TN 1 (05-15)

PR 01315.021 Louisiana

A. PR 15-109 Louisiana State Law – Validity of Adult Adoption Based on Notarial Adoption and Judgment Approving Adoption (NH: T~; SSN ~) – REPLY

DATE: April 8, 2015

1. SYLLABUS

Under Louisiana Law, an adult adoption is effective when the act of adult adoption and any judgment required to authorize the adoption are filed for registry, except as otherwise provided by law.  If the act of an adult adoption is filed within five days after the date of the last signature required for validity of the act, exclusive of legal holidays, the adoption shall be effective as of the date of the last signature.  If article 212 requires court authorization, the judgment with the act of adoption shall be filed for registry with the clerk of any parish.

2. OPINION

QUESTION PRESENTED

This memorandum is in response to your request for a legal opinion on whether the Louisiana state court’s judgment granting T~’s adoption of his adult biological granddaughter, B~, is a valid adult adoption under Louisiana law for purpose of entitlement to child’s benefits. If the adult adoption is valid, you asked the effective date of the adoption.

ANSWER

We conclude that the adult adoption is valid under Louisiana law and effective in September 2014. However, based on the present record and specific circumstances of this case, we conclude that further development is required to determine whether B~ met the dependency requirement of 20 C.F.R. § 404.350(a)(2) in order to be entitled to benefits. Specifically, we defer to the Social Security Administration (agency) to determine whether B~ lived with or received at least one-half of her support from the NH, during the year immediately preceding her adoption in accordance with 20 C.F.R. § 404.362(b)(1)(ii).

BACKGROUND

The NH became entitled to old-age benefits effective July 1998. In August 2014, B~, the NH, and the NH’s wife (B~’s biological grandmother) filed a Joint Petition to Authorize Adult Adoption in the Sabine Parish, Louisiana District Court. In September 2014, all three parties signed an Authentic Act of Adoption before a Notary Public. On this same date, the District Court judge signed the Judgment Approving Adult Adoption, and the District Court stamped the Judgment “received and filed.” Born on December, B~ was 36 years old at the time of the adoption.

The next month, October 2014, B~ filed an application for disabled adult child’s benefits on the NH’s record as the NH’s adopted child. B~ has lived in the NH’s household since birth and became entitled to supplemental security income (SSI) payments effective May 1992, when she was 14 years old. The NH and B~ were domiciled in Louisiana at the time of the adoption and the application for disabled adult child’s benefits. B~’s biological parents are neither disabled nor deceased.

ANALYSIS

Validity of Adoption Under Louisiana Law

In determining whether a child is a 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. The NH adopted B~ in Louisiana; therefore, Louisiana law is controlling. Louisiana recognizes the validity of an adult adoption. La. Civ. Code Ann. art. 212. A Louisiana court, upon the joint petition of the adoptive parent and the person to be adopted, may authorize the adoption if the court finds after a hearing that the adoption is in the best interest of both parties. Id. Either party to the adoption may bring an action to authorize an adult adoption in accordance with La. Civ. Code Ann. art 212 in either party’s parish or domicile. La. Code Civ. Proc. Ann. art. 74.5. An adult adoption is effective when the act of adult adoption and any judgment required to authorize the adoption are filed for registry, except as otherwise provided by law. La. Civ. Code Ann. art. 214. If the act of an adult adoption is filed within five days, exclusive of legal holidays, after the date of the last signature required for validity of the act, the adoption shall be effective as of the date of the last signature. La. Rev. Stat. Ann. 9:462. If article 212 requires court authorization, as in the case at hand, the judgment with the act of adoption shall be filed for registry with the clerk of any parish. Id. at 9:463.

In this case, the adult adoption complied with Louisiana law. B~ was 36 years old and thus had attained the age of majority in August 2014, the date she filed the Joint Petition to Authorize Adult Adoption. Because the NH and the NH’s wife were B~’s grandparents, and not the spouse or surviving spouse of a parent of the person to be adopted, they needed judicial authorization to adopt B~. See La. Civ. Code Ann. art. 212. In accordance with article 212, B~, the NH, and the NH’s wife, residents of Sabine Parish, Louisiana filed a Joint Petition to Authorize Adult Adoption in the 11th Judicial District Court, Sabine Parish, Louisiana. [1] The NH, NH’s wife, and B~ signed the Authentic Act of Adoption in September 2014, and the District Court judge, after a hearing, approved the adult adoption on the same day. The stamp from the District Court on the Judgment Approving Adult Adoption states that the District Court received and filed and registered the Judgment on the same day. Thus, the NH’s adoption of B~ appears to be a valid adult adoption.

