TN 26 (02-14)

PR 01310.041 Oregon

A. PR 14-024 Relationship of Child to Number Holder – Carole

DATE: December 14, 2012

1. SYLLABUS

Oregon does not prohibit more than one unmarried person from adopting the same child. Oregon’s Family Fairness Act permits unmarried same-sex couples who are registered domestic partners to use the step-parent adoption procedures to effect a second-parent adoption. A second-parent adoption allows a same-sex partner to legally adopt his or her partner’s biological child without terminating the biological parent’s parental status.  Oregon law further provides that after the expiration of one year from the entry of a final judgment of adoption, no one may question the validity of the adoption for any reason. In this case, Carole’s adoption of Max is valid and she is the child’s parent under Oregon Law because a court has not entered a declaration of invalidity or raised any other challenge to her parentage

2. OPINION

QUESTION PRESENTED

Whether the State of Oregon recognizes Max as the child of Carole. Carole is the adoptive parent of the child. She and Max live with the child’s biological mother, Laura.

SHORT ANSWER

The State of Oregon recognizes Carole as the legal “parent” of Max pursuant to a presumptively valid judgment of adoption entered by the Jackson County Circuit Court.

SUMMARY OF EVIDENCE

Carole, the number holder, has filed for retirement insurance auxiliary benefits for Max, who was born in 1999 to Laura. The child was conceived through artificial insemination by an anonymous donor. At the time of the child’s birth, Laura was not married. The certificate of live birth – recorded in 1999 and issued in 2007 – identifies Max’s parents as Carole and Laura. 

Carole and Laura filed an interim petition for the adoption of Max in the Jackson County Circuit Court. The petition states Laura consented to the adoption. In 2000, after finding Carole “a fit and proper person to adopt Max . . . ,” the Jackson County Circuit Court granted the adoption petition and entered a judgment of adoption stating “Max shall to all legal intents and purposes be the child of Laura and Carole as if born to them in lawful wedlock.” Max’s numident (NUMI) record was subsequently updated and lists Carole as his “mother” and Laura as his “father.” 1  

Evidence in the file shows Carole, Max, and Laura reside in the same household in Nebraska. After Carole filed for retirement insurance benefits and auxiliary child benefits, the Kansas City Region requested our assistance in obtaining an opinion about whether the state of Oregon recognizes Max as the adopted child of Carole.

ANALYSIS

  1. Applicable Federal Law

    The Social Security Act provides that children of an insured wage earner who is eligible for old age benefits may be entitled to Child Insurance Benefits, if the child is under the age of 18. 42 U.S.C. § 402(d). Under the Act, a “child” means:

    . . . (1) the child or legally adopted child of an individual . . . [or] . . . a person who is the grandchild of an individual or his spouse, but only if (a) there is no natural or adoptive parent . . .

    42 U.S.C. § 416(e). 

    The Act directs that when determining whether an applicant is the insured’s legally adopted child, the agency looks to the adoption laws of the State where the adoption took place.  20 C.F.R. § 404.356. 

  2. Applicable Oregon Law

    Oregon laws include a biological or adoptive mother within the definition of a “parent.” Or. Rev. Stat. § 419A.004(16). In Oregon, adoption involves a two-step process:  first, the rights of the natural parents are terminated, and second, a new legal parent-child relationship is established. 2

     See Or. Rev. Stat. §§ 109.305-.410 (2012).  In the ordinary case, adoption statutes require the consent of both natural parents prior to termination of their rights. In re Adoption of Smith, 229 Or. 277, 366 P.2d 975 (Or. 1961). Except for step-parent adoptions, the legal rights of both biological parents in Oregon are terminated so that the adoptive parents can acquire all of the legal rights and responsibilities relinquished by the natural parents. First Nat’l Bank v. Schwerin, 54 Or.App. 460, 635 P.2d 388 (1981). 

    In this case, Max was conceived by artificial insemination from an anonymous donor. The General Judgment of Adoption states Laura’s parental rights were not altered or terminated when Carole adopted Max. Rather, Laura retained her parenting status while consenting to Carole’s adoption of the child.  Although Max has a biological mother who did not relinquish her parenting rights, Oregon does not prohibit more than one unmarried person from adopting the same child. Oregon’s Family Fairness Act permits unmarried same-sex couples3

    who are “registered domestic partners” (RDPs) to use the step-parent adoption4  

    procedures to effect a “second-parent adoption.” A second-parent adoption allows a same-sex partner to legally adopt his or her partner’s biological child without terminating the biological parent’s parental status. Second-parent adoptions under Oregon domestic partnership laws are consistent with Oregon’s liberal statutory construction of its adoption laws, which advance the statute’s underlying purpose of promoting the child’s best interests. Or. Rev. Stat. § 109.305(1).

