TN 14 (03-11)

PR 01805.055 Wisconsin

A. PR 11-144 MOS-State: Wisconsin – Effect of Termination of Natural Parental Rights on Inheritance Rights Number Holder: George E~, Jr. / Claimant: Christian W~

DATE: August 17, 2011

1. SYLLABUS

An opinion was requested regarding the effect of the termination of a natural parent’s rights on the inheritance rights of a natural child, for purposes of determining whether the minor claimant, Christian W~, is entitled to benefits as a child of the number holder (NH), George E~, Jr.

It was determined that the claimant does not qualify as the NH’s natural child under section 216(h)(2) of the Act because he cannot inherit from the NH under applicable state law, as a result of the termination of the NH’s parental rights. However, it was further concluded that the claimant is deemed to be the NH’s child under section 216(h)(3)(B) of the Act and is also deemed dependent upon the NH. Therefore, as long as the claimant can meet the remaining requirements for entitlement to child’s insurance benefits, it is believe that SSA correctly awarded benefits to the claimant and should continue to make payments to him.

2. OPINION

QUESTION PRESENTED

You requested an opinion regarding the effect of the termination of a natural parent’s rights on the inheritance rights of a natural child, for purposes of determining whether the minor claimant, Christian W~, is entitled to benefits as a child of the number holder (NH), George E~, Jr. You advised that the claimant has been awarded benefits and you seek guidance on how SSA should proceed in this case.

SHORT ANSWER

For the reasons discussed below, we conclude that the claimant does not qualify as the NH’s natural child under section 216(h)(2) of the Act because he cannot inherit from the NH under applicable state law, as a result of the termination of the NH’s parental rights. However, we further conclude that the claimant is deemed to be the NH’s child under section 216(h)(3)(B) of the Act and is also deemed dependent upon the NH. Therefore, as long as the claimant can meet the remaining requirements for entitlement to child’s insurance benefits, we believe that SSA correctly awarded benefits to the claimant and should continue to make payments to him.

BACKGROUND

The NH is currently entitled to disability benefits. He has been domiciled in the state of Wisconsin since at least April 2010.

In October 2010, the claimant’s mother, on behalf of the claimant, protectively filed an application for child’s benefits on the NH’s account. There is no question that the claimant is the NH’s biological child. The claimant was awarded child’s benefits effective October 2009.

In May 2011, the NH’s wife and the mother of two children who are currently entitled to children’s benefits on the NH’s account, protested the claimant’s entitlement to benefits. She submitted a July 1992 Utah juvenile court order granting the NH’s petition for voluntary relinquishment of parental rights with respect to the claimant. The NH was living in Utah at that time. The claimant was never adopted.

DISCUSSION

Section 202(d) of the Social Security Act (the Act) provides for the payment of child’s insurance benefits to a child (as defined in section 216(e) of the Act) of an insured individual. The claimant must show, among other things, that he is the insured’s child based on a recognized relationship, and that he is dependent on the insured. 1 See Section 202(d)(1) of the Act; 20 C.F.R. § 404.350.

I. Relationship Requirement

Under the Act and regulations, the term “child” may mean a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. See Section 216(e) of the Act; 20 C.F.R. § 404.354. As relevant to this case, SSA must first consider whether the claimant, as a natural child, could inherit the NH’s intestate personal property as his child under state law. See Section 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(a)(1). If the claimant cannot inherit from the NH under state law, he may nevertheless be able to establish his status as a child by meeting the requirements of section 216(h)(3) of the Act.

A. Section 216(h)(2)

We first consider whether the claimant could inherit the NH’s personal property as his natural child under state law. Section 216(h)(2)(A) of the Act provides, in relevant part: In determining whether an applicant is the child…of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application…. Applicants who according to such law would have the same status relative to taking intestate personal property as a child…shall be deemed such.

See also 20 C.F.R. § 404.355(a)(1). The NH was living in Wisconsin in October 2010 when the claimant applied for benefits. Therefore, we apply Wisconsin inheritance law in this case.

