You asked whether an adoption of a minor child by the child's maternal aunt and grandmother
was legal and created a co-parent relationship under Indiana law. You also asked whether
the child is entitled to child's benefits on the maternal aunt and grandmother's records.
We conclude that, assuming the appropriate affidavits from the Indiana Department
of Health, concerning the putative father registry and any applicable paternity determinations,
have been filed with the county court, the adoption was valid and that the child is
entitled to child's benefits under her maternal grandmother and aunt's records.
Sophia M. L. S~, the minor child, was born on February 26, 2001, to Sarah E. S~. The
identity of her biological father is unknown.
Carolyn S~, Sophia's maternal grandmother (DOB September 25, 1941), applied for disability
benefits in September 1988, alleging an onset date of February 1, 1988. She was granted
benefits as of July 1988. Carolyn is not currently married.
Cara M. S~ (DOB March 1, 1969), is Sophia's maternal aunt and the daughter of Carolyn
S~. Cara applied for disability benefits in December 2003, alleging an onset date
of January 16, 2003. She became entitled to benefits in July 2003. Cara has never
Sarah, the natural mother of Sophia, resides in the same household with Carolyn, Cara,
and Sophia. Sarah currently receives childhood disability benefits on Carolyn's record.
The onset date is August 31, 1989, and the diagnosis code indicates personality disorders.
Carolyn is Sarah's representative payee.
Carolyn and Cara, the maternal grandmother and aunt, submitted a petition in the Superior
Court of Hendricks County, Indiana, to adopt Sophia (7/12/04 Decree of Adoption at
1). On July 12, 2004, Judge R. W. F~ entered a decree of adoption, approving and granting
Carolyn and Cara's petition to adopt Sophia (7/12/04 Decree of Adoption at 2).
The decree notes that all necessary consents to this adoption are in proper form and
filed, that the co-petitioners are able to furnish suitable support and education
for Sophia, and that the adoption is in the best interests of Sophia (7/12/04 Decree
of Adoption at 1). The decree deems Sophia entitled to receive all rights and interests
in the estate of the adopting parents, "which she would be entitled to if she had
been the natural heir of Cara M. S~ and Carolyn L. S~. . . ." (7/12/04 Decree of Adoption
at 2). Additionally, the decree states that the natural father of Sophia is not known
and that the legal rights of the natural father and the consenting natural mother
are terminated (7/12/04 Decree of Adoption at 2). Finally, the decree provides that
Sophia shall be given the name of Sophia M. L. S~, and, for all intents and purposes,
"shall be considered the natural child of Cara M. S~ as adoptive mother, and Carolyn
L. S~ as adoptive co-parent, or either of them, and shall be entitled to the same
rights and privileges which she would be entitled to" as the natural heir of either
co-parent (7/12/04 Decree of Adoption at 2).
An amended Certificate of Birth, dated July 27, 2004, lists Sophia's full legal name
as Sophia M. L. S~, and states that she is the child of Carolyn S~ and Cara S~.
On July 29, 2004, Carolyn and Cara each separately filed applications for child's
insurance benefits (life claim) on behalf of Sophia. On that same date, Carolyn also
filed a request to be selected as representative payee for Sophia.
To be entitled to child's insurance benefits on the account of a wage earner who is
receiving DIB, a child under age 18 must (a) meet the regulatory definition of "child;"
(b) be dependent on the wage earner; (c) be unmarried; and (d) file an application.
42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. A child whom the wage holder has legally
adopted meets the definition of "child." 20 C.F.R. § 404.356. The laws of the state
where the adoption took place are used to determine whether the adoption was legal.
Id. For that reason, Indiana law determines whether Sophia is the legally adopted child
of Carolyn S~ and Cara S~, for purposes of receiving child's insurance benefits on
their accounts. If the adoption is legal, Sophia would be deemed dependent on her
maternal aunt and grandmother, because she was under 18 at the time of the adoption
proceedings, and the adoption was issued by a court of competent jurisdiction within
the United States. 42 U.S.C. § 402(d)(8); 20 C.F.R. § 404.362(b)(1)(i); POMS GN 00306.137.
According to Indiana law, the prospective adoptive parent must be an Indiana resident.
In Re the Adoption of M.M.G.C.,
H.H.C., and K.E.A.C., 785 N.E.2d 267, 270 (Ind. Ct. App. 2003). The statute states: "A resident of Indiana
who seeks to adopt a child less than eighteen (18) years of age may, by attorney of
record, file a petition for adoption with the clerk of the court" having proper probate
jurisdiction. See Ind. Code § 31-19-2-2(a). In Indiana, the courts have recognized that an unmarried
person can adopt as well as a married person. Browder v. Harmeyer, 435 N.E.2d 301, 306 (Ind. Ct. App. 1983). Indiana law also recognizes adoption by
the grandparent of a minor child, where such adoption is determined to be in the best
interest of the child. See
id. at 307. Indiana law also recognizes the validity of adoption of minor children by
petitioners of the same gender who seek to be co-parents. See In Re A.B., 818 N.E.2d 126, 129 (Ind. Ct. App. 2004).
Carolyn S~'s current Indiana driver's license indicates that she resides in Indiana.
You have indicated that Cara S~ lives with Carolyn. Therefore, we conclude that these
individuals are both residents of Indiana and were eligible to petition to adopt Sophia.
Neither Carolyn nor Cara is married. Therefore, no spousal consent to adopt Sophia
was necessary before the adoption could be effectuated. See Ind. Code § 31-19-2-4 (requiring that, in the case of a married petitioner seeking
adoption, the spouse of that petitioner join in the petition, unless the petitioner
is married to the natural or adoptive parent of the child and an acknowledged consent
to adoption is filed).
