TN 39 (02-16)
PR 01310.026 Minnesota
A. PR 16-048 Validity of Adoption of Adult in Minnesota
DATE: December 21, 2015
Minnesota’s liberal adoption law allows anyone to validly adopt adults once consent is addressed. Therefore, the general rule is that an amended birth certificate issued as a result of an Order of Adoption can be used to prove the validity of the adoption and that applies in this case. The amended Birth Certificate was issued shortly after the Order of Adoption, and thus appears on its face to have been issued as a result of the adoption.
BACKGROUND AND QUESTION PRESENTED
On December XX, 2014, the District Court in the First Judicial District in Dakota County, Minnesota entered an Order of Adoption, granting adoption of S~ to number holder S2~ and N~ on S~’s birthday. N~ and S2~ have been S~’s co-guardians since she was nineteen years old. S~, who is in a wheelchair and requires 24 hour nursing care, has been living with them since 1999. S2~ submitted an order of guardianship dated July XX, 2013, the Order of Adoption dated December XX, 2014, and an amended Birth Certificate dated March XX, 2015. You asked whether N~ and S2~ validly adopted S~. We conclude that they did.
In general, an amended birth certificate issued as the result of a U.S. adoption will establish the validity of the adoption. POMS GN 00306.155(A). However, when the person adopted is age twenty-one or over, further inquiry is required. POMS GN 00306.135.
Minnesota liberally allows adoption of adults. See M.S.A. § 259.241(a) (“Any adult person may be adopted, regardless of the adult person's residence.”); Berston v. Minnesota Dep't of Pub. Welfare, 296 Minn. 24, 27 (1973) (“We hold that s 259.22 so unequivocally authorizes a petition for the adoption of ‘an adult’ by ‘any person’ as to foreclose any limiting construction.”). For purposes of adoption law, an adult is a person who is at least eighteen years old. M.S.A. § 259.21 (subd. 2). In order to adopt an adult, the adult must consent, unless she is a “vulnerable adult.” M.S.A. § 259.241. An adult who requires constant nursing care is considered a vulnerable adult, and therefore their consent is invalid. M.S.A. § 626.5572 (Subd. 21)(a)(4); M.S.A. § 259.241. Because a vulnerable adult’s consent, like that of a minor, is invalid, id., a parent or guardian must consent on her behalf for the adoption to be valid. See M.S.A. § 259.24 (subdivision 1)(a); In re Pratt, 219 Minn. 414, 427 (1945) (“guardian's consent to the adoption is valid”). Here, S2~ and N~ were authorized to act as guardians of S~ after she reached adulthood, and doubtlessly consented to their own petition to adopt her. Thus, as S~’s guardians, they validly consented to her adoption on her behalf.
Once consent is addressed, Minnesota’s liberal adoption law allows anyone to validly adopt adults. M.S.A. § 259.241(a). Therefore, the general rule -- that an amended birth certificate issued as a result of an Order of Adoption can be used to prove the validity of the adoption -- applies here. GN 00306.155(A). In this case, we have the Order of Adoption and the amended Birth Certificate. The amended Birth Certificate was issued shortly after the Order of Adoption, and thus appears on its face to have been issued as a result of the adoption. Therefore, the adoption is valid under state law and for program purposes.
For the reasons discussed above, we find that S~’s adoption by N~ and S2~ should be considered valid under state law and for program purposes.
Acting Regional Chief Counsel, Region V
By: Hersh Friedman
Assistant Regional Counsel
B. PR 12-111 MOS – Minnesota – Validity of stepparent adoption of an adult child
DATE: June 14, 2012
Minnesota law expressly states that any adult person may be adopted, regardless of the adult person’s residence. The prospective adult adoptee must consent to the adoption, and must be competent to give her consent. In this case, the Adoption Decree states that the claimant consented to the adoption, and that the NH and spouse met all of Minnesota’s legal requirements for adopting claimant. For these reasons, we find that the claimant is the NH’s legally adopted child under Minnesota law. An adult adoptee need not take her adoptive parents’ surname. We conclude that the NH validly adopted Claimant in Minnesota, and thus Claimant has the requisite parent-child relationship with the NH and Claimant is entitled to benefits on the NH’s earnings record as his legally adopted adult child.
