TN 28 (07-14)

PR 01310.049 Utah

A. PR 14-129 Validity of an Adoption of an Adult in the State of Utah, NH – Sheri —REPLY

DATE: June 27, 2014

1. SYLLABUS

Utah permits any adult (defined as a person age 18 or older) to be adopted by another adult or adults who satisfy all legal requirements for such adoption.

2. OPINION

Questions Presented

You asked whether the State of Utah permits the adoption of adults, and if so, whether the adult adoption at issue complies with Utah law.

Short Answer

Yes. The State of Utah recognizes adult adoptions, and the adult adoption at issue is valid.

Background

The number holder, Sheri, became entitled to disability insurance benefits in December 1989. She married Dean in October 2004. See State of Utah Marriage License (copy attached).

In February 2011, a Utah state district court appointed the M~s as legal guardians for Marilyn. See Letters of Guardianship (copy attached). The M~ filed a petition to adopt Marilyn with the Second Judicial District Court of Weber County, State of Utah, in March 2013. According to the Verified Petition for Adoption (copy attached), the M~s (hereinafter the petitioners) resided in Weber County, Utah, and both are at least 10 years older than Marilyn. See Petition, p. 1, ¶¶ 1, 2, 3; p. 2, ¶ 9. The Petition also states that a preplacement adoptive evaluation was completed and attached to the Petition as Exhibits “A” and “B.” See Petition, pp. 2-3, ¶¶ 10, 11.

On August 5, 2013, the court entered a Decree of Adoption (copy attached) granting the petitioners’ adoption of Marilyn, who was age 24 at the time. The caption describes her as an “incapacitated person.” 1 The Decree states that the petitioners and Marilyn appeared before the court and provided written consent to the adoption. Decree, p. 1. The court found that the petitioners were in all respects legally competent to adopt Marilyn and had complied with all legal requirements. Further, the court decreed that it was in Marilyn’s best interest and welfare for the petitioners to adopt her, and that she was to be treated henceforth in all respects as their child and known by the name of Summer. Decree, p. 1.

Sheri filed for auxiliary benefits on her record for Summer as an adopted disabled child as of August 29, 2013,

DISCUSSION2 The Petitioners Were Legally Competent to Adopt Summer Whether the petitioners legally adopted Summer is governed by the adoption laws of Utah, the state where the adoption took place. See 20 C.F.R. § 404.356. Utah permits any adult (defined as a person age 18 or older) to be adopted by another adult or adults who satisfy all legal requirements for such adoption. See Utah Code Ann. §§ 78B-6-115(2), 78B-6-103(5) (defining adult). Two adults in a cohabitating relationship must be validly married under Utah law to adopt a child or an adult. See id. § 78b-6-117(3). The husband or wife must be at least 10 years older than the adoptee, whether a child or an adult. See id. § 78B-6-118.

When they filed the petition to adopt Summer, the petitioners were over the age of 18 and at least 10 years older than Summer. Sheri was age 51; Dean was age 60. The Utah marriage license reflects that the petitioners were validly married in October 2004. While neither the Petition nor the Decree refers to them as husband and wife, and agency records are silent regarding Sheri’s marital status in August 2013, we presume that the petitioners were still legally married at that time. We received no evidence of a divorce or annulment, and the court entered a final decree of adoption. “[T]he entry of a decree implies that the court found the necessary facts.” 2 Am. Jur. 2d. Adoption § 143 (citations omitted). As noted above, Utah requires that two adults in a cohabitating relationship be validly married under Utah law to adopt a child or an adult. See Utah Code Ann. § 78b-6-117(3).

In sum, the evidence as a whole strongly supports the court’s finding that that Sheri and Dean were legally competent to adopt Summer.

Summer’s Adoption Complies with All Other Legal Requirements of Utah Law

A person or persons who wish to adopt an adult in Utah must file the petition in the district court for the county where the person(s) reside. See Utah Code Ann. § 78B-6-105(1)(a). Here, the petitioners resided in Weber County, Utah, and filed the Petition with the Second Judicial District Court of Weber County, Utah.

