The State of Washington, by the Division of Children and Family Services (DCFS), a component of the Department of Social & Health Services (DSHS), is a dependent guardian for minor children that are removed from their parents care. DCFS files applications and completes forms for disability Benefits on behalf of some of these children. These forms include the application itself, a designation of representative designating another DCFS employee as the children’s representative, an authorization for release of the children’s Social Security records to DCFS employees and An authorization for release of the children’s records to the agency from third parties. Questions has arisen about whether DCFS may be considered legal guardian of the children for Social Security purposes and whether SSA has an obligation to require DSHS to designate which of its positions are authorized to act as a legal guardian.

Introduction

The State of Washington, by the Division of Children and Family Services (DCFS), a component of the Department of Social & Health Services (DSHS), is a dependent guardian for minor children that are removed from their parents care. DCFS files applications and completes forms for disability benefits on behalf of some of these children. These forms include the application itself, a designation of representative designating another DCFS employee as the children’s representative, an authorization for release of the children’s Social Security records to DCFS employees, and an authorization for release of the children’s records to the agency from third parties.

Questions Presented

1) Whether DSHS/DCFS may be considered the legal guardian of a dependent child for Social Security purposes.

2) Whether SSA has an obligation to require DSHS to designate which of its positions are authorized to act as a legal guardian.

3) Whether SSA has an obligation to require DSHS to designate which of its positions are authorized to act as a Social Security authorized representative

4) What access does a DSHS employee acting as a legal guardian or as an authorized representative have to a dependent child’s Social Security records.

5) Whether the appointment of one DSHS employee as an authorized representative allows SSA or State Disability Determination Services (DDS) employees to speak to other DSHS employees about the dependent child’s disability claims.

Short Answers

1) Yes, a state court order declaring DSHS/DCFS the legal guardian of a dependent child sufficiently establishes legal guardianship for Social Security purposes.

2) No, SSA does not have a legal obligation to require DSHS to designate which of its positions are authorized to act as a legal guardian. However, it is recommended that SSA request DSHS to designate which positions are authorized to act as legal guardians.

3) No, SSA has no obligation to require DSHS to designate positions which are authorized to act as a Social Security authorized representative.

4) DSHS employees’ access to a dependent child’s Social Security records is based on their individual roles. DSHS employees acting as legal guardians may directly receive non-medical records, but must designate a healthcare professional to receive the dependent child’s medical records. A DSHS employee properly appointed as a dependent child's authorized representative may directly receive disclosures of non-medical and medical records.

5) No, the appointment of a particular DSHS employee as an authorized representative does not in itself permit SSA or DDS to disclose information to other DSHS employees who may be assisting the authorized representative.

Background

DSHS employees file disability benefits applications on behalf of some of the minor children who are in the custody of DSHS. In addition, the employees sign documents on behalf of the children to authorize the release of information from SSA and to designate another DSHS employee to act as the children’s Social Security authorized representative. These “packets” of forms are forwarded to SSA for processing. You provided four cases as representative samples of the documents that were prepared by DSHS employees. Although there were many similarities in how the employees completed the paperwork, none of them completed the paperwork in an identical manner.

In each sample case, DSHS provided a copy of the court order appointing DSHS/DCFS as the legal guardian for the dependent child. One sample case included an application for Supplemental Security Income (SSI) disability benefits. The applicant for SSI disability benefits was the Secretary, DSHS, and listed a relationship to the claimant as “Agency.” In all four samples, a Supplemental Security Income Facilitator (SSI Facilitator) completed a function report on behalf of the child. On these reports, the social workers designated their relationship to the child as “SSIF Social Worker,” “DCFS SSIF,” “SSIF,” or “SSIF” with a stamp “For Secretary Department of Social and Health Services.”

In all four sample cases the SSI Facilitator completed an Appointment of Representative Form SSA-1696, appointing another state employee in the DSHS Financial Resource Unit to be the child’s Social Security authorized representative. Both DSHS employees signed the form, along with the stamp, “For Secretary Department of Social and Health Services.”

The SSI Facilitators completed the Consent for Release of Information Form SSA-3288, authorizing SSA to release information from the child’s Social Security records to the SSI Facilitator. The signature line indicated that the person signing was the “individual to whom the information/record applies or that person’s parent (if a minor) or legal guardian.” The SSI Facilitators stated that their relationship to the children was “SSIF.”