In applying Wisconsin inheritance law, we must first determine whether Wisconsin would find that the NH’s parental rights had been terminated by the Utah court ruling. As noted above, a Utah juvenile court granted the NH’s petition for voluntary relinquishment of parental rights with respect to the claimant in 1992. We believe that Wisconsin would likely give full faith and credit to the Utah court order and recognize the termination of the NH’s parental rights. See U.S. Const. art. IV, § 1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”); 28 U.S.C. § 1738.

Next, we must determine the effect of the termination of the NH’s parental rights on the claimant’s right to inherit from the NH under Wisconsin law. Since the NH’s parental rights were terminated in Utah, we must also consider whether Wisconsin would apply its own law or Utah law in this case. Wisconsin law is silent regarding this choice-of-law issue. In the absence of a specific statutory provision, we believe that Wisconsin would apply its own law to determine the inheritance rights of a child whose natural parent’s rights were terminated in another state. Under common law, the courts of the state where a decedent was domiciled at the time of his death would look to their own local law to determine what categories of persons are entitled to inherit upon intestacy. See Restatement (Second) of Conflict of Laws § 260 cmt. b (1971). And, by analogy, under Wisconsin’s adoption statute, a parent-child relationship created by an adoption order in another jurisdiction generally will be recognized in Wisconsin, but the right of the adopted child to inherit is governed by Wisconsin law. See Wis. Code §§ 48.92(3), 48.97, 854.20, 854.21.

Under Wisconsin law, a child cannot inherit from a natural parent whose rights have been terminated. See Wis. Stat. §§ 48.40(2) (termination of parental rights means that “all rights, powers, privileges, immunities and obligations existing between parent and child are permanently severed”), 48.43(2) (order terminating parental rights generally “permanently severs all legal rights and duties…between the child and all persons whose relationship to the child is derived through that parent); In re Desmond F., 795 N.W.2d 730 (Wis. 2011) (affirming termination of parental rights in case where facts showed mother was informed her child would lose right to inherit from her); see also POMS PR 01005.055 (PR 04-035). Accordingly, we conclude that the claimant may not inherit from the NH in Wisconsin and, thus, is not the NH’s child for purposes of entitlement to child’s insurance benefits under section 216(h)(2)(A).

B. Section 216(h)(3)

Under Section 216(h)(3)(B) of the Act, the natural or biological son or daughter of an insured individual, regardless of his or her status under state law, may be deemed to be the insured’s child for benefit purposes, if certain requirements are met. This provision states, in relevant part:

An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under [section 216(h)(2)], shall nevertheless be deemed to be the child of such insured individual if:

(B) in the case of an insured individual entitled to disability insurance benefits…—

(i) such insured individual— (I) has acknowledged in writing that the applicant is his or her son or daughter….

See also 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100.

Here, it is undisputed that the claimant is the natural or biological son of the NH. Additionally, in his petition for voluntary relinquishment of parental rights, the NH effectively acknowledged that the claimant was his child. Thus, the Utah court order, which incorporates the NH’s petition, constitutes an “acknowledgment in writing” within the meaning of section 216(h)(3)(B)(i)(I). See POMS GN 00306.105(A)(1). Accordingly, the claimant is deemed to be the NH’s child for purposes of entitlement to child’s insurance benefits under section 216(h)(3)(B).

II. Dependency Requirement

For benefit purposes, in addition to satisfying the relationship requirement under the Act, the claimant must show that he was dependent upon the NH at one of the following points in time: at the beginning of the NH’s period of disability, when he became entitled to disability insurance benefits, or when the application was filed. See Section 202(d)(1)(C) of the Act; POMS GN 00306.007(A)(1).

Section 202(d)(3) of the Act states that a claimant who is deemed to be a child of an insured individual under section 216(h)(3) is also deemed to be the insured’s legitimate child. Section 202(d)(3) further provides that a claimant who is a legitimate child of the insured and has not been adopted by some other individual is deemed dependent upon the insured. See also 20 C.F.R. § 404.361; POMS GN 00306.100(A)(2) (section 216(h)(3) child is deemed dependent unless someone other than the NH has adopted the child). Here, the claimant is deemed dependent upon the NH because he is deemed to be the NH’s legitimate child and he has not been adopted by anyone else.

