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. 

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

At present there is no Illinois statutory provision for the annulment of adoptions and no indication in the statutory provisions dealing with the surrender of a child for the purpose of adoption that such a surrender, if made by adoptive parents, could be interpreted as annulling their previously valid adoption of the surrendered child. (T~, Willard L. - A/N ~ - RAV [W~] to ARC, Frogs., Chicago, 01/04/89)

This is in response to your recent memorandum inquiring whether the surrender of an adopted child back to the state adoption agency by the adoptive parents annuls the adoption under Illinois law.

The relevant facts are as follows: The wage earner Willard T~ and his wife Elaine legally adopted James M. "Jamie" T~ on March 4, 1982, when Jamie was ten years old. Jamie became entitled to Social Security benefits on Willard's record effective January 1986. On July 28, 1988, the wage earner and his wife surrendered custody and control of the child to the Illinois Department of Children and Family Services for purposes of adoption. POMS RS00203.060D states that "[e]ntitlement to a child's benefit based on a legal adoption will terminate if the adoption is annulled." Thus, the question presented is whether surrendering the child to the adoption agency constitutes an annulment of the previously valid adoption.

Since adoptions were unknown at common law, adoption proceedings are "purely statutory" in Illinois. In re Custody of A~, 107 Ill. App. 3d 1006, 438 N.E.2d 513, 514 (1982). In line with this statutory nature of adoption, the great weight of authority in the United States requires that the right of setting aside an adoption decree be legislatively provided. Note, Annulment of Adoption Decrees on Petition of Adoptive Parents, 22 J. F~. L. 549, 551-52 (1983-84). However, the Illinois Adoption Act.," codified at Ill. Ann. Stat. ch. 40, §1501 et seg. (S~-H~ Supp. 1988), does not set out a process whereby Illinois adoptions may be annulled. See note, id., at 566. Consequently, it appears that adoptions may not be annulled under Illinois law.

This conclusion is reinforced by a number of general statements of statutes of other states. For example, the note cited above observes that "most [state] statutes specifically addressing adoption annulment have been repealed," and "replaced by statutes providing for the effect and validity of final adoption decrees." Id. at 563. Moreover, long before the development of this relatively recent trend in the law, it had already been noted that "annulment at the behest of the adoptive parents is not favored." 2 C.J.S. Adoption §115 (1972). This authority cites in the same section a case which held that "courts will not assume jurisdiction to annul a decree of adoption at [the] instance of adoptive parents," in the absence of a statute that supplies such a procedure. Allen v. Allen, 214 Or. 664, 330 P.2d 151 (1958). Similarly, it has been stated that:

Clearly, an adoption decree will not be vacated or annulled where the adoptive parents" motives are purely selfish, or because of pecuniary interest in changing [their] position, nor will the courts allow abrogation of a adoption if it is premised on the desire of foster parents to rid themselves of a bad bargain, or because of a mere change in attitude or regret .... [C]ourts will not permit annulment by a foster parent when the adopted child has acquired vested rights.

2 Am. Jur. 2d Adoption §79 (1962).

This same authority states that courts "indicate reluctance to disturb the status of an adopted child unless vacation of the decree would clearly be for its best interests." This "best interests" of the adopted child test is in fact a central focus of adoption law. In Illinois, this is codified in Section 1525 of the Adoption Act, which states that "the best interests and welfare of the person to be adopted shall be of paramount consideration in the construction and interpretation of this Act." Ill. Ann. Stat. ch. 40 §1525 (S~-H~ Supp. 1988). In the present fact situation there is nothing to indicate that it would be in the child's best interests to annul his adoption or to treat the surrender as an annulment.

The legal concept of annulment is generally understood to contemplate more than merely a discontinuation or termination of a certain status at law. Rather, annulment renders a given legal status invalid ab initio. In other words, an annulment causes a previously existing status at law to be treated as if it had never validly existed. Cf., e.~., Black's Law Dictionary 83 (5th ed. 1979), distinguishing "divorce" from "annulment" of a marriage: divorce terminates the marital status; annulment says that it never existed. Likewise, an annulment of an adoption treats the adoption as if it never existed.