Before the court may enter a final decree of adoption of an adult, the prospective adoptive parents and the person being adopted must appear before the court and execute consent to the adoption. See id. § 78B-6-115(4). Consent to the adoption is required from the adult adoptee, any person who is adopting the adult, the spouse of a person adopting the adult, and any legally appointed guardian or custodian of the adult adoptee. See id. §§ 78B-6-114, 78b-6-116(1)(a). The petitioners, who were also Summer’s legal guardians, appeared before the court and signed and submitted their consent. Decree, p. 1. (Although Summer also appeared before the court and signed a consent form, she was not legally required to do so. Her legal guardians, the petitioners, had authority to act on her behalf.)

The Utah Adoption Act also requires that persons entitled to receive notice of the adoption— the adult adoptee, his or her spouse, and the persons adopting the adult— must be served notice of the proceeding at least 30 days before the day on which the adoption is finalized, unless he or she waives in writing the notice requirement. Id. §§ 78B-6-116 (2)(a) & (b), (3). Proof of service of the required notices must be filed with the court before the adoption is finalized. Id. § 78B-6-116(4). Currently, we have no evidence that Summer had a spouse before the court finalized the adoption. Since the petitioners were also Summer’s legal guardians, they were the only persons required to be served with notice of the adoption. Here, where the petitioners executed their consent to the adoption in open court, we may also reasonably assume they received proper service of the notice of the final adoption proceeding or waived service. The court’s entry of the Decree, coupled with its finding that all legal requirements for the adoption were satisfied, strongly implies that the petitioners (or their legal representative) filed proof of service or written waiver of the notice with the court. See 2 Am. Jur. 2d. Adoption § 143 (citations omitted).

Prior to approving the adoption of a vulnerable adult,3 the court must ensure completion of a preplacement adoptive evaluation. Utah Code Ann. §§ 78B-6-128 through 31. The Petition states that the preplacement evaluation was completed and attached to the Petition as Exibit “A” Background Checks and Exhibit “B” Psychological Evaluation. Petition, p. 2, ¶¶ 10, 11.

If, after examining each person appearing before it, the court is satisfied that the adoption is in the adoptee’s best interest, the court “shall enter a final decree of adoption declaring that the child is adopted by the adoptive . . . parents and shall be regarded and treated in all respects as the child of the adoptive parents . . . .” Utah Code Ann. § 78B-6-137. The court found that the adoption was in Summer’s best interest, and the Decree contains the required legislative language quoted above. See Decree, p. 2.

In light of the evidence discussed above, including the reasonable assumptions, we conclude that the court properly determined that the petitioners complied with all legal requirements to adopt Summer.

CONCLUSION

The State of Utah permits adult adoptions, and there is sufficient evidence that the petitioners were legally competent to adopt summer and complied with all other legal requirements of Utah adult adoption law.

John Jay Lee
Regional Chief Counsel, Region VIII

By______________
Yvette G. Keesee
Assistant Regional Counsel

B. PR 11-137 Relationship of Child to NH Darrell —German Foreign Adoption

DATE: August 8, 2011

1. SYLLABUS

The adoption is valid, therefore, the child is entitled to child’s insurance benefits as the insured’s legally adopted child, provided all other eligibility criteria are met.

2. OPINION

Questions Presented

You have asked us to advise whether a German adoption of a child is valid in Utah, so that you can determine the child’s entitlement to child’s insurance benefits.

Short Answer

The adoption is valid, therefore, the child is entitled to child’s insurance benefits as the insured’s legally adopted child, provided all other eligibility criteria are met.

Background

Based on the information you provided to us, the following is a summary of the relevant facts in this matter.

Utah resident Darrell, the insured, became entitled to retirement benefits in May 2010. At the time he applied, he did not list any children as being eligible for benefits. In May 2010, Darrell’s wife, Barbara, filed an application for child’s insurance benefits on behalf of Jared, on the basis that Jared was the adopted, disabled adult child of the insured. Adoption documents are not available.

We received copies of the following documents in support of the application for benefits:

  • a German birth certificate issued on August, showing Jared’s date of birth as July, and listing Darrell and Barbara as Jared’s parents;

  • a translation of the birth certificate by an official SSA translator;

  • a certificate of naturalization for Jared , signed on Jared’s behalf by Darrell, showing that Jared had complied with the applicable naturalization laws and was admitted as a citizen of the United States on May 1, 1980;

  • a U.S. passport for Jared , issued May 15, 1980, signed on Jared’s behalf by Darrell ; and

  • a Social Security card for Jared.

DISCUSSION

For the reasons discussed below, the adoption is valid and final, making Jared the child of the insured, so he is entitled to benefits provided all other eligibility criteria are met.

