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
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.
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~.
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.
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~ 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.
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 resides or is domiciled within the reservation of such tribe"). Further, the proceedings involving the termination of the NH's parental rights took place in the Seneca Nation courts. Thus, we would look to the adoption laws of the Seneca nation to determine the circumstances under which an adoption can be annulled. However, as neither the Seneca Nation law, nor the decisions of its highest court are published, we have no basis under Seneca law to know whether the termination of the NH's parental rights constituted an annulment of the NH's adoption of Samuel. That notwithstanding, we note that, on its face, the Termination of Parental Rights does not state that Samuel's adoption was annulled or vacated.
Further, although not determinative, reference to the ICWA on when an adoptions may be vacated is instructive. Although applicable only to adoptions that took place in a State (as opposed to a tribal) court, after the entry of a final decree of adoption of an Indian child the parent may withdraw consent upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate the decree. 25 U.S.C. § 1913(d). If the court finds that consent was obtained through fraud or duress, the court will vacate the decree and return the child to the parent. Id However, once an adoption is effective for at least two years, it cannot be invalidated because consent was obtained by fraud or duress. Id. Here, the NH adopted Samuel in 2000. Further, there was no indication that Jacqueline's consent to Samuel's adoption was obtained through fraud or duress. Therefore, for the reasons outlined above, the NH's Termination of Parental Rights does not constitute an annulment of her adoption of Samuel.
We find that the documentation is not sufficient to establish that Samuel K~'s adoption was annulled.
Stephen P. Conte
Regional Chief Counsel
Assistant Regional Counsel
The record does not reflect where the adoption took place. We have based our analysis on the assumption that the adoption took place in the Seneca Nation in a Seneca court. Prior to issuing a determination in this matter, we recommend that you confirm this information. The conclusions outlined in this memorandum may differ if Samuel was adopted elsewhere.