This memorandum is in response to your request for an opinion on the right of a child
to inherit from his or her adoptive parent 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 the termination of parental rights of an adoptive parent on
the child’s status as the legally adopted child of the adoptive parent under state
law. In Oklahoma, termination of parental rights completely and permanently severs
the legal parent-child relationship such that the child is no longer the adoptive
parent’s legally adopted child.
Background
As we understand the facts, Shelby was born on February, in Selma, Alabama. On September
17, 1996, Stanley (number holder), adopted Shelby, and changed her last name to Stanley.
In October 2010, Stanley filed “Father’s Request to Consent to the Termination of
Parental Rights and Court’s Findings and Order Terminating Father’s Rights.” On October
27, 2010, an Oklahoma district court terminated Stanley’s parental rights to Shelby,
and Shelby became a ward of the state. There is no evidence that any other party subsequently
adopted Shelby. In December 2011, Stanley filed for Title II retirement benefits while
living in Oklahoma. Stanley listed Shelby on his application as a dependent child
who was not in his custody. In June 2012, the Oklahoma Department of Human Services
filed an auxiliary application for child’s benefits on Shelby’s behalf.
Analysis
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. 42 U.S.C. § 402(d). The applicant must show, among other things, that
she 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,
step grandchild, 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, the Social Security Administration (SSA or
agency) considers whether the insured legally adopted the applicant under the adoption
laws of the state or country where the adoption took place. See 20 C.F.R. § 404.356; see also Program Operations Manual System (POMS) GN 00306.135, Relationship Requirements-Legally Adopted Child.
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 she could
inherit from her 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 to determine entitlement for a natural child as
compared to 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, state adoption laws determine an applicant’s
status as a legally adopted child. 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 that 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.”
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 Application of State Law in Determining Child Relationship, 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, step grandchild,
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. SSA policy
is entitled to deference under federal law. 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.
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 adoptive parent’s legally adopted child
under state law.
Oklahoma law extends the same rights to adopted children as biological children. Okla.
St. 10 § 7505-6.5; Conville v. Bakke, 1964 OK 111, 400 P.2d 179, 192 (Okla. 1964) (noting that Oklahoma adoption law places
adopted children upon the same footing as natural offspring). However, the termination
of parental rights terminates the parent-child relationship. See 10A Okla. St. Ann. § 1-4-906(A). Moreover, under the Oklahoma Adoption Code, the
term “parent” does not include an individual whose parental relationship to a child
has been terminated. See Okla. St. Ann. § 7501-1.3 (10). In this case, the October 2010 Oklahoma district
court order terminated Stanley’s parental rights. As such, as of October 27, 2010,
Stanley was no longer Shelby’s parent, and therefore, pursuant to agency policy, SSA
can no longer recognize a parent-child relationship between Shelby and Stanley. [1]
Under Oklahoma law, the termination of parental rights does not terminate the duty
of the parent to support his minor child. See 10A Okla. Stat. Ann. § 1-4-906(B) (1)-(2). However, Oklahoma is in the minority of
states that allow for the continuation of support after the termination of parental
rights. The majority view is that the termination of parental rights severs the parent-child
relationship such that the parent no longer owes a duty to support the child. See State of Nevada v. Vine, 662 P.2d 295, cert. den., 464 U.S. 977 (1983). A recent Chicago legal opinion came
to this same conclusion, noting that for the five states in its region, the termination
of parental rights ended the parent child relationship, including the duty to pay
child support. See 705 Ill. Comp. Stat. 405/2-9912 (Juvenile Court Act); Indiana Code § 31-35-6-4(a);
Mich. Comp. Laws § 712A.18(A); Minn. State § 260.C.317, subd. 1; Ohio Admin. Code
§§ 5101:2-42-09(J). (Attached).
Although Oklahoma law allows for the continuation of child support after the termination
of parental rights, the Oklahoma Supreme Court has confirmed that the termination
of parental rights terminates the parent-child relationship under 1-4-906(A). See State Dept. of Human Services ex. rel. Overstreet v. Overstreet, 78 P.3d 951, 955 (Okla. 2003). In Overstreet, the Oklahoma Supreme Court looked
at the issue of whether the parent’s continued duty to support the child until another
party adopted the child continues the parent child relationship. It noted that the
law pertaining to the termination of parental rights was amended in 1994. The current
law includes two subsections providing that the termination of parental rights does
not terminate the duty of the parent to support the child. See 10A Okla. Stat. Ann. § 1-4-906(B) (1)-(2).
The court in Overstreet looked to the plain language of the statute pertaining to termination of parental
rights. See 10A Okla. Stat. Ann. § 1-4-904. Despite the continuing duty to pay child support
after the termination of parental rights, the court found “determinative” the phrase
“termination of parental rights terminates the parent child relationship.” See Overstreet, 78 P.3d at 954. Significantly, the court explicitly stated that even the current
law (which does require a parent whose rights have been terminated to pay child support
until the child is subsequently adopted) still includes the phrase “termination of
parental rights terminates the parent child relationship.” See 10A Okla. Stat. Ann. § 1-4-906(A). The court further noted that Oklahoma law on the
termination of parental rights going back to 1968 has included the phrase “termination
of parental rights terminates the parent child relationship.” Id. Therefore, even though Oklahoma law currently requires a parent whose parental rights
have been terminated to pay child support until the child is subsequently adopted,
the court found that the provision pertaining to child support does not change the
law’s key language that the termination of parental rights terminates the parent child
relationship. Because the Oklahoma Supreme Court found “determinative” the phrase
“termination of parental right terminates the parent child relationship,” we believe
that the duty to pay child support after termination of parental rights would not
continue the parent child relationship for purposes of eligibility to Social Security
benefits. Bolstering this conclusion is a definition in the Oklahoma Adoption Code,
providing that the term “parent” does not include an individual whose parental relationship
to a child has been terminated. See 10 Okla. Stat. Ann. § 7501-1.3 (10). Therefore, under the plain language of Oklahoma
law, termination of parental rights terminates the parent-child relationship.
