TN 4 (01-08)
PR 01320.001 Alabama
A. PR 08-033 Effect of a Vacated Order of Adoption in Alabama Number Holder - Billy W~ W~ Child/Claimant - Billy J. M. W~
DATE: December 4, 2007
In a case where the claimant's maternal grandparents falsified an adoption petition in order to receive benefits on the child's behalf and a probate court subsequently vacated the adoption, SSA could conclude the Final Decree of Adoption was obtained through fraud or similar fault and reopen the initial determination.
You asked whether a court order vacating the adoption of a child by the number holder would terminate the child's entitlement to benefits. You also asked the effective date of such termination.
A Social Security Administration (SSA) adjudicator could find fraud or similar fault warrants a reopening of the original determination awarding benefits. If the original determination awarding benefits is reopened and revised to reflect no parent-child relationship, all benefits previously received by the child should be treated as an overpayment.
Billy J. M. W~ (Claimant) was born on January 11, 2001, to Kelly S. W~ (Mother). The identity of Claimant's natural father is unknown. On June 22, 2001, Claimant's maternal grandparents filed a petition to adopt Claimant in the Probate Court of Mobile County, Alabama. Claimant's maternal grandfather is Billy W. W~, the number holder (NH). According to the Probate Court, Claimant's grandparents stated they resided in Mobile County and desired to establish a parent-child relationship with Claimant. The grandparents purportedly alleged Claimant lived with them since birth. On November 28, 2001, the Probate Court granted the petition for adoption and a new birth certificate was issued listing Claimant's maternal grandparents as his mother and father. Claimant began receiving child's insurance benefits as a legally adopted child on NH's account .
Mother subsequently filed a petition for adoption in the Probate Court of Mobile County jointly with an individual identified only as "J.F.C." Although the nature of Mother's relationship to J.F.C. is unclear, Mother's initials were listed as K.W.C. on their joint petition for adoption. The Probate Court ordered an evidentiary hearing due to factual discrepancies between the two petitions for adoption. According to the Probate Court's March 6, 2007 order, Claimant's grandmother admitted Claimant, Mother and Claimant's grandparents resided in Baldwin County when the grandparents petitioned for adoption. Claimant's grandmother also testified Claimant resided with Mother since his birth. Claimant's grandmother further testified that she and NH had received additional Social Security benefits based on their adoption of Claimant and had used the additional benefits to support both Claimant and Mother. The Probate Court concluded Claimant's grandparents perpetrated a fraud upon the court by filing an adoption petition containing materially false information. The court noted it was without jurisdiction to entertain the adoption petition filed by Claimant's grandparents and Claimant's grandparents had no intent of establishing a parent-child relationship. The court vacated and set aside the Final Decree of Adoption issued on November 28, 2001 and ordered custody of Claimant restored to Mother. The court also expressed concern regarding "the receipt of Social Security benefits by someone who would not have been entitled to receive same, but for the fraud committed upon the Court." The court therefore ordered the clerk of the court to forward a copy of its order to authorities in Alabama and to the United States Attorney.
Entitlement to and Termination of Child's Insurance Benefits - In General
To qualify for child's benefits on the earnings record of an insured individual who is entitled to old-age or disability benefits, the claimant must be that individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2007). A "child" for purposes of the Act means an individual who is related to the insured person as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2007). Regarding an adopted child, SSA will apply the adoption laws of the state in which the adoption took place to determine whether an individual is the insured's legally adopted child. See 20 C.F.R. § 404.356 (2007).
