You have asked whether the claimant Amber L. S~ can qualify for child's insurance
benefits on the account of the deceased wage earner, Matthew S. W~, even though a
Nevada state court terminated Mr. W~'s parental rights.
SUMMARY OF EVIDENCE
The claimant's parents, Feather R. B~ (formerly W~) and Matthew W~, married in the
State of Nevada in November 1996. The claimant was born on October 30, 1997.
On July 29, 1998, the claimant's parents divorced. In the Findings of Fact and Conclusions
of Law filed on July 29, 1998, a Nevada state court found that Feather R. W~ and Matthew
W~ were married in November 1996 and "[t]hat there is (1) minor child the issue if
this marriage, to-wit: AMBER L. S~. . ." The court then found that Feather and Matthew
W~ had agreed that Matthew W~'s parental rights of the minor child would be terminated.
In the Divorce Decree issued on July 29, 1998, the court terminated Matthew W~'s parental
rights. After that decision, the claimant was never adopted by anyone.
Matthew W~ died in October 2005 while domiciled in Nevada. His widow and three children
are receiving survivor benefits on his account.
A "child" of an individual who dies fully or currently insured under the Social Security
Act (the Act) is entitled to child's insurance benefits if he or she:
(1) is the insured worker's child, as defined in 42 U.S.C. § 416(e);
(2) has applied for such benefits;
(3) is unmarried;
(4) is under the age of 18, or is under a disability which began before he or she
attained age 22, or is a full-time elementary or secondary school student and had
not attained the age of 19; and
(5) was dependent upon the insured worker at the time of the worker's death.
42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2006); Program Operations Manual System
(POMS) GN 00306.001(A). If a child is the worker's natural child, the child is considered dependent upon
the worker. 20 C.F.R. § 404.361(a); POMS GN 00306001(B).
Under 42 U.S.C. § 416(h)(2)(A) of the Act, a claimant may prove that he or she is
the "child" of the insured worker if he or she could inherit the worker's property
as the worker's child under the law of intestate succession of the state where the
worker was domiciled at the time of his death. See also 20 C.F.R. § 404.355(a)(1); POMS GN 00306.001(C)(1)(a).
Matthew W~ died while domiciled in Nevada. Nevada law provides that a "parent and
child relationship" includes all rights, privileges and obligations existing between
parent and child, including rights of inheritance. Nev. Rev. Stat. § 128.015. See State by Welfare Div. of Dep't of Human Resources v. Vine, 662 P.2d 295, 297-98 (Nev. 1983) (discussing Nev. Rev. Stats. Chapters 127 (adoption),
128 (termination of parental rights) and 424 (foster homes)) Further, an order terminating
parental rights completely severs the parent-child relationship, terminating all rights
and obligations of both parent and child." Id.
Athough the claimant would not be able to qualify as Mr. W~'s child under 42 U.S.C.
§ 416(h)(2)(A), she could still qualify as his child under 42 U.S.C. § 416(h)(3)(C).
That section provides that an applicant is the son or daughter of a fully or currently
insured individual, but who is not (and is not deemed to be) the child of such insured
individual under paragraph (2), shall be deemed to be the child of the insured individual
(C) in the case of a deceased individual-
(i) such insured individual-
(I) had acknowledged in writing that the applicant is his or her son or daughter,
(II) had been decreed by a court to be the mother or father of the applicant, or
(III) had been ordered by a court to contribute to the support of the applicant because
the applicant was his or her son or daughter,
and such acknowledgment, court decree, or court order was made before the death of
such insured individual, or
(ii) such insured individual is shown by evidence satisfactory to the Commissioner
of Social Security to have been the mother or father of the applicant, and such insured
individual was living with or contributing to the support of the applicant at the
time such insured individual died.
On July 29, 1998, the Nevada court issued a finding of fact that the claimant was
the "issue" of the marriage between Matthew W~ and Feather R. W~. The claimant has
not been adopted by another individual. Thus, it appears that Mr. W~, the "insured
individual" had been "decreed by a court to be the father" of the claimant (despite
the termination of his parental rights). Cf. Duncan o/b/o Peterson v. Sec'y of HHS, 1994 U.S. Dist. LEXIS 19030, *11-15 (W.D. Mich.) (holding that biological children
whom deceased father had acknowledged in writing qualified as "children" under the
Social Security Act even though a state court had terminated the father's rights).
Thus, the claimant can be deemed Mr. W~'s child under 42 U.S.C. § 416(h)(3)(C)(i)(II),
and deemed dependent upon the NH at the time of his death pursuant to 42 U.S.C. §
402(d)(3) of the Act.
This conclusion is consistent with opinions recently issued by the Office of the General
Counsel for Regions IX and VII in similar cases. See PolicyNet - POMS PR 01215.031 Nevada: A. PR 06-298 Legal Opinion: Eligibility for Child's Insurance Benefits for
Joseph J. C~, Formerly Known as Bruce R. G~, II (August 31, 2006) (concluding that
claimant qualified for child survivor benefits even though Nevada court had terminated
parental rights of number holder where same court order identified the number holder
as the claimant's "natural father"); see also Memorandum from Regional Chief Counsel, Kansas City, to Assistant Regional Commissioner,
Management and Operations Support, Kansas City, Inheritance Rights of Children Whose
Parent's Parental Rights Were Terminated . . ., (June 14, 2006) (concluding that,
even though court order terminated parental rights of deceased number holder and children
were unable to inherit under Missouri state law, children still qualified for child's
survivor benefits because same order had decreed number holder to be the natural father
of both children).
Therefore, the claimant qualifies for child's survivor benefits.