TN 25 (06-18)

A. PR 18-069 Inheritance Rights of Child after Parental Rights Termination

Date: March 22, 2018

1. Syllabus

North Carolina law states that an order terminating parental rights does not affect the child’s inheritance rights until a final order of adoption has been issued. In this case, there is no indication that the claimant was adopted after the termination of the number holder’s (NH) parental rights. Therefore, the claimant retains inheritance rights from the NH and is considered the NH’s child for purposes of intestate succession in North Carolina. Thus, the claimant is the NH’s child under section 216(h)(2)(A) of the Act.

2. Opinion

QUESTION

You have asked whether E~ (Claimant) is the child of J~, the number holder (NH), for determining her eligibility for child’s insurance benefits (CIB) on NH’s earnings record even though NH’s parental rights were terminated.

OPINION

Claimant is NH’s child under North Carolina intestacy law for determining Claimant’s eligibility for CIB on NH’s earning record, even despite the fact that his parental rights were terminated.

BACKGROUND

According to the information provided, Claimant was born on November XX, 2004. The birth certificate lists NH as her father. Claimant provided a copy of an Order Terminating Parental Rights issued by the District Court for G~ County, North Carolina. In that order, the Court found NH and Claimant’s mother were married in October 2003, separated in 2008, and eventually divorced. The Court further found Claimant had been properly served with the petition to terminate his parental rights and had no objections to the petition. The Court found NH was the biological father of Claimant, but found sufficient grounds to terminate NH’s parental rights on October XX, 2009.

NH’s death certificate and agency records indicate that he died on September XX, 2017, while domiciled in North Carolina.

DISCUSSION

A claimant may be eligible for CIB on the earnings record of an individual who dies a fully or currently insured individual if the claimant is the insured individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2017).¹ “Child” includes “the child” of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354; Astrue v. Capato, 566 U.S. 541, 547-48(2012). A claimant may show she is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) or 216(h)(3)(C) of the Act. See Capato, 566 U.S. at 548. Under section 216(h)(2)(A) of the Act, a claimant is considered “the child” of the insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the state in which the insured individual was domiciled when he died.² See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4). “When the NH’s parental rights with respect to a child have been terminated, and the child has not been adopted by someone else, the child does not necessarily lose inheritance rights with respect to the NH under State law.” Program Operations Manual System (POMS) GN 00306.001C.6.

NH’s death certificate and agency records indicate he was domiciled in North Carolina when he died. Therefore, we look to North Carolina intestacy law to determine whether Claimant is NH’s child for the purposes of section 216(h)(2)(A) of the Act. Under North Carolina law, a child of a person who died intestate generally is entitled to a share of the person’s personal property. See N.C. Gen. Stat. Ann. §§ 29-13(a), 29-14(b)(1), (b)(2), 29-15(1), (2), 29-16(a)(1) (West 2017).

Additionally, North Carolina law states that an order terminating parental rights does not affect the child’s inheritance rights until a final order of adoption has issued. See N.C. Gen. Stat. Ann. § 7B-1112 (West 2017). In this case, there is no indication that Claimant was adopted after the termination of NH’s parental rights. Therefore, Claimant retains inheritance rights from NH and is considered NH’s child for purposes of intestate succession in North Carolina. See POMS PR 01105.036 (PR 04-040, Dec. 8, 2003). Thus, Claimant is NH’s child under section 216(h)(2)(A) of the Act.

CONCLUSION

Claimant is NH’s child for purposes of North Carolina intestacy law and section 216(h)(2)(A) of the Act, even though a state court terminated NH’s parental rights. Therefore, Claimant is NH’s child for determining her eligibility for CIB on NH’s earnings record.

B. PR 07-089 Whether a completed "Relinquishment of Minor for Adoption by Parent or Guardian" legally terminates a previous adoption under North Carolina Law

Date: March 14, 2007

1. Syllabus

Under North Carolina law, the "Relinquishment of Minor for Adoption by Parent or Guardian" form completed by the number holder and his wife does not serve as a legal termination of the claimant's adoption, nor does it constitute a termination of parental rights. The claimant is still the child of the number holder for the purposes of determining eligibility for benefits on the number holder's record.

Only when and if the child is actually adopted once more will the parents' "rights and duties with respect to the minor will be extinguished and all other aspects of [their] legal relationship with the minor child" be terminated.

2. Opinion

QUESTION

You have asked whether Adena S~ was the legally the adopted child of Jerry and Renee S~ as of December 2004 and whether a completed "Relinquishment of Minor for Adoption by Parent or Guardian" serves as an annulment of a previous adoption under North Carolina Law.

ANSWER

According to the information you provided, Jerry and Renee S~ adopted Adena S~ on May 2, 2003. This adoption is still valid until some type of legally terminating event. Pursuant to North Carolina law, the "Relinquishment of Minor for Adoption by Parent or Guardian" form completed by the adoptive parents does not serve as a legal termination of the adoption. Furthermore, there does not appear to be evidence of another event legally terminating the adoption. So, the child remains the adopted child of adoptive parents, notwithstanding their execution of such a document.