An individual may be eligible for benefits as the insured’s adult child, if legally adopted by the insured. See 42 U.S.C. § 416(e)(1); 20 C.F.R. § 404.356. 4 “We apply the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws described in § 404.355, to determine whether [an individual is] the insured’s legally adopted child.” 20 C.F.R. § 404.356; see also POMS GN 00306.155(C). Thus, to determine the validity of the adoption, we look to German law; it is not necessary to determine whether Utah would recognize the adoption.

Pursuant to POMS GN 00307.220 (Foreign Adoptions), evidence of a legal adoption in a foreign country can be an adoption degree or an amended birth certificate issued as a result of the adoption (where experience has shown such certificates are available and reliable); however, these documents are acceptable only if “there is a precedent opinion on the requirement for such an adoption.” Because there is not currently a precedent opinion on the requirements of a valid adoption in Germany, we requested advice from the Library of Congress. Below is a summary of the advice we received.

As previously noted, Jared was born in Germany on July, and a birth certificate listing Darrell and Barbara as Jared’s parents was issued on August 2, 1977. There was a change in German adoption laws effective January 1, 1977. Thus, depending on the timing of the adoption, the G~s could have adopted Jared in Germany either on the basis of a contract that was approved by a guardianship court (according to the laws governing until the end of 1976), or on the basis of an adoption decree by a guardianship court (according to the laws governing since January 1, 1977). In either event, the civil registrar would have noted the adoption in the margin of the register of births, and the adoption would have been considered valid and final in the absence of a revocation proceeding, which was very rare in practice. Had a revocation proceeding occurred, it also would have been noted in the margin of the birth record. Thus, the ultimate proof of the validity and finality of Jared’s adoption would be an excerpt from the German register of births that lists the adoption and does not list any revocation. However, we do not have access to the German register of births.

If the adoption was based on a court-approved contract under the laws in effect in 1976, hypothetically the parents might have been able to institute a revocation proceeding that would have required court approval. If the adoption was based on a court decree under the more stringent laws in effect in 1977, a revocation proceeding could only have been undertaken for very serious flaws in the decision such as mistaken identity or lack of consent. We have no evidence of any revocation proceeding in this case. In any event, such a revocation petition likely would not have been successful where Darrell showed his intent to maintain the childparent relationship through his actions in the United States when he had Jared naturalized and had a Social Security card issued for him. These circumstances reflect an intent to continue the parent-child relationship, and thus making the possibility of revocation of the adoption extremely unlikely. It is, therefore, appropriate to conclude that the adoption of Jared, as evidenced by the August birth certificate, was valid and final when it occurred.

CONCLUSION

We conclude that the aforementioned adoption was valid under German law, entitling Jared to child’s insurance benefits as the insured’s legally adopted child, provided all other eligibility requirements are met.

John Jay Lee
Regional Chief Counsel, Region VIII

By______________
Dorrelyn K. Dietrich
Assistant Regional Counsel

C. PR 06-069 (UTAH) Validity of Foreign Adoption of Child to NH's in State of UtahNumber Holders (NH(s)) Sharon, ~ and Ora, ~ ; (your reference number: S2D8B52: DS)

DATE: February 2, 2006

1. SYLLABUS

A Utah State court's "Order Of Registration" requiring that the registrar file the foreign adoption order and a certificate of birth for the adopted child is the equivalent of an adoption decree filed by a court of competent jurisdiction within the United States, as required to meet the dependency requirements of POMS GN 00306.137.

2. OPINION

Questions Presented

You have requested an opinion on the following issue: whether a Utah state court's "Order of Registration" constitutes an adoption decree filed by a court of competent jurisdiction, as required by the Agency's special dependency requirements for a child adopted after the NH's entitlement to benefits (SSA POMS GN 00306.137).

Short Answer

Based upon the facts presented, it is our opinion that the Utah state court's "Order of Registration" constitutes an adoption decree filed by a court of competent jurisdiction.

Facts Presented

The question presented arises on the earnings records of Sharon and Ora, who reside in Utah, became entitled to disability benefits, and subsequently adopted a child born in Guatemala.

A document dated May 4, 2005 from a civil register in Guatemala shows that:

  • the child was born in Guatemala;

  • Francisca, the child's birth mother, named the child Blanca;

  • Sharon and Ora adopted the child in Guatemala on March 22, 2005.

