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