TN 19 (03-13)
PR 01310.007 Colorado
A. PR 13-045 Relationship of Children to Number Holder (NH) in the State of Colorado, NH—David
DATE: February 19, 2013
The state court order bestows sole custody of the children to their grandfather (NH) and his spouse. However, the court's custody order would not permit the children to inherit "a child's share" from their Grandfather under Colorado's laws of intestate succession as either his natural children or equitably adopted children and the NH cannot establish that he legally adopted his grandchildren under the relevant state law. The state court order does not create any of the relationships that the Agency recognizes between a child and an insured to establish a child's right to auxiliary child benefits.
You have asked us whether children would be eligible for child insurance benefits on the record of their paternal grandfather where a Colorado state court has granted sole physical custody and decision-making for the children jointly to their paternal grandfather and his spouse.
As relevant here, for a child to be entitled to child benefits under a number holder’s record, the number holder must establish that the child is his natural child, legally adopted child, or equitably adopted child. Here, although the state court order does bestow sole custody of the children to their grandfather and his spouse, we do not believe that NH can establish that he legally adopted his grandchildren under the relevant state law. Further, the court’s custody order would not permit the children to inherit “a child’s share” from their grandfather under Colorado’s laws of intestate succession as either his natural children or equitably adopted children.
In June 2012, Colorado resident David (“NH”) applied for retirement benefits. Thereafter, in September 2012, the NH applied for auxiliary child benefits for his grandchildren, Isaiah, Israel, and Nevaeh (collectively, “the children”).
The children were born in Colorado to the NH’s daughter, Linda, and James (hereinafter, “the natural father”). Linda died soon after the birth of her third child. The natural father initially attempted to care for his three children, but he was unreliable and eventually was incarcerated, during which time the children lived with the NH and his spouse, Betty. After the natural father was released, the NH and his spouse asked him whether he would permit them to continue to provide permanent care for the children. The natural father agreed.
Thereafter, the NH and his wife filed a petition in the District Court of El Paso County (“Court”), and, in October 2006, the Court issued an Order for Allocation of Parental Responsibilities (“Order”), incorporating a previous Parenting Plan (which we do not have in our records). At the time the Court issued its Order, the natural father had not seen his children for over 100 days and did not appear at the related hearings.
The judge issued an oral ruling and findings of fact, as well as a written order. We have a transcript of the oral ruling. In the written order, the Court allocated sole decision-making and parental responsibilities to the NH and his spouse. Although the judge noted that the natural father had abandoned the children, he also provided the natural father visitation rights. Specifically, he found that “[u]ntil further Court Order or mutual agreement[,] parenting time for father shall be supervised by Petitioners or a mutually agreed upon third party. The Petitioners shall have discretion to terminate visitation with Respondent [father] consistent with the best interest of the children.” The judge explained orally that if the natural father took issue with these restrictions, he could file a motion with the court.
The Court also found that “Petitioners are to receive any monies on the children’s behalf from PERA or any other source they may be entitled to.” The judge explained orally that he did not know if this language would be sufficient to permit allocation of benefits to the children.
For the children to be entitled to child benefits on the NH’s record, the NH must establish that they are his “children” as defined under the Agency’s corresponding statutes and regulations. See 42 U.S.C. §§ 402(d), 416(e), 416(h)(2); 20 C.F.R. § 404.350. As relevant here, the regulations explain that, depending on the satisfaction of additional criteria, the definition of a “child” may include a natural child, a legally adopted child, or an equitably adopted child. 20 C.F.R. § 404.354.
Here, in its Order, the Court allocated sole parental responsibilities and decision-making to the NH and his spouse. While the Order is a permanent order, it still provides for supervised visitation by the natural father and preserves his right to motion the court for modification of the terms of the Order.
You indicated that there is no possibility of establishing the children as dependent grandchildren, as the natural father is not deceased or disabled. Thus, you have asked us whether the Order (1) establishes the children as the NH’s children under Colorado state law; (2) establishes a child relationship under applicable Federal law; or (3) otherwise entitles the children to benefits as the children of the NH based on inheritance rights.