On May 16, 2005, the Third Judicial District in the State of Utah issued an "Order of Registration of Foreign Adoption," which stated that the Court reviewed Ora's Verified Petition to register the foreign country adoption of the minor child, Blanca. The Court found that:

  • the petitioner is a resident of Utah and the current custodian of the minor child and has a direct, tangible, and legitimate interest as the adoptive parent of the minor child;

  • Ora and Sharon have adopted the minor child;

  • the adoption order was issued by a court of competent jurisdiction in the Country of Guatemala;

  • the female child was born in Aldea Bella Vista, Guatemala, on November, to birth mother Francisca and an unknown father.

Based upon these findings, the Court ordered the Registrar for the State of Utah to prepare a birth certificate for the minor child changing the child's name to Stariana .

Pursuant to the Court's order, the Director of Vital Records for the State of Utah issued a "Court Ordered Delayed Birth Certification" on June. This document showed that:

  • Stariana , a female child, was born in Aldea Bella Visa, Guatemala on November;

  • The child's mother, Sharon (maiden name) resides in Utah;

  • The child's father, Ora, was born in Texas on November;

  • The birth certification was registered and issued on June, and was filed pursuant to the Court's order "establishing the fact of birth in Salt Lake City."

Legal Analysis

As you stated in your memorandum, SSA POMS RS 00203.001 provides that a minor child, to be entitled to benefits, must be the child of the NH(s), as defined under the law; dependent on the NH(s); unmarried; and under age 18. Because Stariana is unmarried and under age 18, the issues determinative of her entitlement to benefits are whether she is the child of, and dependent upon, Sharon and Ora. As discussed below, the facts presented establish that these last two requirements are also met.

POMS GN 00306.135 provides that an adoption is valid if it is legal under the law of the State or foreign country where it took place and at least one party to the adoption was domiciled in that jurisdiction at the time of the adoption. The Utah court found that Ora and Sharon adopted the minor child and resided in Utah at the time, and that the adoption was based upon a valid adoption order issued by a court of competent jurisdiction in Guatemala. Thus, as you stated in your memorandum, the Agency properly "established that the child is the adopted child of the NH(s) [Sharon and Ora]."

POMS GN 00306.137, which provides special dependency requirements for a child adopted after the NH's entitlement to benefits, requires that the child's adoption must be decreed by a court of competent jurisdiction within the United States. The Utah State court's "Order of Registration" meets these requirements.

Utah state law provides that:

(1) [A]n adoption order rendered to a resident of this state that is made by a foreign country shall be recognized by the courts of this state and enforced as if the order were rendered by a court in this state.

(2) A person who adopts a child in a foreign country may register the order in this state. A petition for registration of a foreign adoption order may be combined with a petition for a name change. If the court finds that the foreign adoption order meets the requirements of Subsection (1), the court shall order the state registrar to:

(a) file the order pursuant to Section 78-30-9; and

(b) file a certificate of birth for the child pursuant to Section 26-2-28.

(3) If a clerk of the court is unable to establish the fact, time, and place of birth from the documentation provided, a person holding a direct, tangible, and legitimate interest as described in Subsection 26-2-22(2)(a) or (b) may petition for a court order establishing the fact, time, and place of a birth pursuant to Subsection 26-2-15(1).

Utah Code Ann. § 78-300-8.6 (2005). The documents presented establish that the Utah court, when ruling on Ora's combined petition for registration and name change, recognized and enforced the foreign adoption, as the Utah statute requires, and expressly found that he and Sharon had adopted the minor child. Thus, it is our opinion that the filing of the court's order, under Utah law, is the equivalent of an adoption decree filed by a court of competent jurisdiction within the United States, as required to meet the dependency requirements of POMS GN 00306.137.

CONCLUSION

Based upon the facts and documents presented, it is our opinion that Stariana's adoption was decreed by a court of competent jurisdiction within the United States; she is the child of, and dependent upon, Ora and Sharon; and the dependency requirements for benefits based upon the parents' entitlement have been met

Deana R. Ertl-Lomdardi
Regional Chief Counsel

By______________
Debra J. Meachum
Assistant Regional Counsel

D. PR 05-068 Validity of Adoption by Grandfather and Natural Mother in Utah and Adopted Child's Entitlement to Child's Benefits NH-Blaine , ~

DATE: January 3, 2004

1. SYLLABUS

Utah law does not prohibit the adoption of a child by one member of a legally married couple provided the spouse of the adoptive parent consents. Therefore, in this case the child claimant is the NH's legally adopted child for purposes of entitlement to child's benefits.

