Is Adopted Child eligible for death benefits?

[VSPeck1]

What is the name of your state? Kentucky - My friend has had physical custody of her great nephew since he was 4 months old. He was two this past August. State CPS have been trying to get the mother to voluntarily give the Aunt permanent custody but the mother vows to fight, even though she has failed to do any of the court ordered steps to regain custody in the two years since the child was taken. (The child's twin sister died which was why the boy was removed from the mother's care) Before the last court hearing, the natural father of the baby was murdered. If she adopts the child, since the natural father is deceased, would she also forgo any of the survivor benefits that the child might otherwise be entitled to? If she decides not to adopt but simply ask for permanent custody, is the natural mother still entitled to parental visitation even if the court terminates the mother's parental rights? Or do they not terminate parental rights unless someone is there to adopt?

 

[stealth2]

Someone else will address the survivor benefits, as I don't know the answers.

If Mom's rights aren't terminated, then the court can certainly order parenting time, even if only supervised. It is my understanding that termination is unlikely absent an adoption.

 

[Taxing Matters]

If she adopts the child, since the natural father is deceased, would she also forgo any of the survivor benefits that the child might otherwise be entitled to?

That's going to depend on the rules for whatever survivor's benefits are at issue and the details of the adoption. However, the father in this circumstance is deceased and you made no mention of a petition to cut off his parental rights. Presumably your friend was only seeking to adopt to take the place of the mother. If that's correct then only the natural mother's relationship with the child would be severed if the adoption is successful. The natural father's status as the child's father would be unchanged, and his daughter should therefore get whatever benefits she'd be entitled to receive as his survivor. But again, it really turns on the details of the adoption and the rules for the particular benefits the child would seek to get. In particular, if the father's rights are terminated in this adoption that very well might affect benefits.

If she decides not to adopt but simply ask for permanent custody, is the natural mother still entitled to parental visitation even if the court terminates the mother's parental rights? Or do they not terminate parental rights unless someone is there to adopt?

If her rights are terminated then she has no more right to custody or visitation. However, it is pretty uncommon for the mother's rights to be terminated without at least putting up the child then for adoption.

 

[LdiJ]

What is the name of your state? Kentucky - My friend has had physical custody of her great nephew since he was 4 months old. He was two this past August. State CPS have been trying to get the mother to voluntarily give the Aunt permanent custody but the mother vows to fight, even though she has failed to do any of the court ordered steps to regain custody in the two years since the child was taken. (The child's twin sister died which was why the boy was removed from the mother's care) Before the last court hearing, the natural father of the baby was murdered. If she adopts the child, since the natural father is deceased, would she also forgo any of the survivor benefits that the child might otherwise be entitled to? If she decides not to adopt but simply ask for permanent custody, is the natural mother still entitled to parental visitation even if the court terminates the mother's parental rights? Or do they not terminate parental rights unless someone is there to adopt?

Child survivor's benefits survive a kinship adoption.

 

[Taxing Matters]

Child survivor's benefits survive a kinship adoption.

Again, it matters what benefits are at issue, and the OP has never said.

 

[Ohiogal]

That's going to depend on the rules for whatever survivor's benefits are at issue and the details of the adoption. However, the father in this circumstance is deceased and you made no mention of a petition to cut off his parental rights. Presumably your friend was only seeking to adopt to take the place of the mother. If that's correct then only the natural mother's relationship with the child would be severed if the adoption is successful. The natural father's status as the child's father would be unchanged, and his daughter should therefore get whatever benefits she'd be entitled to receive as his survivor. But again, it really turns on the details of the adoption and the rules for the particular benefits the child would seek to get. In particular, if the father's rights are terminated in this adoption that very well might affect benefits.



If her rights are terminated then she has no more right to custody or visitation. However, it is pretty uncommon for the mother's rights to be terminated without at least putting up the child then for adoption.

Are you sure about that? Because in some states a termination of parental rights requires termination of BOTH parents' rights. Granted this father is dead (if he established paternity) but...

