TN 20 (04-13)

PR 01310.048 Texas

A. PR 13-059 Texas State Law on the Validity of Adult Child Adoption (NH Randle ; SSN ~) – REPLY

DATE: March 21, 2013

1. SYLLABUS

Texas recognizes the validity of an adult adoption. To be adopted, the adult must consent in writing. If the petitioner is married, both spouses must join in the petition for adoption. In this case the Claimant  consented in writing to the adoption; the NH, the petitioner, and his spouse joined in the petition; the court held a hearing, which the NH and Claimant attended; and the court found the parties met all the requirements for an adult adoption. All requirements for a valid adoption of an adult have been met in this case, therefore the Claimant is the NH’s legally adopted child and is eligible to receive benefits on the NH’s record.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for an opinion regarding the type of child relationship existing between the number holder, Randle (the NH), and his adult adopted daughter in order to determine whether the adult adopted daughter is entitled to benefits on the NH’s account.  Your request asks for a determination of the validity of the adult adoption under New Mexico State law. However, as discussed below, because the Social Security Administration (the agency) applies the laws of the State where the adoption took place, which is Texas, we apply Texas State law to determine the validity of this adult adoption. See 20 C.F.R. § 404.356.

   

ANSWER

In our opinion, the NH’s adoption of his wife’s twenty-two year old daughter was valid because it met the requirements of the Texas adult adoption statute. Thus, the adopted daughter would be eligible for benefits on the NH’s record as a legally adopted child.  Although Dana may be entitled to disabled child’s benefits as the step-child of the NH, we need not address that issue as we have determined that Dana is eligible for disabled child benefits as the adopted child of the NH. See 20 C.F.R. § 404.357. 

BACKGROUND

According to the information that you have provided, the NH married Collysue (Randle) in September 1984. The NH subsequently filed a petition to adopt Randle’s twenty-two year old daughter, Dana on January 21, 1992, in the Brazos County Court in Bryan, Texas. Randle consented to the adoption and joined in the petition for adoption. Dana, who was born on August, signed a consent to adoption, and the court granted the petition for adoption after a hearing on March 23, 1992. 

Dana protectively filed an application for Title II disabled adult child’s benefits in August 2012 on the NH’s record Dana has periodically received Title XVI disability benefits from 1974 to the present. She married James in April 1992, but that marriage ended in divorce in February 1998.

The NH began receiving Title II retirement benefits based on an October 2012 date of entitlement. 

DISCUSSION

The Social Security Act provides that a number holder’s adopted child may be eligible for benefits on the number holder’s account if the number holder legally adopted the child. 42 U.S.C. §§ 402(d), 416(e); see 20 C.F.R. §§ 404.350(a)(1), 404.354, 404.356. In determining whether a child is the number holder’s legally adopted child, the agency applies the adoption laws of the state where the adoption took place. 20 C.F.R. § 404.356. In this case, the NH adopted Dana in Texas; therefore, Texas law, not New Mexico law, is controlling. We would note that even if New Mexico law were controlling in this case, the state of New Mexico recognizes “[e]very judgment establishing the relationship of parent and child by adult adoption issued pursuant to due process of law by the tribunals of any other jurisdiction within or without the United States, …so that the rights and obligations of the parties as to matters within the jurisdiction of this state [New Mexico] shall be determined as though the judgment were issued by the courts of this state.” N.M. Stat. Ann. § 40-14-15.

Texas recognizes the validity of an adult adoption. Tex. Fam. Code Ann. § 162.501. To be adopted, the adult must consent in writing. Id. at § 162.504. If the petitioner is married, both spouses must join in the petition for adoption. Id. at § 162.503. The court will hold a hearing, which both the petitioner and adult to be adopted must attend. Id. at § 162.505.  At the time of the NH’s adoption of Dana in 1992, Texas Family Code § 16.51 et seq. governed the adoption of adults. However, the requirements for the adoption of an adult under the prior statute are the same requirements under the current statute, Texas Family Code § 162.501 et seq., which became effective on April 20, 1995. Although 20 C.F.R. § 404.356 does not provide guidance on which version of the State law to apply when determining who is an insured’s legally adopted child, consistent with 20 C.F.R. § 404.355 (b) (3) and (4), we look to current State law. 