CONCLUSION

For the reasons discussed above, we conclude that the claimant should be considered the NH’s child for purposes of entitlement to child’s insurance benefits. In particular, although the claimant cannot inherit from the NH under applicable state law as a result of the termination of the NH’s parental rights, he is deemed to be the NH’s child under section 216(h)(3)(B) of the Act. The claimant is also deemed dependent upon the NH. Therefore, as long as the claimant can meet the remaining requirements for entitlement to child’s insurance benefits, we believe that SSA correctly awarded benefits to the claimant and should continue to make payments to him.

Donna L. C~
Regional Chief Counsel, Region V
By: _______________
Cristine B~
Assistant Regional Counsel

B. PR 11-065 Request for an Opinion on the Effect of Termination of Adoptive Parental Rights on Inheritance Rights and Social Security Benefits in Region V States

DATE: February 28, 2011

1. SYLLABUS

The laws of all six states that comprise Region V state that after an insured individual’s parental rights have been terminated with respect to his adopted child, the child is no longer a legally adopted child of the insured. Accordingly, the child would not be eligible for child’s benefits on the insured’s account. 

2. OPINION

You asked us to research the laws of the states in Region V to determine the right of children to inherit from their adoptive parents after the termination of parental rights, for purposes of a child’s potential entitlement to Social Security benefits. As discussed more fully below, we believe the proper analytical framework in such instance is to determine the effect of termination of parental rights of adoptive parents on the children’s status as the legally adopted children of the adoptive parents under state law. Our review of such laws indicates that, in all Region V states, termination of parental rights completely and permanently severs the legal parent-child relationship such that the child is no longer a legally adopted child of the adoptive parent. 

DISCUSSION

Section 202(d) of the Social Security Act (the Act) provides for the payment of child’s insurance benefits to a child (as defined in section 216(e) of the Act) of an insured individual.  The applicant must show, among other things, that he is the insured’s child based on a recognized relationship. See Section 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). Under the Act and regulations, the term “child” means a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. See Section 216(e) of the Act; 20 C.F.R. § 404.354.  To determine whether an applicant is the insured’s legally adopted child, SSA considers whether the applicant was legally adopted by the insured under the adoption laws of the state or country where the adoption took place. See 20 C.F.R. § 404.356; see also POMS GN 00306.135.  

You requested an opinion on the effect of termination of parental rights of an adoptive parent on the inheritance rights of an adopted child. Your request appears to be based on the fact that a natural child may be eligible for child’s benefits if he could inherit from his natural parent under state inheritance laws. See Section 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(a)(1). However, the Act and regulations apply different tests for a natural child and for an adopted child.  Section 216(h)(2)(A) states, in relevant part:

In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death. . . .Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

Our research reveals that the test set forth in section 216(h)(2)(A) applies only to a natural “child,” not to a “legally adopted child,” which is a different term of art under the statute. See Section 216(e) of the Act (“The term ‘child’ means (1) the child or legally adopted child of an individual. . .”). Rather, an applicant’s status as a legally adopted child is determined solely by looking to state adoption laws. See 20 C.F.R. § 404.356.

This is evident from the language of 20 C.F.R. §§ 404.355 and 404.356, the regulations which pertain to the eligibility requirements for a natural child and a legally adopted child, respectively. See Section 205(a) of the Act (granting Commissioner general rulemaking authority to “adopt reasonable and proper rules and regulations” in order to establish right to benefits under the Act); Heckler v. Campbell, 461 U.S. 458, 466 (1983) (Congress has “conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Social Security] Act”) (internal quotation and citations omitted). Section 404.356 states, in relevant part: “You may be eligible for benefits as the insured’s child if you were legally adopted by the insured. . . .We apply the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws described in § 404.355, to determine whether you are the insured’s legally adopted child.” In contrast, section 404.355 states that SSA applies state inheritance laws to determine an applicant’s eligibility for benefits as an insured’s natural child.  

