You asked whether a parent-child relationship could be established between the number
holder and the two children the number holder's spouse adopted before the number holder's
Based upon our review of Florida law, we believe that the adoption is valid.
The facts we have are as follows:
James was born on December in Gainesville, Florida. You advised us that Debra, Armondo,
and James resided in New York since 2007.
Debra and Armondo, the maternal aunt and uncle of James (whose last name at the time
was H~), petitioned for an order in the Circuit Court of the Eighth Judicial Circuit
in Bradford County Florida (the Circuit Court), terminating the parental rights of
James' mother and father pursuant to Fla. Stat. Ann. 39.810(1)-(11) (West 2010).  According to the petition, James' father was personally served in New York, and,
after diligent search and inquiry, his mother was noticed by placement of a notice
in a Florida newspaper. On July 22, 2009, the Circuit Court issued the Order Terminating
Parental Rights. The mother and father had failed to appear during the proceeding.
In the Order, the Circuit Court found that there was a suitable permanent custody
arrangement for James with Debra and Armondo with whom James had lived since August
In the Order, the Circuit Court noted that James was developmentally delayed. The
Guardian Ad Litem recommended that the parents' parental rights be terminated and
that James be placed in the custody of the Petitioners for subsequent adoption. The
Guardian Ad Litem was discharged.
On February 12, 2010, the Circuit Court issued a final judgment of adoption. The Circuit
Court found that it had subject matter jurisdiction over the adoption and jurisdiction
over James who was the subject of the action. There is also a certified statement
of Final Decree of Adoption indicating that Debra and Armondo lived in New York at
the time of the adoption, and that the attorney for the petitioner was in Jacksonville,
A birth certificate issued March 30, 2010 indicates that James was born on December
in Gainesville, Alachua County (Florida). The amended birth certificate lists his
parents as Debra and Armondo.
The Social Security Act provides child's insurance benefits to an otherwise qualified
"legally adopted child" of a deceased wage earner or wage earner entitled to disability
or retirement benefits. 42 U.S.C. §§ 402(d), 416(e). The regulations provide that
SSA "applies the adoption law of the State or foreign country where the adoption took
place, not the State inheritance laws described in 20 C.F.R. § 404.355, to determine
whether a claimant is the insured's legally adopted child." 20 C.F.R. § 404.356. POMS
00306.135(1) Relationship Requirements -Legally Adopted Child, Validity of Adoption states
that "to be legal, an adoption must be valid under the law of the State or foreign
country where it took place. At least one party to the adoption (either the child
or adopting parent) must have been domiciled or actually residing in that jurisdiction
at the time of the adoption. The physical presence of one or both of the parties within
that jurisdiction does not make the adoption valid" (emphasis as in original).
Here, neither Debra nor Armondo, was domiciled or resided in Florida at the time of
the adoption. James was not residing in Florida at the time of the adoption. His domicile
is not clear, as we were unable to determine how he came under the jurisdiction of
the Florida courts. Thus, under POMS GN 00306.135(1), this adoption would not be valid. Nonetheless, we reviewed Florida state law
to determine whether the adoption was valid under the law of that State and conclude
that the adoption is valid.
We turn first to whether the Florida court had subject matter jurisdiction. At some
point after James was placed with them, Debra and Armondo filed a petition for termination
of parental rights in the Circuit Court. This action was proper, as Florida law provides
that the Florida circuit court has jurisdiction over termination proceedings. See Fla. Stat. Ann. § 39.801 (West 2010).
Once the Circuit Court terminated the parental rights, Florida law indicates that
"[a] court which terminates the parental rights of a child who is the subject of termination
proceedings ... shall retain exclusive jurisdiction in all matters pertaining to the
child's adoption...." Fla. Stat. Ann. § 39.813 (West 2010). Here, as the Circuit Court
in Bradford County, Florida terminated the parental rights of James' parents, that
court retained exclusive jurisdiction in all matters pertaining to James' adoption.
Additionally, Florida adoption law provides that a petition for adoption must be filed
in the county where the petition for termination of parental rights was filed or granted.
Fla. Stat. Ann. § 63.102(2) (West 2010). As noted above, the Order Terminating Parental
Rights was granted by the Circuit Court in Bradford County, Florida. Thus, Debra and
Armondo properly filed their petition for adoption in that same county. The Circuit
Court retained jurisdiction over the matter until the final judgment was entered on
the adoption, either within or without the state. Id. Thus, the Circuit Court of Bradford County retained jurisdiction until February 12,
2010, when the Final Order of Adoption was entered.
With respect to personal jurisdiction, the Adoption Order states that the Circuit
Court had jurisdiction over James. Although it is unclear how James initially came
under the jurisdiction of the Florida courts, given the fact that he was born in Florida,
it seems reasonable to assume that it was the Florida courts that authorized his removal
from his mother, and, in 2007, temporarily placed him with his aunt and uncle in New
York. See Fla. Stat. Ann. § 39.501 et seq. (West 2010). According to Fla. Stat. Ann. § 63.207,
relating to out-of-state placement, a minor may be sent out of the state for the purpose
of placement for adoption where the minor is to be placed with a relative or with
a stepparent, or the minor is a special needs child. Fla. Stat. Ann. § 63.207(1) (West
2010).  Further, when a minor is placed for adoption with prospective adoptive parents who
primarily live and work outside of Florida, the circuit court may retain jurisdiction
over the matter until the adoption becomes final and the prospective adoptive parents
may finalize the adoption in Florida. Fla. Stat. Ann. § 63.207(1)(b). See in Re L.A.C., 429 So.2d 102, 102 (1983) (holding that there was no residency requirement for persons
seeking to adopt). We note also that the Adoption Order indicates that no other state
sought jurisdiction. Thus, under Section 63.207, we believe that the Circuit Court
would retain personal jurisdiction over the child, regardless of the fact that he
was living in New York with Debra and Armondo at the time of the Florida adoption.
Based upon our review of Florida law, the adoption of James is valid notwithstanding
the statement in POMS GN 00306.135(1) that indicates that either the child or parents must be domiciled or reside in
the state where the adoption was finalized.
Stephen P. Conte
Regional Chief Counsel
Assistant Regional Counsel