Reopening and Revising a Determination on the Basis of Fraud or Similar Fault
SSA may reopen a determination at any time if it was obtained by fraud or similar fault. See 20 C.F.R. § 404.988(c)(1) (2007). In deciding whether a determination was obtained by fraud or similar fault, SSA will take into account any relevant physical, mental, educational or linguistic limitations. See 20 C.F.R. § 416.1488(c) (2007). Fraud exists when a person, with intent to defraud, either (1) makes or causes to be made a false statement or misrepresentation of a material fact or (2) conceals or fails to disclose a material fact for use in determining rights to Social Security benefits. See Program Operations Manual System (POMS) GN 04020.010(A)(1). Similar fault exists when a person knowingly makes an incorrect or incomplete statement or knowingly conceals information that is material to the determination. See POMS GN 04020.010(A)(2). A fraudulent intent is not required for a finding of similar fault. Id.
The Probate Court determined Claimant's grandparents perpetrated a fraud upon the court by filing an adoption petition containing materially false information. A probate court in Alabama may grant a final decree of adoption after finding by clear and convincing evidence (1) the adoptee has been in the actual physical custody of the petitioners for a period of sixty days; (2) all necessary consents, relinquishments, terminations or waivers have been obtained; (3) service has been made upon all persons entitled to receive notice of pending adoption proceedings; (4) all contests of the adoption have been resolved in favor of the petitioner; (5) each petitioner is a suitable adoptive parent and desires to establish a parent and child relationship with the adoptee; (6) the best interests of the child are served by the adoption; and (7) all other requirements of Alabama adoption law have been met. See ALA. CODE § 26-10A-25(b) (2007). A final decree of adoption may not be collaterally attacked more than one year after entry except in cases of fraud. See ALA. CODE § 26-10A-25(d) (2007).
On March 6, 2007, the Mobile County Probate Court vacated and set aside the Final Decree of Adoption issued on November 28, 2001. Claimant, Mother and Claimant's grandparents all resided in Baldwin County when the grandparents' petition for adoption was filed in Mobile County. A petition for adoption must be filed in the probate court of the county in which the either the adoptee or petitioner resides. See ALA. CODE § 26-10A-4 (2007). The Probate Court also found Claimant's grandparents had no intent to establish a parent-child relationship with Claimant. Claimant's grandmother admitted Claimant resided with Mother at all times since his birth. The testimony of Claimant's grandmother also refutes the November 28, 2001 finding of the Probate Court that Claimant was in the actual physical custody of his grandparents for a period of more than sixty days.
SSA is not required to accept a state court determination unless (1) an issue in a claim for Social Security benefits previously has been decided by a state court of competent jurisdiction; (2) the issue was genuinely contested before the state court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Social Security Ruling 83-37c. In Alabama, the probate court is vested with original jurisdiction over adoption proceedings. See ALA. CODE § 26-10A-3 (2007). Claimant's grandmother and Mother testified in an evidentiary hearing. Although NH was unable to appear due to health problems, the Probate Court relied upon the admissions of Claimant's grandmother to determine that the original adoption petition contained fraudulent information.
We believe the decision of the Probate Court to vacate and set aside the Final Decree of Adoption on the basis of fraud is consistent with Alabama law. Although a final decree of adoption may be collaterally attacked on the basis of fraud at any time after it is issued, no provision of Alabama adoption law specifically grants the Probate Court authority to do so on its own motion. However, when the statutes governing adoption procedures and the probate courts do not make reference to methods for bringing post-judgment motions, the probate courts are governed by the provisions of the Alabama Rules of Civil Procedure. In the Matter of Infant Male Morrison, 388 So. 2d 1014, 1015-16 (Ala. Civ. App. 1980). An adoption decree entered by a court without jurisdiction over the parties is void. See J.B. v. F.B., 929 So. 2d 1023, 1026 (Ala. Civ. App. 2005). A challenge to an adoption decree which is void may be brought at any time after entry of the putative judgment under Ala. R. Civ. P. 60(b)(4). See In re C.L.C. v. D.W.R. and M.J.T.R., 897 So. 2d 234, 237 (Ala. 2004). Furthermore, a judgment obtained by fraud on the court itself may be set aside by any court on its own motion under Ala. R. Civ. P. 60(b)(6). See Ex parte Robinson Roofing & Remodeling, Inc., 709 So. 2d 444, 446 (Ala. 1997).