  However, for good cause shown, the court may waive the attendance requirement by written order. Id. A court must grant the adoption if the court finds that the parties have met all requirements for the adoption of an adult. Id. at § 162.506.  There is no requirement under the current or previous statute governing the adoption of an adult for the consent or termination of rights of the biological parents as is generally required in the case of the adoption of a child. See Tex. Fam. Code Ann. § 162.001(b) (a child residing in the state may be adopted if (1) the parent-child relationship of each living parent has been terminated, or a suit for termination is joined with the suit for adoption; or (2) the parent whose rights have not been terminated is the spouse of the petitioner and the proceeding is for a stepparent adoption). Our research also reveals no court decision which imposes such a requirement.

Once a court grants the adoption, the adopted adult is the son or daughter of the adoptive parent. Id. at § 162.507. Thus, the agency considers an adult validly adopted by a number holder in Texas as eligible for benefits on the number holder’s account. 20 C.F.R. § 404.356 (“you may be eligible for benefits as the insured’s child if you were legally adopted by the insured”).

Social Security Ruling (SSR) 83-37c, which cites Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), holds that the agency is not free to ignore a state court adjudication if: 1) a state court of competent jurisdiction has previously determined an issue in a claim for Social Security benefits; 2) the issue was genuinely contested by parties with opposing interests; 3) the issue falls within domestic relations law; and 4) the resolution is consistent with the law of the highest court of the state. In this matter, the Brazos County Court adjudication may not meet all four requirements.  SSR 83-37c.

With respect to the first G~ prong, the Brazos County court issued a Decree of Adoption of Adult on March 23, 1992, ordering that the adoption of Dana by the NH be granted, and that Dana henceforth be the daughter of the NH. The Brazos County court has proper jurisdiction over family law cases. See Tex. Fam. Code Ann. § 162.502 (the petition to adopt an adult shall be filed in the district court or a statutory county court granted jurisdiction in family law cases and proceedings by Chapter 25 of the Government Code, in the county of the petitioner’s residence); Tex. Gov’t. Code Ann. § 25.0232 (a county court at law in Brazos County has concurrent jurisdiction with the district court in family law cases and proceeding). Therefore the Brazos County Court decree meets the first G~ prong. 

With regard to the third G~ prong, adult adoption issues fall within general domestic law in Texas as adult adoptions are provided for under the Texas Family Code. See Tex. Fam. Code Ann. § 162.001. The agency generally defers to a state court’s order interpreting state law, especially in those areas where a domestic relations or similar question arises under state law and the Social Security Act specifically incorporates State law requirements.  See G~, 474 F.2d at 1373 (stating that special deference should be given to the resolution of domestic relations problems by the state court, as the states have traditionally been considered the exclusive arbiter of such problems). Thus, the Brazos County Court decree meets the third G~ prong.

With regard to the fourth G~ prong, the Brazos County Court decree is consistent with the law that the Texas highest courts’ have enunciated. As recognized by the court in Hagaman v. Morgan, 886 S.W.2d 398, 401 (Tex. App. – Dallas 1994), the Texas Family Code has specific provisions for dealing with the adoption of adults, and, as demonstrated below, all the requirements for the valid adoption of an adult have been met in this case. Thus, Brazos County Court decree is consistent with the law enunciated by Texas’ highest court and meets the fourth G~ prong. See SSR 83-37c.

However, the second G~ prong, that the issue be genuinely contested before the State court by parties with opposing interests, is in question in this case. We believe that the issue of the valid adoption of an adult in this case was a potentially contested matter.  Although we have found no Texas statutory or case law that defines when an issue is “genuinely contested” in a state court, the Texas Administrative Procedure Act (APA) gives us guidance. Under the Texas APA, a “contested case means a proceeding, including a ratemaking or licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing.” Tex. Gov’t. Code Ann. § 2001.003.  Although the Texas APA specifically provides that it is not applicable to courts, we believe its definition of “contested case” is instructive. See Tex Gov’t. Code Ann. § 2001.003. The court in Ramirez v. Texas State Board of Medical Examiners, 927 S.W.2d 770, 772 (Tex. App – Austin 1996) recognized that the term “adjudicative hearing” as contained within the APA’s definition of “contested case” is a hearing at which the decision-making agency hears evidence and, based on that evidence and acting in a judicial or quasi-judicial capacity, determines the rights, duties, or privileges of the parties before it (emphasis added).    

