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TN 2 (11-18)

PR 01315.021 Louisiana

A. PR 19-006 Louisiana State Law - Validity of Private Adoption

Date: September 19, 2018

SYLLABUS

In Louisiana, a final judgment is not considered valid and can have no effect of any kind until signed.

In this case, the private adoption became effective on the day the district judge signed the Final Decree of Adoption and declared the claimant to be the number holder's child (NH).

QUESTION PRESENTED

For purposes of C~’s (Claimant) application for Childhood Disability Benefits (child’s insurance benefits) under Title II of the Social Security Act (Act) on the record of the number holder D~ (NH), you asked whether the Claimant is the NH’s legally adopted child based on a Louisiana Final Decree of Adoption. If so, you also asked for the effective date of the adoption.

ANSWER

We believe that there is legal support for the Social Security Administration (SSA or agency) to find that the Claimant is the NH’s legally adopted child under the Act based on the Louisiana District Court’s Final Decree of Adoption. The adoption was effective on March XX, 2017.

BACKGROUND

The NH became entitled to disability benefits in November 2000. On March XX, 2016, the NH filed an application for child’s insurance benefits on the Claimant’s behalf on his record as his child. The agency denied the application in February 2017 because the NH did not submit proof of relationship between him and the Claimant. The NH filed a subsequent child’s insurance benefits application on April XX, 2018. The NH and the Claimant live in Louisiana.

The Claimant was born in Lafayette, Louisiana, on January XX, 1984. The NH has provided the agency with Louisiana state court documents to support his adoption of the Claimant. These documents show that W~, the Claimant’s natural mother,[1] executed a Voluntary Act of Surrender on January XX, 1985, through which she surrendered custody of the Claimant to the NH and C2~, the NH’s wife, and consented to their adoption of the Claimant. The documents show that the Claimant’s natural father was unknown at the time of surrender. On January XX, 1986, the NH and C2~ filed a Petition for Interlocutory Decree[2] (Petition for Adoption) in the 16th Judicial District Court in the Parish of St. Martin, Louisiana (District Court) in the case entitled D~ and C2~, Applying for Adoption of C~. On January XX, 1986, the district judge signed an Order regarding the application for adoption and scheduled the matter for hearing on March XX, 1986. The Louisiana Department of Health and Human Resources, Office of Human Development, Division of Children, Youth, and Family Services (DHHR Department) filed an acknowledgement of receipt on February XX, 1986, indicating receipt of the court’s interlocutory decree in this adoption case. The court rescheduled the adoption hearing for April XX, 1986, and the DHHR Department acknowledged receipt of the rescheduled hearing. There are no records of the April XX, 1986, adoption proceedings.

On an SSA-11, Request to be Selected as Payee, dated November XX, 1993, C2~ stated that she was the Claimant’s legal guardian. On November XX, 2005, C2~ passed away. On an SSA-795, Statement of Claimant or Other Person, the NH stated that in 2016, after he requested a copy of the final decree of adoption from the family court in St. Martin Parish, he became aware that the court never finalized the Claimant’s adoption. On March XX, 2017, the NH submitted a Petition for Final Decree under the same case name and adoption docket number of the adoption proceedings he and C2~ filed in 1986, asking the court to finalize the adoption and name him as the Claimant’s adoptive parent. The same day the district judge re-opened the 1986 adoption case and signed a Final Decree of Adoption, finding that “[t]he requirements of law having been met” and “that the adoption is in the best interest of the child,” and ordering, adjudging, and decreeing the NH as the Claimant’s adoptive parent for all legal purposes.

ANALYSIS

A. Federal Law: Entitlement to Child’s Insurance Benefits under the Act as the NH’s Child

Under the Act, a child of an individual entitled to old-age or disability insurance benefits may be eligible for child’s insurance benefits if, among other things, he is the individual’s child as defined in section 216(e) of the Act.[3] See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. 404.350. The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, and equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354– 404.359. Consistent with the scope of your legal opinion request, we consider whether the Claimant is the NH’s legally adopted child. In determining whether a child is an individual’s legally adopted child, the agency applies the laws of the state where the adoption took place. 20 C.F.R. § 404.356. The NH adopted the Claimant in Louisiana; therefore, we apply Louisiana law.

B. State Law: Whether the Claimant Is the NH’s Adopted Child under Louisiana Law

1. Validity of Private Adoption under Louisiana Law

Adoption “is defined to be the establishment of the relationship of parent and child between persons not so related by nature and the act of adoption creates a status and not a contractual relation.” Succession of Gambino, 73 So.2d 800, 802 (La. 1954). Louisiana law allows three types of adoption of minor children: agency, private, and intrafamily adoption. See La. Child. Code Ann. art. 1170.

In this matter, the District Court granted the NH’s adoption of the Claimant as a private adoption, based on a Petition for Adoption the NH and C2~ filed on January XX, 1986, when the Claimant was a child. Louisiana recognizes the validity of a private adoption that complies with state law requirements. See La. Child. Code Ann. arts. 1170, 1221-1242 (Louisiana Children’s Code articles governing private adoption specifically). The Louisiana Supreme Court has held that “adoption statutes are to be strictly complied with . . . and that laws providing for adoption must be given a strict construction as they are in derogation of the natural right of a parent to his child.” In re Ackenhausen , 154 So.2d 380, 383 (La. 1963) (citations omitted). Thus, a procedural flaw in the entire adoption process will result in the reversal of an adoption. See In re Landry , 702 So.2d 1092, 1096 (La. Ct. App. 1997) (setting aside a judgment of adoption due to a procedural flaw regarding the petitioner’s custody of child); see also Stewart v. Goeb , 432 So.2d 246 (La. 1983) (permitting an action to annul an adoption decree where adopting parents failed to serve biological father with notice of the adoption proceedings). We consider whether the NH’s private adoption of the Claimant complies with the law. Because the adoption proceedings began in 1985 and 1986, when the Claimant was a child, and ended with the final decree in 2017, we considered both current law as well as the law in place when the adoption proceedings began.[4]

  1. a. 

    Consent for Adoption

    At all relevant times, Louisiana law has required consent to adopt a child. See In re Ackenhausen, 154 So.2d at 383 (“The basis for requiring consent of parents to adoption is the natural right of the parent to his child.”); Deborah Pearce Reggio, Children’s Law Matures: Surrender and Adoption Under Louisiana’s New Children’s Code, 67 Tul. La. Rev. 1631, 1639-1640 (May 1993). Unless parental rights have been terminated, Louisiana law requires consent to a child’s adoption from the child’s mother, the child’s father (in specific circumstances not applicable here), and the custodial agency (not applicable here). See La. Child. Code Ann. art. 1193 (2018); Collins v. Division of Foster Care, 377 So.2d 1266, 1269 (La. Ct. App. 1979) (“Under the statutory scheme neither the father nor the mother of a legitimate child, acting alone, can terminate the parental rights of the other. However, as to an illegitimate child the mother alone, by executing an act of surrender pursuant to R.S. 9:402 may terminate all parental rights, unless the father has formally acknowledged or legitimated the child.”) .

