TN 10 (07-14)

PR 01320.005 Arkansas

A. PR 14-135 Arkansas State Law - Status of Entitled Adopted Child (NH Jason; SSN ~) -- REPLY

DATE: July 9, 2014

1. SYLLABUS

We found no legal basis under either Arkansas or Florida law to find that the R~s’ subsequent adoption of the claimant annulled the NH’s prior Florida adoption of the claimant upon which her entitlement to benefits on the NH’s record was based. Under the Act, the adoption of a claimant already entitled to child’s insurance benefits on the earnings record of an individual who previously adopted the claimant does not terminate the claimant’s entitlement to those benefits unless the second adoption revokes the original adoption. It further explains that an adopted child’s entitlement to benefits is terminated if the number holder’s adoption is annulled because with an annulment, the adoption is invalidated and determined never to have legally existed.

In this case, we found no basis under Arkansas or Florida law to find that the adoption of the claimant in Arkansas annulled the NH’s prior adoption of the claimant in Florida. The evidence provided does not show that anyone initiated any action or proceeding, in Florida or Arkansas, to vacate, set aside or nullify the NH’s and his wife’s adoption of the claimant, or that any court entered an order vacating, setting aside or nullifying the NH’s and his wife’s adoption of the claimant. Additionally, the evidence provided also does not show that the NH and his wife filed an action to invalidate their Florida adoption of the claimant within the one year time period allowed under Florida law.

Because an annulment of the adoption is the only terminating event for an entitled adopted child, and we have no evidence that the NH’s adoption of the claimant was annulled within the one year limitations period under State law, the agency has no grounds to terminate the claimant’s entitlement to benefits on the NH’s account, under current law or agency policy.

2. OPINION

QUESTION PRESENTED

On April 25, 2014, you asked whether a subsequent adoption of an entitled child is a terminating event. Alana (Alana) currently receives child’s benefits as the number holder Jason’s (the NH’s) adopted child based on an August 2011 Florida adoption. In August 2013, Matthew and Priscilla (the R~) obtained an Arkansas adoption decree adopting Alana. You have asked whether the R~s’ 2013 adoption of Alana terminates Alana’s entitlement to child’s benefits on the NH’s record.

ANSWER

No. Under the Social Security Act (the Act), the only terminating event for an entitled adopted child is an annulment of the adoption. We found no legal basis under either Arkansas or Florida law to find that the R~s’ subsequent adoption of Alana annulled the NH’s prior Florida adoption of Alana upon which her entitlement to benefits on the NH’s record was based.

BACKGROUND

The agency’s Numident record for Alana shows that she was born in Florida on June, to Shawna and Aaron, and that her birth name was April. Although we are unaware of the evidence submitted to make the changes, Alana’s Numident record shows that in 2011 the agency changed her name from April to Alana and changed her parents from Shawna and Aaron to April and the NH. It also shows that in 2013 the agency again changed Alana’s name from Alana Faye to Alana and changed her parents from April Cotton and the NH to Priscilla and Matthew.

According to the information provided, in August 2010, the NH began receiving Title II disability insurance benefits. A Florida Circuit Court Final Judgment of Adoption in the case of In re: The Adoption of April W~, Case No. 11-6126, (Florida adoption decree) shows that the NH and his wife, April (listed as April on Alana’s Numident record), adopted Alana on August 12, 2011, in Broward County, Florida. The Florida adoption decree changed Alana’s name to Alana Faye, terminated all legal relationships between Alana and her birth parents, and created a legal relationship between Alana and the NH and his wife that entitled Alana to all rights and privileges as a child born to the NH and his wife. Alana is currently receiving child’s benefits on the NH’s account as the NH’s adopted child.

An Arkansas Circuit Court Decree of Adoption in the case of In the Matter of the Adoption of Alana F. R~ (Arkansas adoption decree) shows that on August 9, 2013, the R~ adopted Alana in Montgomery County, Arkansas. The Arkansas adoption decree states that the “child’s parents have properly executed their consents to these proceedings and to the adoption herein,” and that the “child has also executed her consent. 1 Although the Arkansas adoption decree does not identify the NH or his wife by name, it identifies “Alana” as the child the R~s adopted 2 The Arkansas adoption decree states that adoption was in Alana’s best interest, changed Alana’s last name from W~ to R~, terminated the rights and duties of Alana’s birth parents, declared that Alana was the R~s’ child “for all legal intents and purposes,” and vested the R~s with “every legal right, privilege, and obligation as [Alana’s parents].” The Arkansas adoption decree also ordered a “substituted birth certificate” be issued reflecting the R~s as Alana’s parents. The Arkansas adoption decree makes no reference to the NH’s and his wife’s prior adoption of Alana in Florida.