O~, (O~ claimant) has submitted an application for disability benefits on the record of J~ (NH), as his adopted adult child. The NH adopted O~, who is the biological child of the NH’s spouse, K~, in March 2011, when O~ was 28 years old. You asked whether the adoption of an adult stepchild was valid under Minnesota law. We conclude that the NH validly adopted O~ in Minnesota, and thus O~ has the requisite parent-child relationship with the NH.
O~ was born in New York City, New York, in September. Her biological father is P~. The claimant’s biological mother, K~, married the NH, and took the surname J~, on August XX, 1994 in Cedar Rapids, Iowa, when the claimant was 11 years old. On March XX, 2012, O~ filed an application for disabled adult child’s benefits on the NH’s record. SSA found O~ disabled by personality and mood disorders, with an onset date of September XX, 2006. O~ is her own payee, and she does not have a legal guardian.
In 2011, when the claimant was 28 years old, the NH and O~’s biological mother, K~, filed a petition to adopt O~ with the Fourth Judicial District Court, Juvenile Division, of H~ County, Minnesota. The petition indicated that the NH and K~ were married, and desired to establish a parent-child relationship with O~ by adopting her. The Hennepin County court issued an Order and Decree of Adoption, granting the petition, on March XX, 2011. The court determined that the NH and K~ had provided proper notice of the adoption proceedings. The Adoption Decree acknowledged that K~ was the spouse of the NH; that they had been married for more than 16 years; that they had lived in Minnesota for more than a year at the time they filed the petition; and that they had filed with the court “a certified copy of the original birth certificate of [O~] and all properly executed consents to this adoption as required by law.” The Adoption Decree indicated that O~ was indigent, and that she intended to retain the surname P.
Statutory and Regulatory Requirements
Under the Social Security Act, “child” includes the legally adopted child of an individual. 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.356. To be eligible for benefits on the record of an insured individual, a legally adopted child over the age of 18 must have a disability that began before she became 22 years old; be dependent on the wage earner; be unmarried; and file an application. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. It is undisputed that O~ is disabled; that her disability began before she reached the age of 22; that she is dependent on the NH; and that she has applied for benefits on the NH’s record. The only question is whether she is the legally adopted child of the NH. O~ applied for benefits as the NH’s legally adopted child. However, we note that even without the adoption, O~ would appear to meet the Act’s definition of “child” as the NH’s stepchild. See 20 C.F.R. §§ 404.354, 404.357.
II. The Adoption Decree is Valid Under Minnesota Law.
If the Adoption Decree is valid and binding, then O~ would be entitled to childhood disability benefits on the NH’s record. A determination made by a state court is binding on SSA when (1) an issue in a claim for Social Security benefits has previously 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. Grey v. Richardson, 474 F.2d 1370 (6th Cir. 1973); George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1990). In this case, the Hennepin County District Court is a court of competent jurisdiction to determine issues of parentage and adoption, Minn. Stat. § 259.23(1)(a), Minnesota approved several amendments to its adoption laws on April 23, 2012. See 2012 Minn. Session Law Serv, (87th Legislature), Ch. 216 (S.F. 1675) (West). The amendments did not, however, substantively change the provisions directly at issue in this case. and previously determined the issue of O~’s parental relationship with the NH. Adoption and parentage fall within the general category of domestic relations law. The adoption does not appear to have been genuinely contested before the state court by parties with opposing interests, and thus the adoption decree is not binding on SSA. However, as discussed below, we believe that the decree is valid under Minnesota law, and should be honored by SSA.