    As to the form of the consent, under Louisiana law, any parent may give consent to the adoption in open court or may execute a voluntary act of surrender to relinquish her parental rights to a child for the ultimate purpose of adoption. See La. Child. Code Ann. arts. 1101 (2018), 1108(A) (2018), 1195 (2018); La. Rev. Stat. Ann. arts. 9:422.3 (1987), 9:422.4 (1987).

    Here, the Claimant’s natural mother executed a Voluntary Act of Surrender in January 1986, in the presence of a notary public and two witnesses, that appears to substantially comply with all content and form requirements of the law in place at that time. See La. Rev. Stat. Ann. arts. 9:422.3 (1987), 9:422.6 (1987); In re G.O., 433 So.2d 1115, 1117-1118 (La. Ct. App. 1983).[5] The Voluntary Act of Surrender identifies the Claimant’s natural mother, the Claimant as the child, the Claimant’s date of birth, and the persons to whom she was surrendering her child (NH and his wife); states that the Claimant’s natural mother was surrendering custody to the NH and his wife and that she consented to the NH’s adoption of the Claimant; and states that she waived all rights to notice and service to any petition for adoption. See In re G.O., 433 So.2d at 1117-1118 (“The formal act of surrender for purposes of private adoption is evidence of a legal and voluntary surrender only if it is executed in accordance with the requirements established by the legislature.”); In re C.A.P., 573 So.2d 214, 216 (La. Ct. App. 1990) (although substantive discrepancies in the authentic act of voluntary surrender render the surrender invalid, hyper-technical, non-substantive discrepancies do not invalidate the surrender because the parties were not prejudiced by a non-substantive discrepancy); see also La. Child. Code Ann. art. 1224(B) (2018) (when waived, notice of filing of petition on any parent is not required); La. Rev. Stat. Ann. art. 9:422.12 (1987) (“No notice or service of any pleading in any subsequent adoption proceeding concerning a legally surrendered child shall be required or made on any surrendering parent who has executed a formal and legal act of surrender of that child . . .”). In accordance with Louisiana law, the Claimant’s natural mother attached a statement of Family History to the Voluntary Act of Surrender. See La. Child. Code Ann. art. 1124 (2018) (a surrendering parent must execute a Statement of Family History and attach it to the Act of Surrender); La. Rev. Stat. Ann. art. 9:422.13 (1987) (“Any person who executes an act of legal surrender . . . shall execute therewith a statement of family history.”).

    The Claimant’s natural mother also stated in the Voluntary Act of Surrender that the Claimant’s biological father was unknown. As such, the adoption could proceed without the unidentified father’s consent, and the unidentified father’s parental rights terminated upon the mother’s act of surrender of the child. See La. Child. Code Ann. art. 1193(2)-(4) (2018); La. Rev. Stat. Ann. art. 9:422.4 (1987) (“If the father of the child is not indicated, the mother may sign the authentic act of surrender alone.”); La. Rev. Stat. Ann. art. 9:422.8 (1987) (“The formal act of voluntary surrender grants the irrevocable consent . . . of the surrendering parent or parents to the adoption of the child by the person or persons named or represented in the act. Should there be only one parent indicated on the birth certificate . . . the surrender by that parent alone terminates all parental rights whatsoever, except as provided in R.S. 9:422.10.”); In re Adoption of B.G.S., 556 So.2d 545, 548–49 (La. 1990) (“The private adoption statute does not require that the non-designated unwed father be afforded any notice or a hearing prior to the termination of his parental rights by the mother’s act of surrender of the child. . . . After the surrender, the statute expressly provides that the natural parents of the child shall not be served with notice of filing of the adoption petition”); Collins, 377 So.2d at 1269 (examining La. Rev. Stat. Ann. art. 9:404, which provided that “[a] surrender by the mother of a child born out of wedlock who has not been formally acknowledged or legitimated by the father terminates all parental rights . . .”). Thus, the Claimant’s natural mother’s Voluntary Act of Surrender in January 1986 appears to substantially comply with Louisiana law regarding consent to the adoption and terminated her parental rights to the Claimant, as well as the unknown natural father’s parental rights.

    An Act of Surrender is irrevocable upon execution, with some exceptions inapplicable to the facts of this case. See La. Child. Code Ann. art. 1123 (2018) (exceptions in La. Child. Code Ann. art. 1130 – e.g., “No Act of Surrender for private adoption by a mother shall be executed earlier than five days following the birth of the child”); La. Rev. Stat. Ann. art. 9:422.8 (1987) (“The formal act of voluntary surrender grants the irrevocable consent . . . of the surrendering parent or parents to the adoption of the child by the person or persons named or represented in the act.”); In re G.O., 433 So.2d at 1116-1117 (“This right to revoke consent [within thirty days after executing the act of surrender per La. Rev. Stat. Ann. art. 9:422.10] has the limited effect of giving the surrendering parent or parents standing to oppose the adoption. It has no effect on the transfer of custody effected by the formal act of surrender or the termination of parental rights.”). Furthermore, an Act of Surrender is not subject to annulment, except upon proof of duress or fraud. See La. Child. Code Ann. art. 1147 (2018); Wuertz v. Craig, 458 So.2d 1311, 1313 (La. 1984) (finding that the threat of possible criminal charges invalidated the woman’s consent procured in the act of surrender); Matter of Adoption of Smith, 578 So.2d 988, 992-993 (La. Ct. App. 1991) (“If a natural parent asserts the act of surrender is null, or that it has been modified or extinguished, the natural parent must prove the facts or acts giving rise to the nullity, modification, or extinguishment,” and the natural parent has the burden “to prove the lack of capacity to contract or the consent was vitiated by error, fraud, or duress.”). Here, there is no evidence anybody has ever contested the validity of the Voluntary Act of Surrender, including whether the Voluntary Act of Surrender complied with all the content requirements. Thus, the evidence indicates that the consent requirement was met.

  2. b. 

    Qualifications to File a Petition for Adoption

    In addition, we consider whether the NH was qualified to file a petition for adoption. Louisiana law provides that a “single person, eighteen years or older, or a married couple jointly may petition to privately adopt a child. When one joint petitioner dies after the petition has been filed, the adoption proceedings may continue as though the survivor was a single original petitioner.” La. Child. Code Ann. art. 1221 (2018); La. Rev. Stat. Ann. art. 9:422 (1987). The documents provided show that the NH and C2~ filed a joint Petition for Adoption of the Claimant on January XX, 1986, and they were both over the age of eighteen. C2~ passed away on November XX, 2005. Under Louisiana law, the NH’s Petition for Adoption legally continued as a single original petitioner.[6] Thus, the NH was qualified to adopt the Claimant.

