TN 11 (10-09)

PR 01805.047 Tennessee

A. PR 10-023 Eligibility of Claimant for Child’s Insurance Benefits after Termination of the Number Holder’s Parental Rights – Tennessee

DATE: November 10, 2009

1. SYLLABUS

Although terminating a person’s parental rights "has the legal effect of reducing the parent to the role of a complete stranger" under Tennessee law, the child who is the subject of the order for termination shall be entitled to inherit from a parent whose rights are terminated until the final order of adoption is entered.

In this case, where the number holder was found to be the child's biological father and rights were terminated by the same North Carolina order, the state of Tennessee would find the order clear and convincing evidence of the parent child relationship and would consider the claimant as the number holder's child since the claimant was not adopted after the termination order.

2. OPINION

QUESTION

You have asked whether the claimant is the child of the deceased number holder for the purposes of child’s insurance benefits when the number holder’s parental rights have been terminated, but the child has not been adopted.

OPINION

For the reasons stated below, we believe the claimant qualifies as the number holder’s child for purposes of child’s insurance benefits.

BACKGROUND

According to the information provided, Michael D. J~ (Claimant) was born on May 1, 1993. Claimant’s birth certificate does not identify a father. However, Kevin J~, the number holder (NH), listed Claimant as his child on his disability insurance benefits (DIB) application on June 17, 2008. NH did not marry Claimant’s mother.

NH died on July 5, 2009, in Dyersburg, Tennessee. NH was domiciled in Dyersburg, Tennessee at the time of his death and the record indicates he lived in Dyersburg for at least the previous ten years.

The file contains an order to terminate parental rights, dated October 31, 2001, issued by the District Court for Wake County, North Carolina. In that order, the court found that NH received proper service of the petition to terminate his parental rights and did not answer the petition. The court found that NH was the biological father of Claimant, but found sufficient grounds to terminate NH’s parental rights.

The file also contains a statement from Claimant’s mother and from Claimant’s stepfather asserting Claimant’s stepfather has not adopted Claimant, nor has Claimant ever been adopted.

DISCUSSION

To qualify for child’s insurance benefits on the earnings record of a deceased insured individual, 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” includes the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2009). A claimant can qualify as the insured individual’s natural child if, among other methods, the claimant could inherit the insured's personal property as his child under the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (4) (2009). If applicable State inheritance law requires a court determination of paternity, SSA will not require a claimant to obtain such a determination but will decide his paternity by using the standard of proof the State court would use as the basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2).

The information provided indicates NH was domiciled in Tennessee at the time of his death and had lived in Tennessee for many years. Therefore, Tennessee law applies in determining whether Claimant is the child of NH for the purposes 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).

Tennessee law provides when any person dies intestate, the deceased’s property passes to the deceased’s heirs. See Tenn. Code Ann. § 31-2-101 (West 2009). The surviving spouse receives the entire intestate estate unless the decedent has surviving children, in which case the children are entitled to a child’s share of the intestate estate. See Tenn. Code Ann. § 31-2-104 (West 2009). A person born out of wedlock is a child of the father if paternity is established by adjudication before the death of the father or is established thereafter by clear and convincing proof. See Tenn. Code Ann. § 31-2-105(a)(2)(B) (West 2009); see also Program Operations Manual System (POMS) GN 00306.635 (providing an overview of Tennessee Intestacy Laws); Bilbrey v. Smithers, 937 S.W.2d 803, 807-08 (Tenn. 1996) (paternity can be established only by clear and convincing proof). The clear and convincing evidence standard is a heightened burden of proof that requires more than the preponderance of the evidence standard but less than the beyond a reasonable doubt standard. See In re S.L.A., 223 S.W. 3d 295, 299 (Tenn. Ct. App. 2006). To satisfy the clear and convincing evidence standard, a party must eliminate any serious or substantial doubt concerning the accuracy of the conclusions drawn from the evidence and should produce a firm belief in the truth of the allegations sought to be established. Id.

