgia case law showing that adoption is the event that cuts of the child's rights, not the surrender of rights prior to adoption. "The general intent of the Georgia adoption statute appears to be that the rights and obligations of a natural parent, and those of an adopting parent, to a child are not conclusively altered until the date of the final order of adoption." United States Fidelity and Guaranty Company v. Dunbar, 143 S.E.2d 663, 668 (Ga. Ct. App. 1965). "Although the trial court does give consideration to a surrender of parental rights in favor of a relative, the surrender is not in itself determinative on the ultimate issue of whether an adoption petition should be granted, which remains governed by the best interest of the child analysis." Owen B. W~, 674 S.E.2d 665, 667 n.7 (Ga. Ct. App. 2009).
The Georgia Supreme Court has explained the policy behind these rules:
The termination of parental rights is designed to protect a child who has been abandoned, deprived, or unsupported. An adoption does more. A new relationship between the child and the adopting parents is created. Old ties may interfere with the new relationship. . . . The former merely terminates the rights and obligations flowing between a parent and child. They remain parent and child. The latter alters their status. They are no longer parent and child.
Menard v. Fairchild, 328 S.E.2d 721, 727-728 (Ga. 1985). The Court's holding, "They remain parent and child," is in tension with the language of the current statute, which says that a surrender of right renders the birth mother no longer the legal mother. See Ga. Stat. Ann. § 15-11-2 (10.2). However, the underlying policy remains: a parent is not relieved of the obligation to provide for the child until another parent is in place. Because the surrender of rights does not sever the obligation of support, we don't believe the surrender would sever inheritance rights.
We conclude that NH's surrender of rights did not cut off the right of C1 and C2 to inherit from NH at the time of NH's entitlement to disability insurance benefits. Therefore, C1 and C2 are NH's children.
Very truly yours,
Mary A. S~
Regional Chief Counsel
Assistant Regional Counsel
B. PR 08-084 Child Status after Termination of Parental Rights
DATE: March 20, 2008
In Georgia, an order terminating parental rights "terminates all the parent's rights and obligations with respect to the child and all rights and obligations of the child to the parent arising from the parental relationship, including the rights of inheritance." Therefore, under Georgia law, the claimant is not entitled to a share of NH's intestate personal property and does not satisfy the requirements of section 216(h)(2)(A) of the Act.
You have asked whether the child claimant is the child of the deceased number holder for purposes of Title II survivor's benefits when a court terminated the number holder's parental rights.
For the reasons stated below, we do not believe the claimant qualifies as the number holder's child for purposes of Title II survivor's benefits.
At the outset, we note that the folder provided to us holds very little documentation. The file contains no birth, death, or marriage certificates. The only evidence sent with the request is a November 24, 1992, court order. Consequently, our opinion is premised on an adjudicator's determination that the facts are as described in your request, subsequent email communications, and the court order. Further development may be appropriate.
According to the information you provided, Johnny C~, the deceased number holder (NH), died while domiciled in Georgia. Bradley K. C~ (Claimant), NH's biological child, has applied for child's insurance benefits on NH's earnings record. A November 24, 1992, court order from the Juvenile Court of Stephens County, Georgia, terminated NH's parental rights in and to Claimant. The court referred to NH as Claimant's natural father and described Claimant as two years old, with a birth date of October 10, 1990. The court found NH had consented to termination of parental rights and termination of parental rights was in Claimant's best interest. The order specifically terminated all of NH's rights and obligations with respect to Claimant, and all rights and obligations of Claimant to NH arising from the parental relationship, including rights of inheritance.
To qualify for child's insurance benefits on the earnings record of an insured individual who has died, a claimant must be the insured 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" may include the natural 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 (2007). One way to determine whether a claimant is an insured individual's child for purposes of Title II is for a claimant to show he would be entitled to a share of the insured individual's intestate personal property under the law of the state in which the insured individual was domiciled at the time of his death. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2007).
NH was domiciled in Georgia at the time of his death. Therefore, Georgia law applies in determining whether Claimant was the child of NH for the purpose of intestate succession under section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4). Georgia law is clear. An order terminating parental rights "terminates all the parent's rights and obligations with respect to the child and all rights and obligations of the child to the parent arising from the parental relationship, including the rights of inheritance." GA. STAT. ANN. § 15-11-93 (West 2007). The Georgia Court of Appeals cited this statutory language, found at that time in GA. STAT. ANN. § 24A-3203 (1974), and concluded it was "a clear statement that the right of inheritance in case of intestacy ceases both as to the parent from the child and as to the child from the parent." Spence v. Levi, 211 S.E.2d 622, 624 (Ga. Ct. App. 1974), abrogated by Chancey v. Dep't of Human Res., 274 S.E.2d 728 (Ga. Ct. App. 1980). Therefore, under Georgia law, Claimant is not entitled to a share of NH's intestate personal property and he does not satisfy the requirements of section 216(h)(2)(A) of the Act.