And PERMANENT CUSTODY in some states (won't say all because that is not smart) is a termination of rights of both parents for adoption. It doesn't mean someone gets custody that is intended to be until the child reaches adulthood.

 

[Taxing Matters]

Are you sure about that? Because in some states a termination of parental rights requires termination of BOTH parents' rights. Granted this father is dead (if he established paternity) but...

Each state is different, of course. But I think the facts that the father is deceased and that there is (at least the OP hasn't mentioned it) no one petitioning to adopt as the father/second parent of the child are significant. There is no need to terminate the deceased father's parental rights because, being dead, he'll never exercise his rights anyway. So I don't see a court continuing to entertain terminating his rights when the matter is basically moot. Moreover, if doing so would terminate benefits that the child would otherwise be entitled to receive, I think there would be a good argument that it would not be in the child's best interest. Wouldn't you agree?

 

[LdiJ]

Again, it matters what benefits are at issue, and the OP has never said.

True, I was assuming SS Survivor's benefits.

 

[Ohiogal]

Each state is different, of course. But I think the facts that the father is deceased and that there is (at least the OP hasn't mentioned it) no one petitioning to adopt as the father/second parent of the child are significant. There is no need to terminate the deceased father's parental rights because, being dead, he'll never exercise his rights anyway. So I don't see a court continuing to entertain terminating his rights when the matter is basically moot. Moreover, if doing so would terminate benefits that the child would otherwise be entitled to receive, I think there would be a good argument that it would not be in the child's best interest. Wouldn't you agree?

Not arguing but I have seen quirky case law ...

 

[VSPeck1]

True, I was assuming SS Survivor's benefits.

you are correct it is Social Security Benefits. The child's deceased father was a drug addict and the mother has failed to do any of the court ordered counseling. The KY Dept. of Child Protective Services is petitioning the courts for permanent placement but the great aunt is concerned about what this might mean with respect to the rights of the mother. The mother has already placed her older son with the baby daddy but will not agree to permanent placement of the baby with the Aunt. She is one of those people who uses the child to extort what she wants from the adult. She has already told the Aunt if she ever gets custody of this baby again he will never see his Great Aunt again. His great Aunt saved him. He weighed less than 12 lbs when she got him, had head lice and had been exposed to drug while invitro. HIs twin sister suffered a broken femur at 3 months old and died from "co-sleeping" on New Year's Eve. It will soon be two years since he was placed with the Great Aunt. She just wants him to have a stable and loving home. Without her I hesitate to think what would have happened to the child but the Social Security survivor benefits would help her support the child. She is not well off at all and needs all the help she can get. Any suggestions are welcomed. The reason I am writing this is that she does not have a computer and feels overwhelmed. Thank everyone for their thoughts.

 

[Taxing Matters]

you are correct it is Social Security Benefits.

Ok, then for Social Security benefits there are two requirements that must be met for the survivor benefits: the person must have been a child of the insured (the father in this case) at the time of the insured's death and that child must have been dependent on the insured at the time of the insured's death.

For the first part of that, the person being a child of the insured, assuming that the parents were not married, then before he died either the father and mother had to have executed an affidavit of paternity (AOP) naming him as the father, a court had to have determined him the legal father in a paternity proceeding, or he had to have been under a court order to pay child support. If none of those things were met before he died, then there needs to be other evidence satisfactory to SSA that the person is the insured's father and the father must have been living with or providing support to the child. Then we get to the issue of the adoption. Since the adoption was not completed before the father died the adoption won't be a problem in this case.

So was the father determined the legal father by a AOP or paternity determination by a court before he died? If so, then that will easily satisfy the first requirement that he be the child of the father.

