In Florida, a court order that permanently commits a child to a state agency (e.g. state adoption agency) or state licensed agency (e.g. private adoption agency), gives the agency legal custody of the child and the right and duty to provide for his/her needs and welfare.

QUESTION

You asked whether a Florida state court’s order that “permanently committed” a child to an adoption agency shows the agency has “legal custody” of the child and whether the adoption agency is a proper applicant for a Social Security number (SSN) on the child’s behalf.

BACKGROUND

A Chosen Child, Inc. (Applicant), is a licensed adoption agency in Florida. On April 4, 2012, Lauren, Applicant’s Birth Parent Coordinator, applied for an SSN on behalf of Sandy (Child). In the application (Form SS-5), Lauren indicated she was Child’s legal guardian. She also submitted a copy of Child’s birth certificate showing she was born on February, a letter from Applicant’s Executive Director, and a Judgment Terminating Parental Rights Pending Adoption from the Circuit Court for Florida’s Ninth Judicial Circuit.

According to Applicant’s Executive Director, Lauren is applying for Child’s SSN as Applicant’s agent. Child’s mother consented to Child’s adoption through Applicant, which has applied for Medicaid to cover Child’s unpaid medical bills. To complete the Medicaid application, Applicant must show it has applied for Child’s SSN. Applicant’s Executive Director authorized Lauren to “process the enclosed paperwork and complete any other steps necessary to insure enumeration.”

In its Judgment, dated April 3, 2012, the Florida state court stated Child’s mother gave up all rights to Child, surrendered custody of Child to Applicant, and agreed to the termination of her parental rights. The court terminated the parental rights of Child’s mother and any unmarried biological father who may claim paternity. The court observed that Applicant is an “Adoption Entity” and a “licensed child-placing agency.” The court also ordered that Child is “permanently committed to [Applicant] . . . for the purpose of placement of adoption.”

DISCUSSION

“An individual needing a[n] [SSN] may apply for one by filing a signed form SS–5, ‘Application for A Social Security Number Card,’ . . . and submitting the required evidence.” 20 C.F.R. § 422.103(b)(1); see Act § 205(c)(2)(B)(ii) (requiring applicant to submit evidence of individual’s age, citizenship or alien status, and true identity, and evidence needed to identity any previously assigned SSNs). This form must be signed and completed by a proper applicant. See Programs Operations Manual System (POMS) RM 10205.010 (stating application for SSN card is filed if “the proper applicant completes and signs a paper Form SS-5”), RM 10205.025(C) (requiring SSA to return applications that are not from proper applicants).

“A proper applicant for an SSN card is a person who may file an application for an SSN card on behalf of himself/herself or on behalf of someone physically or mentally unable to file on his or her own behalf.” POMS RM 10205.025(A). For cases where an individual is unable to file an application on his or her own behalf, SSA has established a priority list to determine who may qualify as a proper applicant for the individual:

1. A. 

   A court-appointed legal guardian (individual or an agency);

2. B. 

   A parent (natural, adoptive, or step) with custody of a child;

3. C. 

   An administrator of an individual’s (adult or child) estate;

4. D. 

   A brother, sister, grandparent, aunt, uncle, or cousin with custody of a child;

5. E. 

   A state agency (including state foster care and child protective service agencies, state mental institutions or hospitals, or state adoption agencies) or a state licensed agency (including state contractors and private adoption agencies) if it has legal custody of the individual (adult or child); or

(f) An individual who applies on behalf of another individual (adult or child) who can establish relationship and responsibility.

POMS RM 10205.025(B)(3). A court-appointed legal guardian “always has priority over any other proper applicants,” and someone lower on the priority list may be considered a proper applicant only if no one higher on the list exists. Id. The applicant must also establish “relationship to and custody/responsibility for the individual.” Id. For an applicant claiming to be an individual’s legal guardian, the POMS requires “court documents establishing that the applicant has legal guardianship of the [individual].” POMS RM 10205.030(B)(3).

Applicant is Child’s court-appointed legal guardian and, therefore, is the proper applicant for filing an application for an SSN on Child’s behalf. Under Florida law, a guardian is “a person who has been appointed by the court to act on behalf of a ward’s person or property, or both.” Fla. Stat. Ann. § 744.102(9) (West 2011).^[1] If a minor is placed for adoption with and “permanently committed” to an adoption entity, then the entity “shall be the guardian of the person of the minor and has the responsibility and authority to provide for the needs and welfare of the minor.” Fla. Stat. Ann. § 63.052(1) (West 2011).^[2] An “adoption entity” includes an “agency.” Fla. Stat. Ann. § 63.032(3) (West 2011). An “agency” is any child-placing agency licensed by the Florida Department of Children and Families under Fla. Stat. Ann. § 63.202 to place minors for adoption. Fla. Stat. Ann. § 63.032(5).