Although a claimant who does not satisfy the requirements of section 216(h)(2)(A) will be deemed the child of an deceased insured individual if certain circumstances apply, those circumstances are not present here. Section 216(h)(2)(B) of the Act, which addresses legal impediments to otherwise valid marriages, is not relevant here. Section 216(h)(3)(C)(i)(I) allows a son or daughter of a deceased insured individual to be deemed that person's child if, during the insured person's lifetime, the insured person had acknowledged in writing that the applicant was his son or daughter. You have not provided any document that satisfies this requirement. Section 216(h)(3)(C)(i)(II) allows a son or daughter of a deceased insured individual to be deemed that person's child if, during the insured person's lifetime, a court had decreed the insured to be the applicant's son or daughter. You provided a court order that identified NH as Claimant's natural father. However, the subject of the court action was termination of parental rights, not determination of paternity. Nothing in the court order indicates the issue of paternity was litigated. Thus, we do not believe the court order satisfies section 216(h)(3)(C)(i)(II). See Social Security Ruling (SSR) 83-37c; Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973) (a State court order is convincing evidence only when, among other prerequisites, the relevant issue has been genuinely contested by parties with opposing interests). Sections 216(h)(3)(C)(i)(III) and 216(h)(3)(C)(ii) allow an applicant to be deemed an insured person's child under circumstances involving the insured person's living with or contributing to the applicant's support, which are not relevant when parental rights have been terminated. Claimant therefore would not qualify as NH's child under section 216(h)(3)(C) of the Act for the purposes of Title II benefits.
We believe Claimant is not NH's child for the purposes of survivor's benefits under Title II.
Very truly yours,
Mary A. S~
Regional Chief Counsel
Nancy R. B~
Assistant Regional Counsel
C. PR 05-138 Status of Child Adopted from Number Holder to Another Couple in Georgia Larry E. W~, Deceased Wage Earner, SSN ~ Bryan K. S~, Adopted Child of Ms. Myrtice D. S~ and Her Husband
DATE: February 8, 2005
In Georgia, except in the case of a step-parent adoption, a decree of adoption terminates all legal relationships between the adopted child and his former relatives, including his parents, so that the child is thereafter a stranger to his former relatives for all purposes including inheritance. Therefore, a child who is legally adopted from his biological parents cannot be entitled to survivor's benefits on his biological father's record.
The field office has requested through the regional Office of Management and Operations Support whether a child, who became adopted from his biological parents to another couple in Georgia, can obtain child's survivor benefits when the biological father dies.
For the reasons stated below, the child in question, who was legally adopted from his biological parents to another couple in Georgia, is no longer deemed the child of his biological gather and, thus, cannot obtain child's survivor benefits when his biological father dies.
Based on the limited information we received, Bryan K. S~ (Bryan) was born to Larry E. W~ (Larry) and an unnamed mother in May 14, 1991. At that time of his birth, Larry was receiving disability insurance benefits. However, immediately after birth, Bryan became legally adopted to Ms. Myrtice D. S~ (Myrtice) and her unnamed husband. Since birth, Mr. and Mrs. S~ provided all support for Bryan. Larry did not provide Bryan any support. Moreover, no evidence shows that Bryan ever collected child's benefits as the son of Larry, a disabled wage-earner.
On January 1, 2003, Larry died. Thereafter in June 2004, Myrtice applied for child's insurance benefits on Bryan's behalf, claiming that he is the surviving child of a deceased wage-earner. She also filed an application to be deemed the Bryan's representative payee, should benefits become awarded.
The Social Security Act ("Act") establishes the requirements for child's insurance benefits under Title II and specifically requires that an individual be the dependent "child" of the wage earner. See 42 U.S.C. § 402(d). The Act generally defines a "child," as it is used here, in two relevant subsections. See 42 U.S.C. § 416(e), (h). Generally, the term "child" means (1) the child, legally adopted child, stepchild, grandchild, or stepgrandchild of an individual or his spouse. See 42 U.S.C. § 416(e). For adoptive purposes, a person shall be deemed, as of the date of death of an individual, to be the legally adopted child of such individual if such person was either living with or receiving at least one-half of his support from such individual at the time of such individual's death and was legally adopted by such individual's surviving spouse after such individual's death but only if (A) proceedings for the adoption of the child had been instituted by such individual before his death, or (B) such child was adopted by such individual's surviving spouse before the end of two years after (i) the day on which such individual died or (ii) the date of enactment of the Social Security Amendments of 1958.
42 U.S.C. § 416(e). However, this provision applies to determining whether the adoptive parent is the child's parent, and bears no relevance to the inquiry of whether the former parent (biological father in this case), from whom another family adopted the child, remained with a parent-child relationship with the child after the adoption took place. When looking to whether a biological parent has a parent-child relationship, the Social Security Act instructs the Commissioner to determine whether the child could inherit the wage-earner's property as his natural child under the intestacy laws of the state where the wage earner was domiciled when the wage-earner died. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1), (3) (2004). An individual "who, according to [the relevant state's intestacy] law would have the same status relative to taking intestate personal property as a child [of the wage earner] shall be deemed" to be the wage-earner's child. 42 U.S