In this case, the Brazos County Court issued its decree, determining the parties’ legal rights, after a hearing.  While we believe the issue of a valid adult adoption was contested before a state court, we must look for parties with opposing interests. As the court noted in Roberts v. Roberts, 405 S.W.2d 211, 213 (Tex. App. – Waco 1966), a party who has an interest in opposing the object sought to be accomplished is a party “adversely interested.”  Because all three parties consented to the adoption, there was no party to NH’s adoption of Dana who was adversely interested.  Black’s Law Dictionary defines “adverse interest” as “[a]n interest that is opposed or contrary to that of someone else.” Black’s Law Dictionary, 54 (7th ed. 1999).

However, where potentially adverse parties (such as an adoptee’s natural parents) are not required to appear by state law, it is circular to require their joinder as a pro forma pre-requisite for entitlement.  While we find that the Brazos County Court decree may not meet the requirements of G~ and SSR 83-37c, and we are not bound to accept it, we nonetheless believe that because the adoption was valid under Texas law we are free to accept it.

In this case, the NH filed an Original Petition To Adopt An Adult on January 21, 1992, in Brazos County Court, seeking to adopt his twenty-two year old stepdaughter, Dana. Randle, Dana’s mother and the NH’s wife, gave her consent to the adoption and joined in the petition. See Tex. Fam. Code Ann. § 162.503. Dana consented in writing to be adopted.  No documentation or information has been presented to us to indicate that Dana did not have the capacity to give valid consent to the adoption. See Tex. Fam. Code Ann. § 162.504. The Brazos County Court entered a “Decree of Adoption” dated March 23, 1992, granting the NH’s adoption of Dana.  The Decree of Adoption states that a hearing was held on March 23, 1992, and that the NH, Mrs. Lawson, and Dana appeared at the hearing. See Tex. Fam. Code Ann. § 162.505. The court granted the adoption, finding that the court had jurisdiction of the subject matter and the parties, that the adult to be adopted had signed and acknowledged a consent to adoption that was filed on March 23, 1992, and that all requirements of the law had been met. See Tex. Fam. Code Ann. § 162.506. Thus, all the legal requirements were met for a valid adult adoption under Texas law, i.e., Dana consented in writing to the adoption; the NH, the petitioner, and his spouse joined in the petition; the court held a hearing, which the NH and Dana attended; and the court found the parties met all the requirements for an adult adoption. See Tex. Fam. Code Ann. §§ 162.501 – 162.507. 

CONCLUSION

In summary, we believe that the NH validly adopted Dana as his daughter under Texas law, and therefore Dana is the NH’s legally adopted child. Thus, Dana is eligible to receive benefits on the NH’s record.  

Michael MCGaughran
Regional Chief Counsel

By:__________________
Martin W. Long

Assistant Regional Counsel

B. PR 11-112 Taiwan Law – Validity of Taiwan Adoptions by Texas Resident (NH Mason. , SSN ~) – REPLY

DATE: May 25, 2011

1. SYLLABUS

The State of Texas requested the validity of a Taiwan Taipei District Court Order dated August 28, 2009, granting adoption of two children, Mason and Molly , to Mason (number holder) and Lyndal established a parent-child relationship between the NH and the children prior to the NH’s death, entitling Mason and Molly to Child’s Insurance Benefits. According to the Law Library of Congress the adoptions were valid under Taiwan law no later than the date of the Taiwan Taipei District Court’s Order, Mason and Molly were the adopted children of the number holder prior to the number holder’s death on October 9, 2009. Thus, Mason and Molly are eligible for Child’s Insurance Benefits on the number holder’s account.

2. OPINION

This memorandum is in response to your request for a legal opinion on whether a Taiwan Taipei District Court Order dated August 28, 2009, granting adoption of two children, Mason and Molly to Mason (number holder) and Lyndal established a parent-child relationship between the number holder and the children prior to the number holder’s death, entitling Mason and Molly to Child’s Insurance Benefits. Based upon the Law Library of Congress’s opinion that the adoptions were valid under Taiwan law no later than the date of the Taiwan Taipei District Court’s Order, Mason and Molly were the adopted children of the number holder prior to the number holder’s death. Thus, Mason and Molly are eligible for Child’s Insurance Benefits on the number holder’s account.