In Tennessee, termination of parental rights essentially terminates all legal obligations. Terminating a person’s parental rights “‘has the legal effect of reducing the parent to the role of a complete stranger.’” In re C.T.B., No. M2009-00316-COA-R3-PT, 2009 WL 1939826, at *2 (Tenn. Ct. App. July 6, 2009) (quoting In re W.B., IV, No. M2004-00999-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005)). “An order terminating parental rights shall have the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian.” Tenn. Code Ann. § 36-1-113(l)(1) (West 2009); see In re C.T.B, 2009 WL at 1939826, *2. However, the Tennessee termination of parental rights statute includes a specific exception for inheritance rights of a child who has not been adopted: “Notwithstanding the provisions of subdivision (l)(1), a child who is the subject of the order for termination shall be entitled to inherit from a parent whose rights are terminated until the final order of adoption is entered.” Tenn. Code Ann. § 36-1-113(1)(2); cf. POMS PR 01410.047A (concluding a child cannot inherit from a natural parent when the relationship has been terminated by a final order of adoption).

We believe a Tennessee court would conclude the record provides clear and convincing evidence that Claimant is NH’s child for the purposes of Tennessee intestacy law. NH openly acknowledged Claimant as his child in writing as part of his DIB application to SSA. Tennessee courts have held that such an acknowledgement constitutes clear and convincing evidence to establish paternity. See, e.g., Kelani v. Bowen, 684 F.Supp. 490, 497 (M.D. Tenn. 1988) (witness testimony and father’s acknowledgement constitutes clear and convincing evidence of paternity); In re D.S.P., No. M2008-01690-COA-R3-JV, 2009 WL 1456321, at *1 (Tenn. Ct. App. May 21, 2009) (father’s written acknowledgment of paternity memorialized in court order established paternity); State ex rel. Hickman v. Dodd, No. W2008-00534-COA-R3-CV, 2008 WL 4963508, at *3 (Tenn. Ct. App. Nov. 21, 2008) (written acknowledgment of paternity established paternity of father and was binding); In re B.C.W., No. M2007-00168-COA-R3-JV, 2008 WL 450616, at *1 (Tenn. Ct. App. Feb. 19, 2008) (voluntary acknowledgment of paternity by father sufficient to establish relationship).

Additionally, the North Carolina District Court, in its order terminating NH’s parental rights, concluded NH was Claimant’s biological father. Although the finding that NH was Claimant’s biological father was ancillary to the primary purpose of the order, a Tennessee court likely would give full faith and credit to the finding in determining the issue of NH’s paternity. See U.S. Const. art. IV, § 1; 28 U.S.C. § 1738; Tenn. Code Ann. § 24-7-113 (West 2009); Tenn. Code Ann. § 36-5-101(5) (West 2009); Baker by Thomas v. General Motors Corp., 522 U.S. 222, 231-32 (1998); see also In re Adoption Downey, No. E20021972COAR3CV, 2003 WL 2010753, at *2 (Tenn. Ct. App. April 30, 2003) (final judgments of sister states are presumed to be conclusive and valid; court upheld Georgia order terminating parental rights of Tennessee citizen). Moreover, the finding of the North Carolina court that NH was Claimant’s biological father would constitute further clear and convincing evidence to establish paternity, because the North Carolina court made that finding after a review of the evidence presented to establish paternity. Therefore, we conclude that a Tennessee court would determine that clear and convincing evidence exists to establish that Claimant is the child of NH for the purpose of intestate succession.

As noted above, the record shows that a North Carolina court terminated NH’s parental rights. However, Claimant’s mother and stepfather denied that Claimant was adopted by his stepfather or by anyone else, and no other evidence indicates Claimant has been adopted. Therefore, because Claimant has not been adopted, he retains inheritance rights from NH and would be considered the child of NH for purposes of intestate succession in Tennessee. See Tenn. Code Ann. § 36-1-113(1)(2). Thus, we believe the evidence establishes that Claimant is NH’s child under section 216(h)(2)(A) of the Act.

CONCLUSION

For the foregoing reasons, we believe Claimant would be considered NH’s child for the purposes of child’s insurance benefits.

Very truly yours,
Mary A. S~
Regional Chief Counsel

By: _____/s/_____________
Richard V. B~
Assistant Regional Counsel

B. PR 10-011 Eligibility of Claimants for Child's Insurance Benefits after Termination of the Number Holder's Parental Rights – Tennessee

DATE: October 13, 2009

1. SYLLABUS

The Tennessee termination of parental rights statute states that "...a child who is the subject of the order for termination shall be entitled to inherit from a parent whose rights are terminated until the final order of adoption is entered." Therefore, such children may still be entitled to child insurance benefits on the Social Security record of a terminated parent until the children have been adopted.