In order to answer these questions, it is first necessary to consider the Order within the context of Colorado’s state law on parenting to understand its scope and legal effect.
A. Colorado Law Relating to Allocation of Parental Responsibilities.
Under Colorado’s Uniform Dissolution of Marriage Act (“UDMA”), any person may petition a court for an order allocating parental responsibilities, so long as either (a) the child is not in the physical care of one of the child’s parents; or (b) the person has had physical care of a child for six months or longer (and files a petition within an allotted period of time). C.R.S. § 14-10-123. (Although this provision is part of the UDMA, the petition need not be filed in conjunction with a proceeding to dissolve a marriage.)
A court then determines the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child. C.R.S. § 14-10-124 (1.5). Colorado’s UDMA permits modification of a court’s permanent order allocating parental responsibility when such modification would serve the best interests of the child. C.R.S. §§ 14-10-129 through 14-10-131.3 see also In re C.T.G., 179 P.3d 213, 221 (Colo. App. 2007) (“Permanent orders establish parental rights that stay in effect until one party establishes a change in circumstances sufficient to support a modification.”).
While a court may allocate parental responsibility to any person, this allocation is not a legal adoption and does not otherwise terminate the parental rights of the natural parent. In In re the Matter of the Custody of C.C.R.S., 892 P.2d 246, 254 (Colo. 1995), the Colorado Supreme Court considered a scenario where the natural mother relinquished the custody of an infant to non-parents, with the intention that her parental rights would be terminated one year later and the child would be adopted by the non-parents. However, after the natural mother revoked this agreement, the non-parents, who had physical custody of the children for over six months, petitioned the court for an order allocating parental responsibility under C.R.S. § 14-10-123. Noting that “the natural mother’s parental rights are not being terminated by awarding custody” to the non-parents and that the natural mother retained visitation rights, the court concluded that “her parental rights were preserved in a limited context.” Id. at 255. Similarly, the Colorado Supreme Court has held that when a natural parent consents to placing his children with a guardian, the natural parent’s rights are not terminated, but rather suspended while the guardianship is in effect. In the Matter of Minor Child D.I.S., 249 P.3d 755, 785 (Colo. 2011); C.R.S. §§ 15-14-201 (7) (“The appointment of a guardian by a parent does not supersede the parental rights of either parent.”).
B. The Court Order Does Not Establish a Parent-Child Relationship under Colorado Law or the Social Security Act.
Because the NH’s interest in the children is a creation of Colorado’s statute providing third parties the right to petition for the custody of a child, we must consider this interest within the various contexts in which an individual may be considered a child for the purpose of obtaining child benefits under an NH’s record.
1. The NH Did Not Legally Adopt the Children.
An individual may be eligible for child’s benefits as the insured’s “legally adopted child” if the adoption is considered valid under the law of the state where the adoption is claimed to have taken place. See 20 C.F.R. §§ 404.356; 404.358(b); see also POMS GN 00306.155(B)(1) (to establish an adoption in order to obtain child benefits, the applicant must provide records of the court which granted the adoption, official notice received by the adopting parents, or records of the state attorney or child welfare division).
The Colorado legislature has specifically provided that a child may only be adopted if he is “legally available for adoption,” describing the scenarios wherein such requirement is met. C.R.S. §§ 19-5-201, 19-5-203; see also In re the Matter of the Custody of C.C.R.S., 892 P.2d at 254 (“A petition for adoption requires that the child is available for adoption”). As relevant here, a child is legally available only where a court has terminated parental rights; a court has recognized the voluntary relinquishment of parental rights; or the birth parent has abandoned the child or failed without cause to provide support for the child for a period of one year or more. C.R.S. § 19-5-203(a), (b), (j). If a child is legally available for adoption, the Colorado legislature sets out a process under which a petition for adoption is filed in a district court, a hearing is held on the petition, and the court ultimately enters a final decree or order of adoption. See C.R.S. § 19-5-201, et seq.
