TN 33 (12-14)

PR 01310.035 New York

A. PR 15-030 Jermaine – Validity of Adoption of Individual Adopted as an Adult by Number Holder Malvina – New York Law

DATE: November 19, 2014

1. SYLLABUS

Under New York law, there is no restriction on the age of the adoptive child. The amended birth certificate and the August 8, 2012 Order of Adoption from the Bronx County Surrogate’s Court provide is sufficient evidence that the NH’s adoption of the Claimant was a legal adoption in the state where it occurred. Under New York law, the Claimant is the NH’s legally adopted child. Therefore, assuming other requirements such as dependency and disability prior to age 22 are met, the Claimant would be entitled to child disability benefits on the record of the NH as the NH’s child.

2. OPINION

QUESTION PRESENTED

The number holder, Malvina (NH), adopted the claimant, Jermaine (Claimant), when he was over age 21. You have asked whether this adoption is valid.

OPINION

Under New York law, the Claimant is the NH’s legally adopted child. Therefore, assuming other requirements such as dependency and disability prior to age 22 are met, the Claimant would be entitled to child disability benefits on the record of the NH as the NH’s child.

BACKGROUND

The Claimant, whose date of birth is January, receives SSI disability benefits. The NH receives Social Security retirement benefits. The Claimant has been living with the NH for over 32 years.

The NH adopted the Claimant on August 8, 2012. The record contains a copy of an Order of Adoption from the Surrogate’s Court, Bronx County, New York. The NH and the Claimant were domiciled in New York at the time of the adoption. Claimant’s amended birth certificate dated September 11, 2012 reflects that the NH was his mother at that time.

On October 18, 2012, the NH filed for child disability benefits for the Claimant on her record.

ANALYSIS

We believe that the Claimant has presented sufficient evidence to establish that the NH is his adoptive parent under New York adoption law.

  1. Entitlement to Child’s Benefits – In General

    A child may be entitled to Social Security benefits as an insured’s child if he was legally adopted by the insured. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. §§ 404.350, 404.356. To determine whether a child is the insured’s legally adopted child, the Social Security Administration will apply the adoption laws of the state in which the adoption took place. 20 C.F.R. § 404.356; Program Operations Manual System (POMS) GN 00306.135. At least one party to the adoption, either the child or the adopting parent, must have been domiciled or actually residing in the state where the adoption took place at the time it occurred for the adoption to be considered valid. POMS GN 00306.135(1).

  2. New York Adoption Law

    Under New York law, an “adoptive parent...shall mean a person adopting” and “adoptive child…shall mean a person adopted.” N.Y. Dom. Rel. Law § 109 (West 2014). The law places no restriction on the age of the adoptive child. N.Y. Dom. Rel. Law § 110 (stating that an unmarried adult, a married adult couple, or any two unmarried adult intimate partners together may adopt another person) (West 2014); Matter of Robert P~., 63 N.Y.2d 233, 237 (N.Y. 1984) (stating that the adoption of an adult has long been permitted under the Domestic Relations Law). The adoption must be for the express purpose of legally formalizing a parent-child relationship and be in the best interests of the adoptive child. Matter of Robert P~, 63 N.Y. 2d at 237 (citation omitted). The adoption cannot be either insincere or fraudulent. In re Adult Anonymous II, 452 N.Y.S. 2d 198, 199 (N.Y. App. Div. 1982) (stating that the law is well settled that adoption of an adult by another adult is permissible so long as the parties’ purpose is neither insincere nor fraudulent (citation omitted).

    An effect of adoption in New York is that “[t]he adoptive parents or parent and the adoptive child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation…” N.Y. Dom. Rel. Law § 117 (West 2014).

    Here, the amended birth certificate and the August 8, 2012 Order of Adoption from the Bronx County Surrogate’s Court provide sufficient evidence that the NH’s adoption of the Claimant was a legal adoption in the state where it occurred. POMS GN 00306.155(A), (B)(1). In addition, both the Claimant and the NH resided in New York at the time of the adoption. See POMS GN 00306.135(1).

CONCLUSION

Under New York law, the Claimant is the NH’s legally adopted child. Therefore, assuming other requirements such as dependency and disability prior to age 22 are met, the Claimant would be entitled to child disability benefits on the NH’s account.