On April 1, 2014, the NH’s attorney delivered a letter to the agency’s Searcy, Arkansas office stating that, pursuant to Arkansas statute ACA Section 9-9-215, which is a part of Arkansas’ Revised Uniform Adoption Act, “when the R~s adopted Alana that adoption decree terminated all parental rights and obligations of the W~ (the NH) as to Alana.”

ANALYSIS

The 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. See 42 U.S.C. §§ 402(d), 416(e)(1), see also 20 C.F.R. §§ 404.350(a)(1), 404.354, 404.356. In this case, in August 2011, Alana became entitled to child’s benefits on the NH’s account as the NH’s legally adopted child and continues to receive benefits. Once the agency awards child’s benefits, there are limited circumstances under which the agency can terminate those benefits. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b)-(e); Program Operations Manual System (POMS) RS 00203.035. The issue presented in this case is whether the R~s’ subsequent adoption of Alana in Arkansas in 2013 is a terminating event for Alana’s entitlement to child’s benefits on the NH’s account.

Section 202(d) of the Act provides that a child’s entitlement to benefits will terminate upon the child’s death; when the child attains age 18 (if the child is not disabled or a full-time student where different rules apply for termination); when the child marries (with certain exceptions); when the number holder is no longer entitled to a disability insurance benefit (unless entitlement ends because of the number holder’s death or entitlement to retirement insurance benefits); and if the child is entitled to benefits as the number holder’s stepchild, when the child’s parent and the number holder stepparent divorce. See 42 U.S.C. § 402(d)(1)(D)-(H); see also 20 C.F.R. § 404.352(b)-(e).

Prior to 1972, Section 202(d) of the Act contained a provision that made a subsequent adoption of a child entitled to benefits as the number holder’s adopted child a terminating event. An adopted child’s entitlement to benefits ended if he or she was subsequently adopted unless the subsequent adoption was by: (1) the child’s natural parent, (2) the child’s natural parent’s spouse jointly with the natural parent, (3) the number holder (e.g., a stepparent) on whose earnings the child was receiving benefits, or (4) a stepparent, grandparent, aunt, uncle, brother, or sister after the death of the number holder on whose earnings the child is receiving benefits. However, Section 118 of the Social Security Amendments of 1972, Pub. L. No. 92-603, amended section 202(d) of the Act to eliminate the provision that made subsequent adoptions of a child a terminating event. The 1972 amendments provided for the continuation of the payment of benefits to an entitled child who is subsequently adopted, regardless of who adopts the child. Social Security Amendments of 1972, H.R.1, as reported by the House Ways and Means Committee, 96th Cong., 1st Sess. (1972).

Through Social Security Ruling (SSR) 91-6, 1991 WL 208066 (S.S.A. 1991), the agency reiterated the Act’s removal of subsequent adoption as a terminating event for a child receiving benefits as a number holder’s adopted child, and opined that an annulment of the number holder’s adoption is the only terminating event. SSR 91-6 states that “[u]nder [the Act], the adoption of a claimant already entitled to child’s insurance benefits on the earnings record of an individual who previously adopted the claimant does not terminate the claimant’s entitlement to those benefits unless the second adoption revokes the original adoption.” 3 SSR 91-6 further explains that an adopted child’s entitlement to benefits is terminated if the number holder’s adoption is annulled because with an annulment, the adoption is “invalidated and determined never to have legally existed.” SSR 91-6, 1991 WL 208066, at *2. In addition, POMS RS 00203.035(B)(3) provides only one ground for terminating a legally adopted child’s benefits - an annulment of the adoption. 4 An annulment is a specific court act that denotes more than the termination of a certain legal status; it renders the legal status invalid from the time that the legal status purportedly commenced, as if the legal event never took place. See Black’s Law Dictionary (9th ed. 2009), “annulment.” Generally, the annulment or abrogation of an adoption is an action an adoptive parent brings to terminate the parent–child relationship by annulment of the decree of adoption. See Black’s Law Dictionary (9th ed. 2009), “annulment of adoption” (referencing “abrogation of adoption”). An adoption may be nullified if it resulted from fraud, misrepresentation, or undue influence, or if nullification is in the child's best interests. Id. Therefore, we examine Arkansas and Florida law, as well as the evidence provided, to determine whether the R~s’ adoption of Alana in Arkansas in 2013 constituted an annulment of the NH’s adoption of Alana in Florida in 2011.