But then there is the second requirement. The child must have been dependent on him at the time the father died. To meet this requirement, the father needed to live with the child or have been providing support for the child at the time he died. Since you say he was a drug addict, there might be a problem with the dependent requirement. It sounds like the kid was placed with the aunt for foster care two years ago, which I assume is before the father died. If that's correct, then it looks like it may come down to whether the father was providing support at the time he died. As drug addicts are known to have trouble providing support to others because they have trouble just keeping themselves together, I'm going to guess he wasn't good at providing support, and that would then mean the kid doesn't qualify for the SSA survivor's benefits. See Social Security Ruiling (SSR) 66-2 which explains a court case that dealt with these same issues, the definition of child and dependency.

They can submit the application and see what SSA says. But they need to be sure to fully and accurately explain the facts so that SSA has all the info needed to make the proper determination.

 

[VSPeck1]

Ok, then for Social Security benefits there are two requirements that must be met for the survivor benefits: the person must have been a child of the insured (the father in this case) at the time of the insured's death and that child must have been dependent on the insured at the time of the insured's death.

For the first part of that, the person being a child of the insured, assuming that the parents were not married, then before he died either the father and mother had to have executed an affidavit of paternity (AOP) naming him as the father, a court had to have determined him the legal father in a paternity proceeding, or he had to have been under a court order to pay child support. If none of those things were met before he died, then there needs to be other evidence satisfactory to SSA that the person is the insured's father and the father must have been living with or providing support to the child. Then we get to the issue of the adoption. Since the adoption was not completed before the father died the adoption won't be a problem in this case.

So was the father determined the legal father by a AOP or paternity determination by a court before he died? If so, then that will easily satisfy the first requirement that he be the child of the father.

But then there is the second requirement. The child must have been dependent on him at the time the father died. To meet this requirement, the father needed to live with the child or have been providing support for the child at the time he died. Since you say he was a drug addict, there might be a problem with the dependent requirement. It sounds like the kid was placed with the aunt for foster care two years ago, which I assume is before the father died. If that's correct, then it looks like it may come down to whether the father was providing support at the time he died. As drug addicts are known to have trouble providing support to others because they have trouble just keeping themselves together, I'm going to guess he wasn't good at providing support, and that would then mean the kid doesn't qualify for the SSA survivor's benefits. See Social Security Ruiling (SSR) 66-2 which explains a court case that dealt with these same issues, the definition of child and dependency.

They can submit the application and see what SSA says. But they need to be sure to fully and accurately explain the facts so that SSA has all the info needed to make the proper determination.

Thank you. this is the most comprehensive answer I have received. I am of the belief there was a court that determined as there are several court documents naming him as father. As to the support, that is entirely a different issue. He would occasionally provide some support but not in any regular way that could be depended on. She can file and see what they say. I appreciate your assistance.

 

[VSPeck1]

Thank you. this is the most comprehensive answer I have received. I am of the belief there was a court that determined as there are several court documents naming him as father. As to the support, that is entirely a different issue. He would occasionally provide some support but not in any regular way that could be depended on. She can file and see what they say. I appreciate your assistance.

One question has come to mind though with respect to showing the deceased father's "support" of the child. The IRS has allowed the father to claim the child as a dependent. This past year, the father received one of the "stimulus" checks for the child. Could this be considered evidence of support since the government acknowledged it and provided it?

 

[Taxing Matters]

One question has come to mind though with respect to showing the deceased father's "support" of the child. The IRS has allowed the father to claim the child as a dependent. This past year, the father received one of the "stimulus" checks for the child. Could this be considered evidence of support since the government acknowledged it and provided it?

It would only show that the father claimed the child as his dependent. Because of the way the rule for divorced and separated parents works when claiming a child as his/her dependent works, it is possible that the parent claiming the dependent exemption is not actually providing any support to the child. Moreover, the IRS accepts the returns as filed by the taxpayer and thus the claims on the return are not verified by the IRS unless an audit or inquiry is conducted by the IRS after filing the return. So while this would have some value, it's not real strong and the government lawyers will surely know that. What would be much better is evidence of what support the father actually provided.