TN 6 (06-10)

PR 01320.035 New York

A. PR 10-097 Samuel K~ - whether termination of parental rights of adoptive mother/number holder Jennifer K~ by the Peacemaker's Court of the Seneca Nation of Indians constitutes an annulment of the child's adoption

Date: May 19, 2010

1. SYLLABUS

An order by the Peacemaker Court of the Seneca Indians terminating the NH’s rights as the claimant’s adoptive parent cannot be considered an annulment of the adoption. The claimant’s entitlement to child’s benefits on the record of the NH will continue.

2. OPINION:

QUESTION PRESENTED

You have asked whether a Termination of Parental Rights ordered by the Peacemaker's Court of the Seneca Nation of Indians constitutes an annulment of the adoption of Samuel K~.

OPINION

If Samuel was originally adopted in the Seneca Nation of Indians in a Seneca court, we find that the documentation does not show that the adoption of Samuel K~ has been annulled.

BACKGROUND

The facts available indicate that Samuel K~ (Samuel) was born on November 23, 1994 and is an enrolled member of the Seneca Nation of Indians. Samuel was adopted by Scott and Jennifer K~ 1 on or about January 10, 2000. Number holder Jennifer K~ (NH) applied for disability benefits on September 21, 2006 and stated that Samuel was her adopted child. SSA approved the NH's application in December 2008 and contacted her to request she file for Samuel. The NH stated that on November 18, 2008, Samuel left her home and began living with his biological mother, Jacqueline K~ (Jacqueline). On January 27, 2009, Jacqueline filed for auxiliary benefits on behalf of Samuel on the record of the NH.

On February 4, 2009, the Peacemaker's Court of the Seneca Nation of Indians (Peacemaker's Court) heard a petition filed by Scott K~ (Scott) and the NH to terminate their parental rights over Samuel. Scott, the NH, Lori M~ (a representative from the Seneca Nation Child and Family Services), and Jacqueline were served notices of the hearing and were present. On February 10, 2009, the Peacemaker's court issued a "Conditional Termination of Parental Rights," concluding (1) that under Seneca Nation law, the Peacemaker's Court had personal and subject matter jurisdiction over the parties and (2) that the best interests of the child would be best served if the parental rights of Scott and the NH were terminated and Samuel was readopted by Jacqueline. The Peacemaker's Court ordered the termination of the parental rights of Scott and the NH conditioned upon on the final adoption of Samuel by Jacqueline.

On March 6, 2009, the Peacemaker's Court found that Samuel had been living with his biological mother (Jacqueline) since November 2008. The Court further found that pursuant to Seneca Nation Child Welfare Law Section 6.3, the parental rights of Scott and the NH were terminated and that the effect of the termination freed Samuel to be adopted. According to the NH, Jacqueline readopted Samuel. On March 5, 2010, Jennifer K~ contacted SSA to have the benefits being paid to Samuel terminated.

ANALYSIS

A child may be eligible for Social Security benefits as an insured's child if he was legally adopted by the insured. Social Security Act (Act) § 202(d), 216(e), 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. §§ 404.350, 404.356. Here, Samuel was adopted by the NH in 2000, but the NH subsequently voluntarily surrendered her parental rights. The question is whether the termination of the NH's parental rights resulted in an annulment of the NH's adoption of Samuel.

Section 202(d)(1) of the Act and 20 C.F.R. § 404.352(b) set out the provisions for termination of entitlement to child's insurance benefits. The termination of parental rights is not included among the terminating events, and therefore would not result in a termination of benefits. See Social Security Ruling (SSR) 91-6 (In case where number holder adopted child and child was subsequently adopted by his natural mother, second adoption by someone other than number holder is not included among the terminating events and therefore an adoption will not result in a termination of benefits). However, an adopted child's entitlement to benefits is terminated "if the adoption is annulled." POMS RS 00203.035(B)(3); SSR 91-6. As noted by SSR 91-6, "[t]his is so because in such a case the adoption is invalidated and determined never to have legally existed." Therefore, the issue here is whether the Termination of Parental Rights ordered by the Peacemaker's Court of the Seneca Nation of Indians constitutes an annulment of the adoption of Samuel K~. In our opinion, it does not.

We apply the adoption laws of the State or foreign country where the adoption took place to determine whether a child is the insured's legally adopted child. 20 C.F.R. § 404.356. Here, although we do not have a copy of the original adoption decree, we have assumed that Samuel's adoption took place in a tribal court in the Seneca Nation. First, it appears that Samuel was subject to the exclusive jurisdiction of the tribal courts of the Seneca Nation. 25 U.S.C. § 1911(a) (Under the Indian Child Welfare Act (ICWA), tribal courts have exclusive jurisdiction over child custody proceedings when the child is an "Indian child who