This limited and specific legal definition of "annulment" helps to explain why, even in those jurisdictions (unlike Illinois) that still provide for the annulment of adoptions, the only recognized grounds for annulment (apart from the generic "child's best interests") are grounds such as fraud, duress, and, misrepresentation. See, e.g., Note, supra, at 558-61; 2 Am. Jur. 2d, supra, §76. These are the only kinds of grounds for annulment that would properly render an adoption invalid from its inception because the existence of one of these grounds would mean that the adoption had been invalidly obtained. (As for the "best interests" ground, it has been noted that this ground should rarely if ever be used to support the annulment of an adoption, since the adoption itself was presumably based on the child's best interests. Note, supra, at 562.)

By contrast, Illinois law on surrender for the purposes of adoption merely terminates parental rights of the surrendering parents regarding the surrendered child as of the date of the surrender. See, e.g., Adoption Act, supra, §1501E ("a person who has executed... a final and irrevocable surrender for purposes of adoption... is not a parent of the child who was the subject of such... surrender"); §1512C (this sets out a statutorily required surrender form, which requires a surrendering parent to state that "I do irrevocably and permanently give up all custody and other parental rights I have to such child"). Surrender has no retroactive effect on the prior validity of a previously existing parent-child relationship; in this, adoptive parents are no different from natural parents. Thus, there is no justification for asserting that, under Illinois law, surrendering a previously adopted child to an adopting agency serves to annul the previously valid adoption.

The only mention of the annulment of adoptions in the Illinois Statutes is not in the Adoption Act, ch. 40 §1501 et seg., but in the Vital Records Act, ch. 111 1/2 §73 (S~-H~ 1988). Specifically, §73-16 makes a reference to petitioning in court for a final judgment annulling an adoption. At a minimum, this statutory provision helps to confirm, for Illinois, the conclusion that "[s]ode form of judicial proceeding unquestionably is necessary for annulment of adoptive status. Annulment cannot be accomplished by an act of the parties." Note, supra, at 550.

However, since there is no provision for (or even mention of) the annulment of adoptions in the Adoption Act, the Vital Records Act's reference to annulment appears to have no impact upon adoption proceedings in Illinois. Reference to the annulment of adoptions in the Vital Records Act may reflect the possibility of the annulment of an adoption of a child in another state who subsequently relocates in Illinois. See §73-16(4). At any rate, at present there is no Illinois statutory provision for the annulment of adoptions and no indication in the statutory provisions dealing with the surrender of a child for the purposes of adoption that such a surrender, if made by adoptive parents, could be interpreted as annulling their previously valid adoption of the surrendered child.

Marriage is not a prerequisite for adoptions in Illinois. Where the parents therefore falsely assert the validity of their marriage during adoption proceedings the adoption would be annulled only if such an annulment were shown to be in the best interest of the child. (J~, Louis J., ~ -- RAV (H~), to ARC Programs, 08/14/84.)

You have asked whether Louis J~" 1982 adoption of Maureen L. J~ was valid. We conclude that it was.

We understand that Maureen was born on August 22, 1969. She is the natural daughter of Joyce A. J~ and Herman W~. Joyce and Herman were married at the time of the child's birth but divorced in 1971. Joyce apparently married Louis J~ in 1974. On October 18, 1982 the Circuit Court of St. Clair County, Illinois issued a Decree of Adoption whereby Louis and Joyce adopted Maureen. Among the Court's findings was that Louis and Joyce were husband and wife. We understand that Louis subsequently told SSA, however, that he and Joyce were divorced 1980 in Belleville, Illinois.

We addressed a similar question in an earlier opinion. K~ D~, ~~ RA V (B~) to Chief, Area Office (4/16/54). There we observed that marriage is not a prerequisite for adoption in Illinois. The statute permits adoption by single persons. An adoption would therefore be annulled only if shown to be in the best interests of the child. This is true even where the adoption had been based on a fraudulent misrepresentation of marriage.

More recently, an Illinois Appellate Court relied upon this best interest criteria in refusing to vacate an adoption judgment. Cowley v. Tator, 344 N.E. 2d 501 (1976). There, the petitioner was able to show that his marriage and the subsequent adoption of his wife's children were based on fraud. Though his marriage had been declared void ab initio, the court refused to vacate the adoption, citing Ill. Rev. Stat. ch. 40 Sec. 1525 which states:

AUG 17 1984

The best interests and welfare of the person to be adopted shall be of paramount consideration in the construction and interpretation of this Act.

The Court concluded that the only relevant issue was whether vacating the adoption would work to the best interests of the child. Id. at 504. We therefore conclude that the J~" adoption is valid.