Here, the record we have indicates that while the NH and his spouse have sole physical custody and decision-making power regarding their grandchildren, the natural father’s parental rights have not been terminated. The Court’s Order makes clear that the father maintains the right to visitation and could motion to modify the custody arrangement. Further, nothing in the Order indicates that the natural father has voluntarily relinquished his parental rights.
The judge’s oral ruling includes a finding that the natural father has abandoned the children, which suggests that they would be considered legally available for adoption. Nonetheless, we have no evidence to suggest that the NH and his spouse have made any efforts to pursue adopting their grandchildren. The information provided does not indicate that the NH filed a petition for adoption, or more importantly, that a court has entered a final decree or order of adoption.
Therefore, we do not believe that the NH can establish that he legally adopted the children.
2. The Children Could Not Inherit “a Child’s Share” from the NH under Colorado’s Law of Intestate Succession.
An individual may be eligible for child’s benefits as the insured’s “natural child,” if he is able to establish that he “could inherit a child’s share of the insured’s personal property if the insured were to die” intestate under the inheritance laws of the state the insured is living in at the time of application. See 20 C.F.R. § 404.355(a)(1) and (b).
Colorado’s Uniform Probate Code (“UPC”) provides a number of ways in which a “parent-child relationship” can be established for purposes of intestate succession. C.R.S. § 15-11-115, et seq. Several of these are not relevant here. See C.R.S. §§ 15-11-118 through 15-11-121 (describing requirements for establishing parent-child relationship based on completed adoption, complete or incomplete stepchild adoption, and children conceived through assisted reproduction, including gestational carrier). Notably, the UPC does not contemplate a “parent-child relationship” being established for intestate succession through a court’s order allocating parental responsibility, as is the case here. Id.
The UPC does recognize a parent-child relationship established under Colorado’s Uniform Parentage Act (UPA). See C.R.S. §§ 15-11-116, 19-4-101 et. seq. The Colorado UPA sets out a number of scenarios where a person may be presumed to be the natural father of a child. One such presumption arises where a man receives a child into his home and openly holds out the child as his natural child. C.R.S. § 19-4-105(d). Although there appears to be no question that James is the biological father of the children, Colorado courts have held that an individual can establish a parent-child relationship through holding a child out as his own even where there is no biological tie to the child. To the extent our prior opinions indicated that the lack of a biological relationship meant the child could not inherit from the NH under Colorado intestacy law, those opinions are no longer supported by Colorado law and should not be followed. See, e.g., In re A.D., 240 P.3d 488, 490-93 (Colo. App. 2010); In re S.N.V., 248 P.3d 147, 151 (Colo App. 2011). However, we have no information to suggest that the NH is holding out his grandchildren as if they were his own. As such, we do not think the NH can establish a parent-child relationship based on this presumption.
Thus, the NH cannot establish a “parent-child relationship” with their grandchildren for intestacy purposes under Colorado law. See 20 C.F.R. § 404.355(a)(1) and (b).
3. The Children Could Not Inherit from the NH under Colorado’s Law of Intestate Succession as His “Equitably Adopted” Children.
Finally, an individual may be eligible for child benefits as an equitably adopted child, if the NH agreed to adopt the individual, but the adoption did not occur. The agreement to adopt must be one that state law would recognize so that the claimant would be eligible to inherit a child’s share of the NH’s personal property, if he or she were to die intestate. See 20 C.F.R. § 404.359; POMS GN 00306.175. The Commissioner follows the law of the state where the NH has his permanent home at the time of application for child benefits in this analysis. See 42 U.S.C. § 416(h)(2); 20 C.F.R. § 404.359.
Colorado has recognized the doctrine of equitable adoption in estate cases. Barlow v. Barlow, 463 P.2d 305, 308-09 (Colo. 1969); C.R.S. § 15-11-122 (explicitly providing that the doctrine of equitable adoption is not affected by the UPC); see also POMS GN 00306.225. Equitable adoption is established in Colorado through “clear, cogent, and convincing” evidence that an oral contract for adoption existed. Barlow, 463 P.2d at 309. The POMS, similarly, requires evidence of “an express or implied contract to adopt the child” to establish equitable adoption. POMS GN 00306.175(C). “The evidence must be very strong to justify finding an implied contract” in cases where the NH is a child’s close relative because “[t]he relationship tends to weaken any inference that an adoption was intended.” POMS GN 00306.180(C)(4).