Analysis

A. DSHS/DCFS can be the legal guardian of a dependent child for Social Security purposes.

SSA should consider DSHS/DCFS as the legal guardian of a dependent child for Social Security purposes when SSA receives a court order declaring DSHS/DCFS the legal guardian of the child. Pursuant to Washington State law, a state court may remove children from their parents care through a dependency proceeding. Wash. Rev. Code § 13.34.130. If the court determines that the child is “dependent,” meaning he is abandoned, abused, or has no parent capable of adequately caring for him, the court may order that “custody, control, and care” of the child be placed with the “department.” Wash. Rev. Code § 13.34.130, 13.34.030. The “department” is defined as DSHS. Wash. Rev. Code § 13.34.030(4). The transfer of custody of the child to DSHS/DCFS is a transfer of legal custody, and as such, the State is required to provide the child food, clothing, shelter, and medical care. Wash. St. Juvenile Ct. R. 3.8(e); In re Dependency of Schermer, 169 P.3d 452, 460 (Wash. 2007); State v. Harrell, 718 P.2d 797, 800 (Wash. 1986).

SSA allows legal guardians to act on behalf their wards in various circumstances, such as accessing Social Security records, signing applications, or acting as a representative payee. However, SSA regulations do not define the term legal guardian. In the context of selecting a representative payee, SSA policy provides that a legal guardian is a “third party appointed by a State court to manage the affairs of an individual who is not able to do so.” Program Operations Manual System (POMS) GN 00502.139. Similarly, SSA policy provides that a “court appointed” legal guardian is a proper applicant to file an application for a Social Security card on behalf of another. POMS RM 10205.025. The Privacy Act, which governs the release of SSA records to third parties, states that a “legal guardian” is one established by court order. 5 U.S.C. § 552a(h). In all these instances, the determination of whether there is a legal guardian is dependent on a valid state court order. Because Washington State law provides that a court may order a dependent child to be placed in the custody, control, and care of DSHS, SSA should recognize DSHS/DCFS as the legal guardian of the dependent children for Social Security purposes.

B. SSA should request DSHS to designate which positions are authorized to act as a legal guardian.

Although SSA is not required to do so, SSA should request the State to designate specific positions, such as SSI Facilitators, as being authorized to act on behalf of DSHS as the legal guardian for dependent children. The Secretary of DSHS has the executive authority to administer the internal affairs of DSHS. Wash. Rev. Code §§ 43.20A.010, 43.20A.050. In turn, the Secretary may delegate any power or duty vested by law to any other assistant or subordinate. Wash. Rev. Code § 43.20A.110. In order to determine who within DCFS has the power to act on behalf of the children, SSA should ascertain what powers are delegated from the Secretary and to whom these powers are delegated. Although SSI Facilitators submit applications for SSI benefits, SSA-1696 forms, and SSA-3288 forms, we have found no Washington State code provision or published policy statement reflecting the Secretary’s delegations of authority. Although some of the documents provided were signed by the SSI Facilitators using the stamp, “For Secretary Department of Social and Health Services,” this stamp is not reliable evidence establishing the delegated authority. We recommend that you contact DSHS to determine the delegations of authority.

Regardless of whether DSHS designates certain positions as being authorized to act as legal guardians, SSA must require individuals purporting to act as a legal guardian to show evidence of their identity and authority. For example, individuals must present evidence of their authority to sign applications on behalf of others. 20 C.F.R. §§ 416.315, 416.320(b). A legal guardian is required to provide proof, such as a court order, of his relationship to the child. POMS GN 03305.005B.2.c. In addition, when a State agency with legal custody of an individual files an application for a Social Security card, the State agency employee is required to provide acceptable evidence corroborating their identity. POMS RM 00202.005.D.5; POMS RM 10205.050.B.1. Therefore, consistent with these policies, SSA must require that SSI Facilitators provide evidence of their authority and identity. See id. (listing acceptable forms of evidence).

C. SSA has no obligation to require DSHS to designate specific positions to act as a Social Security authorized representative.

There is no need for SSA to request the State to designate specific positions within DSHS to act as appointed authorized representatives. A legal guardian may appoint another individual, including a non-attorney, to act as the dependent child’s Social Security authorized representative. POMS GN 03910.040(A). The only limitation regarding who can be appointed as an authorized representative is that a non-attorney representative must be generally known to have a good character and reputation and is capable of giving help to the claimant in connection with their claim. 20 C.F.R.§ 416.1505. SSA will presume that the appointed representative is qualified, unless there is evidence to the contrary. POMS GN 03910.020. Therefore, the legal guardian is free to appoint any third party as the child’s authorized representative, as long as that person meets SSA’s requirements.