Moreover, in October 1998 SSA issued final rules amending its regulations to clarify how the agency determines an applicant’s status as a natural child or as a legally adopted child. See 63 Fed. Reg. 57590 (Oct. 28, 1998).  In these rules, SSA made it very clear that “[o]ur policy for determining whether an applicant qualifies as the ‘child’ of an insured individual has always been that we apply State law on inheritance rights to determine the status under the Act of a natural child, i.e., biological child, and State law on adoption to determine the status of a child legally adopted by the insured.” 63 Fed. Reg. at 57592. These rules further explain: 

[S]ection 216(h)(2)(A) provides that the status of an applicant for benefits as a child (as opposed to a legally adopted child, a stepchild, or other type of individual who can qualify under section 216(e) of the Act as a “child” for purposes of section 202(d) of the Act) is determined by applying the law on devolution of intestate personal property that would be applied by the courts in the State of the insured individual’s domicile. This is a test for the status of a natural child.

The legislative history of sections 216(e) and 216(h)(2)(A) shows that Congress intended us to use section 216(h)(2)(A) to determine the status of natural children. [Discussion of legislative history omitted.] Thus, since the first provision for paying benefits to children of an insured worker, there has been a clearly defined distinction between natural children and adopted children and clearly defined conditions for determining the status of an adopted child, which conditions are not affected by section 216(h)(2)(A).

Along with the structure of the Act and the legislative history of provisions defining “child,” we have consistently interpreted the State intestacy law provisions of section 216(h)(2)(A) as not applying to children legally adopted by the insured individual….In the present §404.354, we state that a child may be related to the insured as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. In §404.355, we explain the conditions for eligibility as a natural child, which include applying State inheritance law, and in §404.356 we state the requirement for eligibility as a legally adopted child.

Id. (emphases added). By the very strong language of these final rules, SSA has stated unequivocally its longstanding policy that, for purposes of determining “child” status, it applies the state inheritance laws described in section 216(h)(2)(A) of the Act to natural children, and state adoption laws to legally adopted children. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845 (1984) (agency’s interpretation of an ambiguous statute which it administers may be entitled to substantial deference). The agency has incorporated this policy in its regulations at 20 C.F.R. §§ 404.355 and 404.356, respectively. We were unable to find a provision in the POMS that addresses this issue. We believe it may be helpful for the agency to implement a substantive POMS provision incorporating language similar to that in the regulations and the comments to the regulations to clarify this point.

There are numerous precedential opinions that determine an applicant’s status as a legally adopted child by applying state adoption laws. See, e.g., POMS PR 01310.016(B) (PR 05-129), PR 01310.016(C) (PR 04-232), PR 01310.016(D) (PR 04-046), PR 01310.017(A) (PR 08-094), PR 01310.017(B) (PR 05-071), PR 01310.025(A) (PR 02-030), PR 01310.039(A) (PR 04-130), PR 01310.055(A) (PR 02-118). 

Since an applicant’s relationship as a natural child of an insured individual is established by showing he could inherit the insured’s personal property as the insured’s child under state inheritance laws, it follows that when the parental rights of a natural parent are terminated, we consider how that affects the child’s inheritance rights. By the same reasoning, since an applicant’s relationship as a legally adopted child of an insured individual is established by showing he was legally adopted by the insured under state adoption laws, it follows that when the parental rights of an adoptive parent are terminated, we consider how that affects the child’s status as the legally adopted child of the adoptive parent.

Thus, when determining whether an adopted child is eligible for child’s benefits in a case where the adoptive parent’s parental rights have been terminated, the question is whether the child is still considered the legally adopted child of the adoptive parent under state law. Here, we are looking only at initial entitlement, i.e., whether termination of the parent-child relationship prior to an application for child’s benefits on the account of the adoptive parent would preclude an award of benefits. If, however, the child is already receiving benefits on the adoptive parent’s account, termination of the adoptive parent’s parental rights is not a terminating event that would end the child’s entitlement. See POMS RS 00203.035(B)(3) (entitlement ends only if adoption is annulled).   As outlined below, in all six states in Region V, an adopted child is conferred the same legal status as a natural child. Also, termination of parental rights completely and permanently severs the parent-child relationship.  Thus, we conclude that, under the laws of all Region V states, a court order terminating the parental rights of an adoptive parent effectively terminates the adoptive parent-child relationship such that the child is no longer the legally adopted child of the adoptive parent.

