TN 22 (01-18)

A. PR 18-032 Is Claimant Entitled to Surviving Child’s Benefits on the Account of Number Holder (NH) Even Though the NH Surrendered His Parental Rights

Date: December 19, 2017

1. Syllabus

Under New York law, a court-ordered transfer of guardianship and custody of a destitute or dependent child, i.e. an involuntary termination of parental rights pursuant to section 384-b of New York Social Services Law, does not affect a child’s inheritance rights from the birth parent.

In this case, the NH voluntarily transferred guardianship and custody of the minor child pursuant to the provisions of New York Social Services Law section 383-c, which does not address the effect on intestacy rights of such a transfer. However, we find no legal authority to support a conclusion that a transfer of guardianship and custody of a child under section 383-c terminates her inheritance rights from her birth parent. Moreover, New York’s domestic relations law specifically provides that an adoptive child will lose inheritance rights from her biological parent “upon the making of an order of adoption,” unless she is adopted by a stepparent, grandparent or descendant of a grandparent. As no order of adoption was issued in this case, we conclude that the minor child’s inheritance rights have not yet been terminated. Therefore, the minor child could still be entitled to surviving child’s benefits on the NH’s account.

2. Opinion

QUESTION PRESENTED

Whether an adjudicator could find that B~ (minor child) is entitled to surviving child’s benefits on the account of number holder D~ (NH), even though the NH surrendered his parental rights.

OPINION

The minor child retains inheritance rights from the NH notwithstanding surrender of the NH’s parental rights. Therefore, the minor child could still be entitled to surviving child’s benefits on the NH’s account.

BACKGROUND¹

The minor child was born on June XX, 2014, in S~, New York. On May XX, 2015, the NH executed a judicial surrender pursuant to the provisions of section 383-c of New York Social Services Law, transferring the guardianship and custody of the minor child to the Suffolk County Department of Social Services, conditional on her adoption by specified kinship foster parents.

The NH died on May XX, 2017, while residing in the State of New York. The minor child’s foster mother, who is seeking to adopt the minor child, subsequently filed an application for surviving child’s benefits on the minor child’s behalf.

ANALYSIS

To qualify for child’s benefits on the earnings record of an insured individual, a claimant must be the “child” of the insured individual. See 42 U.S.C. § 402(d)(1). The Social Security Act (Act) provides that the term “child” refers to “the child or legally adopted child of an individual[.]” 42 U.S.C. § 416(e). Section 216(h)(2)(A) of the Act contains Congress’s instructions for the primary method utilized by the Commissioner in determining parent-child relationships:

In determining whether an applicant is the child . . . 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] 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.

42 U.S.C. § 416(h)(2)(A).² Because the NH was domiciled in New York at the time of his death, we look to New York’s law of intestate succession in determining the minor child’s status as the child of the NH for purposes of section 216(h)(2)(A) of the Act. See 20 C.F.R. §§ 404.355(a)(1), 404.355(b).

New York’s intestacy law provides that the “issue” of a decedent are eligible to inherit the decedent’s property. N.Y. Est. Powers & Trusts Law § 4-1.1. State law defines “issue” as descendants in any degree from a common ancestor, including adopted children. N.Y. Est. Powers & Trusts Law § 1-2.10. As we were not asked for an opinion about the underlying relationship, we have assumed for purposes of this opinion that the minor child would qualify as the NH’s issue, absent the execution of a judicial surrender.

New York law makes clear that a court-ordered transfer of guardianship and custody of a destitute or dependent child, i.e. an involuntary termination of parental rights pursuant to section 384-b of New York Social Services Law, does not affect a child’s inheritance rights from the birth parent. Section 384-b specifically provides that “[n]othing in this section shall be construed to terminate, upon commitment of the guardianship and custody of a child to an authorized agency or foster parent, any rights and benefits, including but not limited to rights relating to contact with siblings, inheritance, succession, social security, insurance and wrongful death action claims, possessed by or available to the child pursuant to any other provision of law.” N.Y. Soc. Serv. Law § 384-b(9) (emphasis added).

