TN 27 (11-18)

PR 01805.037 North Dakota

A. PR 18-121 North Dakota Surviving Child Benefits

Date: August 13, 2018

1. Syllabus

In determining the father-child relationship between a number holder (NH) and a claimant for purposes of survivor’s benefits, the agency first looks to the intestate succession laws of the state in which the NH was domiciled when he died. In this case, the NH died in North Dakota. We previously concluded the claimant was ineligible to inherit from the NH under North Dakota’s intestacy law (see PR 01805.037 North Dakota – Would Claimant be considered the child of NH under ND intestacy laws where the NH previously terminated his parental rights).

If a child does not satisfy state intestacy laws, an individual can be deemed the child of a deceased NH under section 416(h)(3) of the Act by showing that, prior to the NH’s death, the NH acknowledged in writing that the child is his or her son or daughter, or was decreed by a court to be the mother or father of the child.

In this case, the claimant can be deemed the NH’s child under two provisions of the Act. The NH’s DIB application naming the claimant as his child is a written acknowledgement under section 416(h)(3)(C)(i)(I). The North Carolina termination order, which decreed that the NH is the claimant’s father, satisfies section 416(h)(3)(C)(i)(II).

2. Questions Presented

You asked whether K~ could be deemed the child of NH R~ under 42 U.S.C. § 416(h)(3)(C) of the Social Security Act (the Act) where a court previously terminated the parent-child relationship between K~ and the NH.

3. Short Answers

A person may be deemed the child of an NH under section 416(h)(3)(C) of the Act, even if he would not be considered the NH’s child for purposes of intestate succession under state law. Here, the NH acknowledged K~ as his son in his application for disability insurance benefits (DIB), which is a written acknowledgement under section 416(h)(3)(C)(i)(I) of the Act. The record also contains a court order finding that the NH is K~’s father and terminating the NH’s parental rights with K~. We believe the agency could accept this finding as a decree of parentage that satisfies section 416(h)(3)(C)(i)(II) of the Act. We thus conclude that K~ can be deemed the child of the NH for purposes of survivor’s benefits.

4. Background

The NH was domiciled in North Dakota when he died in January 2017. The NH was not married to K~’s mother, C~, when K~ was born in January 2002, and someone other than the NH is listed as the father on K~’s birth certificate. Genetic testing, however, showed a 99.98% probability that the NH was K~’s biological father. A North Carolina district court entered a temporary child support order based on the genetic testing results and the NH made some payments, though he did not stay current with his support obligations. In October 2003, the court found that the NH abandoned K~, and it issued an order terminating the NH’s parental rights.

In April 2017, C~ applied for surviving child benefits on K~’s behalf and provided supporting evidence to the field office. This evidence included K~’s birth certificate; C~’s statement that the NH was K~’s biological father but declined to be listed as such on K~’s birth certificate; the North Carolina termination order; and a report of genetic testing.

5. Discussion

In determining the father-child relationship between a NH and a claimant for purposes of survivor’s benefits, the agency first looks to the intestate succession laws of the state in which the NH was domiciled when he died (in this case, North Dakota). 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a). We previously concluded that K~ was ineligible to inherit from the NH under North Dakota’s intestacy laws.

If a child does not satisfy state intestacy laws, the Act, under section 416(h)(3), describes a second avenue for establishing eligibility for survivor’s benefits. See also POMS GN 00306.100; PR 01215.028 Missouri, PR 06-176 Inheritance Rights of Children Whose Parent's Parental Rights Were Terminated (ineligible children under state intestacy laws nevertheless entitled to survivor’s benefits under section 416(h)(3) of the Act). As relevant here, an individual can be deemed the child of a deceased NH by showing that, prior to the NH’s death, the NH acknowledged in writing that the child is his or her son or daughter, or was decreed by a court to be the mother or father of the child. 42 U.S.C. § 416(h)(3)(C)(i)(I)-(II). As explained below, we believe that K~ can be deemed the child of the NH under either of these criteria).[1]

a. The NH’s DIB Application Naming K~ as His Child is a Written Acknowledgement

We believe that the NH acknowledged in writing that K~ is his child. See 42 U.S.C. § 416(h)(3)(C)(i)(I). A written acknowledgement of parentage “does not have to be in any special form,” and agency policy recognizes an application for benefits as a written acknowledgement. POMS GN 00306.105(A)(1); see also PR 01210.035 New York, PR 12-069 Child Relationships, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1501210035 (Social Security benefits application naming children qualified as written acknowledgement).

