PR 01310.029 Montana

A. PR 08-143 Adoption after Age 21 - Montana Carol L. M~

DATE: June 27, 2008

1. SYLLABUS

In an adult adoption case in Montana, one in which the adoption petition apparently omitted a full description and statement of value of the child's property as required by law, the Montana Supreme Court would consider the statutory requirement of a description of the child's property to be non-jurisdictional in the context of an adult adoption and would deem the requirement waived.

2. OPINION

Whether the deceased numberholder's (Carol L. M~'s) adoption of an adult child (Deborah R. F~) over the age of 21 is legally valid in the state of Montana, and if so, should whether the Agency should pay M~'s underpaid disability benefits to F~.

Short Answer

We do not have the underlying petition for adoption to determine if it complies fully with Montana law. And the Decree of Adoption issued by the Montana District Court suggests that one statutory requirement-a full description and statement of value of the child's property-may be missing from the petition. Nonetheless, we believe the Montana Supreme Court would find that the Decree is valid and establishes that F~ is M~'s legally adopted child, because it complies substantially with Montana's law on adult adoption. Therefore, at the time of M~'s death, F~ was entitled to her underpaid benefits.

Facts

On November 29, 1995, the Montana Eighth Judicial District Court issued a Decree of Adoption, declaring F~ to be M~'s child. F~ was 42 years old at the time and M~'s natural cousin. M~ never married and had no other children. She died on September 20, 2003, and left no estate. Her only source of income at the time of death was SSI. We do not know whether she was survived by a parent.

In an RSDI Quality Review, the Agency discovered that M~ should have received Social Security disability benefits beginning in January 1974.

Legal Analysis

(1) The Adoption's Validity

Whether F~ is M~'s legally adopted child is governed by Montana, the state where the adoption took place. See 20 C.F.R. § 404.356 (2007). Under Montana law, "[a] petition for adoption filed prior to October 1, 1997, is governed by the law in effect at the time the petition was filed." Mont. Code Ann. § 40-16-108 (Refs & Annos 2007). The Decree of Adoption does not state when M~ filed the petition, but the court issued the Decree on November 29, 1995, and it bears a 1995 case number in the caption. Therefore, we presume M~ filed the petition in 1995.1

In 1995, Montana law provided that "the procedure and law for adoption of minors . . . shall be applicable in proceedings for the adoption of an adult under the provisions of this part, provided that provisions concerning an investigation . . . and an interlocutory decree shall not be applicable in the case of the adoption of an adult." Id. § 40-16-108 (1995). Also, unlike a minor, an adult could be adopted in Montana in 1995 without the consent of his or her natural parents. See id. § 40-8-201. Thus, when M~ filed the petition, an adult could be adopted in Montana under the provisions applicable to the adoption of a child, but without the requirements of investigation, interlocutory decree, and parental consent.

Under Montana law at the time of Ms. M~'s petition, an unmarried adult over the age of 18 could adopt a child. See id. § 40-8-106. A child 12 years old or older must consent to his or her adoption in writing or as the court requires. See id. § 40-8-113. The adoption petition must be filed in the district court for the county where the petitioner resides. See id. § 40-8-107. The petition must contain the following information: the name and place of residence of the petitioner; the child's name, place of birth, and date of birth; a statement by the petitioner that she desires to establish the relationship of parent and child between herself and the child; and a full description and statement of value of the child's property. See id. § 40-8-121. Any written consent required should be attached to the petition or submitted later with the court's consent. M~

The Decree includes the following findings by the court: M~ is a resident of Cascade County, Montana, and F~ is a resident of Lewis and Clark County, Montana; F~ is M~'s natural cousin; M~ desires to adopt F~ as her natural child "and is a fit and proper person to do so"; F~ desires to retain her present married name; "the consent of all persons required by law has been given in writing and filed with the Court"; and "all of the allegations of the Petitioner are true." The Court then concludes "it is fit and proper that the adoption should be granted" and declares that "the relationship of daughter and parent and all of the rights, duties, and other legal consequences of the natural relationship of daughter and parent shall thereafter exist between such adopted daughter and adoptive parent."

Thus, it appears the only requirement the Decree lacks is a full description and statement of the value of F~' property. This raises the question of whether the Agency should find the adoption legally valid based on the Decree, even though the Decree does not show on its face that F~' adoption met all of the statutory requirements.