The POMS further requires a showing that the natural parent surrendered the child to an adopting parent. POMS GN 00306.175(C). To meet this requirement, the agreement “must not give the person or agency placing the child the authority to regain custody, or give the adopting parent the right to return the child.” POMS GN 00306.200(A); see also SSR 63-50c, 1963 WL 3559, at *1 (no equitable adoption when, after natural mother died, natural father gave child to relatives who raised and cared for her and wanted to adopt her, but natural father refused to consent to adoption).
We do not think there is sufficient evidence to establish equitable adoption, which must be “clear, cogent, and convincing” under Colorado law. We have no evidence that the NH had any sort of ineffectual oral adoption contract. Furthermore, because the NH is the children’s grandfather, this close family relation weighs against any inference of an implicit contract to adopt. Most importantly, the evidence we do have does not support a finding that the children’s natural father has surrendered them to NH. To the contrary, the Order suggests that the natural father’s parental rights are intact and that he may have the opportunity to regain at least partial custody of the children over time.
Therefore, we believe the record is insufficient to establish
While a Colorado state court allocated the NH and his spouse sole parental responsibility for their grandchildren, the state court’s order does not create any of the relationships that the Agency recognizes between a child and an insured to establish a child’s right to auxiliary child benefits.
John Jay Lee
Regional Chief Counsel, Region VIII
Kirsten A. Westerland
Assistant Regional Counsel
B. PR 12-120 Legal Opinion - Validity of an Adoption of an Adult in the State of Colorado, NH – John, SSN ~
DATE: July 20, 2012
Under Colorado law,a person may adopt an adult with the consent of the adoptee.
Any action for adoption of an adult shall follow the same procedure insofar as practicable as provided in the law concerning the adoption of children.
Parties with opposing interests apparently did not genuinely contest the adoption before the state court.
We believe that the March 2012 adoption decree is valid under Colorado law, and that SSA should honor it.
Whether the Colorado adoption of Sasha , an adult, by John is valid.
John validly adopted Sasha under Colorado law.
John adopted Sasha , born Aleksandr November effective March 24, 2011, at which time Sasha was 29 years of age. John applied for retirement benefits under protective filing date of March 8, 2012, listing Sasha as a dependent child. Sasha applied for benefits as an auxiliary on John ’s record as of April 10, 2012. Your legal opinion request indicates that Sasha has been entitled to Supplemental Security Income (SSI) since March 2005, with an onset date of March 1, 2005.
A determination made by a state court is binding on the Social Security Administration (SSA) when: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) the issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). In this case, the Colorado District Court is a court of competent jurisdiction to determine issues of parentage and adoption, and previously determined the issue of Sasha ’s parental relationship with John . Parties with opposing interests apparently did not genuinely contest the adoption before the state court. Thus, the adoption decree is not binding on SSA. However, as discussed below, we believe that the decree is valid under Colorado law, and that SSA should honor it.
Under Colorado law, a person may adopt an adult with the consent of the adoptee. See Colo. Revised Statutes (C.R.S.) § 14-1-101 (2012). Any action for adoption of an adult shall follow the same procedure insofar as practicable as provided in part 2 of article 5 of Title 19, C.R.S., concerning the adoption of children (providing for petitions, home studies, hearings, etc.). See id. The statutory criteria for and adoption of an adult in Colorado are: 1) filing of a petition by the adoptive petitioner in the juvenile court of the county of residence of either the petitioner or the prospective adult adoptee; 2) issuance of summons pursuant to the Colorado rules of civil procedure served upon the prospective adult adoptee; 3) filing of a written answer to the petition by the prospective adult adoptee in the court within the time required by the summons, either consenting to the adoption or denying all desire to be adopted by the petitioner; and 4) entrance of a decree of adoption upon consent to such adoption, whether by the adoptee or by a legally qualified conservator or other representative if the adoptee is non compos mentis at the time.
