TRUITT v. INDUST. COMM

1. ADOPTION — Legal Effect — Divest — Natural Parents — All Rights — Obligations. The legal effect of a decree of adoption is to divest the natural parents of all legal rights and obligations in respect to their child, and, after a decree of adoption, the natural parents are under no legal obligation to support that child.

Opinion by JUDGE DWYER.

This is a petition to review a final order of the Industrial Commission awarding death benefits under the Workers' Compensation Act.

Kenny B. Truitt died from injuries sustained in an accident arising out of and in the course of his employment. The deceased was not survived by a widow entitled to death benefits under the Act. Decedent was the father of five children who survived him. These children (claimants) had been legally adopted by decedent's parents prior to the accident in which decedent suffered his fatal injuries.

The Commission initially determined that decedent left no dependents entitled to death benefits under the Act and ordered the decedent's employer and its insurance carrier to pay $6,250 into the Subsequent Injury Fund.

Thereafter, claimants, alleging that they were dependents of decedent, filed a claim for benefits under the Act. After a hearing, a referee of the Division of Labor vacated the previous order, found the claimants to be "partial dependents," and, in accordance with 1969 Perm. Supp., C.R.S. 1963, 81-11-4, awarded the claimants a portion of the benefits which the Act provides for "wholly dependent" children. The referee's order was subsequently affirmed and adopted by the Commission.

Claimants, in their petition for review, contend that the amount of compensation awarded is insufficient as a matter of law and that they are entitled to the death benefits which the Act provides for wholly dependent children. Employer and its insurer ask that the award be affirmed.

The Workers' Compensation Act provides certain benefits for dependents in case death proximately results from an injury to an employee. The Act further provides that certain persons are presumed wholly dependent. C.R.S. 1963, 81-11-1, provides:

"(1) For the purposes of this chapter the following described persons shall be conclusively presumed to be wholly dependent:

. . . .

"(3) Minor children of the deceased under the age of eighteen years. The term 'minor child' shall include posthumous children or a child legally adopted prior to the injury."

Claimants contend that, being the natural children of decedent, they fall within the statutory definition of persons conclusively presumed to be wholly dependent.

[1,2] Claimants had been adopted by decedent's parents prior to the accident which caused the employee's death. The legal effect of a decree of adoption is to divest the natural parents of all legal rights and obligations in respect to their child, and after a decree of adoption, the natural parents are under no legal obligation to support that child. See 2 Am. Jur. 2d Adoption § 87. See also 1967 Perm. Supp., C.R.S. 1963, 22-4-13. The statutory presumption in the Workers' Compensation Act that a child is wholly dependent upon the parent is based upon the legal obligation of the parent to support the child. The adoption terminates this legal obligation of support, and the statutory presumption that a child is wholly dependent upon its parent is not applicable since upon the adoption the child is "to all intents and purposes, the child of" the adopting parents. See 1967 Perm. Supp., C.R.S. 1963, 22-4-13. Accordingly, the Commission properly held that the claimants did not fall within the statutory classification of persons conclusively presumed to be wholly dependent.

The Commission found that claimants were "other dependents" as defined in C.R.S. 1963, 81-11-2. The status of claimants as other dependents is not challenged by the employer. The Act provides that "other dependents" who are wholly supported by the deceased employee at the time of his death are entitled to certain benefits and that "other dependents" who are partially supported by the deceased employee at the time of his death are entitled to receive only "that portion of the benefits provided for those wholly dependent which the average amount of the wages regularly contributed by the deceased to such partial dependents . . . bore to the total income of the dependents. . . ." 1969 Perm. Supp., C.R.S. 1963, 81-11-4.

The referee found that the total income of the claimants was $233 per month and that the deceased contributed an average of $40 per month to the claimants. The referee used these figures in computing the award in accordance with the statutory formula.

[3] In computing the total income of claimants, the referee included social security payments which the claimants were receiving as a result of the death of their adoptive father who died after the adoption and before the death of the employee. Claimants contend that such social security payments should not be considered income and that they are therefore wholly dependent upon the contributions of their natural father for their support. This argument is rejected. 1969 Perm. Supp., C.R.S. 1963, 81-11-4, provides the Commission with the authority and discretion to determine the proper elements to be considered as income of partial dependents. The social security payments constituted a substantial and regular income to claimants, and such payments were properly considered by the Commission as a source of income in determining the amount of benefits claimants were entitled to receive under the statute.

The Commission directed that the compensation awarded claimants be deposited in the Central Bank and Trust Company of Denver, Colorado, in the names of the individual claimants to be withdrawn only upon order of the Commission.

[4] Claimants filed a motion requesting that all funds on deposit in the bank be released to the claimants' adoptive mother. The Commission found that it would not be in the best interests of the minor dependent children that the funds be turned over to their adoptive mother. The statute, 1969 Perm. Supp., C.R.S. 1963, 81-11-16, confers a discretionary power on the Commission to provide for the safeguarding of the payments to dependents. The record in this case discloses no abuse by the Commission of its discretion. The jurisdiction of the Commission over the funds held in the bank is continuing, and the Commission may release the funds upon proper application if it determines that such action is in the best interests of the dependents.

Order affirmed.

CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.