Florida allows the adoption of any person, minor or adult. A Florida circuit court granted the NH’s petition to adopt the claimant. In granting the petition, the court decreed that the claimant was the NH’s adult child. The adoption decree created the relationship of parent and child between the NH and the claimant, giving the claimant every right and privilege as if the claimant was the NH’s biological child. Thus, the claimant is the NH’s child for determining the claimant’s eligibility for DAC benefits on the NH’s earnings record.

QUESTION

You asked whether the adoption of the claimant, who was over age eighteen, by the number holder was a valid adoption under Florida law for determining the claimant’s eligibility for disabled adult child’s (DAC) benefits on the number holder’s earning record.

OPINION

The number holder’s adoption of the claimant was valid under Florida law. Therefore, the claimant is the number holder’s child for determining the claimant’s eligibility for DAC benefits on the number holder’s earning record. We express no opinion regarding whether the claimant meets the other requirements for establishing entitlement to DAC benefits.

BACKGROUND

According to the information provided, on May 16, 2014, Raymond (Claimant) filed for surviving DAC benefits on the earning record of Mayda, the number holder (NH). Claimant was born on February, in Connecticut, and records indicate he has resided in Florida, at least since December 2013. On December 11, 2013, the Circuit Court of Volusia County, Florida, entered a Final Judgment of Adoption granting NH’s petition to adopt Claimant. In granting the petition, the court decreed Claimant is NH’s legal child. Social Security Administration (SSA) records indicate NH resided in Florida when she died on April 24, 2014.

DISCUSSION

Under section 202(d) of the Social Security Act (Act), every “child” of an individual who dies a fully or currently insured individual may be entitled to DAC benefits if the child is (1) unmarried at the time of the application; (2) eighteen years old or older and under a disability that began before he or she attained the age of twenty-two; and (3) dependent on the insured at the time of the insured’s death. See Act § 202(d)(1)(B), (C)(ii); 20 C.F.R. § 404.350(a) (2014). ^[1] The Act defines “child” to include a legally adopted child. See Act § 216(e)(1); 20 C.F.R. § 404.354. The determination of whether a child is the legally adopted child of a wage earner is based on the adoption laws of the State where the adoption took place. See 20 C.F.R. § 404.356; Program Operations Manual (POMS) GN 00306.135(1). At least one party to the adoption, either the child or the adopting parent, must have been domiciled or actually residing in the State where the adoption took place at the time of the adoption. See POMS GN 00306.135(1).

NH’s purported adoption of Claimant took place in Florida. Therefore, we look to Florida law to determine the validity of the purported adoption. Florida allows the adoption of any person, minor or adult. See Fla. Stat. Ann. § 63.042(1) (West 2014); In re Holland, 965 So. 2d 1213, 1214 (Fla. Dist. Ct. App. 2007). NH complied with Florida law by filing an adoption petition in the circuit court. See Fla. Stat. Ann. § 63.102(2) (West 2014). NH also complied with the POMS by filing the adoption petition in Florida, where she resided at the time. See POMS GN 00306.135(1). On December 11, 2013, a Florida circuit court granted NH’s petition to adopt Claimant. In granting the petition, the court decreed that Claimant was NH’s adult child. The adoption decree created the relationship of parent and child between NH and Claimant, giving Claimant every right and privilege as if Claimant was NH’s biological child. See Fla. Stat. Ann. § 63.172(1)(c) (West 2014).

Florida permits the adoption of adults, and we have found no basis for concluding the court did not comply with Florida law in issuing its decree. Thus, NH’s adoption of Claimant is valid under Florida law, and Claimant is NH’s legally adopted child for determining Claimant’s eligibility for DAC benefits on NH’s earnings record. We note that for Claimant to qualify for DAC benefits on NH’s earning record, Claimant also must meet the other criteria set forth in section 202(d) of the Act and the applicable regulations. See Act § 202(d)(1)(C)(i); 20 C.F.R. §§ 404.350(a), 404.360, 404.362. ^[2] We defer to the Agency to further develop the record and determine whether Claimant meets those requirements.

CONCLUSION

Based on the evidence provided, NH validly adopted Claimant in accordance with Florida law. Thus, Claimant is NH’s child for determining Claimant’s eligibility for DAC benefits on NH’s earning record.

Mary Ann Sloan

Regional Chief Counsel

By: _____________

Rebecca Ringham

Assistant Regional Counsel

Although we previously thought that Florida adoption law requires that one of the parties be domiciled in the State at the time an adoption is finalized, any adoption over which the Florida courts have properly taken jurisdiction can be considered as valid regardless of the current state of domicile of the parties involved.

QUESTION PRESENTED

You asked whether a parent-child relationship could be established between the number holder and the two children the number holder's spouse adopted before the number holder's death.