Generally, the Agency is not bound by the decision of a State court in a proceeding to which it was not a party. See Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Under Social Security Ruling 83-37c, however, certain State court determinations on domestic relations matters are entitled to deference. In that Ruling, the Agency adopted the rationale of Gray as its national policy. In Gray, the court held that the Commissioner should defer to a State court's determination on an issue in a claim for Social Security benefits where: (1) the State court has jurisdiction over the issue; (2) the issue was contested by the parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the decision was consistent with the law as stated by the State's highest court.

Here, the State court's adoption decree appears entitled to deference under SSR 83-37c. The Montana District Court had jurisdiction to grant or deny the adoption petition. F~ had an opportunity to oppose the petition by withholding consent, but chose not to do so. The issue falls within the general category of domestic relations.

As to whether the Decree is consistent with decisions of the Montana Supreme Court, we have found no Montana case law addressing the validity of an adoption decree that lacks a description of the child's property. However, we believe the Montana Supreme Court would find the Decree valid because it substantially complies with Montana law. The primary purpose of adoption statutes is to promote the best interests of the child. See C.J.S., Adoption § 4 (2003). Montana's requirement that an adoption petition contain a description of the child's property obviously serves that general purpose. The adoption of adults is dissimilar to adoption of children, "serving different purposes and creating few of the problems which arise out of the adoption of children." See Homer H. C~, The Law of Domestic Relations in the United States § 21.10 (West 1987). Since the purpose of adult adoption is usually to designate an heir, safeguarding the adoptee's property is not a logical concern in adult adoptions. See id. For example, the Uniform Adoption Act does not require a description of the adoptee's property in adult adoptions. Rather, it merely requires statements of consent by the adopting parent and adopted child, basic information about the parties (i.e., names, marital status, age), and a statement of the nature of the relationship between the parties. See 21 ALR 3d 1019. Therefore, we believe the development would be required to determine whether the applying parent was entitled to receive M~'s underpaid benefits under subsections "c." above. See 20 C.F.R. § 404.370.

For these reasons, under SSR 83-37c, the Agency should defer to the Montana District Court's judgment on this matter of State domestic relations law and find M~'s adoption of F~ legally valid, based on the Montana District Court's Decree.

(2) Priority of Payment

You also asked us to consider POMS § GN 02301.030(A), Underpaid Person is Deceased, in relation to this matter. This section of the POMS provides that if an underpaid beneficiary is deceased, payment must be made under the following order of priority:

to the surviving spouse who was either living in the same household as the deceased or who, for the month of death, was entitled to a monthly benefit on the same record as the deceased beneficiary;

to the child who, for the month of death, was entitled to a monthly benefit on the same earnings record as the deceased;

to the parent who, for the month of death, was entitled to a monthly benefit on the same earnings record as the deceased;

to the surviving spouse not qualified under "a" above;

to the child not qualified under "b" above

to the parent not qualified under "c" above

to the legal representative of the decedent's estate.

The child's age is immaterial in deciding whether he or she is entitled to receive an underpayment. See GN 02301.030(B)(2).

M~ had no surviving spouse, and neither F~ nor one of M~'s parents was entitled to receive benefits on M~'s account during the month of M~'s death because neither applied for such benefits2 . See 20 C.F.R. §§ 404.350(a)(4), 404.370(d). Therefore, with the information that you have provided, F~ should receive M~'s underpaid benefits under subsection "e" above.

CONCLUSION

The Agency applies the adoption laws of the state where the adoption took place to determine whether a person is an insured's legally adopted child. See 20 C.F.R. § 404.356. In this case, the Montana District Court issued a Decree, finding that M~ satisfied the essential elements required to adopt F~. The Agency should defer to the Montana District Court's Decree and find the adoption legally valid. Because F~ is M~'s legally adopted child, the Agency must pay M~'s underpaid benefits to F~.