We found no basis under Arkansas or Florida law to find that the R~s’ adoption of Alana in Arkansas annulled the NH’s prior adoption of Alana in Florida. Under Florida law, which governs the NH’s adoption of Alana entered by the Florida court, “an action or proceeding of any kind to vacate, set aside, or otherwise nullify a judgment of adoption or an underlying judgment terminating parental rights on any ground may not be filed more than 1 year after entry of the judgment terminating parental rights.” Fla. Stat. Ann. § 63.182; see also Martin v. Adoption of L.M.D., 64 So.3d 758, 759 (Fla. Dist. Ct. App. 2011) (Florida’s statute of repose for adoptions strictly limits motions to vacate adoption orders based on any ground, including fraud, to one year.). Therefore, in order for the NH’s and his wife’s August 12, 2011 Florida adoption of Alana to be annulled, an action to annul the adoption must have been filed on or before August 13, 2012. 5 The evidence provided does not show that anyone initiated any action or proceeding, in Florida or Arkansas, to vacate, set aside or nullify the NH’s and his wife’s adoption of Alana, or that any court entered an order vacating, setting aside or nullifying the NH’s and his wife’s adoption of Alana. Specifically, the evidence provided does not show that the NH and his wife filed an action to invalidate their Florida adoption of Alana within the one year time period allowed under Florida law. The Arkansas court entered the Arkansas adoption decree on August 9, 2013, well beyond the one-year time period. The Arkansas adoption decree does not indicate that it annulled, vacated, set aside, or otherwise nullified the NH’s and his wife’s prior adoption of Alana. Therefore, we have no legal or factual basis to find that the R~s’ adoption of Alana annulled the NH’s prior adoption of Alana. As a result, no grounds exist to terminate Alana’s continued entitlement to child’s benefits on the NH’s account. See 20 C.F.R. § 404.356; SSR 91-6; POMS RS 00203.035(B)(3).

CONCLUSION

Because an annulment of the adoption is the only terminating event for an entitled adopted child, and we have no evidence that the NH’s adoption of Alana was annulled within the one year limitations period under State law, the agency has no grounds to terminate Alana’s entitlement to benefits on the NH’s account, under current law or agency policy.

Michael McGaughran

Regional Chief Counsel

By: ________

Aminah M. Collick

Assistant Regional Counsel

B. PR 00-045 Effect of Arkansas Court Order That Adoption Decree of Entitled Adopted Grandchild Is Vacated, Set Aside and Held for Naught (NH Mary, SSN ~)

DATE: March 23, 2000

1. SYLLABUS

Under Arkansas law, an interlocutory decree of adoption can be vacated, set aside, and deemed void from its issuance. A court"s language that an adoption is vacated, set aside, or held for naught is tantamount to saying that the adoption is annulled. Per RS 00203.035B.3., "entitlement to child's benefits based on a legal adoption will terminate if the adoption is annulled. The effective date of the termination to benefits is the month in which the annulment becomes effective."

2. OPINION

We are writing in response to your request for an opinion as to what effect, if any, a Decree Vacating Adoption by an Arkansas Probate Court has on the entitlement to child's benefits of an adopted grandchild. You requested this office determine whether, based on the Decree Vacating Adoption: (1) the initial entitlement should be reopened and revised to a denial based on new and material evidence (GN 04010.030); (2) the adoption was annulled, thus terminating entitlement to child's benefits in the month the order is effective (RS 00203.035B.3); or (3) entitlement to child's benefits should continue.

For the reasons discussed more fully below, it is our opinion that the express language of the subject Decree Vacating Adoption demonstrates that the order is the same as an annulment thus terminating the entitlement to child's benefits in the month the order is effective.

The information you supplied with your request indicates that the number holder (NH), Mary, adopted her grandchild, Vanessa, by court order dated November 26, 1997. A claim for child's benefits was filed January 1998, with initial entitlement as an adopted child effective December 1997. Aundrea ~ (now N~), the child's biological mother and NH"s daughter, filed a petition to vacate or set aside the adoption.

On July 6, 1999, after trial on June 16, 1999, the Probate Court of Jefferson County, Arkansas, issued a Decree Vacating Adoption of Vanessa by the NH, Mary . The Court found that the adoption of Vanessa by Mary did not comply with several sections of the Arkansas Revised Uniform Adoption Act. The Court further found that Aundrea" consent to the adoption was obtained by fraud on the part of Mary. Based on these findings, the Court held the following, among other things:

7. The decree of adoption is interlocutory and should be set aside and held for naught. 8. The child should be returned immediately to the natural mother, [Aundrea ]. 9. The child should be restored to her birth name.

THEREFORE IT IS HEREBY ORDERED, DECREED AND ADJUDGED that the decree of adoption of the minor child, Vanessa, by Mary is vacated, set aside and held for naught ....