Here, the NH listed “K~” as his child in his October 2016 DIB application. This creates a degree of uncertainty about whether the NH was referring to K~. However, we found no other evidence in the NH’s file to suggest that the NH fathered another child named “K~,” or that “K~” is anyone but K~. See Jones v. Sullivan, 953 F.2d 1291, 1294-95 (11th Cir. 1992) (holding a tax form only listing a child’s first name (Felix) was a written acknowledgement under the Act where there was no evidence suggesting the form referred to anyone but Felix Jones, the child seeking child’s insurance benefits).

Nevertheless, since K~’s birth certificate lists L~ as his father, and not the NH, it is also necessary to confirm that the NH is K~’s biological father. See POMS GN 00306.100(E)(2); GN 00306.125. Since the NH is deceased, confirmation should include a statement from K~’s mother, which she provided. POMS GN 00306.125(B)(2)(a). In her statement, C~ explained that although the NH is K~’s “[b]irth father[, he] did not want to be listed on [K~’s] birth certificate, as he explained he wouldn’t have time to take part in [K~’s] life.” C~ further explained that L~ gave her permission to include his name on K~’s birth certificate so K~ would have a listed father.

Other record evidence corroborates C~’s statement: a 2003 report of genetic testing showing a 99.98% probability that the NH is K~’s biological father and a North Carolina court order finding that K~ was born to the NH and C~, and terminating the NH’s parental rights with K~. See PR 01210.035 New York, PR 12 069 Child Relationships (court orders establishing filiation and child support were “additional evidence of paternity” under POMS GN 00306.125(B)). We believe this evidence adequately supports the NH’s written acknowledgement of K~ as his biological child, and thus conclude that K~ can be deemed the NH’s child under section 416(h)(3)(C)(i)(I).

b. A North Carolina Court Decreed that the NH was K~'s Father

To satisfy section 416(h)(3)(C)(i)(II), a court order “must name the NH and identify the child,” and it “must find that the NH is the biological parent of the child.” POMS GN 00306.110(A)(1) (2).

The North Carolina termination order names the NH in the caption and includes K~’s name throughout. The court also found that K~ was “born to these parties [the NH and C~],” and it found that the genetic testing results described above showed that the NH “is the biological father of the minor child herein.” The termination order thus satisfies the requirements of POMS GN 00306.110.

We note, however, that the agency is not bound by a judicial finding unless it satisfies the four factors described in Social Security Ruling (SSR) 83-37c, which adopted the holding of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973),[2] but can still accept a finding as probative evidence even if all four criteria are not met. See, e.g., PR 10-010 MOS Illinois – Void or Voidable Marriage, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1504805016 (in cases where an issue was not genuinely contested in court, the agency “generally looks to see whether the order was consistent with state law” and will generally accept the order if it is). The factors are:

  • An issue in a claim for social security benefits previously has been determined by a state court of competent jurisdiction;

  • This issue was genuinely contested before the state court by parties with opposing interests;

  • The issue falls within the general category of domestic relations law; and

  • The resolution by the state trial court is consistent with the law enunciated by the highest court in the state.

