PR 01315.005 Arkansas

A. PR 03-087 Effective Date of Adoption Decree Under Arkansas Law - ACTION (NH Michael O~, SSN ~

DATE: January 31, 2003

1. SYLLABUS

A temporary adoption decree issued in Arkansas establishes the adoption of the child claimant as of the date of issuance. If a temporary adoption decree does not expressly require a hearing or some other proceeding before it becomes final, then no such hearing or proceeding is required. In the absence of grounds for rescinding the decree, the temporary decree has the force of law and constitutes a “final” adoption for Social Security purposes.

2. OPINION

We are writing in response to your request for an opinion as to the date that a temporary adoption decree by an Arkansas Probate Court becomes effective for purposes of entitlement to child's insurance benefits of an adopted grandchild. You requested that this office determine whether a temporary adoption decree by an Arkansas court may entitle the adopted child to child's insurance benefits on the adoptive parent's account prior to the date that the adoption becomes “final.” If so, you requested guidance as to whether a subsequent claim filed after that date would require a reopening of the prior claim to establish entitlement retroactive to the month of issuance of the temporary decree. For the reasons discussed more fully below, it is our opinion that, unless a temporary adoption decree by an Arkansas Probate Court provides for a hearing to take place on a subsequent date, such a decree may establish entitlement to child's insurance benefits prior to the date on which the adoption becomes “final.” Therefore, no subsequent claim to establish retroactive entitlement would be necessary.

The information you supplied with your request indicates that the number holder (NH), Michael O~, assumed custody of the child at issue on or about July 9, 1996, after the death of Stacy L. T~, the child's mother. On or about April 11, 2002, the NH and his wife, Denise O~, filed a joint petition to adopt the child, stating that they were the child's maternal grandparents. The NH and his wife also represented that the child had remained in their care and custody since 1996. Further, the NH and his wife stated that their daughter was not married at the time of the child's birth; that they did not know the identity of the child's putative father; and that they had unsuccessfully attempted to locate the putative father.

On June 7, 2002, the Circuit Court of Drew County, Arkansas, conducted a hearing and issued a temporary Decree of Adoption. The decree states that the NH and his wife are the child's natural grandparents, and that no person or agency objected to their adoption of the child. In addition, the decree declares the child to be adopted by the NH and his wife and states that the decree would automatically become a final decree of adoption on October 16, 2002. The decree does not provide for a hearing on the issue of the child's adoption before the adoption can become final. On the same date that the court issued its decree, the NH's wife, Denise O~, filed an application for child's insurance benefits, on the NH's account, on behalf of the minor child in question. Ms. O~ stated in the application that the child “was adopted by me and [the NH].”

Section 202 of the Social Security Act (the Act), and the applicable regulations, contain the criteria for entitlement to child's insurance benefits. The statute provides, in pertinent part, that a child may receive child's insurance benefits on the account of an aged or disabled NH if the child, is the child of the individual as defined in section 216(e) of the Act, 42 U.S.C. § 416(e), and is dependent upon such individual. See Social Security Act ' 202(d)(1), 42 U.S.C. ' 402(d)(1); 20 C.F.R. ' 404.350. The Act defines the term “child” as the child or legally adopted child of an individual. See Social Security Act ' 216(e)(1), 42 U.S.C. ' 416(e)(1); 20 C.F.R. ' 404.356. A child who was legally adopted by an aged or disabled NH does not meet the dependency requirements unless the child was legally adopted by the individual in an adoption decreed by a court of competent jurisdiction within the United States. See Social Security Act ' 202(d)(8), 42 U.S.C. ' 402(d)(8); 20 C.F.R. ' 404.362. The regulations provide that the Agency applies the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws, to determine whether a child is the insured individual's legally adopted child. See 20 C.F.R. ' 404.356.

Because the adoption proceeding took place in the State of Arkansas, the adoption laws of Arkansas determine whether, and when, the child became the “legally adopted child” of the NH and his wife. Under the Arkansas Revised Uniform Adoption Act, a temporary decree of adoption has the same legal effect as a final decree while it remains in force. See Ark. Stat. Ann. ' 9-9-215(b) (Repl. 1996). The Arkansas Supreme Court has interpreted this statute to mean that if a temporary adoption decree does not expressly require a hearing or some other proceeding before it becomes final, then no such hearing or other proceeding is required. See Toai Cong Pham v. Hanh My Trong, 291 Ark. 442, 443-44, 725 S.W. 2d 569, 570 (1987). The Program Operations Manual System (POMS) also contains