The Florida court order establishes Applicant as Child’s legal guardian. The court ordered that Child is “permanently committed to [Applicant] . . . for the purpose of placement of adoption.” Additionally, Applicant’s Executive Director stated Applicant is a licensed child-placing agency, and the court stated Applicant is an “Adoption Entity” and a licensed child-placing agency. The United States Department of Health and Human Services includes Applicant in its National Foster Care and Adoption Directory (visited May 3, 2012), http://www.childwelfare.gov/nfcad/ (search for “Private Domestic Adoption Agencies” in Florida and follow the link for the second result).^[3] Because Applicant is an adoption entity and the court permanently committed Child to Applicant, Applicant is a court-appointed legal guardian under Florida law. See Fla. Stat. Ann. §§ 63.052(1), 744.102(9). Therefore, Applicant is highest on the priority list and is the proper applicant for filing an SSN application on Child’s behalf. See POMS RM 10205.025(B)(3).

We also believe Applicant is a state licensed agency that has legal custody of Child. See POMS RM 10205.025(B)(3)(e). For a state licensed agency claiming legal custody, the POMS requires “court custody documents giving the state licensed agency custody of the individual.” POMS RM 10205.050(B)(3). Under Florida law:

“Legal custody” means a legal status created by a court which vests in a custodian of the person or guardian, whether an agency or an individual, the right to have physical custody of the child and the right and duty to protect, nurture, guide, and discipline the child and to provide him or her with food, shelter, education, and ordinary medical, dental, psychiatric, and psychological care.

Fla. Stat. Ann. § 39.01(35) (West 2011), cited in Fla. Stat. Ann. § 63.032(11).^[4] The Florida court order indicates Applicant has legal custody of Child. The court appointed Applicant as guardian of the person for Child, giving Applicant the responsibility and authority to provide for Child’s needs and welfare. See Fla. Stat. Ann. § 63.052(1). “A guardian appointed for a minor . . . has the authority of a plenary guardian.” Fla. Stat. Ann. § 744.3021(2) (West 2011). A plenary guardian is one “appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.” Fla. Stat. Ann. § 744.102(9)(b). Applicant’s appointment as plenary guardian of the person for Child shows Applicant had the right to custody of Child, to exercise all of her delegable legal rights and powers, and to provide for her needs and welfare. See id.; K.A.S. v. R.E.T., 914 So. 2d 1056, 1063 (Fla. Dist. Ct. App. 2005) (“In this case, the Guardians of the Person enjoy the care and custody of the Ward not because of the natural bond between parent and child but, rather, by virtue of their appointment by the probate court.”). Therefore, Applicant is a state licensed agency with “legal custody” of Child and if no other person or entity higher on the priority list exists, Applicant would be a proper applicant for an SSN on Child’s behalf, even if Applicant were not Child’s court-appointed legal guardian ^[5]

CONCLUSION

Applicant is the proper applicant for Child’s SSN. By permanently committing Child to Applicant, the Florida state court appointed Applicant as Child’s legal guardian, giving Applicant custody of Child and the right and duty to provide for her needs and welfare. Furthermore, Applicant is a state licensed agency with legal custody of Child.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

Kevin M. Parrington

Assistant Regional Counsel

In Florida, a birth parent may relinquish all rights to, and custody of, a child to a child-placing agency by executing a “Consent to Adoption.” However, even if a child is placed with such an agency which is licensed by the State of Florida, the agency must pursue a court order granting it “legal custody” of the child in order for SSA to consider the agency to be a proper applicant for an SSN on behalf of a child in its custody.

QUESTION

You have asked whether a Florida adoption agency is the proper applicant for a Social Security number for a child whose mother gave up her rights to the child and turned the child over for adoption to the adoption agency.

ANSWER

Although the Florida adoption agency is a licensed state agency, the information presented does not establish that the adoption agency has “legal custody” of the child. Therefore, the adoption agency is not a proper applicant for a Social Security number (SSN) on behalf of the child, unless the Social Security Administration (SSA) defines “legal custody” in terms not readily apparent from a review of the Program Operations Manual System (POMS).

BACKGROUND

On October 31, 2007, Marilsa, the director for program development for A Chosen Child, Inc., filed an application for an SSN on behalf of Rashad (Child). In the application, Marilsa indicated she was Child's legal guardian. Documents submitted by Marilsa indicate A Chosen Child is a non-profit child-placing agency licensed by the Florida Department of Children and Families. Marilsa submitted a copy of Child's birth certificate showing he was born on October. According to Marilsa, Child required additional medical care before his discharge from the hospital on October 25, 2007. A Chosen Child submitted an application for Medicaid to insure coverage of the unpaid medical bills. To complete the Medicaid application process, A Chosen Child must provide evidence to the Florida Department of Children and Families that A Chosen Child has applied for Child's SSN.