We believe the North Carolina court’s finding satisfies these factors because it had both personal and subject matter jurisdiction; the termination order states that the NH requested genetic testing, apparently in order to show he was not K~’s biological father (i.e., the issue was genuinely contested); the finding falls within the general category of domestic relations law; and it is generally consistent with the law enunciated by North Carolina’s highest court. See N.C. Gen. Stat. Ann. §§ 7B 101(6), -200(a)(4), (b), -1101 (West 2017). Regarding this last factor, in North Carolina, genetic testing showing a 97% or higher probability of paternity is clear, cogent, and convincing evidence of paternity, and here the genetic testing report showed a 99.98% probability that the NH is K~’s biological father. See N.C. Gen. Stat. Ann. § 49-14(f) (West 2017).

In sum, we believe the court’s finding that the NH was K~’s biological father satisfies Gray, and that the agency should be bound by this determination. But even if the finding does not satisfy Gray, and is not binding on the agency, we believe it is consistent with North Carolina law and should be viewed as probative evidence that K~ was the NH’s biological child, and that K~ should be deemed such under section 416(h)(3)(C)(i)(II).

6. Conclusion

K~ can be deemed the NH’s child under two provisions of the Act. First, the NH’s DIB application naming K~ as his child is a written acknowledgement under section 416(h)(3)(C)(i)(I). Second, the North Carolina termination order decreed that the NH is K~’s father, which satisfies section 416(h)(3)(C)(i)(II). We thus conclude that K~ can be deemed the child of the NH for purposes of survivor’s benefits under section 416(h)(3)(C).

 

B. PR 18-042 North Dakota - Would Claimant be considered the child of NH under ND intestacy laws where the NH previously terminated his parental rights

Date: January 17, 2018

1. Syllabus

North Dakota courts will treat another state’s court order terminating parental rights as if it were issued by a North Dakota court. Under North Dakota law, a court order terminating parental rights of a parent severs all legal ties between the natural parent and the child, including the child’s right to inherit from the natural parent through North Dakota’s intestate succession laws.

In this case, the number holder (NH) died while domiciled in North Dakota. North Dakota would treat the North Carolina court order terminating the NH’s parental rights as if it were issued by a North Dakota court. The order severs all legal ties between the NH and child, including the child’s right to inherit from the NH through North Dakota’s intestate succession laws. Therefore, the child is ineligible for surviving child benefits under the NH’s record.

2. Opinion

Questions Presented

You asked whether K~ would be considered the child of NH R~ under North Dakota intestacy laws where the NH previously terminated his parental rights. You also asked about updating the Numident.

Short Answers

Under North Dakota law, an order terminating parental rights severs all legal ties between a parent and child. Since a court terminated the NH’s parental rights with K~, K~ is not entitled to inherit from the NH through intestacy and is ineligible for surviving child benefits under the NH’s record. This renders the question of updating the Numident moot.

Background

The NH was domiciled in North Dakota when he died in January 2017. The NH was not married to K~’s mother at the time of K~’s birth, and someone other than the NH is listed as the father on K~’s birth certificate. Genetic testing, however, appeared to indicate the NH was K~’s genetic father, and in October 2003, a county court in North Carolina found paternity based on that evidence. The court also terminated the NH’s parental rights with K~ in the same proceeding. K~’s mother subsequently applied for surviving child benefits on K~’s behalf and provided supporting documents to the field office. The documents include the North Carolina termination order, K~’s birth certificate, and a report of genetic testing.

Discussion

1. The Order Terminating Parental Rights Makes K~ Ineligible to Receive Surviving Child Benefits Under the NH’s Record

In determining the father-child relationship for purposes of survivor’s benefits, the agency looks to the intestate succession laws of the state in which the NH was domiciled when he died. 42 U.S.C.A. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a).

The NH in this case died while domiciled in North Dakota. North Dakota’s probate code states that a parent-child relationship exists between a child and his genetic parents, regardless of the parents’ marital status. N.D. Cent. Code Ann. § 30.1-04-16 (West 2017). This parent-child relationship generally allows a child to inherit from a deceased parent through intestate succession. See id. § 30.1-04-15.

