QUESTION PRESENTED
Number holder Clarence (NH) signed a judicial surrender to give up parental rights
of his auxiliary beneficiary Joseph , his adopted child. Is the judicial surrender
of parental rights sufficient to annul the adoption order and thus terminate Joseph’s
benefits?
OPINION
Number holder Clarence (NH) signed a judicial surrender to give up parental rights
of his auxiliary beneficiary Joseph , his adopted child. Is the judicial surrender
of parental rights sufficient to annul the adoption order and thus terminate Joseph’s
benefits?
FACTS
On May 10, 2005, the NH and his wife, Diana, adopted Joseph through the Family Court
of the State of New York, County of Oneida. At the time, Joseph was five years old.
On June 28, 2007, the NH filed for Social Security retirement benefits, listing Joseph
as his adopted child. That same day, an application for auxiliary benefits was filed
on Joseph’s behalf.
On November 17, 2010, Diana signed a judicial surrender in the Family Court, County
of Oneida. This document stated that Diana gave up all parental rights of custody
and contact with Joseph. Diana also completed an Adoption Information Registry birth
parent registration form. On December 6, 2010, the Honorable Randal , Judge of the
Family Court, signed an order approving a judicial surrender executed on November
18, 2010, by the NH.
A letter dated August 5, 2011, from Donna, Court Clerk of the Family Court of the
State of New York, County of Oneida, indicated that the NH and Diana surrendered the
rights to their child on November 17, 2010.
Upon being contacted by an agency employee on August 6, 2011,
ANALYSIS
A child may be entitled to Social Security benefits as an insured’s child if he was
legally adopted by the insured. Social Security Act (Act) §§ 202(d), 216(e), 42 U.S.C.
§§ 402(d), 416(e); 20 C.F.R. §§ 404.350, 404.356.
Section 202(d)(1) of the Act and 20 C.F.R. § 404.352(b) set out the provisions for
termination of entitlement to child’s insurance benefits. The termination of parental
rights is not included among the terminating events, and therefore would not result
in a termination of benefits. See Social Security Ruling (SSR) 91-6 (In case where number holder adopted child and
child was subsequently adopted by his natural mother, second adoption by someone other
than number holder is not included among the terminating events and therefore an adoption
will not result in a termination of benefits). However, an adopted child’s entitlement
to benefits is terminated “if the adoption is annulled.” POMS RS 00203.035(B)(3); SSR 91-6. As noted by SSR 91-6, “[t]his is so because in such a case the adoption
is invalidated and determined never to have legally existed.”
Joseph was found entitled to benefits on the NH’s account as his legally adopted child
in June 2007 by order of the Family Court of the State of New York, County of Oneida.
Accordingly, we would look to the law of New York to determine whether Joseph’s adoption
was valid or subsequently annulled. 20 C.F.R. § 404.356; SSR 91-6p. Under New York
law, the only vehicle to challenge the validity of the adoption is to petition the
court that granted the adoption to vacate the adoption decree. “In like manner as
a court of general jurisdiction exercises such powers, a judge or surrogate of a court
in which the order of adoption was made may open, vacate or set aside such order of
adoption for fraud, newly discovered evidence or other sufficient cause.” N.Y. Dom.
Rel. Law § 114 (3).
Here, the record does not show an order vacating the adoption decree. Rather, the
NH and Diana elected to surrender their parental rights to Joseph so that he can be
adopted by another party. See N.Y. Soc. Serv. Law § 383-c. The order submitted here approved the surrender executed
by the NH and Diana, but it did not vacate the previous adoption decree. Thus, the
adoption of Joseph by the NH and Diana was not annulled.
CONCLUSION
The judicial surrender does not vacate the adoption decree; thus, Joseph’s adoption
was not annulled. Accordingly, Joseph is still entitled to auxiliary benefits on the
NH’s account.
Very truly yours,
Mary Ann Sloan
Regional Chief Counsel
By:_____________
Christopher J. Brackett
Assistant Regional Counsel