  3. c. 

    Petition for Adoption Content Requirements

    Next, we consider whether the NH’s Petition for Adoption, filed on January XX, 1986, complied with all the content requirements for a private adoption. Under Louisiana law in effect at that time, the petition for adoption, which shall be styled “In re ____, applying for adoption,” or an exhibit attached to the petition must state:

    1. 1. 

      The full name, address, age, occupation, and marital status of each petitioner.

    2. 2. 

      The name by which the child is known to petitioners as well as the name under which the birth of the child is recorded.

    3. 3. 

      The place and date of the birth of the child if known; if not known, then the approximate age of the child.

    4. 4. 

      The name and address of the parent or legal custodian of the child.

    5. 5. 

      How the child entered the home of the petitioner.

    6. 6. 

      Any relationship existing between the petitioner and the child and any other information pertaining to the child.

    La. Rev. Stat. Ann. art. 9:424 (1987); see also La. Child. Code Ann. art. 1222(A) (2018).[7] Thus, the NH’s Petition for Adoption and an attached exhibit, titled “Adoption - Vital Statistics,” complied with Louisiana’s petition for adoption content requirements that existed at the time of filing.

  4. d. 

    Investigation, Hearing, Interlocutory Decree, and Final Decree of Adoption

    “The [Louisiana adoption] statutory scheme provides for the filing of a petition for adoption, service and notice of interested parties, investigation by the Department, a hearing, the granting of an interlocutory decree, subsequent visitation and investigation by the Department, another hearing, and a final decree of adoption.” In re McK, 444 So.2d 1362, 1365 (La. Ct. App. 1984). As stated, on January XX, 1986, the NH filed a Petition for Adoption of the Claimant, who was a child at the time of filing, and for an interlocutory decree awarding him custody of the child. See La. Child. Code Ann. art. 1169 (2018) (child is a “person under eighteen years of age and not emancipated by marriage”). In the petition, it was noted that the Claimant had been placed in the NH’s custody on February XX, 1984 (one month after the Claimant’s birth), and that the Claimant remained in the NH’s home at the time of the Petition for Adoption on January XX, 1986. On January XX, 1986, the District Court ordered the NH’s Petition for Adoption be filed and served on the State Department of Public Welfare (Public Welfare Department) and ordered the Public Welfare Department to study the adoption and file a confidential report no later than March XX, 1986. See La. Rev. Stat. Ann. art. 9:427 (1987) (investigation and report of Department of Health and Human Services of a proposed adoption); La. Child. Code Ann. art. 1229 (2018) (The department shall investigate the proposed private adoption and submit a confidential report of its findings to the court). The District Court also ordered the NH’s Petition for Adoption be set for hearing on March XX, 1986, in the court’s chambers at St. Martinville, St. Martin Parish, Louisiana. See La. Rev. Stat. Ann. art. 9:428 (1987) (“The court shall set a time and place for the hearing of the petition not less than thirty nor more than sixty days after completion of service of process.” The court may extend or reduce this time under certain circumstances.); La. Child. Code Ann. art. 1230 (2018) (the court shall set time and place for adoption hearing not less than thirty nor more than sixty days after the filing of the petition for adoption). In March 1986, the District Court extended the hearing date to April XX, 1986. See id.

    The evidence contains an acknowledgment from the department filed on February XX, 1986, indicating that the Public Welfare Department received a certified copy of the Interlocutory Decree signed on January XX, 1986, but the Interlocutory Decree itself is not among the evidence provided with the Claimant’s application for benefits. Thus, it is unclear whether this was an acknowledgment of the Interlocutory Decree or the Petition for the Interlocutory Decree. See La. Rev. Stat. Ann. art. 9:429 (1987) (after considering the confidential report and a hearing, the judge may grant or refuse to grant an interlocutory decree); La. Child. Code Ann. art. 1232 (2018) (the court may grant interlocutory decree during or after the hearing on the petition for adoption), art. 1234 (2018) (upon issuance of an interlocutory decree, the period that must elapse prior to the application for final decree of private adoption begins to run). The evidence also contains an acknowledgment from the Public Welfare Department filed on March XX, 1986, indicating that the Public Welfare Department had received the order resetting the adoption hearing for April XX, 1986.

    The evidence does not contain records of the adoption hearing proceedings that transpired on April XX, 1986, any subsequent hearings that may have taken place, or a final decree of adoption. See La. Rev. Stat. Ann. art. 9:432 (1987) (the child must have lived with the petitioner for at least one year and at least six months shall have elapsed after the granting of an interlocutory decree before the petitioner may apply for a final decree of adoption; the court, after hearing, may enter a final decree of adoption or it may deny the adoption; the basic consideration for this decree and all others shall be the best interest of the child); La. Child. Code Ann. art. 1238(A) (2018) (“The child shall have lived with the petitioner for at least one year and at least six months shall have elapsed after the granting of the interlocutory decree before the petitioner may file a petition for final decree of private adoption.”). We note, however, that Louisiana law provides, “All court records of adoption proceedings shall be confidential and shall not be open to inspection except on written authorization by the court and there shall be no publication thereof.” See La. Child. Code Ann. art. 1187 (2018); La. Rev. Stat. Ann. art. 9:437 (1987). Without any court order or judgment entered on April XX, 1986, there is no evidence on whether the District Court entered a final decree of adoption granting the NH’s adoption of the Claimant during that hearing or at a subsequent time.

    It is our understanding that the NH and C2~ retained custody of the Claimant over the years following her natural mother’s surrender of her to the NH and C2~ in 1986. In 2016, the NH needed proof of the Claimant’s adoption and contacted the St. Martin Parish Family Court to request a copy of the Adoption Decree. At that time, the NH became aware that the court never finalized the Claimant’s adoption. The law in place at that time provided that the child must have lived with the petitioner for at least one year and at least six months shall have elapsed after the granting of an interlocutory decree before the petitioner may apply for a final decree of adoption; that another hearing would be held; and that after such hearing, the court may enter a final decree of adoption if it was in the child’s best interest. See La. Rev. Stat. Ann. art. 9:432 (1987). Thus, it appears that even though they could have, the NH and C2~ may not have filed the Petition for Final Decree of Adoption after the appropriate time had lapsed and that a final decree of adoption had not been entered. See La. Rev. Stat. Ann. art. 9:432 (1987). The law also provided that a court could revoke an interlocutory decree, but there is no evidence indicating that such revocation took place here either. La. Rev. Stat. Ann. art 9:431 (1987); see In re Adoption of Giambrone, 262 So.2d 566, 569-570 (La. Ct. App. 1972) (“Once consent to adoption is freely and lawfully given and an interlocutory decree has been entered, the so-call natural rights of the natural parent are ended . . . . A petitioner seeking revocation of an interlocutory decree must prove that the adoptive parents are unfit, or that it would be in the best interests of the child that such a decree be revoked”).