OPINION

Based upon our review of Florida law, we believe that the adoption is valid.

BACKGROUND

The facts we have are as follows:

James was born on December in Gainesville, Florida. You advised us that Debra, Armondo, and James resided in New York since 2007.

Debra and Armondo, the maternal aunt and uncle of James (whose last name at the time was H~), petitioned for an order in the Circuit Court of the Eighth Judicial Circuit in Bradford County Florida (the Circuit Court), terminating the parental rights of James' mother and father pursuant to Fla. Stat. Ann. 39.810(1)-(11) (West 2010). ^[3] According to the petition, James' father was personally served in New York, and, after diligent search and inquiry, his mother was noticed by placement of a notice in a Florida newspaper. On July 22, 2009, the Circuit Court issued the Order Terminating Parental Rights. The mother and father had failed to appear during the proceeding. In the Order, the Circuit Court found that there was a suitable permanent custody arrangement for James with Debra and Armondo with whom James had lived since August 2007.

In the Order, the Circuit Court noted that James was developmentally delayed. The Guardian Ad Litem recommended that the parents' parental rights be terminated and that James be placed in the custody of the Petitioners for subsequent adoption. The Guardian Ad Litem was discharged.

On February 12, 2010, the Circuit Court issued a final judgment of adoption. The Circuit Court found that it had subject matter jurisdiction over the adoption and jurisdiction over James who was the subject of the action. There is also a certified statement of Final Decree of Adoption indicating that Debra and Armondo lived in New York at the time of the adoption, and that the attorney for the petitioner was in Jacksonville, Florida.

A birth certificate issued March 30, 2010 indicates that James was born on December in Gainesville, Alachua County (Florida). The amended birth certificate lists his parents as Debra and Armondo.

ANALYSIS

The Social Security Act provides child's insurance benefits to an otherwise qualified "legally adopted child" of a deceased wage earner or wage earner entitled to disability or retirement benefits. 42 U.S.C. §§ 402(d), 416(e). The regulations provide that SSA "applies the adoption law of the State or foreign country where the adoption took place, not the State inheritance laws described in 20 C.F.R. § 404.355, to determine whether a claimant is the insured's legally adopted child." 20 C.F.R. § 404.356. POMS GN 00306.135(1) Relationship Requirements -Legally Adopted Child, Validity of Adoption states that "to be legal, an adoption must be valid under the law of the State or foreign country where it took place. At least one party to the adoption (either the child or adopting parent) must have been domiciled or actually residing in that jurisdiction at the time of the adoption. The physical presence of one or both of the parties within that jurisdiction does not make the adoption valid" (emphasis as in original).

Here, neither Debra nor Armondo, was domiciled or resided in Florida at the time of the adoption. James was not residing in Florida at the time of the adoption. His domicile is not clear, as we were unable to determine how he came under the jurisdiction of the Florida courts. Thus, under POMS GN 00306.135(1), this adoption would not be valid. Nonetheless, we reviewed Florida state law to determine whether the adoption was valid under the law of that State and conclude that the adoption is valid.

We turn first to whether the Florida court had subject matter jurisdiction. At some point after James was placed with them, Debra and Armondo filed a petition for termination of parental rights in the Circuit Court. This action was proper, as Florida law provides that the Florida circuit court has jurisdiction over termination proceedings. See Fla. Stat. Ann. § 39.801 (West 2010).

Once the Circuit Court terminated the parental rights, Florida law indicates that "[a] court which terminates the parental rights of a child who is the subject of termination proceedings ... shall retain exclusive jurisdiction in all matters pertaining to the child's adoption...." Fla. Stat. Ann. § 39.813 (West 2010). Here, as the Circuit Court in Bradford County, Florida terminated the parental rights of James' parents, that court retained exclusive jurisdiction in all matters pertaining to James' adoption.

Additionally, Florida adoption law provides that a petition for adoption must be filed in the county where the petition for termination of parental rights was filed or granted. Fla. Stat. Ann. § 63.102(2) (West 2010). As noted above, the Order Terminating Parental Rights was granted by the Circuit Court in Bradford County, Florida. Thus, Debra and Armondo properly filed their petition for adoption in that same county. The Circuit Court retained jurisdiction over the matter until the final judgment was entered on the adoption, either within or without the state. Id.^[4] Thus, the Circuit Court of Bradford County retained jurisdiction until February 12, 2010, when the Final Order of Adoption was entered.

