PR 01320.034 New Mexico

A. PR 95-004 Effect Of New Mexico Relinquishment Of Parental Rights And Consent To Adoption On Entitlement To Child"s Insurance Benefits

Date: May 4, 1995

1. SYLLABUS

A Relinquishment of Parental Rights and Consent to Adoption executed by the NH and his wife under New Mexico law with respect to an adopted child ended the legal relationship between the NH and the child but did not nullify the child's adoption by the NH.

2. OPINION:

We are responding to the Office of Disability and International Operations" request for our opinion as to the effect of a Relinquishment of Parental Rights and Consent to Adoption executed under New Mexico law on a claimant's entitlement to child"s insurance benefits. Specifically, the child, Jack M. P. D~ was adopted by the wage earner, Jack M. D~ on November 20, 1989. The Social Security Administration (SSA) paid child's insurance benefits on behalf of Patrick during the time he lived with the wage earner. On February 22, 1991, a New Mexico district judge approved a Relinquishment of Parental Rights and Consent to Adoption executed by the wage earner and his wife. You have requested our opinion as to whether the Relinquishment of Parental Rights and Consent to Adoption constitutes an "annulment" of adoption under Program Operations Manual System (POMS) RS 00203.035B.3 requiring the termination of benefits to an adopted child. For the reasons set forth below, we believe that the Relinquishment of Parental Rights and Consent to Adoption did not nullify the adoption of Patrick by the wage earner as if it never existed.

The file you have provided indicates that the wage earner, Jack M. D~, became entitled to disability insurance benefits beginning in May 1984, with a disability onset date of May 15, 1983. On November 20, 1989, a New Mexico district court approved the adoption of Jack M. P. D~ (Patrick) by the wage earner and his spouse, Stephanie L. D~. Patrick was born in New Mexico on August 8, 1980. A claim for child's insurance benefits filed on November 28, 1989 on behalf of Patrick was denied because Patrick was not dependent upon the wage earner at the time of his disability onset or entitlement date, and is not biologically related to the wage earner or his wife. This claim was reopened based on a change in the law which allows dependency to be deemed, and Patrick became entitled to benefits effective January 1990.

On February 22, 1991, a New Mexico district judge approved a Relinquishment of Parental Rights and Consent to Adoption executed by the wage earner and his wife. Through this document, the wage earner and his wife gave up their parental rights to Patrick, but the document states that Patrick retains inheritance rights from the wage earner and his wife until he is adopted by someone else. The New Mexico Human Services Department assumed custody of Patrick until a new adoptive family could be found. On August 2, 1993, Patrick was adopted by another couple.

A child is entitled to child's insurance benefits on the earnings record of a wage earner if he is the wage earner"s child, he was dependent on the wage earner, he applies for benefits, he is unmarried, and he is under age 18. 20 C.F.R. §404.350. The child will be considered the wage earner's legally adopted child if he was legally adopted by him. 20 C.F.R. §404.356. Entitlement to child's benefits based on legal adoption will terminate if the adoption is annulled. POMS RS 00203.035B.3.

The relationship between Patrick and Jack M. D~ is determined by the law of the State of New Mexico, as this is where Jack M. D~ had his permanent home at the time he applied for benefits on behalf of Patrick. 20 C.F.R. §404.354("0). Under New Mexico law, a decree of adoption may not be attacked after one year from the date of entry of the adoption decree, unless the Indian Child Welfare Act of 1978 applies. N.M. $TAT. ANN. §32A-5- 36(K) (Michie 1993). This time limitation on the right to attack an adoption decree shows legislative intent to ensure that adopted children are given status equal to that of children begotten by marriage. Matter of Adoption Petition of Webber, 116 N.M. 47, 859 P.2d 1074, 1077 (N.M. App. 1993).

Thus, we believe that under New Mexico law, a legal adoption cannot be nullified after one year from the date the adoption decree was entered if, as here, there is no indication that the Indian Child Welfare Act applies. The decree allowing the adoption of Patrick by Jack M. and Stephanie L. D~ was entered on November 20, 1989. Therefore, the legal adoption could be annulled only on or prior to November 20, 1990. The Relinquishment of Parental Rights and Consent to Adoption was not executed by Jack M. and Stephanie L. D~ or approved by a New Mexico court until February 22, 1991, more than one year after the date of entry of the adoption decree. Thus, this document cannot operate to annul the ad