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
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.
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.
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
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.