    On March XX, 2017, the NH submitted a Petition for Final Decree in the same adoption case name and number that he filed in 1986, asking the court to finalize the adoption and name him as the Claimant’s adoptive parent. The Petition for Final Decree stated that all necessary requirements for the adoption had been fulfilled and asked the court to enter a final decree of adoption. The same day, the district judge re-opened the 1986 adoption case, signed the Final Decree of Adoption naming the NH as the Claimant’s adoptive parent, and ordered the clerk to forward a certified copy of the final adoption decree to the Louisiana Department of Social Services and the Bureau of Vital Statistics. See La. Child. Code Ann. art. 1182(B) (2018) (clerk of court shall forward a certificate of the decree to the state registrar of vital records).

  5. e. 

    Validity of the Final Decree of Adoption Issued on March XX, 2017

    The question is whether the district judge had the authority to issue a Final Decree of Adoption, when the Claimant was an adult, based on a Petition for Adoption the NH filed when the Claimant was a child. Louisiana law does not address that issue; however, Louisiana statutes do permit courts to authorize both adoptions of children and adults based on the best interests of the child, a determination left to the court’s discretion. See La. Child. Code Ann. art. 1170 (2018) (there are three types of adoption of minor children: agency adoption, private adoption, and intrafamily adoption); La. Child. Code Ann. art. 1239 (2018) (the court, after hearing and after taking into consideration information from all sources concerning the adoption, may enter a final decree of private adoption, or it may deny the adoption; the basic consideration is the best interests of the child); La. Civ. Code Ann. art. 212 (2018) (a court may authorize an adult adoption if the court finds that it is in the best interests of both parties). We believe there is support in the law for the Louisiana court’s entry of the March XX, 2017 Final Decree of Adoption where the private adoption proceedings began when the Claimant was a child in compliance with the law, as discussed above, the Claimant’s natural parents’ rights were terminated years ago with the Voluntary Act of Surrender, and the Claimant has lived her entire life as the NH’s adopted child. See In re McK , 444 So.2d at 1366 (granting an interlocutory decree of adoption, revoke such a decree, or granting a final decree of adoption is within the sound discretion of the court; the basic consideration for a final adoption decree and all decrees during the adoption process is the best interests of the child); Woods v. Collins , 274 So.2d 466, 468-469 (La. Ct. App. 1973) (“The Louisiana adoption statutes . . . vest discretion in the trial judge in several particulars,” including whether to grant an interlocutory decree, whether to extend the period for adopting parents to file for a final decree, and whether to grant the final decree of adoption; concluding that a child who had lived with the adopting parent for more than six years and who had established ties with the adopting parent and when an adoption has been delayed for reasons that relate to the child’s best interest, the trial judge was not in error when he extended the time for completion of the adoption).

    Louisiana law does not provide a time limit to enter a final decree of adoption. In an action filed to have the court declare an act of adoption null and void, a Louisiana Court of Appeals noted, “there is no statutory or jurisprudential rule which mandates registration of the act of adoption at any particular time. Nor is there any clear indication that the time within which the recordation takes place (if, indeed, it is required) need be ‘reasonable.’ Finally, there is certainly no authority for the gratuitous imposition of a specific number of days upon which to make the ultimate determination of reasonableness where the legislature, itself, has chosen not to be definitive.” Poynot v. Pfister, 348 So.2d 98, 100 (La. Ct. App. 1977). Thus, there is legal support for the district judge’s signing and ordering the clerk to register a final decree of adoption years after conducting an adoption hearing. In Woods v. Collins, the court noted that the trial judge exercises discretion as to whether a final decree of adoption should be granted. 274 So. 2d at 468. The trial judge is also given the duty of deciding whether good cause has been shown for extending the period in which the adopting parents may apply for a final decree. Id. “[G]ood cause for the extension of time in which to file for a final decree of adoption is a circumstance which has a substantial bearing on the best interest and welfare of the child.” Woods, 274 So. 2d at 469. “[W]hen an adoption has been delayed for reasons which obviously relate to the child’s best interest, we conclude that the trial judge was not in error when he, as clearly authorized by statute, extended the time for completion of the adoption.” Id. Woods does not address the issue of whether the court can grant an adoption of an adult based on a petition filed when the adoptee was a child. However, Woods provides guidance on whether the court may extend the time for completion of an adoption, which in this case would mean extending the time from when the Claimant was a child to when she became an adult.

    In both child and adult adoptions, courts focus on the child’s best interests and have discretion in making this determination. Louisiana law provides that the court may enter a final decree of private adoption after hearing and taking consideration from all sources concerning the adoption. See La. Child. Code Ann. art. 1239 (2018). The court’s basic consideration must be the best interests of the child. Id. “Whether an adoption is in a child’s best interests must be decided on the unique facts of each case, and the trial judge is vested with vast discretion in making that determination.” In re Morris, 39,523, p. 8 (La. App. 2 Cir. 1/26/05), 892 So.2d 739, 744. The Final Decree of Adoption does not elaborate on what transpired during the March 2017 proceedings and states only that the court considered all the evidence and “for the reasons orally assigned,” the adoption was “in the best interest of the child.” “Whether an adoption is in a child’s best interests must be decided on the unique facts of each case, and the trial judge is vested with vast discretion in making that determination.” In re C.E.F., 977 So.2d 1, 6 (La. Ct. App. 2007). Similarly, the Comments to La. Civ. Code Ann. art. 212 (Comments) note that changes in the adult adoption laws now require judicial authorization of the adoption, and that “judicial authorization, obtained during a hearing initiated by a joint petition of the person to be adopted and adoptive parent, requires proof that ‘the adoption is in the best interest of both parties.’” See ADULT ADOPTION, 2008 La. Sess. Law Serv. Act 351 (H.B. 322). The Comments further explain, “[t]he requirement of judicial authorization for an adult adoption is intended to assure that the adult adoption does not involve either circumstances that suggest undue influence has been exercised over either party or a situation where one party took advantage of the other party whose mental or physical circumstances increase his vulnerability to the slightest imposition.” Id. In this case, the District Court authorized the adoption. Furthermore, the Final Decree of Adoption, states that the adoption “is in the best interest of the child,” which suggests the District Court considered whether there was “undue influence” over either party or a situation where one party took advantage of the other party. The District Court entered a Final Decree of Adoption, which was consistent with Louisiana child and adult adoption laws.

    Finally, we note that there has been no timely appeal of the March XX, 2017 Final Decree of Adoption. A party to the proceedings or any other party in interest shall have the right to appeal a final adoption decree within thirty days after rendition of an adoption decree. See La. Child. Code Ann. art. 1259(A) (2018). If no appeal is perfected within thirty days after a judgment is rendered, the judgment is final. See La. Child. Code Ann. art. 1259(B) (2018). There is no evidence that any party appealed the District Court’s Final Decree of Adoption; therefore, the Final Decree of Adoption is final.