B. PR 14-005 Timothy - Paternity – Validity of Adoption of Individual Adopted as an Adult by Number Holder Carolann - New York Law

DATE: October 24, 2013

1. SYLLABUS

New York law places no restriction on the age of the adoptive child. The adoption must be for the express purpose of legally formalizing a parent-child relationship and be in the best interests of the adoptive child. The adoption cannot be either insincere or fraudulent.  The effect of adoption in New York is the adoptive parents or parent and the adoptive child shall sustain towards each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from and through each other.  Although an amended birth certificate listing the adoptive parent(s) is the preferred evidence for proving a legal adoption, the purpose of requiring an amended birth certificate is to establish that there was a final decree of adoption. Therefore, the Order of Adoption from the Queens County Family Court is sufficient evidence in this case.  Under New York law, the claimant is the NH's legally adopted child. Therefore, assuming other requirements such as dependency and disability prior to age 22 are met, the claimant would be entitled to child disability benefits on the NH's account.

2. OPINION

QUESTION PRESENTED

The number holder, Carolann (NH), adopted the claimant, Timothy (the Claimant), when he was over age 21. You have asked whether this adoption is valid.

OPINION

Under New York law, the Claimant is the NH’s legally adopted child.  Therefore, assuming other requirements such as dependency and disability prior to age 22 are met, the Claimant would be entitled to child disability benefits on the record of NH as the NH’s child. 

BACKGROUND

The Claimant, whose date of birth is January, is a disabled individual receiving SSI Disability benefits. The NH receives Social Security Retirement benefits.  She is a licensed foster care provider through the Bernard Developmental Disabilities Service Office. The Claimant has been living with her since 1989. 

The NH adopted the Claimant on March 26, 2013. The record contains a copy of an Order of Adoption from the Family Court, Queens County, New York. The NH and the Claimant were domiciled in New York at the time of the adoption. 

On March 27, 2013, the NH filed for child disability benefits for the Claimant on her record.

ANALYSIS

We believe that the Claimant has presented sufficient evidence to establish that the NH is his adoptive parent under New York adoption law.

A. Entitlement to Child’s Benefits – In General

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); 20 C.F.R. §§ 404.350, 404.356.  To determine whether a child is the insured’s legally adopted child, the Social Security Administration will apply the adoption laws of the state in which the adoption took place. 20 C.F.R. § 404.356; Program Operations Manual System (POMS) GN 00306.135. At least one party to the adoption, either the child or adopting parent, must have been domiciled or actually residing in the state where the adoption took place at the time it occurred for the adoption to be considered valid. POMS GN 00306.135(1).

B. New York Adoption Law

Under New York law, an “adoptive parent . . . shall mean a person adopting” and “adoptive child shall mean a person adopted.” N.Y. Dom. Rel. Law § 109 (West 2013).  The law places no restriction on the age of the adoptive child, stating that an unmarried adult or married adults together may adopt another person. N.Y. Dom. Rel. Law § 110 (West 2013); Matter of Adoption of Robert, 63 N.Y.2d 233, 236 (1984); see In re Adult Anonymous II, 452 N.Y.S. 2d 198 (N.Y. App. Div. 1982) (holding that a 32-year-old male could adopt a 43-year-old male). However, the adoption must be for the express purpose of legally formalizing a parent-child relationship and be in the best interests of the adoptive child. Adoption of Robert ., 63 N.Y. 2d at 237 (citation omitted).  Further, the adoption cannot be either insincere or fraudulent. Adult Anonymous II, 452 N.Y.S. 2d at 31 (citation omitted). 

The effect of adoption in New York is “[t]he adoptive parents or parent and the adoptive child shall sustain towards each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from and through each other.” N.Y. Dom. Rel. Law § 117 (West 2013).

Here, the March 26, 2013 Order of Adoption from the Queens County Family Court provides sufficient evidence that the NH’s adoption of the Claimant was a legal adoption in the state where it occurred. POMS GN 00306.155B.1.  Additionally, both the Claimant and the NH resided in New York at the time of the adoption. POMS GN 00306.135(1).  Although an amended birth certificate listing the adoptive parent(s) is the preferred evidence for proving a legal adoption, the purpose of requiring an amended birth certificate is to establish that there was a final decree of adoption. See POMS GN 00306.155A. Therefore, the Order of Adoption from the Queens County Family Court is sufficient evidence in this case.