With respect to personal jurisdiction, the Adoption Order states that the Circuit Court had jurisdiction over James. Although it is unclear how James initially came under the jurisdiction of the Florida courts, given the fact that he was born in Florida, it seems reasonable to assume that it was the Florida courts that authorized his removal from his mother, and, in 2007, temporarily placed him with his aunt and uncle in New York. See Fla. Stat. Ann. § 39.501 et seq. (West 2010). According to Fla. Stat. Ann. § 63.207, relating to out-of-state placement, a minor may be sent out of the state for the purpose of placement for adoption where the minor is to be placed with a relative or with a stepparent, or the minor is a special needs child. Fla. Stat. Ann. § 63.207(1) (West 2010). ^[5] Further, when a minor is placed for adoption with prospective adoptive parents who primarily live and work outside of Florida, the circuit court may retain jurisdiction over the matter until the adoption becomes final and the prospective adoptive parents may finalize the adoption in Florida. Fla. Stat. Ann. § 63.207(1)(b). See in Re L.A.C., 429 So.2d 102, 102 (1983) (holding that there was no residency requirement for persons seeking to adopt). We note also that the Adoption Order indicates that no other state sought jurisdiction. Thus, under Section 63.207, we believe that the Circuit Court would retain personal jurisdiction over the child, regardless of the fact that he was living in New York with Debra and Armondo at the time of the Florida adoption.

CONCLUSION

Based upon our review of Florida law, the adoption of James is valid notwithstanding the statement in POMS GN 00306.135(1) that indicates that either the child or parents must be domiciled or reside in the state where the adoption was finalized.

Stephen P. Conte

Regional Chief Counsel

By: _____________

Sandra Grossfeld

Assistant Regional Counsel

In Florida, children legally adopted by the deceased number holder's wife, but not by the deceased, would not qualify as his legally adopted children.

Additionally, they do not qualify as his equitably adopted children because there is no evidence that he ever intended to adopt them.

QUESTION

You asked whether a parent-child relationship could be established between the number holder and the two children the number holder's spouse adopted before the number holder's death.

OPINION

We believe, based on the evidence presented, the children adopted by the number holder's spouse are not the number holder’s children, because the number holder did not legally adopt the children. Accordingly, the children would not be eligible for child's insurance benefits on the number holder's record.

BACKGROUND

Based on the information provided, we understand the facts to be as follows. Johnny, the number holder (NH), and Ernestine (Applicant), were married on October 18, 1985. The couple subsequently separated, but never divorced before NH's death on August 17, 2009. During their separation, Applicant petitioned to adopt two minor children, Gonnie and Thomas (Claimants). On August 23, 2000, the Eleventh Judicial Circuit Court in Dade County, Florida entered a judgment of adoption, noting "Petitioner, Ernestine is a fit and proper person to adopt the minor children," and "the minor children are suitable for adoption by Petitioner, Ernestine." The court declared Claimants the legal children and legal heirs of Applicant. The judgment of adoption does not list NH as an adoptive parent or refer to him. The amended birth certificates list Applicant as Claimants' mother, but do not list a father.

After NH’s death, Applicant applied for child’s insurance benefits on NH’s earnings record. In documents submitted with the application, Applicant reported to the Agency that NH refused the sign the adoption "papers" because NH and Applicant were separated at the time. Applicant also reported that NH "had nothing to do with the adoption and did not live with [her] or [the] children during or after the adoption. He did not support them either."

DISCUSSION

To qualify for child's insurance benefits on the earnings record of an insured individual who has died, a claimant must be that individual's "child." See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1) (2009). "Child" is defined as the natural child, adopted child, or stepchild of an insured individual. See Act § 216(e); 20 C.F.R. § 404.354. To establish their status as the adopted children, Claimants must have been legally adopted by NH. See 20 C.F.R. § 404.356. The Social Security Administration applies the adoption laws of the state where the adoption took place to determine if the claimant is the insured's legally adopted child. Id. In this case, Claimants were adopted in Florida; thus, Florida's adoption law controls.

Based on the evidence presented, Claimants have not been legally adopted by NH under the Florida adoption laws. Florida law is specific as to who may adopt a child, stating that a husband and wife may jointly petition to adopt or "a married person without the other spouse joining as a petitioner" may petition to adopt. See Fla. Stat. Ann. § 63.042(2)(a), (c) (2009). Florida law also states that the failure of the other spouse to join in the petition or to consent to the adoption may be excused for good cause shown or in the best interest of the child. Id. at (c)(2).

In this case, the evidence establishes that Applicant petitioned the state court to adopt Claimants before NH's death. The judgment of adoption declared Claimants to be Applicant’s legal children, and does not mention NH or indicate he joined in the adoption petition. The evidence also establishes that NH did not consent to the adoption. Applicant reported to the Agency that NH refused the sign the adoption "papers" because she and NH were separated at the time. Applicant also reported that NH "had nothing to do with the adoption and did not live with [her] or [the] children during or after the adoption. He did not support them either." Because Florida law does not require both spouses to join the adoption petition and the evidence establishes that NH took no part in adopting Claimants, NH did not legally adopt Claimants under Florida law. Accordingly, Claimants would not qualify as NH's legally adopted children.

