QUESTION PRESENTED
Whether the permanent surrender of a child by an adoptive parent constitutes an "annulment"
of an adoption that terminates the child’s entitlement to benefits on the account
of the adoptive parent.
BACKGROUND
Andrew, born in August, was legally adopted by Sandra on February 22, 1993 under the
laws of the state of Virginia. Ms. R~ has received disability benefits since November
1978 and Andrew began receiving benefits on her SSN in April 1993. On October 14,
1999, Ms. R~ entered into an "Entrustment Agreement for Permanent Surrender of Child"
with the Board of Social Services, State of Virginia, in which she agreed to transfer
custody of Andrew to the state agency and to forfeit all of her parental rights and
responsibilities with respect to the child. Subsequently, Andrew's benefits were suspended
by SSA, effective January 2000, pending a determination of the effect this agreement
had on his entitlement to benefits.
DISCUSSION
As you correctly noted in your letter, the POMS state that a child's entitlement to
benefits on the SSN of a disabled parent is voidable on the occurrence of several
contingencies. See POMS RS 00203.035. The section relevant to this case states that "entitlement to a child's benefit
based on a legal adoption will terminate if the adoption is annulled." POMS RS 00203.035(B)(3). 1 You asked, therefore, whether this "Entrustment Agreement" constituted an
annulment of the February 1993 adoption. Based on a review of the applicable laws,
we believe that it does not.
Both the child and the adoptive parent have resided in Virginia at all times and the
adoption and the "Entrustment Agreement" were entered into under Virginia law. Thus,
we should look to Virginia law for guidance in this case. Under Virginia law, an order
of adoption may be appealed to the Virginia Court of Appeals. Va. Code Ann. § 17.1-405
(3) (g). However, if such an appeal is not filed within six months of the entry of
the final order of adoption, then the adoption becomes final for all purposes and
is not subject to attack for any reason. Va. Code Ann. § 63.1-237.
In the present matter, it appears that there was never any legal challenge to the
validity of the adoption, so no "annulment" of this adoption ever occurred. Instead,
Ms. R~ voluntarily chose to surrender custody of Andrew and the agreement terminated
her parental rights. The October 1999 "Entrustment Agreement" was not an attack on
the adoption, so it had no legal effect on this prior agreement. Even if Ms. R~ or
some other person chose to attack the validity of the adoption, the six-month appeal
period has passed and the adoption became an unappealable final judgment in August
1993. This adoption was not annulled within the allowed time period and cannot now
be annulled at this later date. Because the adoption was not "annulled," Andrew's
benefit payments should be reinstated and he should receive the payments that have
been withheld since the January 2000 suspension of benefits.
CONCLUSION
We believe that Andrew is entitled to continued receipt of benefits on the SSN of
his former adoptive mother, Sandra. The agreement terminating her parental rights
did not constitute an "annulment" of the prior adoption that would authorize terminating
these benefits.