B~’s Entitlement to Social Security Benefits on the NH’s Record

Under the Social Security Act (Act), a disabled adult child may be eligible for Social Security benefits if she is the child of an individual who is entitled to old-age or disability benefits. 42 U.S.C. §§ 402(d)(1), 416(e)(1); see 20 C.F.R. §§ 404.350, 404.354, 404.356, 404.358. In order to qualify, the child must meet the following criteria: (1) she is the insured person’s child, based upon a relationship described in §§ 404.355 through 404.359; (2) she is dependent on the insured, as defined in §§ 404.360 through 404.365; (3) she applies; (4) she is unmarried; and (5) she is under age 18 or 18 years or older and has a disability that began before she became 22 years old. 20 C.F.R. § 404.350.

We now examine whether B~ meets these five criteria necessary to receive child’s benefits on the NH’s record. First, B~ is the NH’s child pursuant to a valid adoption of a grandchild under Louisiana law. See 20 C.F.R. § 404.358(b) (you may be eligible for the benefits as the insured’s child if you are the insured’s grandchild and were legally adopted by the insured).

Second, B~ must be dependent on the insured to be eligible for benefits. See 20 C.F.R. § 404.350(a)(2) (you are dependent on the insured, as defined in §§ 404.360 through 404.365). Because the NH legally adopted B~ after the NH became entitled to benefits in July 1998, and B~ was not the NH’s natural child or stepchild, she can be considered dependent on the NH during his lifetime only if, in relevant part, she attained age 18 before adoption proceedings were started, the adoption was issued by a court of competent jurisdiction within United States, and she was living with or receiving at least one-half support from the NH for the year immediately preceding the month in which the adoption was issued. See 20 C.F.R. § 404.362(b)(1)(ii). The 11th Judicial District Court, Sabine Parish, Louisiana, which issued the Judgment Approving the Adult Adoption, is a court of competent jurisdiction within the United States. Thus, we next look to whether B~ was living with or receiving at least one-half support from the NH during the year immediately preceding September 2014, when the court issued the Judgment Approving the Adult Adoption.

An individual is considered living with an insured if she ordinarily lives in the same home with the insured and the insured is exercising, or has the right to exercise, parental control and authority over the individual’s activities. 20 C.F.R. § 404.366(c). The adoption decree states that B~ had lived with the NH since birth. Furthermore, according to agency records, the most recent SSI redetermination in December 2014 concluded that B~ had been living with the NH from March 2008 through December 2014. However, we have no information indicating whether the NH exercised, or had the right to exercise, parental control and authority over B~’s activities during the year immediately preceding the September 2104 adoption. Consequently, the agency should further develop these facts. Assuming the NH had such authority over B~, the dependency requirement would be met.

As noted, B~ can also meet the dependency requirement by showing that she was receiving at least one-half support from the NH during the year immediately preceding the September 2014 adoption. An insured person provides one-half of support if he makes regular contributions for the claimant’s ordinary living costs; the amount of these contributions equals or exceeds one-half of the claimant’s ordinary living costs; and any income (from sources other than the insured person) the claimant has available for support purposes is one-half or less of the claimant’s ordinary living costs. 20 C.F.R. § 404.366(b). The facts presented do not reveal how much the NH contributed to B~’s living costs during the year preceding the September 2014 adoption. Consequently, the agency should further develop these facts. Assuming the NH provided the requisite support, the dependency requirement would be met.

B~ met the third requirement -- she applied for benefits. See 20 C.F.R. § 404.350(a)(3). She met the fourth requirement that she be unmarried -- court documents provided to us indicate that she is single. [2] 20 C.F.R. § 404.350(a)(4). B~ met the fifth requirement because she is older than 18, and the record indicates that she has received SSI payments based on her disability since 1992 when she was 14 years old. See 20 C.F.R. § 404.350(a)(5). Thus, on the basis of the facts presented, if further development shows that B~ was dependent on the NH, B~ appears to meet the five requirements of 20 C.F.R. § 404.350(a).

Whether the State Court Adoption Decree Binds the Agency

If the agency’s further development of the record reveals that B~ met the dependency requirement of 20 C.F.R. § 404.350(a)(2), we must determine whether the state court adoption decree binds the agency. Generally, a state court judgment does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray). Pursuant to SSR 83-37c, state court determinations on domestic relations matters bind the agency only when certain specific factors are satisfied. The factors are: (1) when a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) when parties with opposing interests genuinely contested the issue before the state court; (3) when the issue falls within the general category of domestic relations law; and (4) when the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. The Fifth Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray criteria. See Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989) (citing Gray); Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989).

The Judgment Approving the Adult Adoption meets the first Gray criteria as it declares B~ to be the NH’s adopted child, which is the determinative issue in B~’s claim for child’s benefits. The Judgment Approving the Adult Adoption also meets the third criteria as the issue of an adult adoption falls within the general category of domestic relations law. See La. Code Civ. Proc. Ann. art. 74.5 (district court in the parish or domicile of either party has jurisdiction over adoption petitions).