Under Minnesota law, “Any person who has resided in the state for one year or more may petition to adopt a child [.]” Minn. Stat. § 259.22(1). The law defines “petitioner” as “a person with spouse, if there be one[.]” Minn. Stat. § 259.21(7). When a stepparent seeks to adopt his spouse’s child, the spouse may join in the petition, but is not required to do so. Minn. Stat. §§ 259.21(7), 259.23(2). Minnesota law expressly states that “[a]ny adult person may be adopted, regardless of the adult person’s residence.” Minn. Stat. § 259.41(a). The prospective adult adoptee must consent to the adoption, and must be competent to give her consent. Minn. Stat. § 259.241(b). An adult adoptee need not take her adoptive parents’ surname. Minn. Stat. § 259.241(d). Minnesota’s juvenile courts have jurisdiction over adult adoptions. Minn. Stat. § 259.23(1)(a).
Minnesota thus clearly permits adult adoptions, including stepparent adoptions. Indeed, the Minnesota Supreme Court holds that the statute “so unequivocally authorizes a petition for the adoption of ‘an adult’ by ‘any person’ as to foreclose any limiting construction.” Berston v. Minnesota Dept. of Public Welfare, 206 N.W.2d 28, 29 (Minn. 1973) (upholding an adult child’s adoption of his natural mother). The Adoption Decree states that O~ consented to the adoption, and that the NH and K~ met all of Minnesota’s legal requirements for adopting O~. For these reasons, we find that O~ is the NH’s legally adopted child under Minnesota law.
For the reasons discussed above, we find that the 2011 adoption decree is valid under Minnesota law. Consequently, O~ is entitled to benefits on the NH’s earnings record as his legally adopted adult child.
Grace M. Kim
Acting Regional Chief Counsel, Region V
By: Julie L. Bentz
C. PR 06-168 MOS-Minnesota: Validity of Tribal Customary Adoption by the Children's Court of the White Earth Tribal Court; SSN: ~ ; Numberholder: E~; Claimants: K~; SSN: ~- REPLY Your Reference: S2D5G6, , E~ Our Reference: 05-0188
DATE: June 21, 2006
Under White Earth Tribal law, a new version of the Customary Adoption Code may be applied retroactively to a tribal customary adoption which took place prior to the approval and certification of that new code. This is because the enacted code reflects and solemnizes a long-established practice rather than setting forth a new procedure.
As the code allows that a customary adoption which is "conducted in a manner that is a long-established, continued, reasonable process and considered by the people of the White Earth Band to be binding and authentic … may be certified … as having the same effect as an adoption order issued by this court", the conclusion is that the White Earth Tribal court would find that the enacted code applied retroactively.
Based on the submission of new evidence, you requested an opinion concerning the validity of a tribal customary adoption granted by the Children's Court of the White Earth Tribal Court, White Earth Reservation, in the State of Minnesota. We previously opined in this case that to establish entitlement, the applicant must submit additional evidence. To that end, the applicant submitted a copy of the Customary Adoption Code as approved and certified by the White Earth Reservation Tribal Council on May XX, 2005. You have asked whether the subsequent documentation substantiates that the adoption was valid, and whether we could now entitle K~ to child's benefits. It is our opinion that there is now sufficient evidence to establish the validity of the customary adoption of K~ under the adoption laws of the White Earth Band of Ojibwe.
The NH in this case, E~ , became entitled to Disability Insurance Benefits in May 1976, and converted to retirement benefits in November 1993. The NH and his wife, F~ , a member of the White Earth Tribe, adopted a child, K~ (their granddaughter, date of birth April 2003), on November XX, 2003. Documentation regarding the adoption was submitted at the time the claim was filed, and an opinion was rendered by our office on March XX, 2005, in which it was concluded that additional evidence had to be provided to find the adoption valid, i.e., either of (1) evidence pertaining to consent of the biological father, or evidence the Tribal Court would waive such consent, and evidence regarding a homestudy; or (2) a copy of the Customary Adoption Code matching the version reviewed and containing an enactment provision or certification. The claim was disallowed, and a request for reconsideration was filed. Along with the reconsideration, a new version of the Customary Adoption Code was submitted which includes a Resolution certified by the White Earth Reservation Tribal Council and adopting the Code. The new version of the Customary Adoption Code, which was approved and certified on May 23, 2005, does not match the version reviewed in our prior opinion. Along with the copy of the Customary Adoption Code, the request for reconsideration also included a letter from J~, Tribal Attorney for the White Earth Reservation Tribal Council. In that letter, J~ asserted that K~ was customarily adopted by the NH and his spouse through the White Earth Tribal Court and that, prior to the adoption, the parental rights of each of K~'s natural parents were suspended pursuant to tribal law. This last information differs from the information contained with the original request for advice. The documents pertaining to the adoption which were previously reviewed indicated that the biological father's identity was "unknown," not that his parental rights were suspended. Finally, you indicated, in the original request for advice, that the White Earth Reservation Adoption Program had stated its intention to continue submitting claims with customary adoptions, and to adjust their adoption procedures accordingly, until they are acceptable for SSA entitlement.
