Section 216(e) of the Act provides two alternatives for a claimant to establish that he is a child of an individual who dies fully or current insured, and is entitled to child’s insurance benefits on the deceased NH’s account. First, a claimant may prove that he is the child of the insured worker if he could inherit the worker’s property as the worker’s child under the law of intestate succession of the state where the worker was domiciled at the time of his death. Alternatively, under section 216(h)(3)(A) of the Act, a claimant who is the biological child of the deceased NH, but who is not a child of the deceased NH under state intestacy laws, can be deemed to be the child of the insured if the insured has been decreed by a court to be the mother or father of the claimant and the court decree occurred during the NH’s lifetime.

In this case, the NH died domiciled in California. In California, a child cannot inherit intestate from a parent whose rights have been terminated by court order. Therefore, because of the October 31, 2003 court order terminating the NH’s parental rights, the claimant cannot inherit from the NH under the laws of intestate succession in California. However, the claimant meets both elements for entitlement under section 216(h)(3)(A)(II). As to the first element, the mother’s written statement establishes that the claimant is the NH’s biological son. As to the second element, the Court’s order refers to the NH as the “natural father” of the claimant, thereby meeting the requirement set forth in POMS GN 00306.100B.1 that the NH be decreed by a court to be the child’s biological parent. Finally, the mother has stated the child has not been adopted by anyone else and we have no reason to question this statement. Thus, the claimant is deemed dependent on the NH and is therefore entitled to child’s survivor benefits on the NH’s account.

QUESTION PRESENTED

You asked whether the claimant, William, is entitled to child survivor’s benefits on the account of Ever, the number holder (NH), whose parental rights were terminated by a California court.

SHORT ANSWER

Yes. The claimant is entitled to child survivor’s benefits as the NH’s natural child pursuant to section 216(h)(3)(A) of the Social Security Act (Act).

SUMMARY OF EVIDENCE

The claimant was born on ~. His original birth certificate identifies the NH as his father and lists the claimant’s last name as E~. On October 31, 2003, the Superior Court for the County of Ventura, California, issued an order terminating the NH’s parental rights, upon the petition of Kristen, the claimant’s mother. The court order also changed the claimant’s name to William J~. The Court’s order refers to the NH as the “natural father” of the claimant, and identifies him as the father on the claimant’s original birth certificate. The court ordered that a new birth certificate be issued with the name William J~ and have no name listed in the space for “father.” The claimant’s mother submitted a birth certificate to the agency that meets this description. The claimant’s mother additionally provided a written statement averring that the NH was claimant’s biological father, and that claimant has never been adopted by any other person.

The NH died on April 22, 2013, while domiciled in California. On August 8, 2013, the claimant’s mother filed a claim for survivor’s benefits on his behalf. Both the claimant and his mother reside in Virginia.

ANALYSIS

A “child” of an individual who dies fully or current insured and entitled to old-age or disability benefits under the Social Security Act (Act) is entitled to child’s insurance benefits if he or she is the insured worker’s child, as defined in section 216(e) of the Act, 42 U.S.C. § 416(e). Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350(a)(1); 404.355(a)(1)-(2); Program Operations Manual System (POMS) GN 00306.001.A. Section 216(e) of the Act provides two alternatives for a claimant to establish that he is a “child” of an individual who dies fully or current insured, and therefore entitled to child’s insurance benefits on the decedent’s account.

First, a claimant may prove that he is the “child” of the insured worker if he could inherit the worker’s property as the worker’s child under the law of intestate succession of the state where the worker was domiciled at the time of his death. Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); POMS GN 00306.001.C.1.a.

Alternatively, under section 216(h)(3)(A) of the Act, an applicant who “is the son or daughter of the insured,” but who is not a “child” of the insured under state intestacy laws, can be deemed to be the child of the insured if the insured “has been decreed by a court to be the mother or father of the applicant[.]” Social Security Act § 216(h)(3)(A), 42 U.S.C. § 416(h)(3)(A). Section 216(h)(3)(A)(II) contains two elements. First, the applicant must be “the son or daughter” of the insured. Second, the insured must have been “decreed by a court to be the mother or father of the applicant[.]” The court decree must have occurred during the insured’s lifetime. Id.; POMS GN 00306.100.B (NOTE).

The agency interprets the first element to mean a biological son or daughter. See POMS GN 00306.100.A.1 (“Under section 216(h)(3) of the Social Security Act, the biological son or daughter of a NH may be deemed to be his/her child for benefit purposes regardless of the child’s status under State law if” all other requirements are met.) & GN 00306.100.D.1 (setting out policy of biological relationship); accord GN 00306.110.A.1. To meet the second element, the NH must also have been: (1) “decreed by a court to be the child’s biological parent;” or (2) “ordered by a court to contribute to the child’s support because the child is his/her son or daughter;” or (3) “acknowledge in writing that the child is his/her son or daughter.” POMS GN 00306.100B.1.