    Additionally, no action to annul a final decree of adoption of any type may be brought except on the grounds of fraud or duress. See La. Child. Code Ann. art. 1262 (2018); see also La. Civ. Code Ann. art. 2004 (2018) (an action to annul a final judgment based on fraud or ill practices may be brought within one year of the discovery). An action to annul a final decree of adoption based upon a claim of fraud or duress perpetrated by anyone, other than the adoptive parent, may not be brought later than one year from the date of signing of the final decree. See La. Child. Code Ann. art. 1263(A) (2018). One year has lapsed since the court granted the adoption decree in March 2017, and there is no evidence that anyone filed a claim alleging fraud or duress by anyone. Furthermore, an action to annul a final decree of adoption based upon a claim of fraud or duress perpetrated by an adoptive parent may not be brought later than two years from the date of the signing of the final decree. See La. Child. Code Ann. art. 1263(B) (2018). “The purpose of a peremptive[8] period . . . is to afford finality of judgment in the interests of the parties involved in the adoption.” Stewart, 432 So.2d at 248; seeIn re A.J.F., 764 So.2d 47, 58 (La. 2000) (noting La. Child. Code Ann. arts. 1262 and 1263 provide for finality of judgment in adoption proceedings). Although the peremptive will not lapse until March XX, 2019, there is no evidence anyone has alleged that the NH has engaged in fraud or duress.

In summary, the evidence indicates that the adoption proceedings began in accordance with the law in 1985 and 1986, including valid consent from the Claimant’s natural mother terminating her parental rights and the unknown father’s parental rights, and that a court entered a final decree of adoption in 2017 finding that the adoption was in the Claimant’s best interests and declaring the Claimant to be the NH’s adopted child. Thus, we believe there is legal support for the agency to find that the NH’s adoption of the Claimant is valid under Louisiana law.

2. Social Security Ruling 83-37c Applies to Determine Whether the Final Decree of Adoption Binds the Agency

As the evidence includes a state court judgment declaring the Claimant to be the NH’s adopted child, we note that generally, a state court decision does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c, 1983 WL 31272 (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray v. Richardson). Pursuant to SSR 83-37c, state court determinations on domestic relations matters are entitled to deference and bind the agency only when certain specific factors are satisfied. The factors are: (1) when a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) when parties with opposing interests genuinely contested the issue before the state court; (3) when the issue falls within the general category of domestic relations law; and (4) when the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. The Fifth Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray criteria. See Warren v. Sec’y of Health & Human Servs., 868 F.2d 1444 (5th Cir. 1989)[9] ;Garcia v. Sullivan, 883 F.2d 18 (5th Cir. 1989)[10] . We apply these criteria to the Final Decree of Adoption.

  1. a. 

    State Court of Competent Jurisdiction Previously Determined an Issue in a Claim for Social Security Benefits

    We believe that there is legal support for the agency to find that the Final Decree of Adoption meets the first Gray criteria as it declares the Claimant to be the NH’s adopted child, which is the determinative issue in the Claimant’s claim for child’s benefits on the record of the NH as his legally adopted child. Further, the 16th Judicial District Court in the Parish of St. Martin, Louisiana, where the NH is domiciled, is a state court of competent jurisdiction. See La. Child. Code Ann. art. 1180 (2018) (stating that the juvenile court, which is part of the district court, has jurisdiction over adoption petitions); In re Adoption of C.S., 505 So. 2d 1010, 1012 (La. Ct. App. 1987) (district court sitting as a juvenile court has jurisdiction and venue over adoption proceeding brought in the parish of the domicile of the petitioner). Thus, the Final Decree of Adoption satisfies the first Gray criteria.

  2. b. 

    Parties with Opposing Interest Genuinely Contested the Issue before the State Court

    We believe that there is legal support for the agency to find that the Final Decree of Adoption does not meet the second Gray criteria. In this case, the Claimant’s natural mother consented to the private adoption and waived rights to notice and service to any petition for adoption, and thus the Final Decree of Adoption falls between an ex parte proceeding and a suit with an “adversarial nature.” See Warren, 868 F.2d at 1446-47; Garcia, 883 F.2d at 20. “Responsive pleadings have never been contemplated or required by the laws governing adoptions,” but “there has always been a mechanism . . . to register [an] objection to the adoption.” Tutorship of Shea, 619 So.2d 1236, 1239 (La. Ct. App. 1993). Accordingly, adoptions are not adversarial unless a parent files an opposition to the adoption. See, e.g., Doe v. A.B., 949 So.2d 602, 603 (La. Ct. App. 2007) (showing that the natural father raised an objection to the private adoption proceeding, and there was “a hearing on the opposition,” which created the controversy in the adoption proceeding). Thus, because a private adoption is not adversarial when, as here, the parties consent, it does not satisfy the second Gray criteria.

  3. c. 

    The Issue Falls Within the General Category of Domestic Relations Law

    We believe that there is legal support for the agency to find that the Final Decree of Adoption meets the third Gray criteria as the issue of private adoption falls within the general category of domestic relations law. In Louisiana, domestic relations cases include “all matters of adoption.” First Nat. Life Ins. Co. v. City of New Orleans, 48 So.2d 145, 147 (La. 1950). Thus, the Final Decree of Adoption satisfies the third Gray criteria.

  4. d. 

    The State Court Order is Consistent with the Law as Enunciated by the State’s Highest Court

    Finally, as to the fourth Gray criteria, we looked both to Louisiana adoption law in place when the proceedings began in 1985 and 1986, as well as the current law when the Final Decree of Adoption was entered to determine whether the private adoption is consistent with Louisiana law. Although it may have been preferable to have the NH file a new petition under the adult adoption laws, we believe that there is legal support for the agency to find that the Final Decree of Adoption, which was filed as a private adoption at the time the Claimant was a child, is consistent with the law for private adoptions as enunciated by the Louisiana Supreme Court. Accordingly, we believe that if the Louisiana Supreme Court were to address the validity of the Final Decree of Adoption, it would find the order consistent with Louisiana law. Thus, the Final Decree of Adoption meets the fourth Gray criteria.

In summary, as explained above, the Final Decree of Adoption does not bind the agency because it does not meet the second criteria of Gray of being genuinely contested. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. The agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. See Garcia, 883 F.2d at 20. As discussed above, the Final Decree of Adoption appears to be valid under Louisiana law. The record shows that the Claimant’s natural parents’ rights were terminated when the Claimant was a baby and suggests that the Claimant has lived with the NH since birth and that the NH has cared for the Claimant her whole life. Thus, notwithstanding the fact that the Final Decree of Adoption does not meet the second Gray criteria, we believe the state court’s decree is entitled to deference. Based upon the evidence as a whole and a review of Louisiana private adoption law, we believe that there is legal support for the agency to conclude that the Claimant is the NH’s legally adopted child.