Colorado thus clearly permits adult adoptions. Indeed, Colorado courts have given such adoptions that conform to the statute effect, regardless of the underlying reason for the adoption. See In re P.A.L., 5 P.3d 390 (Colo. App. 2000) (upholding adult adoption of a woman by her brother simply to allow her to regain use of her family name); In re Trust Created by Belgard, 829 P.2d 457 (Colo. App. 1991) (recognizing adult adoption of a woman by her husband). For these reasons, we finding that Sasha is John ’s legally adopted child under Colorado law.
For the reasons discussed above, we conclude that the March 2011 adoption decree is valid under Colorado law.
John Jay Lee
Regional Chief Counsel, Region VIII
Pamela M. Wood
Assistant Regional Counsel
C. PR 05-023 Validity of Adoption of Adult Child in Colorado (W/E Ervin ) (PL)
DATE: October 28, 2004
Adoption of adults is permissible under Colorado law.
You requested our opinion on whether an adoption of an adult is valid under Colorado State law.
Yes. Adoption of adults is permissible under Colorado law.
According to an adoption decree issued by the District Court in Park County, Colorado, Ervin adopted Terri , age 32 years, on November 24, 1998.
A Colorado statute expressly provides that adults may be adopted in Colorado with the consent of the adopting and adopted adults. The case law makes clear that such adoptions must be given effect if they conform to the statute, regardless of the underlying reason for the adoption. For example, the Colorado courts have upheld the adult adoption of a woman by her brother simply to allow her to regain use of her family name, and the adult adoption of a woman by her husband to qualify her as the beneficiary as a trust. While we have some questions regarding the adoption decree, a Colorado adoption decree cannot be annulled, even for fraud, "after the expiration of one year following the entry of the final decree of adoption." As the adoption decree was issued November 24, 1998, it is no longer subject to legal challenge.
Ervin could adopt Terri under Colorado law, even though she was 32 years old at the time of the adoption.
Deana R. Ertl-Lombardi
Regional Chief Counsel, Region VIII
Assistant Regional Counsel
D. PR 04-088 Entitlement of Child After Adoption by Three Petitioners -- Colorado
DATE: March 4, 2004
The child claimant was adopted by the NH, his wife, and their daughter. Colorado law does not prohibit the adoption of a child by three people. Therefore, the child claimant is the NH's legally adopted child for purposes of entitlement to child's benefits.
You requested a legal opinion on whether the State of Colorado allows for three people to adopt one child. You also requested our advice on whether the State of Colorado will recognize the number holder, Daniel , as the "adopted father" of Alejandro , although he is not listed as the father on the birth certificate. You also ask whether Alejandro's possible entitlement to benefits will be affected by the fact the neither the amended birth certificate nor the final decree of adoption listed Daniel as the parent or father of Alejandro per POMS GN 00306.155. Finally, you ask whether Alejandro is Daniel's child under Colorado law.
The number holder, Daniel, his wife, Myriam, and their daughter, Patricia, were listed as the petitioners in the adoption of a child, Alejandro. On October 23, 2003, a magistrate judge in El Paso County, Colorado, signed a final decree of adoption allowing the three petitioners to adopt Alejandro, although it did not specifically name any of the petitioners as the "parents," "father," or "mother" of Alejandro. A birth certificate was subsequently issued on November 3, 2003, which indicated that Patricia (maiden name of Myriam) was Alejandro's mother. The father's name section on the birth certificate was not completed.
Your first question is whether the State of Colorado allows for an adoption by three people. COLORADO REVISED STATUTES (COLO. REV. STAT.) and case law do not prohibit the adoption of a child by three persons however unusual it may seem. See COLO. REV. STAT. § 19-5-200.2, et seq. (2003). The sections only generally describe who may be adopted and who may adopt. In addition, contact with the district court that granted the final decree of adoption in this case, has revealed that adoptions by three people is not uncommon. Therefore, nothing indicates that Alejandro could not be adopted by Patricia and her parents.