Here, the NH voluntarily transferred guardianship and custody of the minor child pursuant to the provisions of New York Social Services Law section 383-c, which does not address the effect on intestacy rights of such a transfer. However, we find no legal authority to support a conclusion that a transfer of guardianship and custody of a child under section 383-c terminates her inheritance rights from her birth parent. Moreover, New York’s domestic relations law specifically provides that an adoptive child will lose inheritance rights from her biological parent “upon the making of an order of adoption,” unless she is adopted by a stepparent, grandparent or descendant of a grandparent. N.Y. Dom. Rel. Law § 117(1).³ As no order of adoption was issued in this case, we conclude that the minor child’s inheritance rights have not yet been terminated.⁴

CONCLUSION

The minor child did not lose inheritance rights under New York law when the NH’s parental rights were surrendered pursuant to New York Social Services Law section 383-c and, therefore, the minor child may still be entitled to surviving child’s benefits on the NH’s account.

B. PR 10-097 Samuel K~ - whether termination of parental rights of adoptive mother/number holder Jennifer K~ by the Peacemaker's Court of the Seneca Nation of Indians constitutes an annulment of the child's adoption

Date: May 19, 2010

1. Syllabus

An order by the Peacemaker Court of the Seneca Indians terminating the NH’s rights as the claimant’s adoptive parent cannot be considered an annulment of the adoption. The claimant’s entitlement to child’s benefits on the record of the NH will continue.

2. Opinion

QUESTION PRESENTED

You have asked whether a Termination of Parental Rights ordered by the Peacemaker's Court of the Seneca Nation of Indians constitutes an annulment of the adoption of Samuel K~.

OPINION

If Samuel was originally adopted in the Seneca Nation of Indians in a Seneca court, we find that the documentation does not show that the adoption of Samuel K~ has been annulled.

BACKGROUND

The facts available indicate that Samuel K~ (Samuel) was born on November XX, 1994 and is an enrolled member of the Seneca Nation of Indians. Samuel was adopted by Scott and Jennifer K~⁵ on or about January 10, 2000. Number holder Jennifer K~ (NH) applied for disability benefits on September XX, 2006 and stated that Samuel was her adopted child. SSA approved the NH's application in December 2008 and contacted her to request she file for Samuel. The NH stated that on November 18, 2008, Samuel left her home and began living with his biological mother, Jacqueline K~ (Jacqueline). On January XX, 2009, Jacqueline filed for auxiliary benefits on behalf of Samuel on the record of the NH.

On February 4, 2009, the Peacemaker's Court of the Seneca Nation of Indians (Peacemaker's Court) heard a petition filed by Scott K~ (Scott) and the NH to terminate their parental rights over Samuel. Scott, the NH, Lori M~ (a representative from the Seneca Nation Child and Family Services), and Jacqueline were served notices of the hearing and were present. On February 10, 2009, the Peacemaker's court issued a "Conditional Termination of Parental Rights," concluding (1) that under Seneca Nation law, the Peacemaker's Court had personal and subject matter jurisdiction over the parties and (2) that the best interests of the child would be best served if the parental rights of Scott and the NH were terminated and Samuel was readopted by Jacqueline. The Peacemaker's Court ordered the termination of the parental rights of Scott and the NH conditioned upon on the final adoption of Samuel by Jacqueline.

On March 6, 2009, the Peacemaker's Court found that Samuel had been living with his biological mother (Jacqueline) since November 2008. The Court further found that pursuant to Seneca Nation Child Welfare Law Section 6.3, the parental rights of Scott and the NH were terminated and that the effect of the termination freed Samuel to be adopted. According to the NH, Jacqueline readopted Samuel. On March 5, 2010, Jennifer K~ contacted SSA to have the benefits being paid to Samuel terminated.

ANALYSIS

A child may be eligible for Social Security benefits as an insured's child if he was legally adopted by the insured. Social Security Act (Act) § 202(d), 216(e), 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. §§ 404.350, 404.356. Here, Samuel was adopted by the NH in 2000, but the NH subsequently voluntarily surrendered her parental rights. The question is whether the termination of the NH's parental rights resulted in an annulment of the NH's adoption of Samuel.