As we previously advised, the White Earth Tribe has exclusive jurisdiction over K~'s adoption proceeding, and the laws of the White Earth Band of Ojibwe therefore apply to determine whether K~'s adoption by her grandparents was valid. Adoptions of children in the Tribe may be considered valid for purposes of CIB if it can be established that they were either (1) valid adoptions pursuant to the Tribe's statutory adoption law, i.e., the Child/Family Protection Code (CFPC), or (2) valid "customary adoptions." See Memorandum from Regional Chief Counsel, Chicago, to Regional Commissioner, Denver, Validity of Tribal Customary Adoptions, at 3-4 (March 30, 2005) [hereinafter "Validity of Tribal Customary Adoptions"]. We concluded that there was not sufficient evidence to find K~'s adoption valid pursuant to the CFPC, given the lack of consent to the adoption by K~'s biological father and the lack of a homestudy on the petition and report on the child. No further information was provided which would affect our conclusion in this regard. Thus, the question presented is whether the adoption was valid as a customary adoption given the submission of the enacted Customary Adoption Code (hereinafter "the enacted Code").
Though a "customary adoption" typically involves less formal proceedings, at the time of our March 2005 opinion, the Tribe indicated that it had codified its procedures for tribal customary adoptions. See Validity of Tribal Customary Adoptions. Analysis of the code then provided by the Tribe indicated that K~'s adoption would have been considered a valid customary adoption but for the lack of a certification provision enacting the code. It appears from the submission of the enacted Code in conjunction with the request for reconsideration in this matter, that the code reviewed previously was only a draft version. Careful comparison of the provisions of the draft previously reviewed with the provisions of the final, enacted Code revealed some changes, but none that would affect our conclusions regarding the validity of K~'s adoption by the NH and his spouse. The enacted Code, however, was certified as of May XX, 2005, and K~'s adoption occurred November XX, 2003. Thus, a question arises as to whether the enacted Code can be applied retroactively to K~'s adoption.
Under principles of statutory interpretation, legislation is usually prospective unless it states with specificity that retroactive or retrospective application will apply. As the Supreme Court has explained, "[r]etroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (citing Greene v. U.S., 376 U.S. 149, 160 (1964) ('first rule' of statutory construction is that "legislation must be considered as addressed to the future, not to the past") (internal citation omitted)) (other citations omitted).
However, the Supreme Court has recognized that Indian tribal law is peculiar in both its sovereign promulgation and its reflection of the customs of Indian tribes, and thus that it generally is not subject to standard legal interpretations. In a case in which the question of implied remedies under the Indian Civil Rights Act (ICRA) - which imposes restrictions upon tribal governments similar to the guarantees incorporated in the Federal Bill of Rights - was evaluated (and rejected), the Court stated that resolution of statutory issues arising under the ICRA "will frequently depend on questions of tribal tradition and custom which tribal forums may be in a better position to evaluate than federal courts. … [w]e have … recognized that the tribes remain quasi-sovereign nations which, by government structure, culture, and source of sovereignty are in may ways foreign to the constitutional institutions of the Federal and State governments." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). The Court emphasized the importance of the federal judiciary not interfering with a tribe's ability to "maintain itself as a culturally and politically distinct entity" absent clear congressional authority. Id. This notion was earlier recognized by the Eighth Circuit when it affirmed that tribal customs and usages generally inform Indian law, especially in matters of domestic relations. See, e.g., Halowell v. Commons, 210 F. 793 (8th Cir. 1914) (finding heir from polygamous marriage lawful because polygamy was in accordance with customs and usages of the tribe). Thus, the standard principles of statutory construction are not necessarily of consequence in evaluating the application of tribal laws.