2. OPINION

QUESTION

You have asked whether the claimants are the children of the number holder when the number holder's parental rights have been terminated, but the children have not been adopted.

OPINION

For the reasons stated below, we believe the claimants qualify as the number holder's children for purposes of child's insurance benefits.

BACKGROUND

According the information provided, Thomas R~, the number holder (NH), and Phyllis V~ (Claimants' mother) married on June 17, 1995. Two children, Thomas R~ II and Tabrizia R~ (Claimants), were born to NH and Claimants' mother during the marriage. On May 1, 2000, a Tennessee court issued a final decree granting Claimants' mother a divorce from NH. The divorce decree was accompanied by a parenting plan regarding Claimants that apportioned the parenting duties between NH and Claimants' mother. However, on November 15, 2002, the Chancery Court for Rutherford County, Tennessee issued an order terminating NH's parental rights. NH thereafter applied for and was granted disability insurance benefits. NH listed a Tennessee address as his residence on his application, and the information provided shows all notices issued to NH were addressed to his residence in Tennessee. NH listed Claimants as his children on his application. Claimants' mother subsequently applied for child's insurance benefits on behalf of Claimants on NH's earnings record. The information provided notes NH was domiciled in Tennessee when Claimant's mother filed the application on behalf of Claimants, NH continues to reside in Tennessee, and Claimants have not been adopted.

DISCUSSION

A claimant may be eligible for child's insurance benefits on the earnings record of an individual entitled to disability insurance benefits if the claimant is the insured individual's "child." See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2009). "Child" includes the natural child of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354 (2009). To determine if a claimant is the "child" of the insured individual, the Social Security Administration must consider whether the claimant could inherit the insured individual's intestate personal property under the law of the State in which the insured individual was domiciled when the application was filed. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4) (2009).

The information provided indicates NH was domiciled in Tennessee when Claimants' mother filed the application for child's insurance benefits on behalf of Claimants. NH listed a Tennessee residence on his disability application, and the Agency addressed all notices to NH to his residence in Tennessee. Therefore, Tennessee law applies in determining whether Claimants are the children of NH for the purposes 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).

Tennessee law provides when any person dies intestate, the deceased's property passes to the deceased's heirs. See Tenn. Code Ann. § 31-2-101 (West 2009). The surviving spouse receives the entire intestate estate unless the decedent has surviving children, in which case the children are entitled to a child's share of the entire intestate estate. See Tenn. Code Ann. § 31-2-104 (West 2009). However, a child cannot inherit from a natural parent when the relationship has been terminated by a final order of adoption. See Program Operations Manual System PR 01410.047A.

Generally, a parent has a fundamental right to the care, custody, and control of his or her child. See In re C.T.B., No. M2009-00316-COA-R3-PT, 2009 WL 1939826, at *2 (Tenn. Ct. App. July 6, 2009) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996)). Thus, the state may interfere with parental rights only if there is a compelling state interest. See In re C.T.B., 2009 WL 1939826, at *2 (citing Nash-Putnam, 921 S.W.2d at 174-75). In Tennessee, termination of parental rights essentially terminates all legal obligations. "Terminating a person's parental rights 'has the legal effect of reducing the parent to the role of a complete stranger.'" In re C.T.B., at *2 (quoting In re W.B., IV, No. M2004-00999-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005)). "An order terminating parental rights shall have the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian." Tenn. Code Ann. § 36-1-113(l)(1) (West 2009); see In re C.T.B, 2009 WL at 1939826, *2.

However, the Tennessee termination of parental rights statute provides a specific exception for inheritance rights of a child who has not been adopted: "Notwithstanding the provisions of subdivision (l)(1), a child who is the subject of the order for termination shall be entitled to inherit from a parent whose rights are terminated until the final order of adoption is entered." Tenn. Code Ann. § 36-1-113(1)(2). The information provided notes Claimants have not been adopted. Therefore, Claimants retain inheritance rights from NH and would be considered the children of NH for purposes of intestate succession in Tennessee. Thus, Claimants are the children of NH under section 216(h)(2)(A) of the Act.

CONCLUSION

For the foregoing reasons, we believe Claimants would be considered NH's children for the purposes of child's insurance benefits.

Very truly yours,
Mary A. S~
Regional Chief Counsel
By: _________________
Haila N~ K~
Assistant Regional Counsel


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PR 01805.047 - Tennessee - 10/20/2011
Batch run: 10/20/2011
Rev:10/20/2011