TN 11 (07-14)

PR 01320.011 Florida

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 00-213 The Effect of a Florida Divorce Decree on a Prior Adoption: Richard , SS# ~

DATE: January 20, 1999

1. SYLLABUS

Under Florida law, after one year from the entry of a judgment of adoption, the validity of a judgment of adoption is not subject to direct or collateral attack because of any irregularity or procedural defect. The one-year limitation does not apply to an action to set aside an adoption obtained by fraud.

A divorce decree which orders the termination of the father-child relationship for all purposes, including inheritance, does not annul a valid adoption under Florida law.

2. OPINION

You have requested our opinion as to whether a Florida divorce judgment serves as an annulment of a prior adoption. The facts presented are that the insured, Richard , is entitled to disability insurance benefits. He adopted his stepchildren, Chandler and Christien, on May 19, 1995, in Florida. The stepchildren became entitled to child's insurance benefits as legally adopted children of the insured effective June 1995. On May 7, 1997, Richard and Lori were divorced in Hernando County, Florida. The Final Judgment of Dissolution of Marriage states, in pertinent part, "All parental rights and the relationship between the father and the children are hereby terminated for all purposes including inheritance."

It does not appear that any action has been initiated to annul or invalidate the 1995 judgment of adoption. Under Florida law, after one year from the entry of a judgment of adoption, the validity of a judgment of adoption shall not be subject to direct or collateral attack because of any irregularity or procedural defect. Fla. Stat. Ann. § 63.182. Although, the one year limitation for attacking adoption on the ground of irregularity or procedural defect does not apply to an action to set aside an adoption procured by fraud, Peregood v. Cosmides, 663 So. 2d 665; reh. denied, rev. denied 673 So. 2d 29 (Fla. App. 1995), no fraud is alleged here. Further, Florida courts have determined the decree granting the petition for adoption is presumably correct and such a decision will not be reversed absent a showing of a lack of competent substantial evidence to support the decree. Matter of Adoption of G~, 318 So. 2d 165 (Fla. App. 1975). There is no evidence that the court granting the adoption abused its discretion. It appears that no ground for setting aside the adoption is asserted.

While the divorce decree orders the termination of the father-child relationship for all purposes including inheritance, this termination of rights does not annul a valid adoption under Florida law. The Social Security Administration determines an individual"s status as a legally adopted child of an insured worker by applying the adoption laws of the State or foreign country where the adoption took place, not by applying State inheritance laws. 20 C.F.R. § 404.356. Because the children, as legally adopted children of the insured, were properly entitled to child's insurance benefits, they may only be removed from the record following one of the terminating events found at 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.352(b). Neither the divorce of the adopting parent nor the subsequent adoption by another person constitutes a terminating event. See SSR No. 73-26c, Florio v. Richardson, CHILD"S INSURANCE BENEFITS -- STEPCHILD -- TERMINATION OF ENTITLEMENT; SSR 91-6,EFFECT OF A SECOND ADOPTION ON AN ADOPTED CHILD"S CONTINUED ENTITLEMENT TO BENEFITS--WEST VIRGINIA. Consequently, the Florida divorce decree does not annul the adoption of Chandler and Christien .


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.


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PR 01320.011 - Florida - 08/05/2014
Batch run: 08/05/2014
Rev:08/05/2014