Marilsa also submitted a Consent to Adoption executed by Emmanuella, Child's mother, on October 15, 2007. The Consent to Adoption indicates Child's mother gave up all rights to Child and agreed to the termination of her parental rights. However, Marilsa reported in a letter dated October 31, 2007, that the termination of Child's mother's parental rights was pending before the court. Child's mother further agreed to relinquish all rights to Child and custody of Child to A Chosen Child for placement for adoption. The Consent for Adoption was acknowledged by a notary public and in the presence of two witnesses, including Marilsa.

DISCUSSION

SSA has established a hierarchy regarding who qualifies as the proper applicant for an SSN on behalf of an individual who is unable to file an application. See POMS RM 00202.005C.3. The POMS establish the following order of priority, from highest to lowest, provided the applicant can show a relationship to and custody/responsibility for the individual:

(a) A court-appointed legal guardian (individual or an agency);

(b) A parent (natural, adoptive, or step) with custody of a child;

(c) An Administrator of an individual's (adult or child) estate;

(d) A brother, sister, grandparent, aunt, or uncle with custody of a child;

(e) A state agency (including state foster care and child protective service agencies, state mental institutions or hospitals or state adoption agencies) or a state licensed agency (including state contractors and private adoption agencies) if it has legal custody of the individual (adult or child); or

(f) An individual who applies on behalf of another individual (adult or child) who can establish relationship and responsibility.

POMS RM 00202.005C.3. Someone lower on the list may be considered only when no one higher on the list of proper applicants exists. Id.

Marilsa indicated she was Child's legal guardian, but the information provided does not include a court document establishing Marilsa or anyone else as a court-appointed legal guardian. Although the parental rights of Child's mother have not been terminated, Child's mother relinquished custody of Child to A Chosen Child. Thus, no parent has custody of Child. Because Child is not deceased, an administrator of his estate would not exist. The information provided also does not indicate that a brother, sister, grandparent, aunt, or uncle has custody of Child. Thus, the information provided indicates the persons or entities listed in (a) through (d) of POMS RM 00202.005C.3. either do not exist or could not file an application for an SSN on Child's behalf because they do not have custody of Child.

Therefore, A Chosen Child may be the proper applicant for an SSN on behalf of Child if A Chosen Child is a state licensed agency and has "legal custody" of Child. The information provided establishes that A Chosen Child is a state licensed agency. The Florida Department of Children and Families "is authorized and empowered to license child welfare agencies it determines to be qualified to place minors for adoption." FLA. STAT. ANN. § 62.202(1) (West 2007). The Florida Department of Children and Families issued a Certificate of License for a Child Placing Agency to A Chosen Child on February 20, 2007. The Certificate of License states that A Chosen Child's license continues in force for one year. We see no reason to question the authenticity of A Chosen Child's license. Therefore, A Chosen Child is a currently licensed state agency under Florida law.

However, the information provided does not establish that A Chosen Child has "legal custody" of Child. The POMS does not define the term "legal custody" or suggest a source for the definition of the term. See POMS RM 00202.005C.3.e. The term may mean appropriate or proper custody, or the definition may depend on applicable state law. However, by adding the term "legal custody" when discussing state licensed agencies, the POMS indicate SSA imposes a different standard of custody for state licensed agencies than for other potential applicants. See POMS RM 00202.005C.3., D.

The POMS state that court custody documents giving a state licensed agency custody of a child are acceptable evidence to establish custody and responsibility for the child. See POMS RM 10205.050. The POMS do not specifically state that other documents are unacceptable evidence of custody and responsibility of a child. However, the POMS suggest that a state agency must have court documents to establish custody and responsibility for the child. POMS RM 10205.050 only lists court documents as acceptable evidence of custody and responsibility for the child. Conversely, POMS RM 10205.055 states that in the absence of court documents, individuals listed in RM 00202.005C.d. and RM 00202.005C.f. may provide other documents. Thus, although other documents might be acceptable evidence for certain individuals to establish custody of a child, the POMS appear to require state license agencies to present court documents to establish custody of a child. Such a requirement corresponds with a reading of the POMS as requiring a different standard for a state licensed agency to establish “legal custody” of the child.