C. The Effective Date of the Adoption

Lastly, we address the date the private adoption became effective. “A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.” La. Code Civ. Proc. Ann. art. 1841 (2018). “A judgment that determines the merits in whole or in part is a final judgment.” Id.; see alsoDavis v. Coregis Ins. Co., 789 So.2d 7, 10 (La. Ct. App. 2000). “Every final judgment shall contain the typewritten or printed name of the judge and be signed by the judge.” La. Code Civ. Proc. Ann. art. 1911 (2018). “[I]n Louisiana a final judgment is not considered valid and can have no effect of any kind until signed.” Farrell v. Farrell, 275 So. 2d 489, 491 (La. Ct. App. 1973) (citing Viator v. Heintz, 10 So.2d 690 (La. 1942)). Thus, the private adoption became effective on March XX, 2017, the day the district judge signed the Final Decree of Adoption and declared the Claimant to be the NH’s child. See Bossier’s Heirs v. Hollingsworth & Jackson, 41 So. 553, 555 (La. 1906) (“While it is elementary in our practice that a judgment not signed by the judge is not a final judgment, it is equally true that a judgment not final in its character cannot be made final by the signature of the judge.”).

CONCLUSION

We believe that there is legal support for the agency to find that the Claimant is the NH’s legally adopted child under the Act based on the Louisiana District Court’s Final Decree of Adoption. The NH’s adoption of the Claimant is effective March XX, 2017.

 

B. PR 15-109 Louisiana State Law – Validity of Adult Adoption Based on Notarial Adoption and Judgment Approving Adoption (NH: T~; SSN ~) – REPLY

DATE: April 8, 2015

1. SYLLABUS

Under Louisiana Law, an adult adoption is effective when the act of adult adoption and any judgment required to authorize the adoption are filed for registry, except as otherwise provided by law.  If the act of an adult adoption is filed within five days after the date of the last signature required for validity of the act, exclusive of legal holidays, the adoption shall be effective as of the date of the last signature.  If article 212 requires court authorization, the judgment with the act of adoption shall be filed for registry with the clerk of any parish.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether the Louisiana state court’s judgment granting T~’s adoption of his adult biological granddaughter, B~, is a valid adult adoption under Louisiana law for purpose of entitlement to child’s benefits. If the adult adoption is valid, you asked the effective date of the adoption.

ANSWER

We conclude that the adult adoption is valid under Louisiana law and effective in September 2014. However, based on the present record and specific circumstances of this case, we conclude that further development is required to determine whether B~ met the dependency requirement of 20 C.F.R. § 404.350(a)(2) in order to be entitled to benefits. Specifically, we defer to the Social Security Administration (agency) to determine whether B~ lived with or received at least one-half of her support from the NH, during the year immediately preceding her adoption in accordance with 20 C.F.R. § 404.362(b)(1)(ii).

BACKGROUND

The NH became entitled to old-age benefits effective July 1998. In August 2014, B~, the NH, and the NH’s wife (B~’s biological grandmother) filed a Joint Petition to Authorize Adult Adoption in the Sabine Parish, Louisiana District Court. In September 2014, all three parties signed an Authentic Act of Adoption before a Notary Public. On this same date, the District Court judge signed the Judgment Approving Adult Adoption, and the District Court stamped the Judgment “received and filed.” Born on December, B~ was 36 years old at the time of the adoption.

The next month, October 2014, B~ filed an application for disabled adult child’s benefits on the NH’s record as the NH’s adopted child. B~ has lived in the NH’s household since birth and became entitled to supplemental security income (SSI) payments effective May 1992, when she was 14 years old. The NH and B~ were domiciled in Louisiana at the time of the adoption and the application for disabled adult child’s benefits. B~’s biological parents are neither disabled nor deceased.

ANALYSIS

Validity of Adoption Under Louisiana Law

In determining whether a child is a number holder's legally adopted child, the agency applies the laws of the state where the adoption took place. 20 C.F.R. § 404.356. The NH adopted B~ in Louisiana; therefore, Louisiana law is controlling. Louisiana recognizes the validity of an adult adoption. La. Civ. Code Ann. art. 212. A Louisiana court, upon the joint petition of the adoptive parent and the person to be adopted, may authorize the adoption if the court finds after a hearing that the adoption is in the best interest of both parties. Id. Either party to the adoption may bring an action to authorize an adult adoption in accordance with La. Civ. Code Ann. art 212 in either party’s parish or domicile. La. Code Civ. Proc. Ann. art. 74.5. An adult adoption is effective when the act of adult adoption and any judgment required to authorize the adoption are filed for registry, except as otherwise provided by law. La. Civ. Code Ann. art. 214. If the act of an adult adoption is filed within five days, exclusive of legal holidays, after the date of the last signature required for validity of the act, the adoption shall be effective as of the date of the last signature. La. Rev. Stat. Ann. 9:462. If article 212 requires court authorization, as in the case at hand, the judgment with the act of adoption shall be filed for registry with the clerk of any parish. Id. at 9:463.

In this case, the adult adoption complied with Louisiana law. B~ was 36 years old and thus had attained the age of majority in August 2014, the date she filed the Joint Petition to Authorize Adult Adoption. Because the NH and the NH’s wife were B~’s grandparents, and not the spouse or surviving spouse of a parent of the person to be adopted, they needed judicial authorization to adopt B~. See La. Civ. Code Ann. art. 212. In accordance with article 212, B~, the NH, and the NH’s wife, residents of Sabine Parish, Louisiana filed a Joint Petition to Authorize Adult Adoption in the 11th Judicial District Court, Sabine Parish, Louisiana. [11] The NH, NH’s wife, and B~ signed the Authentic Act of Adoption in September 2014, and the District Court judge, after a hearing, approved the adult adoption on the same day. The stamp from the District Court on the Judgment Approving Adult Adoption states that the District Court received and filed and registered the Judgment on the same day. Thus, the NH’s adoption of B~ appears to be a valid adult adoption.

B~’s Entitlement to Social Security Benefits on the NH’s Record

Under the Social Security Act (Act), a disabled adult child may be eligible for Social Security benefits if she is the child of an individual who is entitled to old-age or disability benefits. 42 U.S.C. §§ 402(d)(1), 416(e)(1); see 20 C.F.R. §§ 404.350, 404.354, 404.356, 404.358. In order to qualify, the child must meet the following criteria: (1) she is the insured person’s child, based upon a relationship described in §§ 404.355 through 404.359; (2) she is dependent on the insured, as defined in §§ 404.360 through 404.365; (3) she applies; (4) she is unmarried; and (5) she is under age 18 or 18 years or older and has a disability that began before she became 22 years old. 20 C.F.R. § 404.350.

