The state court order bestows sole custody of the children to their grandfather (NH) and his spouse. However, the court's custody order would not permit the children to inherit "a child's share" from their Grandfather under Colorado's laws of intestate succession as either his natural children or equitably adopted children and the NH cannot establish that he legally adopted his grandchildren under the relevant state law. The state court order does not create any of the relationships that the Agency recognizes between a child and an insured to establish a child's right to auxiliary child benefits. 

QUESTION PRESENTED

You have asked us whether children would be eligible for child insurance benefits on the record of their paternal grandfather where a Colorado state court has granted sole physical custody and decision-making for the children jointly to their paternal grandfather and his spouse.

Short Answer

As relevant here, for a child to be entitled to child benefits under a number holder’s record, the number holder must establish that the child is his natural child, legally adopted child, or equitably adopted child.  Here, although the state court order does bestow sole custody of the children to their grandfather and his spouse, we do not believe that NH can establish that he legally adopted his grandchildren under the relevant state law. Further, the court’s custody order would not permit the children to inherit “a child’s share” from their grandfather under Colorado’s laws of intestate succession as either his natural children or equitably adopted children.  

BACKGROUND

In June 2012, Colorado resident David (“NH”) applied for retirement benefits. Thereafter, in September 2012, the NH applied for auxiliary child benefits for his grandchildren, Isaiah, Israel, and Nevaeh (collectively, “the children”). 

The children were born in Colorado to the NH’s daughter, Linda, and James (hereinafter, “the natural father”). Linda died soon after the birth of her third child.  The natural father initially attempted to care for his three children, but he was unreliable and eventually was incarcerated, during which time the children lived with the NH and his spouse, Betty.  After the natural father was released, the NH and his spouse asked him whether he would permit them to continue to provide permanent care for the children. The natural father agreed. 

Thereafter, the NH and his wife filed a petition in the District Court of El Paso County (“Court”), and, in October 2006, the Court issued an Order for Allocation of Parental Responsibilities (“Order”), incorporating a previous Parenting Plan (which we do not have in our records).  At the time the Court issued its Order, the natural father had not seen his children for over 100 days and did not appear at the related hearings.

 The judge issued an oral ruling and findings of fact, as well as a written order. We have a transcript of the oral ruling. In the written order, the Court allocated sole decision-making and parental responsibilities to the NH and his spouse.  Although the judge noted that the natural father had abandoned the children, he also provided the natural father visitation rights. Specifically, he found that “[u]ntil further Court Order or mutual agreement[,] parenting time for father shall be supervised by Petitioners or a mutually agreed upon third party. The Petitioners shall have discretion to terminate visitation with Respondent [father] consistent with the best interest of the children.”  The judge explained orally that if the natural father took issue with these restrictions, he could file a motion with the court.    

The Court also found that “Petitioners are to receive any monies on the children’s behalf from PERA or any other source they may be entitled to.”  The judge explained orally that he did not know if this language would be sufficient to permit allocation of benefits to the children. 

DISCUSSION

For the children to be entitled to child benefits on the NH’s record, the NH must establish that they are his “children” as defined under the Agency’s corresponding statutes and regulations. See 42 U.S.C. §§ 402(d), 416(e), 416(h)(2); 20 C.F.R. § 404.350.  As relevant here, the regulations explain that, depending on the satisfaction of additional criteria, the definition of a “child” may include a natural child, a legally adopted child, or an equitably adopted child. 20 C.F.R. § 404.354.

Here, in its Order, the Court allocated sole parental responsibilities and decision-making to the NH and his spouse. While the Order is a permanent order, it still provides for supervised visitation by the natural father and preserves his right to motion the court for modification of the terms of the Order.

You indicated that there is no possibility of establishing the children as dependent grandchildren, as the natural father is not deceased or disabled.  Thus, you have asked us whether the Order (1) establishes the children as the NH’s children under Colorado state law; (2) establishes a child relationship under applicable Federal law; or (3) otherwise entitles the children to benefits as the children of the NH based on inheritance rights.

In order to answer these questions, it is first necessary to consider the Order within the context of Colorado’s state law on parenting to understand its scope and legal effect.

A.    Colorado Law Relating to Allocation of Parental Responsibilities.

Under Colorado’s Uniform Dissolution of Marriage Act (“UDMA”), any person may petition a court for an order allocating parental responsibilities, so long as either (a) the child is not in the physical care of one of the child’s parents; or (b) the person has had physical care of a child for six months or longer (and files a petition within an allotted period of time).  C.R.S. § 14-10-123. (Although this provision is part of the UDMA, the petition need not be filed in conjunction with a proceeding to dissolve a marriage.)