If SSA looks to state law to define the term “legal custody,” A Chosen Child would not have “legal custody” of Child. The Consent to Adoption does not state A Chosen Child has “legal custody” of Child, and the applicable statute does not indicate that a consent to adoption confers “legal custody” of the child on the adoption agency. See FLA. STAT. ANN. § 62.082. Under Florida's adoption statute, “legal custody” is defined as having the meaning ascribed in FLA. STAT. ANN. § 39.01. See FLA. STAT. ANN. § 63.032(10). Specifically:

“Legal custody” means a legal status created by a court which vests in a custodian of the person or guardian, whether an agency or an individual, the right to have physical custody of the child and the right and duty to protect, nurture, guide, and discipline the child and to provide him or her with food, shelter, education, and ordinary medical, dental, psychiatric, and psychological care.

FLA. STAT. ANN. § 39.01(34) (West 2007) (emphasis added). A Chosen Child does not have “legal custody” as defined under Florida's adoption statute because no court has granted A Chosen Child “legal custody” of Child. A court did not issue the Consent to Adoption, and the information provided does not indicate a court vested in A Chosen Child the legal status of “legal custody” of Child. Therefore, if SSA interprets the term “legal custody” as being defined by state law, A Chosen Child is not a proper applicant for an SSN on behalf of Child.

Nevertheless, deciding what evidence is acceptable for a state licensed agency to establish “legal custody” is ultimately a policy decision, not a legal issue. Thus, SSA may decide a state licensed agency need not present court documents to establish “legal custody.” SSA may decide that a document conferring custody on a person or entity, prepared in accordance with the laws of a state, provide sufficient evidence to establish “legal custody.” Under such a broad view of the POMS, the Consent to Adoption may provide sufficient evidence of “legal custody” of Child by A Chosen Child. The Consent to Adoption executed by Child's mother indicates she placed Child for adoption with and permanently committed Child to A Chosen Child. The Consent for Adoption was acknowledged by a notary public and in the presence of two witnesses and appears to comply with the other requirements for a consent to adoption under Florida law. See FLA. STAT. ANN. § 63.082 (West 2007). A consent to adoption executed when the child is under six months of age is valid upon execution and may be withdrawn only if a court finds that the consent was obtained by fraud or duress. See FLA. STAT. ANN. § 63.082(4)(b); C.G. v. Guardian Ad Litem Program, 920 So. 2d 854, 856 (Fla. Dist. Ct. App. 2006). A properly executed consent to adoption is an unconditional surrender of the child to the adoption entity. See C.G., 920 So. 2d at 856.

Child's mother executed the Consent to Adoption when Child was two days old, and we see no basis for questioning the validity of the Consent to Adoption. “For minors who have been placed for adoption with and permanently committed to an adoption entity, other than an intermediary, such adoption entity shall be the guardian of the person of the minor and has the responsibility and authority to provide for the needs and welfare of the minor.” FLA. STAT. ANN. § 62.032(1) (West 2007). An “adoption entity” includes an “agency.” FLA. STAT. ANN. § 63.032(3), (5) (West 2007). An “agency” is defined as any child-placing agency licensed by the Florida Department of Children and Families pursuant to FLA. STAT. ANN. § 63.202 to place minors for adoption. FLA. STAT. ANN. § 63.032(5) (West 2007); see In re S.N.W., 912 So. 2d 368, 369 (Fla. Dist. Ct. App. 2005).

As discussed above, A Chosen Child is a child-placing agency licensed by the Florida Department of Children and Families pursuant to FLA. STAT. ANN. § 63.202. Thus, A Chosen Child is an adoption entity for the purposes of FLA. STAT. ANN. § 62.032(1). Through the Consent to Adoption, Child's mother placed Child for adoption with A Chosen and permanently committed Child to A Chosen Child. Child's mother relinquished her custody of Child to A Chosen Child. See FLA. STAT. ANN. § 62.082(1)(b). A Chosen Child became the guardian of the person of Child and has the responsibility and authority to provide for Child's needs and welfare. See FLA. STAT. ANN. § 62.032(1). Thus, if SSA interprets “legal custody” in a broad sense outside the apparent requirements of the POMS and Florida law, the Consent to Adoption may provide sufficient evidence that A Chosen Child had “legal custody” of Child.

CONCLUSION

Although A Chosen Child is a licensed state agency, the information presented does not establish that A Chosen Child had “legal custody” of Child under a plain reading of the POMS or under Florida law. However, if SSA defines “legal custody” in more general terms, the Consent to Adoption may provide sufficient evidence to establish that A Chosen Child has “legal custody” of Child. We recognize that a child's medical care is at issue here and that speed is of the essence. If SSA does not define “legal custody” in a way that encompasses the current situation, we recommend suggesting to A Chosen Child that it pursue a court order granting it custody as soon as possible.

Very truly yours,

Mary A. Sloan

Regional Chief Counsel

Brian C. Huberty

Assistant Regional Counsel