However, North Dakota also has an expansive law regarding the termination of parental rights. Id. § 27-20-46(1). A court order “terminating parental rights of a parent terminates all the parent’s rights and obligations with respect to the child and of the child to or through the parent arising from the parental relationship.” Id. (emphasis added). The North Dakota Supreme Court has held that such an order “severs all legal ties between the natural parent and the child.” Kulbacki v. Michael, 899 N.W.2d 643, 647 (N.D. 2017) (emphasis added) (quoting In re C.R.H., 620 N.W.2d 175, 180 (N.D. 2000)). Further, North Dakota courts will treat a termination order from another state’s court as if it were issued by a North Dakota court. N.D. Cent. Code Ann. § 28-20.1-02 (West 2017) (a judgment from another jurisdiction “has the same effect” as one issued by a North Dakota court); Kulbacki, 899 N.W.2d at 647-48 (citing id. (Arizona court order terminating parental rights “became a North Dakota order”)).

Here, a North Carolina court terminated the NH’s parental rights with K~. This order would be treated as if it were issued by a North Dakota court. N.D. Cent. Code Ann. § 28-20.1-02; Kulbacki, 899 N.W.2d at 647-48. The order “severs all legal ties” between the NH and K~, including K~’s right to inherit from the NH through North Dakota’s intestate succession laws. Kulbacki, 899 N.W.2d at 647 (citation omitted); see N.D. Cent. Code Ann. § 27-20-46(1). K~ is thus ineligible for child survivor benefits under the NH’s record.

2. Updating the Numident Is Moot

Since K~ does not qualify for child survivor benefits under the NH’s record,

the question of updating the Numident is moot.

Conclusion

The North Carolina court order terminated the NH’s parental relationship with K~. This order severed all legal ties between the NH and K~ under North Dakota law, including K~’s right to inherit from the NH through intestate succession. K~ is thus ineligible to receive surviving child benefits on the NH’s record. This moots the question of updating the Numident.

C. PR 09-119 Status of Child to Numberholder Based on Termination of Parental Rights in the State of North Dakota (R. J~)—Clarification of Prior Opinion 1

Date: June 18, 2009

1. Syllabus

In a North Dakota case, the termination of the number holder’s parental rights after he had established a protective filing date for benefits for those children would not preclude their entitlement to child’s benefits on his record.

2. Opinion

ISSUE

Whether the State of North Dakota’s termination of the numberholder's (NH) parental rights before he became entitled to benefits precludes his children’s entitlement to benefits?

SHORT ANSWER

No. The termination of the NH’s parental rights before his date of entitlement does not preclude his children’s entitlement to CIB. The agency's policy is to determine whether an applicant is a child of an insured at the same time it determines whether the applicant is deemed dependent on the insured. The agency can deem an applicant dependent on an insured when: 1) the applicant files an application; 2) the date the insured's period of disability began; or 3) the date the applicant becomes entitled to benefits. Here, the protective filing date of the children’s applications and the date the NH's period of disability began are prior to the date the state terminated the NH’s parental rights.

FACTS

We obtained the following facts from information that you provided and from agency systems. The applicants are the NH’s biological children. The NH applied for DIB on October 26, 2007, and listed the applicants on his application. He alleged an onset of disability date of October XX, 2007. In early March 2008, the agency awarded the NH benefits with a period of disability beginning on October 23, 2007. On March XX, 2008, the NH signed a consent form agreeing to termination of his parental rights with respect to the applicants. A North Dakota Juvenile Court terminated the NH's parental rights on that date. Five days later, Social Services filed CIB applications on the applicants' behalf. The NH became entitled to benefits in April 2008.

DISCUSSION

The applicants were the NH's children under the Act in October 2007, when they protectively filed their applications and when the NH's period of disability began.