A court then determines the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child.  C.R.S. § 14-10-124 (1.5). Colorado’s UDMA permits modification of a court’s permanent order allocating parental responsibility when such modification would serve the best interests of the child.  C.R.S. §§ 14-10-129 through 14-10-131.3 see also In re C.T.G., 179 P.3d 213, 221 (Colo. App. 2007) (“Permanent orders establish parental rights that stay in effect until one party establishes a change in circumstances sufficient to support a modification.”).

While a court may allocate parental responsibility to any person, this allocation is not a legal adoption and does not otherwise terminate the parental rights of the natural parent. In In re the Matter of the Custody of C.C.R.S., 892 P.2d 246, 254 (Colo. 1995), the Colorado Supreme Court considered a scenario where the natural mother relinquished the custody of an infant to non-parents, with the intention that her parental rights would be terminated one year later and the child would be adopted by the non-parents. However, after the natural mother revoked this agreement, the non-parents, who had physical custody of the children for over six months, petitioned the court for an order allocating parental responsibility under C.R.S. § 14-10-123. Noting that “the natural mother’s parental rights are not being terminated by awarding custody” to the non-parents and that the natural mother retained visitation rights, the court concluded that “her parental rights were preserved in a limited context.” Id. at 255. Similarly, the Colorado Supreme Court has held that when a natural parent consents to placing his children with a guardian, the natural parent’s rights are not terminated, but rather suspended while the guardianship is in effect. In the Matter of Minor Child D.I.S., 249 P.3d 755, 785 (Colo. 2011); C.R.S. §§ 15-14-201 (7) (“The appointment of a guardian by a parent does not supersede the parental rights of either parent.”).

B.    The Court Order Does Not Establish a Parent-Child Relationship under Colorado Law or the Social Security Act.

Because the NH’s interest in the children is a creation of Colorado’s statute providing third parties the right to petition for the custody of a child, we must consider this interest within the various contexts in which an individual may be considered a child for the purpose of obtaining child benefits under an NH’s record. 

1.     The NH Did Not Legally Adopt the Children.

An individual may be eligible for child’s benefits as the insured’s “legally adopted child” if the adoption is considered valid under the law of the state where the adoption is claimed to have taken place. See 20 C.F.R. §§ 404.356; 404.358(b); see also POMS GN 00306.155(B)(1) (to establish an adoption in order to obtain child benefits, the applicant must provide records of the court which granted the adoption, official notice received by the adopting parents, or records of the state attorney or child welfare division). 

The Colorado legislature has specifically provided that a child may only be adopted if he is “legally available for adoption,” describing the scenarios wherein such requirement is met.  C.R.S. §§ 19-5-201, 19-5-203; see also In re the Matter of the Custody of C.C.R.S., 892 P.2d at 254 (“A petition for adoption requires that the child is available for adoption”).  As relevant here, a child is legally available only where a court has terminated parental rights; a court has recognized the voluntary relinquishment of parental rights; or the birth parent has abandoned the child or failed without cause to provide support for the child for a period of one year or more.  C.R.S. § 19-5-203(a), (b), (j).  If a child is legally available for adoption, the Colorado legislature sets out a process under which a petition for adoption is filed in a district court, a hearing is held on the petition, and the court ultimately enters a final decree or order of adoption. See C.R.S. § 19-5-201, et seq.

Here, the record we have indicates that while the NH and his spouse have sole physical custody and decision-making power regarding their grandchildren, the natural father’s parental rights have not been terminated. The Court’s Order makes clear that the father maintains the right to visitation and could motion to modify the custody arrangement. Further, nothing in the Order indicates that the natural father has voluntarily relinquished his parental rights.

The judge’s oral ruling includes a finding that the natural father has abandoned the children, which suggests that they would be considered legally available for adoption.  Nonetheless, we have no evidence to suggest that the NH and his spouse have made any efforts to pursue adopting their grandchildren. The information provided does not indicate that the NH filed a petition for adoption, or more importantly, that a court has entered a final decree or order of adoption.  

Therefore, we do not believe that the NH can establish that he legally adopted the children.

2.     The Children Could Not Inherit “a Child’s Share” from the NH under Colorado’s Law of Intestate Succession.

An individual may be eligible for child’s benefits as the insured’s “natural child,” if he is able to establish that he “could inherit a child’s share of the insured’s personal property if the insured were to die” intestate under the inheritance laws of the state the insured is living in at the time of application. See 20 C.F.R. § 404.355(a)(1) and (b). 