Deana R. E~-L~
Regional Chief Counsel, Region VIII

B. PR 00-088 Validity of Adoption Proceedings in a Native American Indian Tribal Court within the State of Montana

DATE: May 17, 1999

1. SYLLABUS

An adoption granted by the Children's Court of the Fort Belknap Indian Community of the Fort Belknap Indian Reservation is in accord with the "Customary Adoption of the Fort Belknap Law & Order Code". The fact that a Final Order is not on record with either the Bureau of Indian Affairs or the Bureau of Vital Statistics of Montana does not invalidate the Tribal Court's order. The filing of an Order is a ministerial requirement and failure to comply with a ministerial requirement of law does not invalidate the actions taken under that law. Likewise, not terminating the natural parents' parental rights in accordance with "Customary Indian adoption" does not invalidate the Final Order or the adoption.

2. OPINION

You have requested legal opinions on two issues. First, you requested a legal opinion regarding whether an adoption granted by the Children's Court of the Fort Belknap Indian Community of the Fort Belknap Indian Reservation was in accordance with the "Customary Adoption of the Fort Belknap Law & Order Code." Second, you requested a legal opinion regarding whether such an adoption granted by the Children's Court of the Fort Belknap Indian Community of the Fort Belknap Indian Reservation was a valid adoption.

For the reasons discussed below, we believe that an adoption granted by the Children's Court of the Fort Belknap Indian Community of the Fort Belknap Indian Reservation is in accord with the "Customary Adoption of the Fort Belknap Law & Order Code," and that the adoption was valid.

LAW

Federal Law

Although Indian tribes are "'subject to ultimate federal control, they nonetheless remain a separate people, with the power of regulating their internal and social affairs.'" Memorandum, Questionable Child Relationship-South Dakota, CC VIII (Prescott) to RC, SSA, May 18, 1994 (quoting United States v. Wheeler, 435 U.S. 313, 322 91978) (Internal quotation marks and citations omitted). "The Indian Child Welfare Act of 1978, 25 U.S.C.[] §§ 1901-1963, governs the adoption of Indian children." Memorandum, Status of Adopted Child . . ., CC VIII (F~) to ARC, SSA, May 9, 1994. Specifically, the Indian Child Welfare Act ("ICWA") provides: "An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe." 25 U.S.C. § 1911(a). "Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence of the child." Id.

"The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity." Id. § 1911(d).

A child may be eligible for Social Security benefits as an insured's child if she was legally adopted by the insured. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. § 404.356 (1998).

Fort Belknap Tribal Code

"The Fort Belknap Indian Community Tribal Court shall have jurisdiction to hear, pass upon, and approve applications for adoption of or by members of the Gros Ventre and Assiniboine Tribes following the provisions of state law or any ordinance adopted by the Fort Belknap Indian Community Counsel governing adoptions." Fort Belknap Tribal Code (Revised 1979)("FBTC"), Title IX, § 3 (emphasis added) (copy of pertinent Title and section attached at Tab 1). Section 3, subsections (A)-(F) provide that an adoption proceeding "shall be instituted by filing an application"; "any minor Indian child may be adopted by an Indian person or persons"; the applicants "shall appear before the Court to be examined"; a child over the age of fourteen must appear before the Court and consent to such adoption; and, if it is in the best interests of the child based upon all of the facts, the Court "shall enter an order accordingly which shall be kept in the records of the Fort Belknap Community, Bureau of Indian Affairs, and Bureau of Vital Statistics of the State of Montana." 9 FBTC § 3(A)-(F).

"Indian Customary adoption" is

[a]n adoption according to Tribal custom which involves the placement of a youth by its natural parent(s) with another extended family member or another family but without any court proceedings or involvement. After a period of one (1) year in the care of another family or extended family member, the Court will recognize that the adoptive parent(s) in a custom[ary] adoption has certain rights over the child even though parental rights of the natural parent(s) have never been terminated.

12 FBTC § 2.20 (copy of pertinent Title and Section attached at Tab 2).

DISCUSSION

Facts

On February 5, 1997, the Honorable Virginia A. C~ of the Children's Court of the Fort Belknap Indian Community of the Fort Belknap Indian Reservation, Montana, issued a Final Order granting the adoption petition of Leroy and Ruth L~ concerning Renae L. L~ D~ ("Renae") (see Final Order dated February 5, 1997). This Final Order indicated that, in accordance with 9 FBTC § 3(A)-(F) and 12 FBTC § 2.20, the L~s had custody of Renae for at least one year prior to filing a petition to adopt her; both natural parents filed their written consent to her adoption; the L~s appeared and testified at a hearing; and, in Renae's best interests, the adoption petition was granted (see Final Order dated February 5, 1997 in attached Claims File). The Order stated that Renae was to be recognized as the L~s' legal daughter entitled to all inheritance rights due to their biological children (id.). The Final Order also recognized that "the parental rights have not been terminated in accordance with Indian Customary Adoption" (id.).