The NH died domiciled in California. In California, a child cannot inherit intestate from a parent whose rights have been terminated by court order. See Jackson v. Fitzgibbons, 25 Cal. Rptr. 3d 478, 481-82 (Cal. App. 4th 2005) (holding that where the parent-child relationship has been terminated by the court, the child is no longer considered the “issue” of the natural parent for purposes of intestate succession). Therefore, because of the October 31, 2003 court order terminating the NH’s parental rights, the claimant cannot inherit from the NH under the laws of intestate succession in California. See id. Accordingly, the claimant is not entitled under section 216(h)(2). Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); POMS GN 00306.001.C.1.a.

However, the claimant meets both elements for entitlement under section 216(h)(3)(A)(II). As to the first element, the mother’s written statement establishes that the claimant is the NH’s biological son. As to the second element, the Court’s order refers to the NH as the “natural father” of the claimant, thereby meeting the requirement set forth in POMS GN 00306.100B.1 that the NH be “decreed by a court to be the child’s biological parent.” See also POMS GN 00306.110.A; PR 01215.006.A California (PR 06-298 LEGAL OPINION: Eligibility for Child's Insurance Benefits for Joseph, Formerly Known as Bruce).

Finally, the mother has stated the child has not been adopted by anyone else and we have no reason to question this statement. Thus, the claimant is deemed dependent on the NH. 20 C.F.R. § 404.361; POMS GN 00306.100.A.2.

CONCLUSION

The claimant meets the requirements of section 216(h)(3) and has not been adopted by anyone else. The claimant is therefore entitled to child’s survivor benefits on the NH’s account.

Under the laws of both California and Nevada a child cannot inherit from a parent whose rights were terminated.

In this specific case, the child may be able to qualify for benefits under the Federal Deemed Child Provision since a Nevada court decreed the number holder to be the child's father prior to the number holder's death.

You have asked whether Joseph J. C~, formerly known as Bruce R. G~, II, has inheritance rights under California law even though his father, Bruce R. G~, surrendered his parental rights in Nevada in December 1996.

SUMMARY OF EVIDENCE

The claimant was born on November 21, 1994. His birth certificate identifies the NH as his father. On December 16, 1996, the District Court for Clark County, Nevada, issued an order terminating NH's parental rights. The court order also changed the claimant's name to Joseph J. C~. The Court's order identifies the NH as the "natural father" of the claimant. The Claimant was never adopted. The NH died on March 12, 2005, while domiciled in California. Patrice C~, the claimant's mother, applied for child's insurance benefits on his behalf. (Both the claimant and Patrice C~ reside in Florida.)

ANALYSIS

A "child" of an individual who dies fully or currently insured under the Social Security Act is entitled to child's insurance benefits if he or she:

(1) is the insured worker's child, as defined in 42 U.S.C. § 416(e);

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and

(5) was dependent upon the insured worker at the time of the worker's death.

42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350 (2006); Program Operations Manual System (POMS) GN 00306.001(A). If a child is the worker's child (meeting the first requirement), the child is considered dependent upon the worker, satisfying the fifth requirement. 20 C.F.R. § 404.361(a).

Under 42 U.S.C. § 416(h)(2)(A), a claimant may prove that he or she is the "child" of the insured worker if he or she could inherit the worker's property as the worker's child under the law of intestate succession of the state where the worker was domiciled at the time of his death. See also 20 C.F.R. § 404.355(a)(1); POMS GN 00306.001(C)(1)(a). Here, NH died in the State of California.

In California, a child cannot inherit from a natural parent whose rights have been terminated. Jackson v. Fitzgibbons, 25 Cal. Rptr. 3d 478, 482 (Cal. App. 4th 2005) (where the parent-child relationship has been terminated by the court, the child is no longer considered the "issue" of the natural parent for purposes of intestate succession).

The same is true in the State of Nevada, the state where the NH's rights were terminated. Nevada law provides that a "parent and child relationship" includes all rights, privileges and obligations existing between parent and child, including rights of inheritance. Nev. Rev. Stat. § 128.015. See State by Welfare Div. of Dep't of Human Resources v. Vine, 662 P.2d 295, 297-98 (Nev. 1983) (discussing Nev. Rev. Stats. Chapters 127 (adoption), 128 (termination of parental rights) and 424 (foster homes): "We believe that these various statutory provisions adequately demonstrate the legislative intention to have an order terminating parental rights completely sever the parent-child relationship, terminating all rights and obligations of both parent and child").

However, since the Nevada court decreed NH as the claimant's "natural father" before NH's death, and the claimant has not been adopted by another individual, the claimant can be deemed NH's child under 42 U.S.C. § 416(h)(3)(C)(i)(II), and deemed dependent upon NH at the time of his death pursuant to 42 U.S.C. § 402(d)(3). See Memorandum from Regional Chief Counsel, Kansas City, to Assistant Regional Commissioner, Management and Operations Support, Kansas City, Inheritance Rights of Children Whose Parent's Parental Rights Were Terminated . . ., (June 14, 2006). Thus, the claimant qualifies for child's survivor benefits.