2. OPINION

Questions Presented

You have requested an opinion concerning the validity of the adoption of a child in Utah-specifically, whether Chelsie, a minor child, can be entitled to child's benefits on the record of her grandfather and adoptive father, deceased number holder Blaine, SSN ~.

Short Answer

We believe that the State of Utah would find that Blaine legally adopted Chelsie. We further believe that Chelsie would qualify for child's benefits on Blaine's account.

FACTS

The available facts in this case indicate that Chelsie ("Chelsie") was born in Weber County, Utah, on August. Chelsie's natural mother was Rebecca ("Rebecca"), who was 16 years old on the date of Chelsie's birth, and Chelsie's natural father was Marty. ("Marty"). There is no indication that Rebecca and Marty ever married. Rebecca's parents were number holder Blaine ("Blaine") and his wife, Irene ("Irene").

Rebecca and Chelsie lived with Blaine and Irene after Chelsie's birth. Rebecca married in 1990 or 1991, and Rebecca and Chelsie subsequently lived with Rebecca's husband for approximately one and one-half years afterward.

On July 8, 1994, the Second Judicial District Court of Weber County in the State of Utah granted a Decree of Adoption ("adoption decree") regarding Chelsie. The adoption decree listed the petitioners as Blaine, Rebecca, and Irene. The adoption decree indicated that Marty had been relieved of all parental duties, responsibilities, and rights concerning Chelsie. The adoption decree declared Chelsie was adopted by Blaine and stated that Blaine would have the status of natural father. The adoption decree also indicated that "all other persons" were relieved of parental duties and responsibilities for, and would have no right or control over, Chelsie, except for her natural mother, Rebecca. Blaine agreed to pay $2,500.00 as payment for Marty's past-due child support obligations.

The adoption decree further ordered the Utah Department of Vital Records to issue a birth certificate showing Chelsie to be the child of "petitioners herein." The information provided contains only a birth certificate that was "registered" on September 7, 1989, 10 days after Chelsie's birth, and "issued" in February 2002. It lists Rebecca and Blaine as Chelsie's parents. In Utah, adoption-related birth certificate changes occur via the issuance of a supplemental birth certificate showing the adoptive parents'names. The law does not require the supplemental certificate to indicate that it is supplemental.

It is difficult to discern from the information provided exactly where Chelsie lived, and who provided support for her, after the adoption decree was issued. A statement by Irene indicated that Chelsie "stayed with" Blaine and Irene during the week in order to attend school, but it is unclear exactly when (and for how long) this arrangement existed, or whether it continues to exist.

Chelsie's numident record lists Rebecca as her mother, and does not list any father. In May 2002, Blaine became entitled to retirement benefits. A computer screen printout related to Blaine's application for benefits indicated he had no dependent children; however, Irene stated she and Blaine told the Agency about Chelsie at the time he applied for benefits.

The information you provided included a juvenile court Review Order dated October 10, 2002, related to the interests of four children: Chelsie, Shaylee, Bodee , and Symatha. The Review Order listed the children's mother as Becky (presumably Rebecca's married name) and father as Trent . The court found that the children were "at risk even if father is in jail because of her drinking and domestic violence with a boyfriend." The court placed the children, including Chelsie, in the custody of the Division of Child and Family Services ("Division"), and gave the Division "prior release to place the children with relatives." The matter was scheduled for review in November 2002.

Blaine died on July 20, 2004. In August, 2004, on behalf of Chelsie, Irene filed an application for child's benefits on Blaine's account. In the application, Irene indicated that Chelsie lived with Blaine and Irene at the time of Blaine's death, and that Chelsie currently lived with Irene. Irene stated she had been appointed Chelsie's legal guardian in September 2001 because Rebecca was an alcohol addict. The information provided did not contain any documentation to verify that Irene is Chelsie's legal guardian. Irene also completed an application to be Chelsie's representative payee.

Federal Law

To be entitled to child's benefits on the account of a wage earner who is receiving retirement insurance benefits, a child must meet the regulatory definition of "child," be dependent upon the wage earner, file an application, be unmarried, and be under age 18. 42 U.S.C. § 402(d)(1), 20 C.F.R. § 404.350(a) (2004). A legally adopted child of the wage earner meets the regulatory definition of "child." 20 C.F.R. § 404.356 (2004).