Section 202 of the Social Security Act provides, in pertinent part, that a child is entitled to child's insurance benefits on the account of an individual who is entitled to old-age or disability insurance benefits, or who has died, if the child files an application, has not attained 18 years old, is the child of the individual as defined in §216(e) of the Act, 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 (1999). The term "child" is defined by the Social Security Act 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 (1999). A child who was legally adopted by an individual after that individual became entitled to old-age insurance benefits or disability insurance benefits, 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 (1999). The regulations provide that the Social Security Administration 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 (1999).

Under the Arkansas Revised Uniform Adoption Act, "If an interlocutory decree of adoption is vacated, it shall be as though void from its issuance ...." See Ark. Stat. Ann. § 9-9-215(b). It is clear, therefore, from the language of this section of the Arkansas statutes that an interlocutory decree can be vacated, set aside, and deemed void from its issuance. See Dougan v. Gray, 318 Ark. 6, 13-14, 884 S.W. 2d 239, 243 (1994).

Arkansas courts consistently interchange use of the terms "annul" and "set aside" within their decisions. See, e.g., Hensley v. Wist, 270 Ark. 1004, 1006-1007, 607 S.W.2d 80, 82 (1980); Schrum v. Bolding, 260 Ark. 114, 116, 539 S.W.2d 415, 416 (1976); Cotten v. Hamblin, 234 Ark. 109, 350 S.W.2d 612 (1961). Therefore, the court's language that it had "vacated" the adoption, "set aside" the adoption, or held the adoption "for naught," and that "the child should be restored to her birth name" was tantamount to saying that it had ordered the "annulment" of the adoption. 6

Based on the foregoing, it is our opinion that as of the July 6, 1999 Decree Vacating Adoption, Vanessa was no longer entitled to benefits on Mary's earnings record. As noted above, entitlement to benefits in this case was premised on the requirements that Vanessa was a legally adopted child and a dependent of the wage earner. See Social Security Act §§ 202(d)(1) and 216(e)(1); 20 C.F.R. §§ 404.350 and 404.356 (1999).

When the adoption was annulled and Vanessa was returned to her biological mother, Vanessa was neither the legally adopted child nor a dependent of the wage earner, Mary V~. Our opinion is consistent with the Program Operations Manual System (POMS) RS 00203.035B.3, which states that "entitlement to a child"s benefits based on a legal adoption will terminate if the adoption is annulled. The effective date of the termination to benefits is the month in which the annulment becomes effective." The annulment of Mary's adoption of Vanessa became effective on July 6, 1999, the date the Decree Vacating Adoption was filed. Thus, Vanessa" entitlement to child's benefits on Mary's Social Security number terminated in July 1999.

In summary, it is our opinion that the Decree Vacating Adoption filed in the Probate Court of Jefferson County, Arkansas on July 6, 1999, is an annulment of the adoption of Vanessa by Mary, which results in Vanessa" entitlement to child"s benefits terminating in July 1999.


Footnotes:

[1]

It is not clear from the Arkansas adoption decree whether the consenting parents referenced in the decree are the W~ or the R~s. The Arkansas adoption statute, Ark. Code Ann. § 9-9-206, generally requires the parents of a minor child to provide written consent to the adoption, unless specific enumerated circumstances exist.

[2]

The information provided shows that the Montgomery County Courts advised the agency that they were not allowed to release information on adoption cases. Thus, the agency is unable to obtain additional court documents related to the Arkansas adoption due to the confidential nature of the proceedings.

[3]

See also POMS RS 00203.035(C) (“[t]he adoption of a child already entitled to benefits does not terminate the child’s benefits.”); POMS GN 00306.165(A) (“[a]doption by someone other than the NH does not terminate a child’s entitlement.”).

[4]

One program opinion, POMS PR 01320.017(A) PR 11-087, explains that under SSR 91-6, the adoption that is annulled never legally existed, and therefore, “[s]trictly speaking, a child whose adoption was annulled was never actually entitled to benefits that he may have received by virtue of the adoption.” POMS PR 01320.017(A) PR 11-087, MOS – State: Indiana – Court Order Vacating Order of Adoption – number holder Janice - claimant Lukas (April 21, 2011). The opinion notes, however, that “instead of stopping benefits and charging an overpayment, SSA merely stops paying benefits,” and that “[i]t is our understanding that this was a policy choice to prevent unfairness to the child.” Id.

[5]

The one-year filing deadline of August 12, 2012 fell on a Sunday and, thus, would have been extended to Monday, August 13, 2012 under Florida court rules. See Fla. R. Jud. Admin. 2.514.

[6]

Our opinion is consistent with an opinion from the Office of the Regional Chief Counsel in Region VII, Kansas City. (Ref: August 24, 1990, Entitlement of Children Involved in Multiple Adoptions).


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PR 01320.005 - Arkansas - 08/04/2014
Batch run: 08/04/2014
Rev:08/04/2014