TN 10 (08-09)

PR 01805.037 North Dakota

A. 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 23, 2007. In early March 2008, the agency awarded the NH benefits with a period of disability beginning on October 23, 2007. On March 20, 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 Counsell
_______________