CONCLUSION

Under New York law, the Claimant is the NH’s legally adopted child.  Therefore, assuming other requirements such as dependency and disability prior to age 22 are met, the Claimant would be entitled to child disability benefits on the NH’s account.

C. PR 14-003 Mason - Validity of Adoption by Number Holder Jerry – Haudenosaunee law

DATE: October 11, 2013

1. SYLLABUS

Assuming other eligibility requirements are met, a child legally adopted by the number holder (NH) under Haudenosaunee law would be entitled to benefits on the NH’s account as the NH’s child.

2. OPINION

QUESTION PRESENTED

You asked whether the adoption of Mason by number holder (NH) Jerry, which took place pursuant to Haudenosaunee law, at a Mohawk Nation Longhouse, was valid such that Mason could be entitled to auxiliary child’s benefits on the NH’s record.

OPINION

Under Haudenosaunee law, Mason is the NH’s legally adopted child. Therefore, assuming other eligibility requirements (such as dependency) are met, Mason would be entitled to benefits on the NH’s account as the NH’s child.

BACKGROUND

Mason was born on December, in Cornwall, Canada. Mason and the NH, Mason’s paternal grandfather, are members of the Haudenosaunee body of Native American tribes.

The NH filed an application for auxiliary child’s benefits on behalf of Mason on March 5, 2013. The NH resides at Hogansburg, NY 13655, which appears to be on the Mohawk reservation. In connection with this application, the NH submitted documentation that he and his wife, Johanne, 1 adopted Mason on February 10, 2013. This documentation took the form of a letter dated February 11, 2013, on official Haudenosaunee letterhead, documenting the facts surrounding the adoption and certifying that the adoption was carried out in accordance with traditional Haudenosaunee law and customs.

ANALYSIS

  1. Entitlement to Child’s Benefits as an Adopted Child – In General

    A child may be entitled to Social Security benefits as an insured’s child if she was legally adopted by the insured. Social Security Act § 202(d), 216(e), 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. §§ 404.350, 404.356.2 To determine whether a child is the insured’s legally adopted child, Social Security Administration will apply the adoption laws of the State or foreign country where the adoption took place. 20 C.F.R. § 404.356. To be legal, an adoption must be valid under the law of the State or foreign country where it took place. Program Operations Manual System (POMS) GN 00306.135(1). At least one party to the adoption, either the child or adopting parent, must have been domiciled or actually residing in the jurisdiction where the adoption took place at the time it occurred for the adoption to be considered valid. POMS GN 00306.135(1).

  2. Haudenosaunee Adoption Law

    As the adoption in this case was an intra-tribe adoption that took place in Haudenosaunee territory, the adoption is subject to Haudenosaunee law 3 See POMS PR 01310.029 (PR 00-088), Validity of Adoption Proceedings In A Native American Indian Tribal Court Within The State of Montana (May 17, 1999) (“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”); POMS PR 01310.026 (PR-06-168), MOS-Minnesota: Validity of Tribal Customary Adoption By The Children’s Court of the White Earth Tribal Court (June 21, 2006) (“…the White Earth Tribe has exclusive jurisdiction over Kianna's adoption proceeding, and the laws of the White Earth Band of Ojibwe therefore apply to determine whether Kianna's adoption by her grandparents was valid”).

    The Haudenosaunee is a body of six Native American tribes that were collectively known as the Iroquois to early American settlers. 4 The six tribes are the Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora. Unlike some other tribes, the Haudenosaunee do not have a formal code of laws or regulations. Instead, the Haudenosaunee rely on a body of laws known called the Gayanashagowa, or “Great Law of Peace,” which is sometimes referred to as The Constitution of the Iroquois Nation.5 The Gayanashagowa was originally recorded on a series of wampum belts but has since been translated into English.

    The Gayanashagowa contains a section translated to mean “Laws of Adoption,” which states the following:

    Any member of the Five Nations 6 who through esteem or other feeling wishes to adopt an individual, a family or number of families may offer adoption to him or them and if accepted the matter shall be brought to the attention of the Lords for confirmation and the Lords must confirm adoption.