As we understand the facts, the number holder and Molly were a married couple who contracted to adopt two Taiwanese children, Mason and Molly. On August 28, 2009, the Taiwan Taipei District Court granted adoptions of Mason and Molly to the number holder and Molly. Neither the number holder nor Molly were present at the August 28, 2009, proceedings. On October 9, 2009, the number holder died while domiciled in Texas, just four days before he was to travel with Molly to Taiwan to take custody of Mason and Molly. Molly waited two months following the number holder’s death, until December 2009, to travel to Taiwan to take custody of Mason and Molly. Molly brought the children back to the United States on IR4 visas.1 On January 19, 2010, Molly filed applications for Child’s Insurance Benefits on the number holder’s account on behalf of Mason and Molly.

To be entitled to Child’s Insurance Benefits on an insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. See 20 C.F.R. § 404.350(a)(1)-(5). There is no issue that the children satisfy elements (3), (4), and (5), as Molly filed an application on Mason and Molly’s behalves, the children are unmarried, and the children are under the age of 18. Thus, the only remaining issues are whether Mason and Molly are the number holder’s children and whether Mason and Molly were dependent on the number holder.

A number holder’s legally adopted child is his child for Child’s Insurance Benefits purposes. 42 U.S.C. §§ 402(d) and 416(e). A child who the number holder legally adopted before the number holder became eligible for old-age or disability benefits is considered dependent upon the number holder. 20 C.F.R. § 404.362(a). When determining whether a claimant is the number holder’s legally adopted child, the agency “appl[ies] the adoption laws of the State or foreign country where the adoption took place. . ..” 20 C.F.R. § 404.356. Since the number holder adopted Mason and Molly in Taiwan, the agency looks to Taiwan law to determine whether the number holder legally adopted the children.

Consistent with our established practice when an opinion involves interpretation of foreign law, we send copies of the adoption documents to the foreign law branch of the Library of Congress for a legal opinion. On March 31, 2011, we asked the Library of Congress whether the adoption documents established a valid adoption under Taiwan’s adoption laws, and whether the effective date of the adoptions was prior to the number holder’s death on October 9, 2009. The Library of Congress issued an opinion on April 27, 2011, that the number holder’s adoptions of Mason and Molly were valid under Taiwan’s adoption laws, and that the effective date of the Taiwan adoptions was the date that the parties entered into adoption contracts. See Law Library of Congress, Taiwan Adoption Law, No. 2011-005624 (Apr. 2011) (attached). 2 The Library of Congress noted that an adoption is valid under Taiwan Civil Code if there is a written adoption contract and the court approves the adoption. The Taiwan Civil Code also describes additional documents that the court will review in the adoption proceeding, but the Library of Congress noted that a court ruling approving the adoption proves the existence of a valid adoption contract and the supporting documentation. Here, the Taiwan Taipei District Court’s Order dated August 28, 2009, stated that the parties had submitted an adoption contract. The Library of Congress concluded that there is no requirement under Taiwan’s laws that the adoptive parent be present for the adoption proceedings or that he see the children before the court awards adoption. Finally, the Library of Congress noted that the Taiwan Civil Code makes an adoption effective on the date the parties entered into the adoption contract.

Although we do not have a copy of the adoption contracts to determine the specific effective date of the adoptions, we conclude that in this case a copy of the adoption contracts is not necessary. The adoptions are effective no later than the date of the court’s order granting the adoptions. None of the parties’ rights are affected by our recognizing the date the court granted the adoptions as the effective date of the adoptions. The earliest date that Mason and Molly can be eligible for Child’s Insurance Benefits is the date of the number holder’s death. 20 C.F.R. §§ 404.350, 404.352, 404.621(a)(2). Since the Taiwan Taipei District Court issued its adoption orders before the number holder’s death, Mason and Molly were the number holder’s legally adopted children prior to the number holder’s death regardless of whether the adoptions became effective on the date of the court’s order or the earlier date of the adoption contracts.