A claimant also may be eligible for benefits as an equitably adopted child. See Act § 216(e); 20 C.F.R. §§ 404.354, 404.359. For a claimant to be eligible for benefits as an equitably adopted child of the insured, the insured must have agreed to adopt the claimant as his child but the adoption did not occur. See 20 C.F.R. § 404.359. Here, Claimants cannot qualify as equitably adopted children of NH because he did not agree to adopt Claimants and the adoption ultimately occurred without NH's consent.

CONCLUSION

We believe the evidence indicates Claimants are not NH's children under Florida adoption law. The documentation provided demonstrates Applicant alone adopted Claimants. Though she was married to NH at the time of the adoptions, the record shows the couple was separated and NH did not consent to the adoptions, join as petitioner, or participate in the adoption process. Furthermore, Claimants cannot qualify as NH’s equitably adopted children. Therefore, Claimants are not NH's adopted children for purposes of child's insurance benefits.

Mary A. Sloan

Regional Chief Counsel

By: _____________

Brian Seinberg

Assistant Regional Counsel

Under Florida law, a court may not decree an adoption posthumously. Adoption requires that both the adopting parent and the adopted child be living at the time such relationship comes into being by judicial decree.

Under Florida law, an equitable adoption is referred to as "virtual adoption" and is invoked when the adoptive parents die intestate in order to enable the child to take intestate and prevent unfair results created by intestacy statutes.

You have requested our opinion as to whether, under Florida law, the adoption of Ramone (Ramone) is valid and whether it creates the relationship required for entitlement to surviving child's benefits as a legally adopted child. We conclude that Ramone's legal adoption is not valid. In order to determine whether Ramone may be entitled to child's benefits as an equitably adopted child, additional facts are needed.

The facts presented are that on October 1, 1999, Vivian applied for child's benefits on behalf of her minor son, Ramone, based on the earnings record of James. James died on June 6, 1999. On Ramone's application, Ramone stated, "James was my father. He began the adoption proceeding prior to his death." On September 2, 1999, the Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Florida, issued a Final Judgment of Adoption declaring Ramone to be the legal child of the James and stating that Ramone "shall be the child and legal heir of the petitioner, James."

Under Florida law, a court may not decree an adoption posthumously. A judgment or decree of adoption establishes a personal relationship between one capable of adopting and one capable of being adopted. It necessarily requires that both the adopting parent and the adopted child be living at the time such relationship comes into being by judicial decree. Korbin v. Ginsberg, 232 So. 2d 417 (Fla. App. 1970).

Although Ramone is not a legally adopted child under Florida law, he may be eligible for benefits as an equitably adopted child. An equitable adoption occurs if the insured agreed to adopt a child as his own child but the adoption did not occur. Title 20 C.F.R. § 404.359 provides that the agreement to adopt must be one that would be recognized under State law so that the child would inherit a child's share of the insured's personal property if the insured were to die without leaving a will. Title 20 C.F.R. § 404.365 further provides that if you are the insured's equitably adopted child, you are considered dependent upon him if you were either living with or receiving contributions for your support from the insured at the time of his death.

Under Florida law, an equitable adoption is referred to as "virtual adoption" and is defined as an equitable doctrine created to "protect the interests of a person who was supposed to have been adopted as a child but whose adoptive parents failed to undertake the legal steps necessary to formally accomplish the adoption." Williams v. Dorrell, 714 So. 2d 574 (Fla. App. 1998). Virtual adoption does not create a parent-child relationship. It is invoked when the adoptive parents die intestate "in order to allow the supposed-to-have-been adopted child to take an intestate share" and to prevent unfair results created by intestacy statutes. Miller v. Paczier, 591 So. 2d 321 (Fla. App. 1991). The elements that are necessary to establish the doctrine of virtual adoption under Florida law are:

• •

  An agreement between the natural and adoptive parents;

• •

  Performance by the natural parents of the child in giving up custody;

• •

  Performance by the child by living in the home of the adoptive parents;

• •

  Partial performance by the foster parents in taking the child into the home and treating the child as their child; and

• •

  Intestacy of the foster parents.

Williams v. Dorrell, 714 So. 2d at 575-576; In re Matter of Heirs of H~, 470 So. 2d. 740, 741 (Fla. App. 1985) (citing Sheffield v. Barry, 14 So. 2d 417 (Fla. 1943)).

It is our conclusion that Ramone's legal adoption is not valid. As submitted, the facts do not show the necessary elements to establish the doctrine of virtual adoption under Florida law. Additionally, for purposes of establishing entitlement under 20 C.F.R. § 404.365, further development is necessary to determine whether, at the time of his death, James was living with Ramone or contributing to his support.