    Even if Carole and Laura were not in a comprehensive legal relationship at the time of the child’s conception, Oregon appellate decisions have favored extending the state’s marriage-based reproduction provisions equally to a child born to a lesbian couple via artificial insemination. Shineovich & Kemp, 229 Or. App. 670, 687 (2009). 

    More importantly, the Jackson County Circuit Court entered a final judgment of adoption in 2000, which is presumptively valid under Oregon law. Or. Rev. Stat. § 109.381.  Oregon law further provides that after the expiration of one year from the entry of judgment, “no one may question the validity of the adoption for any reason, either through collateral or direct proceedings . . . .” Or. Rev. Stat. § 109.381(3). Unless and until a court enters a decree of invalidity, the adoption is deemed valid, and Max is Carole’s adoptive child.5   

CONCLUSION

It is our opinion that Carole’s adoption of Max is valid and she is the child’s “parent” under Oregon Law because a court has not entered a declaration of invalidity or raised any other challenge to her parentage. 

B. PR 04-111 Eligibility for Auxiliary Child Benefits Pursuant to a Kazakhstani Adoption Number Holder - Cynthia SSN ~

DATE: March 12, 2004

1. SYLLABUS

The child claimant was adopted in Kazakhstan after the NH became entitled to DIB. A decree of adoption was subsequently entered by an Oregon court. Because a child adopted after the NH's entitlement must be adopted by a court of competent jurisdiction in the U.S., and the Oregon adoption decree satisfies this requirement, the child is deemed dependent on the NH. There is no need to evaluate the Kazakhsani adoption decree.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for our legal opinion on the question: Is a child adopted in Kazakhstan, after the adoptive parent began receiving disability insurance benefits, eligible for auxiliary child benefits?

SHORT ANSWER

SSA regulations require that there be evidence of the child's dependence on the number holder to be eligible for Title II benefits. After consideration of the relevant facts and law, we conclude that the Adoption Decree entered in Oregon adequately establishes a legal adoption, thereby entitling the child to benefits.

FACTUAL BACKGROUND

Garri was born on October, in the city of Almata in the republic of Kazakhstan. On March 31, 2003, Garri was declared adopted in the Bostandyk District Court by United States citizens, David and Cynthia. An adoption certificate was issued from the Bostandyk District Office of Vital Statistics on April 1, 2003. On August 11, 2003, Cynthia filed for auxiliary child's benefits based on her receipt of disability insurance benefits (DIB) beginning in August 2000.

The D~ residents of the State of Oregon, filed a Petition for Decree of Adoption in the Jackson County Circuit Court of Oregon on September 22, 2003. A Decree of Adoption was entered by the Court on December 31, 2003. Concurrently, Garri's name was changed to Garrick . A Certificate of Foreign Birth was issued by the State of Oregon on January 23, 2004, declaring Cynthia and David as the parents of Garrick.

DISCUSSION

A. Statutory and Regulatory Background

1. Regulations

Garrick is entitled to Title II child's insurance benefits on Cynthia's account only if he is Cynthia's "child" under a relationship defined in 20 C.F.R. §§ 404.355 through 404.359. See 20 C.F.R. 404.350(a)(1). Garrick does not meet the definitions of a natural child, stepchild, grandchild, or equitably legally adopted child under 20 C.F.R. §§ 404.355, 404.357, 404.358, or 404.359. The relevant question is whether Garrick is recognized as a legally adopted child under 20 C.F.R. § 404.356. Under that section, the adoption laws of the State or the foreign adoption laws where the adoption took place apply, and not the State inheritance laws. However, as explained below, we do not need to evaluate the Kazakhstani adoption laws for DIB benefits where an adoption decree has also been entered in a State Court, as in this case.