Even if SSA were not to accept the finding of fraud by the Probate Court, an independent review of the facts by an SSA adjudicator would likely result in a finding of fraud or similar fault. The record contains no evidence Claimant's grandparents have any physical, mental or linguistic limitations. Claimant's grandparents were required to submit a copy of the revised birth certificate issued after the adoption as well as proof Claimant was NH's grandson to establish Claimant as NH's legally adopted child. See 20 C.F.R. § 404.733 (2007). Claimant's grandparents falsely stated to the Probate Court that they resided in Mobile County, had actual physical custody of Claimant for a period of more than sixty days, and desired to establish a parent-child relationship with Claimant. Claimant's grandparents did not make the false statements directly to SSA. However, the Final Decree of Adoption incorporated these false statements as findings of fact and a new birth certificate was issued as a result. Claimant's grandparents submitted the birth certificate to SSA to establish Claimant was NH's legally adopted child.
Even if the false statements by Claimant's grandparents are by themselves insufficient to establish a fraudulent intent, these false statements were material to the ultimate decision to award benefits and thus establish similar fault. We believe an SSA adjudicator could find Claimant's grandparents acted with either fraud or similar fault in the pursuit of an application for child's benefits on the account of NH and a decision to reopen and revise the initial determination awarding benefits would be warranted. Due to potential fraud associated with this claim, we also recommend the adjudicator refer this matter for further investigation by the Center for Security and Integrity. See POMS GN 02201.050.
Effect of Probate Court's Order on Claimant's Entitlement to Benefits
An alternative basis exists for terminating Claimant's entitlement to child's benefits. Entitlement to child's insurance benefits based on a legal adoption will terminate if the adoption is annulled and such termination takes effect the month in which the annulment became effective. See POMS RS 00203.035(B)(3). We did not find the word "annulled" in the text of the Alabama adoption statute. However, we have previously found "setting aside" a judgment to be synonymous in meaning to reversing, vacating, canceling, annulling or revoking a judgment. See POMS PR 01320.019(A)(2). The regulation setting forth the circumstances under which entitlement to child's benefits ends makes no reference to the annulment of an adoption. See 20 C.F.R. § 404.352(b) (2007). OISP/OEEP is currently reviewing POMS RS 00203.035(B)(3) and considering whether any revisions are appropriate. Since a finding of fraud or similar fault is warranted by the record as developed, it is not necessary to address POMS RS 00203.035(B)(3) to adjudicate this claim. However, if problems arise in pursuing reopening and redetermination for fraud or similar fault, you should contact OISP/OEEP to discuss the status and use of this POMS provision.
Effective Date of Termination
If SSA concludes fraud or similar fault was involved in an application for benefits, SSA should redetermine the entitlement of an individual to such benefits. See Act § 205(u)(1)(A), 42 U.S.C. § 405(u)(1)(A). SSA shall disregard any evidence if there is reason to believe fraud or similar fault was involved in providing such evidence. See Act § 205(u)(1)(B). If there is insufficient evidence remaining to support an entitlement to benefits, SSA may terminate such entitlement and treat any benefits paid as an overpayment. See Act § 205(u)(3). Thus, if SSA reopens the initial determination awarding benefits on the basis of fraud or similar fault, Claimant would never have been entitled to receive child's insurance benefits and any payments Claimant received would be considered overpayments.
An SSA adjudicator could conclude the Final Decree of Adoption was obtained through fraud or similar fault. Because Claimant's grandparents submitted the adoption documents in an effort to obtain benefits, SSA could reopen the initial determination awarding benefits. If SSA disregards the adoption documents, an SSA adjudicator could find Claimant ineligible for any benefits as the legally adopted child of NH.
Mary A. S~
Regional Chief Counsel
Christopher G. H~
Assistant Regional Counsel