Mason and Molly were also dependent upon the number holder prior to the number holder’s death on October 9, 2009. A child who the number holder legally adopted before the number holder became eligible for old-age or disability benefits is considered dependent upon the number holder. 20 C.F.R. § 404.362(a). As of the number holder’s date of death, the number holder was not eligible for old-age or disability benefits. Thus, on the date the Taiwan Taipei District Court’s August 28, 2009, Order granted the adoptions, Mason and Molly became the number holder’s legally adopted children and were dependent upon the number holder. 20 C.F.R. § 404.362(a). Mason and Molly are therefore eligible for Child’s Insurance Benefits on the number holder’s account.

Michael McGaughran
Regional Chief Counsel

By:__________________
James D. Sides

Assistant Regional Counsel

C. PR 08-146 Validity of Adult Child Adoption under Texas Law (NH Douglas ; SSN ~) - REPLY

DATE: July 1, 2008

1. SYLLABUS

Texas recognizes the validity of an adult adoption as long as the adult being adopted consents in writing. If the petitioner is married, both spouses must be party to the action.

2. OPINION

This memorandum is in response to your request for an opinion regarding whether the adoption of a disabled adult child met all the requirements for a valid adult adoption under Texas law to allow entitlement to benefits on a number holder's account. In our opinion, the number holder's adoption of the disabled adult child was valid because it met the requirements of Texas' adult adoption statute. Thus, the disabled adult child would be eligible for benefits on the number holder's record.

As we understand the facts, in December 1999, Douglas (number holder) married Ofelia , who had a child, Leslie , born on December . Leslie is an incapacitated adult, and Leslie has been appointed as Leslie's guardian. In April 1980, Leslie began receiving Title XVI Social Security child disability benefits due to mental retardation, and in June 1997, she received Title II Social Security disability benefits on her own Social Security record. In 1999, a Texas state court granted the number holder's and Leslie's request to change Leslie's last name from P~ to P~. The number holder did not adopt Leslie at that time.

In March 2004, the number holder received Title II Social Security disability benefits on his account. In September 2005, the number holder and Leslie, as Leslie's biological mother and guardian, filed a "Petition for Adoption" in the Jim Wells County Court in Jim Wells, Texas. Leslie signed the petition, which the court granted after a hearing in December 2005. In February 2008, Leslie filed a new claim with the Agency on behalf of Leslie on the number holder's account.

The Social Security Act provides that a number holder's adopted child may be eligible for benefits on the number holder's account if the number holder legally adopted the child. 42 U.S.C. §§ 402(d), 416(e); see 20 C.F.R. §§ 404.350, 404.354, 404.356. In determining whether a child is the number holder's legally adopted child, the Agency applies the laws of the state where the adoption took place. 20 C.F.R. § 404.356. In this case, the number holder adopted Leslie in Texas; therefore, Texas law is controlling.

Texas recognizes the validity of an adult adoption. Tex. Fam. Code Ann. § 162.501. To be adopted, the adult must consent in writing. Id. at § 162.504. If the petitioner is married, both spouses must join in the petition for adoption. Id. at § 162.503. The court will hold a hearing, which both the petitioner and adult to be adopted must attend. Id. at § 162.505. However, for good cause shown, the court may waive the attendance requirement by written order. Id. A court will grant the adoption if the court finds that the parties have met all requirements for the adoption of an adult. Id. at § 162.506. Once a court grants the adoption, the adopted adult is the son or daughter of the adoptive parent. Id. at § 162.507. Thus, an adult validly adopted in Texas is deemed to be the child of the number holder. 20 C.F.R. § 404.356.

In this case, both the number holder and Leslie brought the "Petition for Adoption." Leslie consented in writing to be adopted, and the Jim Wells County Court entered an "Order Granted Adoption" dated December 12, 2005, granting the number holder's adoption of Leslie. The order of adoption stated that a hearing was held on December 12, 2005, but the order did not indicate who was present at the hearing. It may be presumed that, because the court granted the adoption, the court determined that the parties met all legal requirements for a valid adult adoption. But, because the order, on its face, does not indicate that both the number holder and Leslie were present at the hearing, and no documentation exists showing that the court waived the attendance requirement by written order, the possibility remains that all legal requirements for a valid adult adoption were not met.