D. DSHS employees’ access to a dependent child’s Social Security records is based on their individual roles.

Unless an exception applies, SSA may only disclose an individual’s records that are subject to the Privacy Act to a third party if there is written consent. 5 U.S.C. § 552a; 20 C.F.R. § 401.100(a). A legal guardian may receive a dependent child’s non-medical records after identifying the specific records that are sought. 20 C.F.R. § 401.40(a), (b). A legal guardian may receive a dependent child’s medical records only after designating a healthcare professional to receive the records, who may then provide them to the legal guardian. 20 C.F.R. § 401.55(c)(2); POMS GN 03305.005.B.2.c. In the four cases reviewed for this opinion, SSI Facilitators acting as the legal guardian signed the SSA-3288 form, requesting that medical records be disclosed directly to them. The SSI Facilitators did not designate any healthcare professionals to receive the records. Consistent with the regulations, SSI Facilitators acting as legal guardians must designate healthcare professionals to receive the dependent child’s medical records.

A DSHS employee properly appointed as a dependent child's authorized representative may directly receive disclosures of the dependent child’s records, including medical records. 20 C.F.R. § 416.1510(a)(1); POMS GN 03910.025.

E. The appointment of a DSHS employee as an authorized representative does not permit SSA or DDS to disclose information to other DSHS employees who may be assisting the authorized representative.

As noted above, DSHS as the legal guardian may appoint an authorized representative for a dependent child and SSA may disclose the child’s Social Security records and information, including medical records, to the authorized representative. However, neither SSA nor DDS may disclose information to DSHS employees who are assisting the Social Security authorized representative, unless the SSI Facilitator who is acting as the legal guardian completes a Form SSA-3288. 20 C.F.R. § 401.100(b); POMS GN 03316.125.A. Using this form, DSHS when acting as legal guardian may authorize disclosure to the specific DSHS employees or to DSHS as an entity. POMS GN 03305.015.

CONCLUSION

DSHS/DCFS can be considered the legal guardian of dependent children for Social Security purposes when SSA receives a court order naming DSHS/DCFS as the legal guardian of a dependent child. SSA should establish that individual DSHS employees are authorized to act as legal guardians and require that these employees provide evidence corroborating their identity. However, there is no requirement that DSHS designate particular positions that may act as a dependent child’s Social Security authorized representative.

The level of access that a DSHS employee has to a dependent child’s Social Security records depends on their individual roles. Neither SSA nor DDS may directly disclose medical records to DSHS employees acting as legal guardian. A dependent child’s medical records must first be sent to a designated healthcare professional, although non-medical records may be sent directly to the designated legal guardian. SSA and/or DDS may directly disclose both medical and non-medical records to a DSHS employee who is properly appointed as a child's Social Security authorized representative. However, neither SSA nor DDS may disclose information to other DSHS employees who are assisting the Social Security authorized representative, unless the legal guardian completes a Form SSA-3288 authorizing disclosure to specific DSHS employees or to DSHS as an entity.

A Memorandum of Agreement could be useful in addressing the proper roles, authorities, and procedures used by DSHS/DCFS and SSA in future cases.

Under Washington State law, termination of a parent-child relationship severs all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and the parent. However, Washington State law also provides that termination of a parent-child relationship shall not disentitle a child to any benefit due the child from any third party, agency, state, or the United States. Therefore, termination of a parent-child relationship under Washington State law does not preclude the child from becoming entitled to Social Security benefits.

You have asked us about the effects of a termination of parental rights in the State of Washington on the receipt of survivors benefits.

FACTUAL BACKGROUND

Mr. Darren W. W~ and Ms. Laura M~ are the natural parents of four children: Gary M~ (date of birth, November 19, 1987); Tosha L. W~ (born in October 1988, but later died of sudden death syndrome); Kenneth W~ (date of birth, April 10, 1991); and Joshua W~ (date of birth, February 11, 1992).

On December 8, 1994, the Superior Court of Washington for Snohomish County, Juvenile Division, entered an order, pursuant to RCW 13.34.190, terminating the parent-child relationship between Ms. M~ and the three living children. The children were then placed in the temporary custody of the Washington State Department of Social and Health Services (DSHS). See Stipulations and Order on Termination of Parent-Child Relationship.

After a hearing, the Superior Court also terminated, pursuant to RCW 13.34.190, the parent-child relationship between Mr. W~ and his three living children. The court found that Mr. W~ had neglected his children; that he had drug, alcohol, and anger management problems; that he that he was unwilling to receive and complete court-ordered treatment; that he failed to provide financial support for the children; and that he had a history of continued incarcerations (at the time of the dependency and neglect hearing, he was in jail). The children were placed in the permanent custody of the DSHS to arrange for adoption. See Orders of Termination of Parent-Child Relationship, which incorporate the Findings of Fact and Conclusions of Law on Termination of the Parent-Child Relationship. The children have not yet been adopted.