We now examine whether B~ meets these five criteria necessary to receive child’s benefits on the NH’s record. First, B~ is the NH’s child pursuant to a valid adoption of a grandchild under Louisiana law. See 20 C.F.R. § 404.358(b) (you may be eligible for the benefits as the insured’s child if you are the insured’s grandchild and were legally adopted by the insured).

Second, B~ must be dependent on the insured to be eligible for benefits. See 20 C.F.R. § 404.350(a)(2) (you are dependent on the insured, as defined in §§ 404.360 through 404.365). Because the NH legally adopted B~ after the NH became entitled to benefits in July 1998, and B~ was not the NH’s natural child or stepchild, she can be considered dependent on the NH during his lifetime only if, in relevant part, she attained age 18 before adoption proceedings were started, the adoption was issued by a court of competent jurisdiction within United States, and she was living with or receiving at least one-half support from the NH for the year immediately preceding the month in which the adoption was issued. See 20 C.F.R. § 404.362(b)(1)(ii). The 11th Judicial District Court, Sabine Parish, Louisiana, which issued the Judgment Approving the Adult Adoption, is a court of competent jurisdiction within the United States. Thus, we next look to whether B~ was living with or receiving at least one-half support from the NH during the year immediately preceding September 2014, when the court issued the Judgment Approving the Adult Adoption.

An individual is considered living with an insured if she ordinarily lives in the same home with the insured and the insured is exercising, or has the right to exercise, parental control and authority over the individual’s activities. 20 C.F.R. § 404.366(c). The adoption decree states that B~ had lived with the NH since birth. Furthermore, according to agency records, the most recent SSI redetermination in December 2014 concluded that B~ had been living with the NH from March 2008 through December 2014. However, we have no information indicating whether the NH exercised, or had the right to exercise, parental control and authority over B~’s activities during the year immediately preceding the September 2104 adoption. Consequently, the agency should further develop these facts. Assuming the NH had such authority over B~, the dependency requirement would be met.

As noted, B~ can also meet the dependency requirement by showing that she was receiving at least one-half support from the NH during the year immediately preceding the September 2014 adoption. An insured person provides one-half of support if he makes regular contributions for the claimant’s ordinary living costs; the amount of these contributions equals or exceeds one-half of the claimant’s ordinary living costs; and any income (from sources other than the insured person) the claimant has available for support purposes is one-half or less of the claimant’s ordinary living costs. 20 C.F.R. § 404.366(b). The facts presented do not reveal how much the NH contributed to B~’s living costs during the year preceding the September 2014 adoption. Consequently, the agency should further develop these facts. Assuming the NH provided the requisite support, the dependency requirement would be met.

B~ met the third requirement -- she applied for benefits. See 20 C.F.R. § 404.350(a)(3). She met the fourth requirement that she be unmarried -- court documents provided to us indicate that she is single. [12] 20 C.F.R. § 404.350(a)(4). B~ met the fifth requirement because she is older than 18, and the record indicates that she has received SSI payments based on her disability since 1992 when she was 14 years old. See 20 C.F.R. § 404.350(a)(5). Thus, on the basis of the facts presented, if further development shows that B~ was dependent on the NH, B~ appears to meet the five requirements of 20 C.F.R. § 404.350(a).

Whether the State Court Adoption Decree Binds the Agency

If the agency’s further development of the record reveals that B~ met the dependency requirement of 20 C.F.R. § 404.350(a)(2), we must determine whether the state court adoption decree binds the agency. Generally, a state court judgment does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray). Pursuant to SSR 83-37c, state court determinations on domestic relations matters bind the agency only when certain specific factors are satisfied. The factors are: (1) when a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) when parties with opposing interests genuinely contested the issue before the state court; (3) when the issue falls within the general category of domestic relations law; and (4) when the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. The Fifth Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray criteria. See Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989) (citing Gray); Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989).

The Judgment Approving the Adult Adoption meets the first Gray criteria as it declares B~ to be the NH’s adopted child, which is the determinative issue in B~’s claim for child’s benefits. The Judgment Approving the Adult Adoption also meets the third criteria as the issue of an adult adoption falls within the general category of domestic relations law. See La. Code Civ. Proc. Ann. art. 74.5 (district court in the parish or domicile of either party has jurisdiction over adoption petitions).

As to the second criteria, the evidence suggests that parties with opposing interests did not genuinely contest the Joint Petition to Authorize Adult Adoption before the District Court. Although the Fifth Circuit has not articulated what constitutes a “genuinely contested” issue, an ex parte judgment does not generally satisfy the “genuinely contested” criteria. See Warren, 868 F.2d at 1446-47 (noting the ex parte nature of the judgment); Dennis v. R.R. Ret. Bd., 585 F.2d 151, 155 n.2 (6th Cir. 1978) (noting that ex parte proceedings do not bind the federal government). However, when a judgment results from a suit, that judgment appears to satisfy the “genuinely contested” criteria, even when the opposing party consents to judgment. See Garcia, 883 F.2d at 20 (disagreeing with the agency’s genuinely contested finding because of the “adversarial nature” of a paternity suit); Dennis, 585 F.2d at 154 (finding that a suit filed in the Ohio Probate Court was a contested matter); but see George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (holding that a nunc pro tunc divorce decree was not “genuinely contested” because, in part, there was no indication that any material controversy was resolved).

In this case, the Joint Petition to Authorize Adult Adoption falls between an ex parte proceeding and a suit with an “adversarial nature.” See Warren, 868 F.2d at 1446-47; Garcia, 883 F.2d at 20. Intra-family adoptions are not adversarial unless a parent files an opposition to the adoption by filing a clear and written answer. See, e.g., In re B.L.M., 136 So. 3d 5, 7 (La. App. 1 Cir. 2013) (showing that the parent raised an objection to the adoption proceeding, which created the controversy in the adoption proceeding). Thus, because an intra-family adoption is not adversarial when the parties consent and because the NH and B~ consented to the NH’s adoption of B~, it does not satisfy the second Gray criteria. [13]

Finally, as to the fourth Gray criteria, we look to Louisiana adoption law to determine whether the Judgment Approving Adult Adoption is consistent with what the Louisiana Supreme Court has enunciated. As stated above, B~’s adoption appears consistent with Louisiana law, thus in our opinion it would be upheld by the Louisiana Supreme Court.

Notwithstanding the fact that the adult adoption in this instance does not meet the second Gray criteria, it is our opinion that the agency, in accordance with the Fifth Circuit’s emphasis on the fourth Gray criteria, should give the state court’s decision deference, and therefore recognize B~’s adult adoption. As stated above, the Fifth Circuit held that the agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Garcia, 883 F.2d at 20.