In an attempt to obtain information about whether both the number holder and Leslie attended the adoption hearing, we contacted the District Clerk's Office of Jim Wells County. The District Clerk's Office provided a Civil Docket sheet, which detailed the proceedings that occurred during the "Adoption of an Incapacitated Adult." The docket sheet indicated that only the number holder and Leslie attended the adoption hearing, that they stated they represented Leslie, and that the court, after hearing their testimony, granted the adoption. Thus, it would appear that, because Leslie did not attend the adoption hearing, all legal requirements for a valid adult adoption were not met.

However, as previously noted, Leslie is an incapacitated adult, and Leslie is Leslie's legal guardian. Under Texas law, an incapacitated person is an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for herself, to care for her own physical health, or to manage her own financial affairs. Tex. Prob. Code Ann. § 601(14)(B). A court may appoint a guardian who obtains full authority over an incapacitated person. Id. at §§ 602, 767. And, a guardian is entitled to bring a lawsuit on behalf of the incapacitated adult. Id. at § 768. In this case, Leslie, along with the number holder, brought the Petition for Adoption on Leslie's behalf and represented her as her guardian at the hearing. As such, Leslie would not need to attend the adoption hearing under Texas law. Thus all legal requirements have been met for a valid adult adoption under Texas law.

In summary, we believe that the number holder validly adopted Leslie as his daughter under state law and that Leslie is, therefore, eligible to receive benefits on the number holder's record.

Traci B. Davis
Regional Chief Counsel

By:__________________
Carolyn Ebbers Whitson

Assistant Regional Counsel

D. PR 06-150 Texas State Law Recognition of a Foreign Adoption to Establish Parent-Child Relationship (NH Alberto , SSN ~) - REPLY

DATE: May 31, 2006

1. SYLLABUS

In a case where the number holder resides in Texas, the Texas District Court has the right to issue an order validating a Mexican adoption which took place after the number holder's entitlement. The adoption becomes legally effective in Texas on September 16, 2005, the date the Texas District Court issued its judgment granting the adoption.

2. OPINION

You have requested an opinion regarding whether the 65th Judicial District Court (Texas District Court), located in El Paso County, Texas, had jurisdiction to issue an order validating a Mexican adoption. You have also requested an opinion regarding the adoption's effective date, if we find that the Texas District Court had jurisdiction to validate the Mexican adoption. In our opinion, the Texas District Court had jurisdiction to validate the Mexican adoption, and the adoption became legally effective in Texas on September 16, 2005, the date the Texas District Court issued its judgment granting the adoption.

As we understand the facts, Alberto , the insured, is a Texas resident. Alberto began receiving Social Security Title II benefits in March 1981. In 1987, Alberto married Bertha . In 1999, Alberto and Bertha began proceedings in the State of Chihuahua, Mexico, to adopt twin children, Karina and Edgar (children), who were born in Mexico on June. In January 2000, a Mexican court issued a decree granting Alberto and Bertha the children's adoption.

In July 2004, Bertha filed with the Social Security Administration (Agency), on the children's behalf, applications for child's insurance benefits on Alberto's account. In support of the applications, Bertha submitted the Mexican adoption decree to establish the parent-child relationship between Alberto and the children. The Agency denied the claims because a United States court did not issue the adoption decree. On September 16, 2005, after Alberto and Bertha filed a petition to enforce the Mexican adoption decree, the Texas District Court issued an "Order on Petition to Enforce Foreign Judgment" (Texas Court Order), ordering that the Mexican adoption decree be given the same effect as a Texas District Court's judgment. In September 2005, Bertha filed, on the children's behalf, subsequent applications for child's insurance benefits on Alberto's account. In support of the applications, Bertha submitted the Texas Court Order to establish the parent-child relationship between Alberto and the children.

Title II of the Social Security Act (the Act), and the applicable regulations, contain the criteria for entitlement to child's insurance benefits. A child may receive child's insurance benefits on the account of an aged or disabled insured if the child is the child of the insured, as defined in section 216(e) of the Act. See Social Security Act § 202(d)(1), 42 U.S.C. ' 402(d)(1); 20 C.F.R. ' 404.350 (2005). The Act defines the term "child" as the child or adopted child of an individual. See Social Security Act § 216(e)(1), 42 U.S.C. § 416(e)(1). Legal adoption is one method of establishing a relationship to the insured. See 20 C.F.R. § 404.354. A child adopted after an insured becomes entitled to Title II benefits is not considered the insured's dependent and is not entitled to child's insurance benefits unless the child's adoption was granted by a court of competent jurisdiction within the United States. See Social Security Act §§ 202(d)(8)(A)-(B), 42 U.S.C. §§ 402(d)(8)(A)-(B), (D)(i); 20 C.F.R. § 404.362(b)(i). In this case, Alberto adopted the children after he became entitled to Title II benefits. Thus, we must determine whether the Texas District Court is a court of competent jurisdiction to grant the adoption.