On October 5,1995, Mr. W~ died. The DSHS has filed for survivors benefits on Mr. W~'s record.

ISSUE PRESENTED

You wish to know whether Joshua, Gary and Kenneth are eligible for Social Security survivors benefits on Mr. W~'s record.

DISCUSSION

Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. ' 416(h)(2)(A), provides, in pertinent part, that in determining whether an applicant is the child of a deceased insured individual for Title II purposes, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. 20 C.F.R. '' 404.354 and 404.355(a)(1) (1996). In this case, Mr. W~ was domiciled in the State of Washington at the time of his death.

Under Washington's intestacy statute, the share of decedent's estate not distributable to the surviving spouse first descends to the intestate's "issue." RCW 11.04.015(2)(a). The term "issue" includes the decedent's natural children and adopted children. RCW 11.02.005(4); A~ Estate, 230 P. 157 (Wash. 1924). However, the term "issue" excludes adopted children claiming a share of their natural parent's estate. RCW 11.02.085; W~ Estate, 472 P.2d 536, 538 (Wash. 1970). Mr. W~ was named in the termination action as the father, and the Superior Court's findings of fact and conclusions of law indicate that Joshua, Gary and Kenneth are Mr. W~'s natural children. Because Joshua, Gary, and Kenneth have not yet been adopted they continue to qualify as Mr. W~'s issue under Washington's intestate statute. The discussion, however, does not end here.

The Washington Juvenile Court Act, RCW Chapter 13.34, provides that termination of a parent-child relationship severs all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent. RCW 13.34.200(1). We did not find any Washington case law on whether this statute severs the right to inherit.

The State of Minnesota has a similar statute, which provides that upon the termination of parental rights all rights, powers, privileges, immunities, duties and obligations, including any rights to custody, control, visitation or support existing between the child and the parent shall be severed and terminated. Minn. Stat. ' 260.241, subd. 1. The Minnesota Supreme Court has held that a child's right to inherit from its parents is severed at the time parental rights are terminated. In re Estate of B~, 452 N.W.2d 686, 688 (Minn. 1990).

The State of Kansas does not have a statute similar to Washington's, but the Kansas Court of Appeals has held that the termination of the parent-child relationship served to terminate the child's right to inherit. Wilson v. Kansas Gas and Electric Co., 744 P.2d 139, 142-43 (Kan.App. 1987). Based on this case law, the Office of the General Counsel in Kansas City has concluded that a child is not entitled to Social Security survivors benefits because he does not have a right to inherit. See, memorandum, Does [Child] Retain Her Rights as a Child of the Worker under Kansas Law? to Assistant Regional Commissioner, OGC (F~), March 30, 1992; see also, memorandum, Entitlement to Child's Insurance Benefits, from CC Region VII (E~) to Assistant Regional Commissioner, July 19, 1995 (commenting on SSA's policy determination that if, under applicable State law a termination of parental rights or relinquishment of a child to a state agency terminates the claimant's legal status as the child of the wage earner, the claimant's entitlement to benefits on the insured individual's record ceases).

There is, however, a feature of the Washington law that is not part of the Minnesota statute or Kansas case law. RCW 13.34.200(2) provides that termination shall not disentitle a child to any benefit due the child from any third person, agency, state, or the United States . . . . Because there is no Washington case law addressing this statute, we must rely on statutory construction principles to discover the meaning of this statute.

The primary objective of statutory construction is to carry out the intention of the Legislature. The intent of the Legislature must be determined primarily from the statute itself. Department of Trans. v. State Employees' Ins. Bd., 645 P.2d 1076 (Wash. 1982). Where the language of the statute is plain, free from ambiguity, and devoid of uncertainty, there is no room for construction because the meaning will be discovered from the wording of the statute itself. State v. Houck, 203 P.2d 693 (Wash. 1949). RCW 13.34.200(2) plainly states that termination of the parent-child relationship under RCW Chapter 13.34 shall not disentitle a child to any benefit due from a third party. Therefore, if a child is entitled a benefit, termination of the parent-child relationship shall not disentitle the child to this benefit. In our context, if Joshua, Gary and Kenneth are eligible to inherit under Washington intestacy laws, they are eligible for Social Security survivors benefits. 42 U.S.C. § 416(h)(2)(A). As discussed, Joshua, Gary and Kenneth are Mr. W~'s issue for purposes of the intestacy law. Under 13.34.200(2), termination of the parent-child relationship does not disentitle them to these benefits.

CONCLUSION

Joshua, Gary, and Kenneth are entitled to survivors benefits under 42 U.S.C. § 416(h)(2)(A) on Mr. W~'s account.