    When the adoption of anyone shall have been confirmed by the Lords of the Nation, the Lords shall address the people of their nation and say:

    Now you of our nation, be informed that such a person, such a family or such families have ceased forever to bear their birth nation's name and have buried it in the depths of the earth. Henceforth let no one of our nation ever mention the original name or nation of their birth. To do so will be to hasten the end of our peace.

Constitution of the Iroquois Nation, section 1.7. 7 As such, the Haudenosaunee’s Constitution provides a general explanation of what historically constituted valid procedures for adoption within their nation.

In this case, the NH provided a letter from the Mohawk Nation Council of Chiefs, Clan Mothers, and Faith Keepers as evidence of Mason’s adoption. This letter was signed by three representatives of the Council of Chiefs and documented the events surrounding Mason’s adoption at the Mohawk Nation Longhouse. Specifically, representatives of the Turtle, Wolf, and Bear clans certified that on February 10, 2013, the Mohawk Nation Council of Chiefs approved Mason’s adoption by the NH and his wife, and conducted the adoption in the presence of Mason’s biological parents. The letter also stated that the adoption was witnessed and confirmed by “a full Council of Chiefs and Clan Mothers.” Additionally, the Council of Chiefs confirmed that speeches were given and the newly formed family was welcomed “according to traditional Haudenosaunee law.”

Given federal law’s deference to Native American tribes on matters of adoption, 8 and the specific documentation provided by the tribe certifying the circumstances and consistency of Mason’s adoption with traditional Haudenosaunee law and customs, we believe that the adoption is valid. Specifically, the February 11, 2013 letter from the Mohawk Nation Council of Chiefs provides sufficient evidence that the NH’s adoption of Mason was a valid adoption in the jurisdiction in which the adoption took place. POMS GN 00306.135; see GN 00306.155A. Additionally, the NH resided on the Mohawk reservation at the time of Mason’s adoption. POMS GN 00306.135(1).

CONCLUSION

Under Haudenosaunee law, Mason is the NH’s legally adopted child. Assuming other eligibility requirements are met, Mason is entitled to benefits on the NH’s account as the NH’s child.

D. PR 12-074 Termination of Child’s Benefits—Sufficiency of documentation of Joseph (a.k.a. Joseph) has been annulled

DATE: March 15, 2012

1. SYLLABUS

Under New York law, an adoption is annulled only if the adoption decree is vacated for fraud, newly discovered evidence, or other sufficient cause. While the judicial surrender executed by the NH terminated his parental rights over Joseph, the surrender was not a court order vacating the adoption decree. Accordingly, the adoption was not annulled.

2. OPINION

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


Footnotes:

[1]

Although we have used the NH and Johanne’s names as they appear in agency records, they are referred to in the Council of Chief’s documentation as Jerry and Johanne.

[2]

The legally adopted child must also meet dependency requirements. 20 C.F.R. § 404.362; POMS GN 00306.136-137.

[3]

We also note that the Indian Child Welfare Act (ICWA) grants an Indian tribe exclusive jurisdiction over child custody proceedings involving an Indian child who resides or is domiciled within the reservation of such a tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. 25 U.S.C. § 1911(a); see 25 U.S.C. § 1903(d)(1) (child custody proceedings include adoption).

[4]

For more general information on the Haudenosaunee, see, e.g., Haudenosaunee Guide for Educators, National Museum of the American Indian, http://nmai.si.edu/sites/1/files/pdf/education/HaudenosauneeGuide.pdf (last accessed October 10, 2013); The official website of the Haudenosaunee Confederacy, http://www.haudenosauneeconfederacy.com/index2.html (last accessed October 10, 2013).

[5]

See Constitution of the Iroquois Nation, Electronic Text Center, University of Virginia Library, http://etext.lib.virginia.edu/toc/modeng/public/IroCons.html (last accessed October 10, 2013). Other translations are available online and are consistent with the passages cited below, with minor variations in wording.

[6]

A sixth tribe was later added. Haudenosaunee Guide for Educators, supra, page 3.

[7]

Available at http://etext.lib.virginia.edu/etcbin/toccer-new2?id=IroCons.xml&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=7&division=div2 (last accessed October 10, 2013).

[8]

See e.g., 25 U.S.C. § 1911(a).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501310035
PR 01310.035 - New York - 12/01/2014
Batch run: 12/01/2014
Rev:12/01/2014