Texas courts shall accord full faith and credit to an adoption decree rendered to a Texas resident by a foreign country, "unless the adoption law or process of the foreign country violates the fundamental principles of human rights or the laws or public policy of [Texas]." See Tex. Fam. Code Ann. § 162.023(a) (2005). Before according full faith and credit to a foreign adoption decree, Texas law requires that a court of competent jurisdiction validate a certified copy of the decree, presumptively to ascertain that the foreign country's adoption law or process does not violate Texas' human rights or public policy. See 25 Tex. Admin. Code § 181.29 (2005).

The Texas Constitution provides Texas district courts their jurisdiction. See Tex. Const. art. V, § 8; Tex. Gov't Code Ann. § 24.007 (2005). Texas district courts have exclusive, appellate, and original jurisdiction of all actions and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by law on another court, tribunal, or administrative body. See Tex. Const., art. V, § 8; Tex. Gov't Code Ann. § 24.008; Women's Community Health Center of Beaumont, Inc. v. Texas Health Facilities Com'n, 685 F.2d 974, 981 (5th Cir. 1982). Texas law does not confer a court, tribunal, or administrative body, other than district courts, with jurisdiction to validate foreign judgments. Consistent with Texas law, we conclude that the Texas District Court had jurisdiction to validate the Mexican adoption decree.

You also requested an opinion regarding the adoption's effective date. In Texas, an adoption decree establishes, for all purposes, the parent-child relationship between the adoptive parent and child. See Tex. Fam. Code Ann. § 162.017. But Texas statutes and case law are silent on the issue regarding the date an adoption becomes legally effective in Texas, when a foreign country grants the adoption and a Texas court subsequently validates the foreign adoption. As previously noted, Texas requires that a certified copy of a decree of adoption granted in a foreign country be submitted for validation to a Texas court. See 25 Tex. Admin. Code § 181.29. Texas courts have stated that "[v]alidate is a derivative of valid, and means to make valid; to confirm. . . . These definitions presuppose antecedent facts which, in themselves, though attempting validity, had been insufficient to accomplish it." City of Averman v. City of Fort Worth, 363 S.W.2d 500, 502 (Tex. App. - Fort Worth 1962, writ ref'd n.r.e.). Consistent with the Texas court's statement, a foreign adoption is not legally valid and enforceable in Texas until a Texas court validates the foreign adoption decree. In this case, the Texas District Court validated the Mexican adoption decree on September 16, 2005. Thus, we conclude that the adoption's effective date is September 16, 2005.

The Agency considers the children Alberto's dependents, eligible for child's insurance benefits, only after a court within the United States grants the adoption because Alberto adopted the children after he became entitled to Title II benefits. As a result, the children met the dependency requirements and the requirements to receive child's insurance benefits under Alberto's account on September 16, 2005, the date the Texas District Court issued its judgment.

Tina M. Waddell
Regional Chief Counsel

By:__________________
Ruben Montemayor

Assistant Regional Counsel


Footnotes:

[1]

The United States Department of State grants an IR4 visa to an immigrant alien who is an orphan to be adopted in the United States by a United States citizen. 22 C.F.R. § 42.11. The State Department will grant an IR4 visa to a foreign child jointly adopted by a United States citizen and spouse when only one spouse personally saw and observed the child during the adoption proceedings. 8 U.S.C. § 1101(b)(1)(F). The visa indicates that the child will obtain United States citizenship when the adoption becomes final in the United States, but the visa classification does not address the validity of the adoption under the foreign country’s laws. 8 U.S.C. § 1101, et. seq.

[2]

Citations to Taiwan adoption laws are contained in the Library Of Congress’s legal opinion.


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PR 01310.048 - Texas - 04/23/2013
Batch run: 04/23/2013
Rev:04/23/2013