However, in order to accept the termination of Stanley’s parental rights, we must
next consider whether SSA is bound by the October 2010 Oklahoma District Court’s Findings
and Order Terminating Father’s Parental Rights. A state court order is binding on
SSA when 1) an issue in a claim for Social Security benefits previously has been determined
by a state court of competent jurisdiction; 2) the issue was genuinely contested before
the state court by parties with opposing interests; 3) the issue falls within the
general category of domestic relations law; and 4) the resolution by the state trial
court is consistent with the law enunciated by the highest court in the state. See Social Security Ruling 83-37c, 1983 WL 31272 (adopting Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1974), as agency policy).
We believe the Oklahoma district court order terminating Stanley’s parental rights
does not satisfy the requirements of G~. This case squarely meets only two prongs of the G~ test, and does not appear to comply with the other two prongs. The Oklahoma state
court judgment meets the first prong of the G~ test because the Oklahoma district court is a state court of competent jurisdiction,
and it issued an order terminating Stanley’s parental rights. Under Oklahoma law,
the district court has unlimited jurisdiction of all justiciable matters. See Oklahoma Constitution, Art. 7, § 7.
With respect to the second prong, the information provided does not show that parties
with opposing interests genuinely contested the issue of termination of parental rights.
Oklahoma law provides that either a parent or the state may petition the court to
terminate the parental rights of parent. See 10A Okla. Stat. Ann. §§ 1-4-902 (stating that a district attorney can file a petition
for termination of parental rights), 1-4-904(B) (stating that a parent can voluntarily
agree to termination or the state can seek termination on other grounds). Whether
the state seeks termination or whether a parent voluntarily consents to termination,
Oklahoma law has two pre-requisites:
A court shall not terminate the rights of parent to a child unless:
1. The child has been adjudicated to be deprived either prior to or concurrently with
a proceeding to terminate parental rights; and
2. Termination of parental rights is in the best interest of the child.
See 10A Okla. Stat. Ann. § 1-4-904(A) (1)-(2). Any party seeking termination of parental
rights under Section 1-4-904(B) must meet these two elements outlined above.See In re L.M., 276 P.3d 1088, 1100, Okla. Civ. App. Div. 3 (2012). The information provided does
not show that Shelby has been adjudicated to be deprived either prior to or currently
with a proceeding to terminate parental rights. Although Stanley’s “Father’s Request
to Consent to the Termination of Parental Rights and Court’s Findings and Order Terminating
Father’s Rights” lists Shelby as the “alleged deprived child,” the court order does
not refer to any adjudicated finding that Shelby was deprived. Also absent from the
court’s order is any mention of Shelby’s mother. The court order refers to the “recommendations
of the Department of Human Services,” but it is unclear if Shelby’s mother was noticed
as a party to the action. Oklahoma law provides that while a parent may consent to
the termination of his or her rights, such consent must be done in strict conformance
to the statute which requires notice to be given and a hearing. See Bingham v. Bingham, 1981 OK Civ. App. 26, 629 P.2d 1297, 1300 (1981). Stanley’s consent to terminate his
parental rights and the court order terminating his parental rights are both dated
the same day- October 27, 2010. Thus, we have no indication that Stanley gave proper
notice to Shelby’s mother.
The Oklahoma court judgment complies with the third prong of the G~ test because the termination of parental rights falls affects the parent-child relationship
and therefore falls within the general category of domestic relations law. Traditionally,
the states, not the federal government, decide domestic relations issues. Harris v. Turner, 329 F.2d 918 (6th Cir.) cert. denied, 379 U.S. 907 (194), rehearing denied 379 U.S. 985 (1965).
With respect to the fourth prong, the Oklahoma district court judgment states only
that the termination of Stanley’s parental rights was in the child’s best interest,
but the judgment did not explain the basis for its decision. Under Oklahoma law, proceedings
to terminate parental rights require clear and convincing evidence. See Matter of Termination of Parental Rights, 847 P.2d 768 (Okla. 1993). The district court order does not contain a finding that
clear and convincing evidence supported the termination of parental rights. In addition,
the district court order does not appear to comply with Rules for the District Courts
of Oklahoma pertaining to orders affecting Indian children. The information you provided
shows that Shelby is eligible for membership in the Chickasaw tribe. In a termination
of parental rights proceeding affecting an Indian child, Rule 8.2 of the Rules of
the District Courts of Oklahoma requires a trial court’s order to make specific findings
of compliance with the Indian Child Welfare Act of 1978 and the Uniform Child Custody
Jurisdiction and Enforcement Act. See Okla. Stat. Ann. Title 12, Ch. 2, App., Rule 8.2. This rule also requires the court
to make specific findings as to the child’s full legal name and birth date. See In re I.F.A. and V.M.T, 278 P.3d 1067, 1069, Okla. Civ. App. Div. 3 (2012). Because the state court judgment
only clearly complies with the two of the four prongs of the G~ test, SSA cannot accept the Oklahoma district court judgment as terminating Stanley’s
parental rights.
In our opinion, under Oklahoma law, because the agency is not bound by the state court
order, Shelby remains eligible for child’s benefits on Stanley’s account.
Michael McGaughran
Regional Chief Counsel
By: _______________
Una McGeehan
Assistant Regional Counsel