As to the second criteria, the evidence suggests that parties with opposing interests did not genuinely contest the Joint Petition to Authorize Adult Adoption before the District Court. Although the Fifth Circuit has not articulated what constitutes a “genuinely contested” issue, an ex parte judgment does not generally satisfy the “genuinely contested” criteria. See Warren, 868 F.2d at 1446-47 (noting the ex parte nature of the judgment); Dennis v. R.R. Ret. Bd., 585 F.2d 151, 155 n.2 (6th Cir. 1978) (noting that ex parte proceedings do not bind the federal government). However, when a judgment results from a suit, that judgment appears to satisfy the “genuinely contested” criteria, even when the opposing party consents to judgment. See Garcia, 883 F.2d at 20 (disagreeing with the agency’s genuinely contested finding because of the “adversarial nature” of a paternity suit); Dennis, 585 F.2d at 154 (finding that a suit filed in the Ohio Probate Court was a contested matter); but see George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (holding that a nunc pro tunc divorce decree was not “genuinely contested” because, in part, there was no indication that any material controversy was resolved).

In this case, the Joint Petition to Authorize Adult Adoption falls between an ex parte proceeding and a suit with an “adversarial nature.” See Warren, 868 F.2d at 1446-47; Garcia, 883 F.2d at 20. Intra-family adoptions are not adversarial unless a parent files an opposition to the adoption by filing a clear and written answer. See, e.g., In re B.L.M., 136 So. 3d 5, 7 (La. App. 1 Cir. 2013) (showing that the parent raised an objection to the adoption proceeding, which created the controversy in the adoption proceeding). Thus, because an intra-family adoption is not adversarial when the parties consent and because the NH and B~ consented to the NH’s adoption of B~, it does not satisfy the second Gray criteria. [3]

Finally, as to the fourth Gray criteria, we look to Louisiana adoption law to determine whether the Judgment Approving Adult Adoption is consistent with what the Louisiana Supreme Court has enunciated. As stated above, B~’s adoption appears consistent with Louisiana law, thus in our opinion it would be upheld by the Louisiana Supreme Court.

Notwithstanding the fact that the adult adoption in this instance does not meet the second Gray criteria, it is our opinion that the agency, in accordance with the Fifth Circuit’s emphasis on the fourth Gray criteria, should give the state court’s decision deference, and therefore recognize B~’s adult adoption. As stated above, the Fifth Circuit held that the agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Garcia, 883 F.2d at 20.

The Effective Date of the Adult Adoption

Lastly, we address the date the adoption became effective. Under Louisiana law, if the act of an adult adoption is filed within five days, exclusive of legal holidays, after the date of the last signature required for validity of the act, the adoption shall be effective as of the date of the last signature. La. Rev. Stat. Ann. 9:462. In this instance, the provided court documents reveal that the NH, the NH’s wife, and B~ signed the Authentic Act of Adult Adoption in September 2014, and that the District Court judge approved the adult adoption on the same day. The District Court’s stamp on the Judgment Approving Adoption states that the District Court received and filed the Judgment on the same day. Accordingly, the effective date of the adoption is September 2014.

CONCLUSION

The adult adoption is valid under Louisiana law and effective September 2014. However, based on the present record and specific circumstances of this case, we conclude that further development is required to determine whether B~ meets the dependency requirement of 20 C.F.R. § 404.350(a)(2). Specifically, we defer to the agency to determine whether B~ lived with or received at least one-half of her support from the NH during the year immediately preceding her September 2014 adoption in accordance with 20 C.F.R. § 404.362(b)(1)(ii). In order for B~ to meet the requirement that she was living with the NH during the year immediately preceding her adoption, she must show that she ordinarily lived in the same home with the NH and the NH exercised, or had the right to exercise, parental control and authority over B~’s activities. In order to show B~ received one-half of her support from the NH, the record must show the NH made regular contributions for B~’s ordinary living costs; the amount of these contributions equaled or exceeded one-half of B~’s ordinary living costs; and any income (from sources other than the NH) B~ had available for support purposes was one-half or less of her ordinary living costs.

Michael McGaughran
Regional Chief Counsel
By:___________________________
Brock C. Cima
Assistant Regional Counsel


Footnotes:

[1]

According to the Louisiana Supreme Court website, the 11th Judicial District of the Louisiana District Courts covers the same geographical boundaries as Sabine Parish. http://www.lasc.org/links.asp (last visited April 6, 2015).

[2]

In order to verify B~’s marital status, the undersigned conducted a people search on Lexis.com on April 8, 2015, which likewise indicated that B~ is not married.

[3]

The adult adoption proceeding was not an ex parte proceeding because all of the parties required to be present under Louisiana law were present at the hearing. However, the proceeding was not adversarial because neither of B~’s natural parents filed an objection to the adoption.


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PR 01315.021 - Louisiana - 05/04/2015
Batch run: 06/25/2015
Rev:05/04/2015