Further, the Eighth Circuit has recognized the inherent authority of tribal courts with respect to matters over which Congress has not explicitly exercised power. See Conroy v. Conroy, 575 F.2d 175, 178 (8th Cir. 1978) ("[t]his Court lacks any general power to review and oversee the Tribal Courts in their resolution of questions concerning the authority and power of Tribal Courts." (citation omitted). And, domestic relations are such matters squarely within the purview of tribal courts' authority. See id. at 181-82 ("Among those powers retained, the power of a tribe to regulate the domestic relations of its members, historically well established, remains undisturbed."). As we previously noted, the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1902, et seq., gives Indian tribes exclusive jurisdiction over child custody proceedings and adoptions involving an Indian child, such as K~, who resides on or is domiciled within the reservation of the tribe. See 25 U.S.C. § 1911(a), accord Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989); Sayers v. Beltrami County, 481 N.W.2d 547, 550 (Minn. 1992). Thus, the real question before us is whether the White Earth Tribal Court would find that the enacted Code applies retroactively to K~'s adoption.
Tribal customary law, because it necessarily reflects long-standing principles and practices embraced by a tribe, i.e., customs, can be seen as formally stating or clarifying existing codes of behavior within the tribe, rather than as setting forth entirely new standards. See Barnett v. Prairie Oil & Gas Co., 19 F.2d 504, 506 (8th Cir. 1927) (regarding long-established tribal customs as tribal 'common law'). While enacted tribal laws may solemnize certain practices in domestic relations, they do not impliedly render practices performed without such solemnization invalid. See id., citing Carney v. Chapman, 247 U.S. 102 (1918) (declining to construe Chickasaw tribal marriage statute "as purporting to invalidate marriages not so solemnized"); cf. C~, 575 F.2d at 182 (reviewing tribal code whose specific terms decreed that "Indian custom marriage and divorce consummated after" a date certain "shall not be recognized.").
In this case, while the enacted Code renders "customary adoption" a statutory construct, it clearly acknowledges that this legal process is one which is rooted in and reflects the past practices of the tribe, defining "customary adoption" as "a traditional tribal practice recognized by the community and tribe." See Customary Adoption Code, tit. 4a-1 § C.7. The enacted Code states that the Customary Adoption Code reflects a policy of preserving the tribe's culture, values, clan system, and relationships, id. at § B.3, and that the Code is to be "liberally interpreted and construed as an exercise of the inherent sovereign authority of the [tribe] ... [t]o embody and promote the basic traditional values of the [tribe] … regarding the protection and care of the tribe's children." Id. at C.1. It is clear from this language that the enacted Code is indeed of the type that reflects and solemnizes a long-established practice rather than setting forth a new procedure. See Customary Adoption Code, tit. 4a-12.1 (allowing that a customary adoption which is "conducted in a manner that is a long-established, continued, reasonable process and considered by the people of the White Earth Band to be binding and authentic … may be certified … as having the same effect as an adoption order issued by this court"). Thus, we conclude that the White Earth Tribal Court would find that the enacted Code applies retroactively in a case such as K~'s, where the adoption otherwise satisfies the terms of the enacted Code. Therefore, the enacted Code may be considered to be effective retroactively, rendering K~'s adoption by J~ and his spouse valid from its inception.
For the foregoing reasons, we conclude that the customary adoption of K~ was valid under the Tribe's adoption laws, pursuant to the Tribe's Customary Adoption Code. Therefore, there is sufficient evidence to establish that K~ is the NH's legally adopted child for purposes of payment of CIB.