2. Statutes

Under 42 U.S.C. § 402 (d)(1)(C)(i), a child is entitled to auxiliary benefits if the child was dependent upon the number holder at the time of the application for child's benefits. However, in the case of DIB, a child adopted after DIB entitlement is not considered dependent unless the child was legally adopted in an adoption decreed by a court of competent jurisdiction within the United States. 42 U.S.C. §§ 402 (d)(8)(B), 402(d)(8)(D)(i). See also POMS GN 00306.137. This section overrides the necessity to consider the adoption laws of Kazakhstan, pursuant to 20 C.F.R. § 404.356, because of the statutory requirement that there be an adoption decree entered in a United States Court. A regulation cannot be interpreted independently of the statute under which it was promulgated. Hunsaker v. Contra Costa County, 149 F.3d 1041, 1043 (9th Cir. 1998). Therefore, we need only inquire if there was an adoption decree entered in any State court. In this case, we have been provided with a copy of the Decree of Adoption entered on December 31, 2003, in the Jackson County Court.

B. Oregon Statutes

The parent-child relationship is established when the adoption is effective under State law. See POMS GN 00306.135. In Oregon State, an adoption is effective on the date of the decree. See OR. REV. STAT. § 109.350; see also POMS GN 00306.160.

C. Case Law

There are no Ninth Circuit federal cases or Oregon State cases that address this issue or these statutes and regulations.

CONCLUSION

Garrick is entitled to benefits as the legally adopted child of Cynthia, based on the Decree of Adoption entered in Oregon State court. His entitlement begins on the date of entry of the Decree, December 31, 2003.

Lucille G. Meis
Regional Chief Counsel

By: /s/__________
Joanne E. Dantonio
Assistant Regional Counsel


Footnotes:

[1]

We previously contacted the Amendment Unit, Oregon Vital Records office, about gender designations in official records, such as birth certificates. We learned that the standard “Adoption Report” form used in Oregon to furnish information for amending a birth certificate allows only two choices for adoptive parents: “mother” and “father.” The Amendment Unit asks attorneys to cross-out “mother” and “father” and write in “parent” and “parent” when two women or two men adopt. Max’s birth certificate has the same gender designations as his NUMI, which may explain the references to “mother” and “father” in these records.

[2]

It is the explicit policy of the state of Oregon “that adoption is based upon the legal termination of parental rights and responsibilities of birth parents and the creation of the legal relationship of parents and child between adoptee and the adoptive parents.” Or. Rev. Stat. § 109.430.

[3]

Although Oregon law does not recognize same-sex marriages, Oregon does not preclude the state from recognizing parentage in this instance or the validity of the adoption.  Rather, Oregon permits same-sex couples to adopt based on the rationale that the relationship between the proposed adoptive parents is the functional equivalent of the traditional husband-wife relationship, albeit between same-sex couples or unmarried partners. Shineovich & Kemp, 229 Or. App. 670, 687 (2009)(extending the presumption of parentage to the same-sex domestic partner of a woman who gave birth to a child conceived by artificial insemination). In this case, this recognition is evidenced by the adoption decree, which states “Max . . . shall to all legal intents and purposes be the child of Laura . . . and Carol . . . as if born to them in lawful wedlock.”

[4]

Oregon’s step-parent adoption statute provides a married person can adopt his or her spouse’s child without altering the parental rights of the other spouse. Or. Rev. Stat. § 109.041(2).   There is, however, no specific statute allowing an unmarried couple to adopt in this manner in Oregon, nor does Oregon recognize same-sex marriage. Li v. State of Oregon, 338 Or. 376, 110 P.3d 91 (2005). In 2007, however, the Oregon legislature passed the Family Fairness Act, a comprehensive domestic partnership law, which extends the step-parent adoption statute to second-parent adoptions. Or. Rev. Stat. §§ 106.300-.340.

[5]

Whether an Oregon court would have common law authority to vacate the adoption decree is unclear in the absence of further factual development. Wimber v. Timpe, 109 Or. App. 130, 818 P.2d 954 (1991).  Although an Oregon court has inherent authority to vacate an adoption because of fraud, that power is limited to extrinsic fraud. Johnson v. Johnson, 302 Or. 382, 394, 730 P.2d 1221 (1986). Extrinsic fraud consists of acts not involved in the fact finder’s consideration of the merits of the case, while intrinsic fraud consists of acts that pertain to the merits of the case. Id. at 384.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501310041
PR 01310.041 - Oregon - 02/10/2014
Batch run: 02/10/2014
Rev:02/10/2014