BACKGROUND

According to your inquiry, Jerry S~, and his wife, Robin S~, adopted Renee S~ (Claimant), on May 2, 2003. On July 27, 2005, NH and his wife executed a "Relinquishment of Minor for Adoption by Parent or Guardian" form and transferred legal and physical custody of Claimant to the Currituck County Department of Social Services. NH and his wife claim the form "revokes" the previous adoption of Claimant. On December 6, 2005, the Currituck County Department of Social Services filed a claim on behalf of Claimant for child's benefits on NH's record.

DISCUSSION

In North Carolina, the "Relinquishment of Minor for Adoption by Parent or Guardian" (Relinquishment) form executed by NH and his wife is a form a parent completes when he or she wants to place a child up for adoption. See N.C. GEN. STAT. ANN. § 48-100-3 (2006). In this case, the adopted parents have executed the Relinquishment form and placed their previously adopted daughter again with the state for adoption. In executing the Relinquishment, NH and wife have vested "legal and physical custody of the minor in the agency" and "empower[ed] the agency to place the minor for adoption . . . ." N.C. GEN. STAT. ANN. § 48 3 705(b), (c) (2006). This section means that NH and wife have transferred "legal and physical custody" to the agency for the purposes of adoption. However, while the Relinquishment transfers custody to the adoption agency, it does not transfer or terminate all parental rights and responsibilities. Section 48 3 705(d) states that:

Except as provided in subsection (c) of this section, parental rights and duties of a parent who executed a relinquishment are not terminated until the decree of adoption becomes final or the parental relationship is otherwise legally terminated, whichever occurs first. Until termination the minor remains the child of a parent who executed a relinquishment for purposes of any inheritance, succession, insurance, arrears of child support, and other benefit or claim that the minor may have from, through, or against the parent.

N.C. GEN. STAT. ANN. § 48 3 705(d) (2006). Consequently, absent a legal termination of parental rights or subsequent adoption, "the minor remains the child of a parent who executed a relinquishment for purposes of any inheritance, succession, insurance, arrears of child support, and other benefit or claim that the minor may have from, through, or against the parent." Id. (emphasis added). We did not find any case law interpreting section 48 3 705 (d). However, North Carolina requires a legal "termination of parental rights" proceeding and order from a court of competent jurisdiction to fully terminate parental legal responsibility. See N.C. GEN. STAT. ANN. § 7B-1100 (Termination of Parental Rights); see also Matter of Montgomery, 316 S.E.2d 346 (N.C. 1984). Based on the information presented, it does not appear that a legal termination of rights has occurred in this case. Thus, the completion of the Relinquishment form by NH and his wife did not render the adoption of Claimant by NH and his wife null and void. Claimant remains the legally adopted child of NH and his wife until a future adoption of Claimant or until a legal termination of the parental rights of NH and his wife.

Furthermore, North Carolina statute section 48 3 703 (a)(8) states:

That the individual executing the relinquishment understands that when the adoption is final, all rights and duties of the individual executing the relinquishment with respect to the minor will be extinguished and all other aspects of the legal relationship between the minor child and the parent will be terminated.

N.C. GEN. STAT. ANN. § 48 3 703(a)(8) (2006). Consistent with the statute, bullet number seven of the Relinquishment form signed by NH and his wife states that "I understand that when the adoption is final, all of my rights and duties with respect to the minor will be extinguished and all other aspects of my legal relationship with the minor child will be terminated." (Emphasis added).

You also asked whether the Relinquishment would annul NH's adoption of Claimant. SSA policy indicates that "[e]ntitlement to a child's benefit based on a legal adoption will terminate if the adoption is annulled. The effective date of the termination to benefits is the month in which the annulment becomes effective." POMS RS 00203.035(B)(3). At this point, it does not appear that we have any evidence of an annulment of the previous adoption, a court order terminating the parental rights of NH, or that Claimant has been adopted by another party. As noted above, the Relinquishment merely served to surrender Claimant to the State to pursue adoption. Nothing in the materials you sent us indicates any action to legally terminate or annul the existing adoption. Thus, Claimant remains NH's the adopted child.

CONCLUSION

Pursuant to North Carolina law, the "Relinquishment of Minor for Adoption by Parent or Guardian" form completed by NH and wife does not serve as a legal termination of Claimant's adoption. Claimant is still the child of NH for the purposes of determining eligibility for benefits on NH's record.

Footnotes:

[1]

^. All references to the Code of Federal Regulations are to the 2017 edition.

[2]

^. A claimant may qualify as “the child” of a deceased insured individual under section 216(h)(3)(C) of the Act if the claimant is the son or daughter of the insured individual and shows one of the following:

1. the insured individual acknowledged in writing that the child was his child;

2. a court decreed the insured individual to be the father of the child;

3. a court ordered the insured individual to contribute to the support of the child; or

4. the insured individual is the child's father and was living with or contributing to the support of the child when the insured individual died.

See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4). The acknowledgment, court decree, or court order must have occurred before the insured individual’s death. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3). Because we ultimately conclude that Claimant is NH’s child under section 216(h)(2)(A) of the Act, see infra pp. 2-3, we did not consider whether Claimant may have qualified as NH’s child under section 216(h)(3)(C) of the Act.