Colorado’s Uniform Probate Code (“UPC”) provides a number of ways in which a “parent-child relationship” can be established for purposes of intestate succession.  C.R.S. § 15-11-115, et seq. Several of these are not relevant here. See C.R.S. §§ 15-11-118 through 15-11-121 (describing requirements for establishing parent-child relationship based on completed adoption, complete or incomplete stepchild adoption, and children conceived through assisted reproduction, including gestational carrier). Notably, the UPC does not contemplate a “parent-child relationship” being established for intestate succession through a court’s order allocating parental responsibility, as is the case here. Id. 

The UPC does recognize a parent-child relationship established under Colorado’s Uniform Parentage Act (UPA). See C.R.S. §§ 15-11-116, 19-4-101 et. seq. The Colorado UPA sets out a number of scenarios where a person may be presumed to be the natural father of a child. One such presumption arises where a man receives a child into his home and openly holds out the child as his natural child.  C.R.S. § 19-4-105(d). Although there appears to be no question that James is the biological father of the children, Colorado courts have held that an individual can establish a parent-child relationship through holding a child out as his own even where there is no biological tie to the child. To the extent our prior opinions indicated that the lack of a biological relationship meant the child could not inherit from the NH under Colorado intestacy law, those opinions are no longer supported by Colorado law and should not be followed. See, e.g., In re A.D., 240 P.3d 488, 490-93 (Colo. App. 2010); In re S.N.V., 248 P.3d 147, 151 (Colo App. 2011). However, we have no information to suggest that the NH is holding out his grandchildren as if they were his own. As such, we do not think the NH can establish a parent-child relationship based on this presumption.

Thus, the NH cannot establish a “parent-child relationship” with their grandchildren for intestacy purposes under Colorado law. See 20 C.F.R. § 404.355(a)(1) and (b).

3.     The Children Could Not Inherit from the NH under Colorado’s Law of Intestate Succession as His “Equitably Adopted” Children.

Finally, an individual may be eligible for child benefits as an equitably adopted child, if the NH agreed to adopt the individual, but the adoption did not occur.  The agreement to adopt must be one that state law would recognize so that the claimant would be eligible to inherit a child’s share of the NH’s personal property, if he or she were to die intestate. See 20 C.F.R. § 404.359; POMS GN 00306.175.  The Commissioner follows the law of the state where the NH has his permanent home at the time of application for child benefits in this analysis. See 42 U.S.C. § 416(h)(2); 20 C.F.R. § 404.359. 

Colorado has recognized the doctrine of equitable adoption in estate cases. Barlow v. Barlow, 463 P.2d 305, 308-09 (Colo. 1969); C.R.S. § 15-11-122 (explicitly providing that the doctrine of equitable adoption is not affected by the UPC); see also POMS GN 00306.225. Equitable adoption is established in Colorado through “clear, cogent, and convincing” evidence that an oral contract for adoption existed. Barlow, 463 P.2d at 309. The POMS, similarly, requires evidence of “an express or implied contract to adopt the child” to establish equitable adoption.  POMS GN 00306.175(C).  “The evidence must be very strong to justify finding an implied contract” in cases where the NH is a child’s close relative because “[t]he relationship tends to weaken any inference that an adoption was intended.”  POMS GN 00306.180(C)(4). 

The POMS further requires a showing that the natural parent surrendered the child to an adopting parent. POMS GN 00306.175(C). To meet this requirement, the agreement “must not give the person or agency placing the child the authority to regain custody, or give the adopting parent the right to return the child.”  POMS GN 00306.200(A); see also SSR 63-50c, 1963 WL 3559, at *1 (no equitable adoption when, after natural mother died, natural father gave child to relatives who raised and cared for her and wanted to adopt her, but natural father refused to consent to adoption).

We do not think there is sufficient evidence to establish equitable adoption, which must be “clear, cogent, and convincing” under Colorado law.  We have no evidence that the NH had any sort of ineffectual oral adoption contract. Furthermore, because the NH is the children’s grandfather, this close family relation weighs against any inference of an implicit contract to adopt.  Most importantly, the evidence we do have does not support a finding that the children’s natural father has surrendered them to NH. To the contrary, the Order suggests that the natural father’s parental rights are intact and that he may have the opportunity to regain at least partial custody of the children over time. 

Therefore, we believe the record is insufficient to establish

CONCLUSION

While a Colorado state court allocated the NH and his spouse sole parental responsibility for their grandchildren, the state court’s order does not create any of the relationships that the Agency recognizes between a child and an insured to establish a child’s right to auxiliary child benefits. 

John Jay Lee

Regional Chief Counsel, Region VIII

By ________________

Kirsten A. Westerland

Assistant Regional Counsel