Section 202(d)(1) of the Act and 20 C.F.R. § 404.352(b) set out the provisions for termination of entitlement to child's insurance benefits. The termination of parental rights is not included among the terminating events, and therefore would not result in a termination of benefits. See Social Security Ruling (SSR) 91-6 (In case where number holder adopted child and child was subsequently adopted by his natural mother, second adoption by someone other than number holder is not included among the terminating events and therefore an adoption will not result in a termination of benefits). However, an adopted child's entitlement to benefits is terminated "if the adoption is annulled." POMS RS 00203.035(B)(3); SSR 91-6. As noted by SSR 91-6, "[t]his is so because in such a case the adoption is invalidated and determined never to have legally existed." Therefore, the issue here is whether the Termination of Parental Rights ordered by the Peacemaker's Court of the Seneca Nation of Indians constitutes an annulment of the adoption of Samuel K~. In our opinion, it does not.

We apply the adoption laws of the State or foreign country where the adoption took place to determine whether a child is the insured's legally adopted child. 20 C.F.R. § 404.356. Here, although we do not have a copy of the original adoption decree, we have assumed that Samuel's adoption took place in a tribal court in the Seneca Nation. First, it appears that Samuel was subject to the exclusive jurisdiction of the tribal courts of the Seneca Nation. 25 U.S.C. § 1911(a) (Under the Indian Child Welfare Act (ICWA), tribal courts have exclusive jurisdiction over child custody proceedings when the child is an "Indian child who resides or is domiciled within the reservation of such tribe"). Further, the proceedings involving the termination of the NH's parental rights took place in the Seneca Nation courts. Thus, we would look to the adoption laws of the Seneca nation to determine the circumstances under which an adoption can be annulled. However, as neither the Seneca Nation law, nor the decisions of its highest court are published, we have no basis under Seneca law to know whether the termination of the NH's parental rights constituted an annulment of the NH's adoption of Samuel. That notwithstanding, we note that, on its face, the Termination of Parental Rights does not state that Samuel's adoption was annulled or vacated.

Further, although not determinative, reference to the ICWA on when an adoptions may be vacated is instructive. Although applicable only to adoptions that took place in a State (as opposed to a tribal) court, after the entry of a final decree of adoption of an Indian child the parent may withdraw consent upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate the decree. 25 U.S.C. § 1913(d). If the court finds that consent was obtained through fraud or duress, the court will vacate the decree and return the child to the parent. Id However, once an adoption is effective for at least two years, it cannot be invalidated because consent was obtained by fraud or duress. Id. Here, the NH adopted Samuel in 2000. Further, there was no indication that Jacqueline's consent to Samuel's adoption was obtained through fraud or duress. Therefore, for the reasons outlined above, the NH's Termination of Parental Rights does not constitute an annulment of her adoption of Samuel.

CONCLUSION

We find that the documentation is not sufficient to establish that Samuel K~'s adoption was annulled.
Stephen P. C~
Regional Chief Counsel
By: Peter J~

Assistant Regional Counsel

Footnotes:

[1]

This opinion is based upon evidence provided by the Center for Disability and Program Support, as well as in the electronic claims folder.

[2]

If an applicant does not qualify as a “child” under this section of the Act, Congress provided alternative mechanisms for establishing child status. See 42 U.S.C. § 416(h)(2)(B), (h)(3).

[3]

More generally, section 117 provides that the rights of an adoptive child to inheritance from and through either birth parent shall not terminate upon the making of the order of adoption if (1) the decedent is the adoptive child’s birth grandparent or is a descendant of such grandparent, and (2) an adoptive parent (i) is married to the child’s birth parent, (ii) is the child’s birth grandparent, or (iii) is descended from such grandparent. N.Y. Dom. Rel. Law § 117(1)(e).

[4]

Indeed, as the minor child appears to be in kinship foster care, her inheritance rights may not terminate if she is ultimately adopted by a close relative; it is unclear, for example, whether either proposed adoptive parent is a descendant of the minor child’s birth grandparents.

[5]

The record does not reflect where the adoption took place. We have based our analysis on the assumption that the adoption took place in the Seneca Nation in a Seneca court. Prior to issuing a determination in this matter, we recommend that you confirm this information. The conclusions outlined in this memorandum may differ if Samuel was adopted elsewhere.