On the date the NH filed for benefits, the State of North Dakota had not terminated his parental rights. Consequently, the applicants were the NH's children when he filed his application. By listing the applicants on his initial application for benefits, the NH protectively applied for CIB benefits on their behalf. See POMS GN 00204.010C.3. Social Services filed valid applications on the applicant's behalf within six months of their October 2007 protective filing date. 2 The agency uses the date applicants are deemed dependent on an insured (deeming point) as the date for determining whether they are children for the purpose of determining eligibility for CIB. See GN 00306.165B 3 ("[s]ince onset is a point at which the child could be deemed dependent on the NH, and at that point the adoption had not yet occurred, the adoption has no effect on determining the child's entitlement"). Deeming points include: 1) the date of application; 2) the date the insured's period of disability began; and 3) the date the applicants' entitlement began. See 42 U.S.C. §§ 402(d)(1), 416(H)(3); 20 C.F.R. §§ 404.350, 404.360; POMS RS 00203.001A, GN 00306.001A, GN 00306.007, GN 00306.100.

In this case, the application date and the NH's period of disability start date were in October 2007, prior to the termination of the NH's parental rights. Consequently, because the applicants were the NH's children for the purposes of the Act before the termination of the NH’s parental rights, we do not reach the issue of whether termination of parental rights might affect their ability to inherit from the NH.4

CONCLUSION

The applicants established a protective filing date and were the insured's children for the purposes of the Act before the State of North Dakota terminated the NH’s parental rights. Additionally, the date the NH's period of disability began is prior to the date the state terminated the NH’s parental rights. As such, the NH’s subsequent loss of parental rights does not affect the children’s entitlement to CIB.

Deana R. E~-L~
Regional Chief Counsel
By Allan D. B~
Assistant Regional Counsel
_______________

1_/ This a clarification of our May 22, 2009 opinion on the same subject. Please disregard the previous opinion.

2_/ A Title II applicant’s protective filing date becomes the application date, provided he or she files a valid application within the six-month protective filing period. See POMS GN 00204.010.C.3.

3_/Although GN 00306.165 expressly applies to adoption, not termination of parental rights, we confirmed with the Office of Disability and Income Security Programs (specifically Peter W~) that the same policy exceptions would apply to termination of parental rights.

4_/Likewise, we need not address whether termination of parental rights would affect initial entitlement under the Act, i.e., whether a child could inherit from a biological parent under North Dakota law when the biological parent's parental rights had been terminated prior to the child’s application for benefits on the biological parent’s account We are happy to review and provide guidance in the future if the issue arises.


Footnotes:

[1]

An individual can also be deemed the child of a deceased NH by showing that prior to the NH’s death he had been ordered by a court to contribute to the support of the applicant because the applicant was his or her son or daughter; or by showing with evidence satisfactory to the Commissioner that the NH was the applicant’s mother or father, and that the NH was living with or contributing to the applicant’s support when the NH died. 42 U.S.C. § 416(h)(3)(C)(i)(III), (ii). We are not addressing these two criteria in any detail, however, because we do not believe that K~ can be deemed the biological child of the NH under them, and because we conclude he can be deemed the NH’s child under other section 416(h)(3)(C) criteria.

[2]

The agency has not always applied Gray when evaluating court orders under § 416(h)(3) of the Act. E.g., compare PR 11-077 Deference to a Georgia Adjudication of Paternity Under Alabama Intestacy Law, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1501215001 (applying Gray), with PR 06-176 Inheritance Rights of Children Whose Parent’s Parental Rights Were Terminated, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/1501215028 (not applying Gray). As the Gray court explained, § 416(h)(3) of the Act was not in effect at the time the underlying application for benefits was made in that case, and the court did not consider that section of the Act in its decision. 474 F.2d at 1372 n.1. Here, we applied Gray because we believe that the agency is best served by determining whether the finding of parentage in the North Carolina termination order meets the threshold requirements articulated in Gray.


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http://policy.ssa.gov/poms.nsf/lnx/1501805037
PR 01805.037 - North Dakota - 02/14/2018
Batch run: 11/19/2018
Rev:02/14/2018