In terms of evidence that an adoption has occurred, an amended birth certificate issued as the result of an adoption in the United States will establish that there has been a final order or decree of adoption, and that the persons shown as parents of the adopted child were named as parents in the decree or order. POMS GN 00306.155(A). Adoption decrees also constitute evidence to establish that an adoption occurred on a certain date. POMS GN 00306.155(B)(1)(a).

Agency policy specifies a "payee preference list" to be used as a guideline for choosing the applicant best suited to serve as a payee. POMS GN 00502-105. The list of possible payees includes a natural or adoptive parent with custody; a legal guardian; a natural or adoptive parent without custody, but who shows strong concern; and a relative or close friend who shows strong concern. Id.

Utah State Law

In determining whether a child was legally adopted, the applicable law is the law of the state where the adoption took place. 20 C.F.R. § 404.356 (2004). Thus, Utah law determines whether Chelsie was Blaine's legally adopted child for purposes of entitlement to child's benefits on Blaine's account.

In Utah, a child may be adopted by adults who are (a) legally married to each other or (b) single and not cohabiting (residing and having a sexual relationship) with another person. Utah Code Ann. § 78-30-1 (2004). However, Utah law provides that a married adult who is not lawfully separated from his or her spouse requires the spouse's consent in order to adopt, which suggests that a married person may legally adopt a child even if the married person's spouse does not join in the adoption, as long as the spouse consents. Utah Code Ann. § 78-30-3 (2004). See also In re Adoption of W.A.T., V.E.T., J.T.T., J.S.T., and B.D.T., 808 P.2d 1083, 1084-85 (Utah 1991) (noting that the "statutes governing adoption contain certain minimum requirements to be met by adopting petitioners; for example, . . . married people cannot adopt without consent of their spouses. . . . Aside from these technical requirements, there are virtually no restrictions on or exceptions to the right to petition . . . [and the sole standard is] that the interests of the child will be promoted by the adoption. . . ."); In re Adoption of B.B.D., 984 P.2d 967, 971 (Utah 1999) (noting that Utah Code Ann. § 78-30-4.13(2)(d) requires notice of an adoption proceeding to be given to "the petitioner's spouse, if any, only if he has not joined in the petition") (citations omitted).

DISCUSSION

To be entitled to child's benefits on the account of a wage earner who is receiving retirement insurance benefits, a child must meet the regulatory definition of "child," be dependent upon the wage earner, file an application, be unmarried, and be under age 18. 42 U.S.C. § 402(d)(1), 20 C.F.R. § 404.350(a) (2004). For reasons discussed below, we believe that Chelsie was legally adopted by Blaine and, therefore, met the regulatory definition of "child", and that she further met the remainder of the eligibility requirements to receive child's benefits on Blaine's account.

The first prong of the analysis rests of whether Chelsie meets the regulatory definition of "child." A legally adopted child of the wage earner meets the regulatory definition of "child." 20 C.F.R. § 404.356 (2004). Thus, we must begin by determining whether Chelsie was legally adopted by Blaine. In determining whether a child was legally adopted, the applicable law is the law of the State where the adoption took place. Id. Thus, Utah law determines whether Chelsie was Blaine's legally adopted child for purposes of entitlement to child's benefits on Blaine's account.

In Utah, a child may be adopted by adults who are (a) legally married to each other or (b) single and not cohabiting (residing and having a sexual relationship) with another person. Utah Code Ann. § 78-30-1 (2004). In this case, Chelsie was adopted by her grandfather Blaine, who was married to Chelsie's grandmother Irene at the time, and also by her natural mother Rebecca, who was single at the time. Although Irene's name appeared on the adoption decree as a petitioner, she was not awarded any parental rights or responsibilities, or named as one of Chelsie's adoptive parents in the decree. On its face, the Blaine's adoption of Chelsie initially seems legally problematic because the adoptive parents were not married to each other and Blaine was not single.