Illinois: Once adopted, a child attains the status of a natural child of the adoptive parents. See In re M.M., 619 N.E.2d 702, 708 (Ill. 1993).  Upon a court order terminating parental rights, parents are relieved of all parental responsibility for the child and are deprived of all legal rights as respects the child. See 705 Ill. Comp. Stat. 405/2-29(2) (Juvenile Court Act); 750 Ill. Comp. Stat. 50/17 (Adoption Act). From the child’s perspective, the parent whose parental rights have been terminated no longer exists, and the situation is as if parent has died. See In Interest of C.B., 583 N.E.2d 107, 108 (Ill. App. Ct. 1991).

Indiana: Upon adoption, an adoptive parent becomes “the actual parent of the child.” Lipginski v. Lipginski, 476 N.E.2d 924, 927 (Ind. Ct. App. 1985).  A court order terminating parental rights has the effect of permanently terminating “all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, parenting time, or support” pertaining to the parent-child relationship, and the parent’s consent to the child’s adoption is not required. See Ind. Code § 31-35-6-4(a).

Michigan: Adoptive parents are treated as though they are the birth parents of the adoptee under the law. Mich. Comp. Laws § 710.60(1). If a person’s parental rights are terminated by the court, the child is placed in the permanent custody of the court and is legally available for adoption. See Mich. Comp. Laws §§ 710.41, 712A.19b(1). The state foster care program places and supervises children who are permanent court wards. See Mich. Dep’t of Human Servs., Foster Care Program, http://www.michigan.gov/dhs/0,1607,7-124-5452_7117-14769--,00.html (last visited Jan. 10, 2011).  The former parent is not obligated to pay child support or to reimburse the state for foster care expenses. See Mich. Comp. Laws § 712A.18(2) (parent reimbursement provision does not apply when child is in permanent custody of court). 

Minnesota:  Adoption creates a legal parent-child relationship with all the rights and duties of birth parents and legitimate child. Minn. Stat. § 259.59 (subd. 1). “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 parent shall be severed and terminated and the parent shall have no standing to appear at any further legal proceedings concerning the child.” Minn. State. §260C.317, subd. 1.

Ohio:  An adopted child is legally considered as if he were a legitimate blood descendant of the adoptive parents. Ohio Rev. Code § 3107.15(A)(2). Once a person’s parental rights are terminated, permanent custody of the child vests in the public children services agency (PCSA) or private child placing agency (PCPA). See Ohio Rev. Code §§ 2151.353, 2151.414, 2151.415; In re C.T., 895 N.E.2d 527, 530-31 (Ohio 2008). The PCSA/PCPA places children in substitute care (i.e., foster care) or adoptive placement. See Ohio Admin. Code §§ 5101:2-42-04, 5101:2-42-05, 5101:2-48-16(V); Ohio Dep’t of Jobs & Family Servs., Foster Care, http://jfs.ohio.gov/ families/foster_care/index.stm (last visited Jan. 12, 2010). The former parent is not obligated to pay for the cost of care incurred while the child is in the permanent custody of the PCSA/PCPA. See Ohio Admin. Code §§ 5101:2-42-09(J) (permanent custody by voluntarily surrender), 5101:2-47-21(C)(1)(e) (provision for reimbursement by federal government under Title IV-E of Social Security Act).

Wisconsin: Adoption creates the same legal parent-child relationship as a natural parent-child relationship.  Wis. Stat. § 48.92(1). “Termination of parental rights” is defined as “pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed.”  Wis. Stat. § 48.40(2). “An order terminating parental rights permanently severs all legal rights and duties between the parent whose parental rights are terminated and the child. . .” Wis. Stat. § 48.43(2).

CONCLUSION

For the reasons discussed above, we conclude that, under the laws of all six states that comprise Region V, after an insured individual’s parental rights have been terminated with respect to his adopted child, the child is no longer a legally adopted child of the insured. Accordingly, the child would not be eligible for child’s benefits on the insured’s account.

Donna L. C~
Regional Chief Counsel, Region V
By: _______________
Cristine B~
Assistant Regional Counsel


Footnotes:

[1]

The claimant must also show that he has filed an application, is unmarried, and meets the age requirement. See Section 202(d)(1) of the Act; 20 C.F.R. § 404.350.


To Link to