After a child is adopted in Indiana, its biological parents are "relieved of all legal
duties and obligations to the adopted child" and "divested of all rights with respect
to the child." Ind. Code §§ 31-19-15-1(1), (2). Upon adoption, the adoptive parent
becomes the actual parent of the child. Collard
v. Enyeart, 718 N.E.2d 1156, 1160 (Ind. Ct. App. 1999). Adoption in Indiana "severs the child
entirely from its own family tree and engrafts it upon that of another." In the Matter
of Adoption of Thomas, 431 N.E.2d 506, 513 (Ind. Ct. App. 1982).
We conclude that Carolyn and Cara S~ were not barred by Indiana law from adopting
Sophia as co-parents, and that, as the consequence of a valid adoption, Sophia appears
to be the legal child of Carolyn S~ and Cara S~, entitled to benefits on the accounts
of her maternal grandmother and aunt. However, we recommend that, before proceeding
with payment of benefits, you clarify a few matters relating to the adoption decree,
as the language in the decree is ambiguous in several respects.
Under the Indiana statute, the court shall grant a petition for adoption and enter
an adoption decree after hearing the evidence and finding that:
the adoption requested is in the best interest of the child;
the petitioner or petitions for adoption are of sufficient ability to rear the child
and furnish suitable support and education;
the report of the investigation and recommendation under IC 31-19-8-5 has been filed;
the attorney or agency arranging an adoption has filed with the court an affidavit
prepared by the state department of health under IC 31-19-5-16 indicating whether
a man is entitled to notice of the adoption because the man has registered with the
putative father registry in accordance with IC 31-19-5;
proper notice arising under subdivision (4), if notice is necessary, of the adoption
has been given;
the attorney or agency has filed with the court an affidavit prepared by the state
department of health under:
IC 31-19-6 indicating whether a record of a paternity determination; or
IC-16-37-2-2(g) indicating whether a paternity affidavit executed under IC 16-37-2-2.1;
has been filed in relation to the child;
proper consent, if consent is necessary, to the adoption has been given; and
the petition for adoption is not prohibited from adopting the child as the result
of an inappropriate criminal history described in subsection (c)[.]
Ind. Code § 31-19-11-1(a)(1)-(8).
Further, Indiana Code § 31-19-11-1(b) states: “A court may not grant an adoption unless
the department's affidavit under IC 31-19-5-16 is filed with the court as provided
under subsection (a)(4).” Ind. Code 31-19-11-1(b).
Here, the Court recognized that the first three requirements under Ind. Code § 31-19-11-1(a)(1)-(3)
were met. Specifically, the Superior Court's Decree of Adoption states that the adoption
was in the best interests of Sophia, and that Carolyn and Cara had sufficient ability
to rear Sophia as well as furnish suitable support and education for her. Additionally,
the Superior Court stated that the report of investigation and recommendation of the
Office of Children and Family Services for the county was filed with the Court (7/12/04
Decree of Adoption at 1).
The Court also recognized that “all the necessary consents to said adoption are in
proper form and have been filed” (7/12/04 Decree of Adoption at 1). Indiana law states
that the consent of a biological father of a child born out of wedlock is not required
if the man's paternity has not been established either by a court proceeding other
than the adoption proceeding, or by executing a paternity affidavit under IC 6-37-2-2.1.
Ind. Code § 31-19-9-8. Absent any reference in your records to Sophia's marital status,
we assume that Sarah bore Sophia out of wedlock and that she did not identify Sophia's
biological father. Given the Court's statement that the father is unknown, it appears
there is no paternity determination or paternity affidavit that would require consent
of the biological father. It thus appears that the consent requirement under Ind.
Code § 31-19-11-1(a)(7) was most likely met via Sarah's consent to the adoption alone.
However, we recommend that you confirm whether the attorney filed with the Court a
state department of health affidavit, indicating whether a record of a paternity determination
or a paternity affidavit has been filed in relation to the child. See Ind. Code § 31-19-11-1(a)(6).
We also note the absence of any mention in the Court's decree of whether proper notice
requirements were met under Ind. Code § 31-19-11-1(a) (4) and (5). Specifically, we
are concerned about the Court's failure to mention whether an affidavit by the state
department of health has been filed, indicating whether a man is entitled to notice
of the adoption due to having registered with the state's putative father registry.
Indiana law provides that a putative father is not entitled to notice of the adoption if:
on or before the date the mother of a child executes a consent to the child's adoption,
the mother does not disclose to the attorney or agency arranging the adoption the
identity or address, or both, of the putative father; and
the putative father has not registered with the putative father registry under IC
31-19-5 within the period under IC 31-19-5-12.
Ind. Code 31-19-4-6.
Here, the Court's decree makes clear that the putative father's identity was unknown.
It may very well be that the unidentified father did not properly register with the
putative father registry in Indiana, such that no notice was required to anyone. However,
there is no express finding by the Court concerning the applicability of the notice
requirement. Absent the filing of such an affidavit from the state department of health,
the Indiana statute prohibits courts from granting an adoption. See Ind. Code § 31-19-11-1(b). Accordingly, we also recommend that you verify that an
attorney filed with the court an affidavit prepared by the state department of health,
indicating whether anyone is entitled to notice of the adoption because they have
registered properly with the putative father registry.
We conclude that, that, assuming the appropriate affidavits from the state department
of health concerning the putative father registry and any applicable paternity determinations
have been filed with the county court, the adoption was valid and that the child is
entitled to child's benefits under Carolyn S~'s and Cara S~'s accounts.