However, it appears that Utah law would still allow Blaine to legally adopt Chelsie. Utah law provides that a married adult who is not lawfully separated from his or her spouse requires the spouse's consent in order to be adopt. Utah Code Ann. § 78-30-3 (2004). Here, Blaine and Irene were not separated at the time of Chelsie's adoption, so Blaine would only be able to adopt Chelsie if he had Irene's consent. Id.; see also In re Adoption of W.A.T., V.E.T., J.T.T., J.S.T., and B.D.T., 808 P.2d at 1084-85; In re Adoption of B.B.D., 984 P.2d at 971. We may reasonably assume that Irene consented to Blaine's adoption of Chelsie, since Irene was listed as a petitioner in the adoption along with her husband, was represented by an attorney in the adoption proceedings, and has continued to provide care for Chelsie. Further, the court that issued the adoption decree expressly stated that all legal requirements for the proposed adoption were satisfied. For these reasons, we believe that the adoption of Chelsie by Blaine was valid under Utah law.

In terms of evidence establishing that the adoption actually took place, Agency policy holds that an amended birth certificate issued as the result of an adoption in the United States will establish that there has been a final order or decree of adoption, and that the persons shown as parents of the adopted child were named as parents in the decree or order. POMS GN 00306.155(A). In this case, the court ordered the Utah Department of Vital Statistics to prepare a birth certificate listing the petitioners as Chelsie's parents. The birth certificate provided does in fact list Blaine and Rebecca (the adoptive parents) as Chelsie's parents, and would presumably satisfy the evidentiary requirement. Moreover, even if that birth certificate was found to be insufficient because it did not specify that it whether or not it was an amended version, here we have the actual adoption decree specifying that Blaine adopted Chelsie. Adoption decrees constitute evidence to establish that an adoption occurred on a certain date. POMS GN 00306.155(B)(1)(a). Thus, the evidence establishes that the adoption of Chelsie by Blaine occurred.

As noted above, the second prong of the analysis regarding Chelsie's entitlement to child's benefits on Blaine's account concerns whether Chelsie was dependent on Blaine. 20 C.F.R. § 404.350(a)(2) (2004). Notwithstanding the fact that Chelsie apparently did not live continuously with Blaine and that a computer printout related to Blaine's application indicated he had no dependent children, the regulations direct that a legally adopted child is in fact considered dependent on the wage earner if the wage earner adopted the child before becoming entitled to benefits. 20 C.F.R. § 404.362(a) (2004). Blaine legally adopted Chelsie in 1994. Blaine became entitled to benefits in 2002. Therefore, since the adoption occurred prior to Blaine's entitlement to benefits, Chelsie meets the dependency prong of the analysis. Id.

Chelsie further meets the remaining prongs of the analysis because she filed an application for benefits (via Irene), she is unmarried, and she is under age 18 years of age. 20 C.F.R. § 404.350(a) (2004). Thus, Chelsie meets the requirements for entitlement to child's benefits on Blaine's account.

Irene has applied to be the representative payee on Chelsie's behalf. Agency policy specifies a "payee preference list" to be used as a guideline for choosing the applicant best suited to serve as a payee. POMS GN 00502-105. The list of possible payees includes a natural or adoptive parent with custody; a legal guardian; a natural or adoptive parent without custody, but who shows strong concern; and a relative or close friend who shows strong concern. Id. Although Chelsie has one parent still living-her natural (and adoptive) mother, Rebecca - Irene has stated that she is Chelsie's legal guardian and that Chelsie currently resides with her. Irene is, therefore, eligible to serve as a representative payee on Chelsie's behalf as either a legal guardian or a relative who shows strong concern. We suggest that before making the decision on who will serve as Chelsie's representative payee, you document Irene's legal guardian status and Chelsie's living arrangements.

CONCLUSION

Accordingly, we conclude that Chelsie's adoption by Blaine was legal under Utah state law. We further conclude that Chelsie meets the requirements for entitlement to child's benefits on Blaine's account, and that Irene is eligible to serve as a representative payee on Chelsie's behalf.

Deana R. Ertl-Lombardi
Regional Chief Counsel

By______________
Dorrelyn K. Dietrich
Assistant Regional Counsel


Footnotes:

[1]

The Utah Uniform Probate Code defines “incapacitated person” as an individual who has a court-appointed guardian. See Utah Code Ann. § 75-5b-102(8); see also id. §§ 75-1-201(20), (22).

[2]

We determined that the Decree does not bind the agency under the Gray v. Richardson analysis, 474 F.2d 1370 (6th Cir. 1973). Social Security Ruling 83-37c, which cites Gray, provides that the agency is bound by a state court adjudication if: 1) an iss