Your second question is whether the State of Colorado will recognize the number holder, Daniel, as the "adopted father" of Alejandro, although he is not listed as the father on the birth certificate. Section 216 of the Social Security Act entitles every "child" of Social Security beneficiaries to child benefits. 42 U.S.C. § 416(d)(1) (2000). The Act goes on to define "child" as the "the child or legally adopted child of an individual . . . ." 42 U.S.C. § 416(e). Here, the entry of the final decree of adoption made Alejandro the legally adopted child of Daneil and Myriam, and Patricia. See COLO. REV. STAT. § 19-5-211 ("After the entry of a final decree of adoption, the person adopted shall be, to all intents and purposes, the child of the petitioner."); see also In re Adoption of T.K.J., 931 P.2d 488, 492 (Colo. App. 1996) (holding the final decree of adoption terminated the parental rights and duties of a child's natural parents and granted those rights and duties to the adoptive parents). Therefore, Alejandro is Daniel's child for the purposes of child benefits. Whether or not he is listed on the birth certificate as Alejandro's "father" is immaterial.
You also ask whether Alejandro's possible entitlement to benefits will be affected by the fact the neither the amended birth certificate nor the final decree of adoption listed Daniel as the parent or father of Alejandro per POMS GN 00306.155, which states "[a]n amended BC issued as the result of a U.S. adoption will establish that there has been a final order or decree of adoption, and that the persons shown as parents of the adopted child were named as parents in the decree or order." As discussed above, the entry of the final decree of adoption made Alejandro the legally adopted child of Daneil and Myriam, and Patricia, although none of them were specifically referred to as parents, father, or mother. Notably, in order to qualify for child benefits, the Social Security Act requires only that Alejandro be the legally adopted child of Daniel. See 42 U.S.C. §§ 416(d)(1), 416(e) (2000); see also In re Adoption of T.K.J., 931 P.2d at 492 (holding that the final decree of adoption also terminated the parental rights and duties of the natural parents and granted those rights and duties to the adoptive parents). Therefore, the fact that neither the amended birth certificate nor the final decree of adoption specifically listed Daniel as the parent or father of Alejandro does not affect Alejandro's entitlement to benefits.
Finally, you ask whether Alejandro is Daniel's child under Colorado law. As discussed above, the final decree of adoption made Alejandro the child of Daniel.
In sum, Colorado laws do not prohibit adoption by three people and Alejandro is Daniel's child for the purposes of child benefits.
Yvette G. Keese
Regional Chief Counsel, Region VIII
William T. Dawson
Assistant Regional Counsel
Per translation of a foreign-language birth certificate attached to your legal opinion request.
Per decree for adult adoption issued by the Boulder County, Colorado District Court, attached to your legal opinion request.
As explained, adoption of an adult is relatively easy to accomplish in Colorado, and such an adoptee will then satisfy the regulatory definition of presumed dependency if adopted by the insured before he or she becomes entitled to old-age or disability benefits. See 20 C.F.R. § 404.362 (2012). ---------------
COLO. REV. STAT. § 19-5-201 entitled, "Who may be adopted" states:
Any child under eighteen years of age present in the state at the time the petition for adoption is filed and legally available for adoption as provided in section 19-5-203 may be adopted. Upon approval of the court, a person eighteen years of age or older and under twenty-one years of age may be adopted as a child, and all provisions of this part 2 referring to the adoption of a child shall apply to such a person.
COLO. REV. STAT. § 19-5-202 entitled, "Who may adopt" states:
1. Any person twenty-one years of age or older, including a foster parent, may petition the court to decree an adoption.
2. A minor, upon approval of the court, may petition the court to decree an adoption.
3. A person having a living spouse from whom he is not legally separated shall petition jointly with such spouse, unless such spouse is the natural parent of the child to be adopted or had previously adopted the child.