Validity of Adoption Decree

Assuming that the L~s and Renae were members, and under the purview, of the Fort Belknap Indian Community of the Fort Belknap Indian Reservation, the Children's Court of the Fort Belknap Indian Community of the Fort Belknap Indian Reservation properly had jurisdiction of Renae's custody and adoption pursuant to 25 U.S.C. § 1911(a) and 9 FBTC § 3. See also Fisher v. District Court, 424 U.S. 382 (1976) (per curium) (concluding that an adoption proceeding was "within the Tribal Court's exclusive jurisdiction" despite the fact that the child's birth and the marriage and divorce of his parents occurred off the reservation). Further, the Final Order dated February 5, 1997, resulting from an Indian child custody proceeding, constituted a "public act, record, or judicial proceeding" entitled to the full faith and credit of the United States. See 25 U.S.C. § 1911(d).

Recognizably, the Final Order at issue is not on record with either the Bureau of Indian Affairs or the Bureau of Vital Statistic of the State of Montana as set forth in the Fort Belknap Tribal Code. Such an oversight is not fatal to the validity of the Tribal Court's order. Rather the filing of an Order is a mere ministerial requirement. The failure to comply with a merely ministerial requirement of law does not invalidate the actions taken under that law. Cf. Van Beurden Insurance Services, Inc. v. Customized Worldwide Weather Insurance Agency, Inc., 931 P.2d 344, (Cal. 1997) ("Party's submission of pleading within prescribed time period was timely, even though court clerk delayed performance of ministerial act of filing the pleading until after the prescribed time period expired); Woodward v. Perkins, 171 P.2d 997, 998, 1000 (Mont. 1946) (the pronouncement of judgment is a judicial act which takes effect from the time it is pronounced; while its entry on the record is merely ministerial).

The term "Customary Indian adoption" in paragraph five of the Final Order does not defeat or otherwise invalidate the Final Order nor the adoption. Likewise, not terminating the natural parents' parental rights in accordance with "Customary Indian adoption" does not invalidate the Final Order or the adoption. "Customary Indian adoption" is simply a term describing the method of adoption as recognized by Tribal custom and defined in, and provided by, the Fort Belknap Tribal Code concerning a matter which falls under Tribal jurisdiction as provided by the Indian Child Welfare Act and the Fort Belknap Tribal Code. 12 FBTC § 2.20. Under "Customary Indian adoption" although the Tribal Court does not terminate the natural parent's parental right, it exercises discretion on a case by case basis to resolve any questions that arise over who has greater rights over the adoptee and who has the right to raise the adoptee as their "biological child." 12 FBTC § 2.20. More specifically, the Tribal Court granted the L~s the legal right to raise Renae as their own child, and Renae the legal inheritance rights from the L~s. See Final Order dated February 5, 1997.

Thus, Renae was legally adopted under the jurisdiction, laws, policies, and customs of the Fort Belknap Community of the Fort Belknap Reservation and her adoption must be recognized as a legal adoption by the Social Security Administration. In this case, Renae may be eligible for benefits as the L~s' legally adopted daughter. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. § 404.356 (1998).


Footnotes:

[1]

We reviewed the Montana statutes on adoption in effect during 1993-95, and found no significant changes in the State's adoption laws during that period.

[2]

If one of M~'s parents had applied for benefits on M~'s account, we assume you would have told us. If a parent did apply for benefits on M~'s account, however, further Montana Supreme Court would consider the statutory requirement of a description of the child's property to be nonjurisdictional in the context of an adult adoption and would deem the requirement waived. See Thomas A. J~, Children and the Law: Rights and Obligations § 4.38 (West 2007) (failure to follow statutory requirements for adoption may be fatal, but a court may find that a requirement is not jurisdictional and can be waived); CJS, Adoption § 81 (adoption petition will confer jurisdiction if it substantially complies with the statute).


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PR 01310.029 - Montana - 05/13/2011
Batch run: 05/13/2011
Rev:05/13/2011