The Effective Date of the Adult Adoption

Lastly, we address the date the adoption became effective. Under Louisiana law, if the act of an adult adoption is filed within five days, exclusive of legal holidays, after the date of the last signature required for validity of the act, the adoption shall be effective as of the date of the last signature. La. Rev. Stat. Ann. 9:462. In this instance, the provided court documents reveal that the NH, the NH’s wife, and B~ signed the Authentic Act of Adult Adoption in September 2014, and that the District Court judge approved the adult adoption on the same day. The District Court’s stamp on the Judgment Approving Adoption states that the District Court received and filed the Judgment on the same day. Accordingly, the effective date of the adoption is September 2014.

CONCLUSION

The adult adoption is valid under Louisiana law and effective September 2014. However, based on the present record and specific circumstances of this case, we conclude that further development is required to determine whether B~ meets the dependency requirement of 20 C.F.R. § 404.350(a)(2). Specifically, we defer to the agency to determine whether B~ lived with or received at least one-half of her support from the NH during the year immediately preceding her September 2014 adoption in accordance with 20 C.F.R. § 404.362(b)(1)(ii). In order for B~ to meet the requirement that she was living with the NH during the year immediately preceding her adoption, she must show that she ordinarily lived in the same home with the NH and the NH exercised, or had the right to exercise, parental control and authority over B~’s activities. In order to show B~ received one-half of her support from the NH, the record must show the NH made regular contributions for B~’s ordinary living costs; the amount of these contributions equaled or exceeded one-half of B~’s ordinary living costs; and any income (from sources other than the NH) B~ had available for support purposes was one-half or less of her ordinary living costs.

Michael McGaughran
Regional Chief Counsel
By:___________________________
Brock C. Cima
Assistant Regional Counsel

Footnotes:

[1]

“Natural mother” – “a woman who carries a baby to term and delivers it.” https://medical-dictionary.thefreedictionary.com/natural+mother (last visited on August 20, 2018).

[2]

“An interlocutory decree is defined as one that is rendered in the progress of a lawsuit, or between the commencement and the end of the suit.” In re Byrne, 191 So. 729, 730 (1939).

[3]

As you have asked only whether the Claimant has a parent-child relationship with the NH as a legally adopted child, we do not address the remaining criteria for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350.

[4]

In 1991, Louisiana enacted the Louisiana Children’s Code, effective January 1, 1992, and as a result, the provisions pertaining to adoptions of minors in the Louisiana Revised Statutes were repealed. Because some of the adoption documents were completed and filed in court in 1985 and 1986, we reviewed the Louisiana Statutes Annotated 1987 version on Westlaw, which is the oldest version accessible on Westlaw and appears to generally reflect the law in place at the time these adoption documents were executed and filed in court. We were unable to locate versions of Louisiana statutes older than 1987 on the internet. We understand that some further revisions were made to the statutes in 1987 that would also not have been in place at the time of the 1985/1986 adoption documents at issue here, and thus, we also reviewed Louisiana case law analyzing the adoption laws that would have been in place in 1985 and 1986, as well as a Tulane Law Review article reviewing Louisiana child adoption law over time. See Deborah Pearce Reggio, Children’s Law Matures: Surrender and Adoption Under Louisiana’s New Children’s Code, 67 Tul. La. Rev. 1631 (May 1993).

[5]

“The formal act of surrender shall identify the parents or parent of the child by name, parish of domicile, age, and marital status; shall identify the child and the parish of birth of the child; shall indicate the name and address of the person or persons to whom the surrender is made, or the name and address of the representative of that person or persons; and shall recite: (1) the date of birth of the child to be surrendered and that the act is not signed earlier than the fifth day following that date; (2) that the parent or parents freely and voluntarily surrender custody of the child for the purpose of private placement and adoption; (3) that the parent or parents’ consent to the adoption; (4) that the parent or parents have been informed and understand that their rights as parents of the child are to be terminated; and (5) that notice and service of any pleading of any sort in any subsequent adoption proceeding is waived. Should a surrendering parent of the child be under the age of eighteen at the time of signing, the formal act shall also recite that fact and shall state that the surrendering parent under the age of eighteen is joined in signing the formal act of surrender by those individuals indicated in R.S. 9:422.3. Each necessary part must sign in the presence of a notary and two witnesses, although it is not necessary that they sign the same instrument.” In re G.O., 433 So.2d at 1117-1118 (quoting La. Rev. Stat. Ann. art. 9:422.3 (1983)).

[6]

Therefore we refer hereafter to the adoption proceedings as the “NH’s Petition for Adoption.”

[7]

The current law contains additional information that was not required to be in the petition at the time the NH filed this petition in 1986, including the diligent efforts to identify an unknown father. See La. Child. Code Ann. art. 1135 (Comment – 1991; “this article is new. It spells out the efforts which must be expended to identify and notify certain putative fathers about the mother’s surrender”).

[8]

“Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La. Civ. Code Ann. art. 3458.

[9]

In Warren , the agency declined to accept the Texas state court’s determination that there was a common-law marriage. See Warren 868 F.2d at 1446-47. The Fifth Circuit upheld the Commissioner’s decision that there was no common-law marriage, despite the state court order to the contrary, because substantial evidence supported the Administrative Law Judge’s conclusion that the highest court of that state would not hold that a common-law marriage existed. Id. Warren focused specifically upon the fourth Gray criteria to find that the state court order did not bind the agency.

[10]

In Garcia , the Commissioner declined to accept a state court determination regarding paternity because parties with opposing interests did not genuinely contest the issue. Garcia , 883 F.2d at 20. Thus, the agency relied upon the second Gray criteria to find that the state court order did not bind the agency. The Fifth Circuit stated in Garcia that because the agency is required to determine how the state courts would decide the matter, “where a state trial court has adjudicated the issue in an adversarial setting the [agency’s] inquiry is manifestly simplified: the [agency] should follow the decision of the state court, absent extraordinary reasons.” Id. (citingWarren, 868 F.2d 1444). The agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Id. In reversing the Commissioner’s decision to disregard the state court order, the Fifth Circuit again emphasized that the agency should disregard a state court order when the order did not meet the fourth Gray criteria.

[11]

According to the Louisiana Supreme Court website, the 11th Judicial District of the Louisiana District Courts covers the same geographical boundaries as Sabine Parish. http://www.lasc.org/links.asp (last visited April 6, 2015).

[12]

In order to verify B~’s marital status, the undersigned conducted a people search on Lexis.com on April 8, 2015, which likewise indicated that B~ is not married.

[13]

The adult adoption proceeding was not an ex parte proceeding because all of the parties required to be present under Louisiana law were present at the hearing. However, the proceeding was not adversarial because neither of B~’s natural parents filed an objection to the adoption.

To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501315021
PR 01315.021 - Louisiana - 05/04/2015
Batch run: 11/19/2018
Rev:05/04/2015