PR 01310.004 Arizona

A. PR 81-014 Effect Of Arizona Decree Of Adoption After Mexican Decree

DATE: December 22, 1981

1. SYLLABUS

A child adopted after the wage earner's entitlement to Old Age Insurance benefits shall be deemed not to meet certain requirements for entitlement to child's insurance benefits unless the child among other things "was legally adopted by such individual in an adoption decreed by a court of competent jurisdiction within the United States." Where a valid adoption decree was first obtained in Mexico and subsequently a decree was obtained in Arizona, which had no legal consequence other than that brought about by the Mexican adoption decree, the Arizona adoption proceedings may not be used to satisfy the requirement that the adoption be decreed by a court of competent jurisdiction within the United States.

2. OPINION

The wage earner, John S. B~, filed an application for retirement insurance benefits on April 5, 1972. He was awarded benefits effective January 1972. Based on an application filed on June 27, 1975, 1 the wage earner's wife, Maria d~ B~, 2 was awarded wife's benefits at age 62. On July 12, 1972, Mrs. B~ filed for children's benefits on behalf of Guadalupe, Hector, and Ana L. C~. These children are the children of Mrs. B~ son by a prior marriage. This application was denied because they were not the wage earner's children. 3

On January 26, 1973, Mr. and M~s. B~ filed for benefits on behalf of the children, alleging they were Mr. B~ adopted children. An adoption decree, issued on January 11, 1973, by the Third Civil Court of the District of Bravos, Chihuahua, Mexico, was submitted in conjunction with this application. The decree approved the adoption of Mrs. B~ grandchildren by herself and the wage earner. According to the WNPSC memorandum (dated January 8, 1981) requesting our legal opinion in this case, the applications were disallowed because the children's relationship to the number holder was not established; this initial determination was subsequently affirmed by the Reconsideration Branch on May 15, 1974. Its decision (in the claims file) mentions the January 11, 1973, adoption decree, but does not discuss the validity of that decree. 4 For purposes of this opinion, we will assume that the Mexican adoption was valid. 5 You should reconfirm this point, because it directly relates to the children's entitlement to benefits.

Mr. B~ subsequently submitted copies of adoption decrees issued on March 17, 1980, by the Superior Court of Yuma County, Arizona, which approve the adoption of Mrs. B~ grandchildren by Mr. and Mrs. B~. Relying on these decrees, Mr. B~ filed another application for child's benefits for his adopted children on August 6, 1980. 6 You sought our advice regarding the effect of the Arizona adoptions of the three above-named children, in light of the "apparently valid" Mexican adoption. In particular, you asked that we consider two GC precedent opinions in the cases of Clifford T~, D-15193, December 5, 1972, and Oneal M~, D-10838, January 26, 1965.

We believe that the conclusion in the M~ opinion is controlling here (although the fact situation in M~ was different). In M~, the wage earner's spouse, after his death, purported to adopt her own legitimate children by a prior marriage. .The adoption was without legal consequence under prevailing state. law, because the children were her natural children and the parental relationship had not been severed. Therefore, the adoption was not considered to be one contemplated by the second sentence of section 216(e) of Social Security Act. The same reasoning was held to apply in T~, where two adoption decrees were issued (two years apart) by the same court: because the second decree was of no legal consequence (the adoption under the first decree remaining fully effective), it could not form the basis for awarding child's benefits under the Act.

In the situation under consideration here, Mr. and Mrs. B~ adopted her grandchildren first in Mexico, then in Arizona. The Civil Code of Chihuahua, Mexico provides that "[t]he adopted person shall have toward the person or persons adopting them the same rights and duties as a son or daughter. 7 Section 8-117 of the Arizona Revised Statutes (A.R.S.) provides (with greater specificity) rights and duties between the adopted person and the adoptive parent which include those set forth in the Civil Code of Chihuahua, Mexico. Section 8-125 of the A.R.S. provides that adoptions judicially decreed by a court in another state shall have the same force and effect as though the adoption had been granted by an Arizona court. In the absence of any case law to the contrary, we will assume that the substance of this section would also apply (through the judicial doctrine of "comity") to adoptions which are judicially decreed in foreign countries. Thus, the Arizona adoption decree, as in M~, was without legal consequence; that is, it did not confer upon the children any different rights, duties, or other legal consequences than they already had by virtue of their Mexican adoption. Therefore, t