TN 3 (04-07)

PR 01320.036 North Carolina

A. PR 07-089 Whether a Completed "Relinquishment of Minor for Adoption by Parent or Guardian" Legally Terminates a Previous Adoption under North Carolina Law

DATE: March 14, 2007

1. SYLLABUS

Under North Carolina law, the "Relinquishment of Minor for Adoption by Parent or Guardian" form completed by the number holder and his wife does not serve as a legal termination of the claimant's adoption, nor does it constitute a termination of parental rights. The claimant is still the child of the number holder for the purposes of determining eligibility for benefits on the number holder's record.

Only when and if the child is actually adopted once more will the parents' "rights and duties with respect to the minor be extinguished and all other aspects of [their] legal relationship with the minor child" be terminated.

2. OPINION:

QUESTION

You have asked whether Adena Renee S~ was the legally the adopted child of Jerry and Renee S~ as of December 2004 and whether a completed "Relinquishment of Minor for Adoption by Parent or Guardian" serves as an annulment of a previous adoption under North Carolina Law.

ANSWER

According to the information you provided, Jerry and Renee S~ adopted Adena Renee S~ on May 2, 2003. This adoption is still valid until some type of legally terminating event. Pursuant to North Carolina law, the "Relinquishment of Minor for Adoption by Parent or Guardian" form completed by the adoptive parents does not serve as a legal termination of the adoption. Furthermore, there does not appear to be evidence of another event legally terminating the adoption. So, the child remains the adopted child of adoptive parents, notwithstanding their execution of such a document.

BACKGROUND

According to your inquiry, Jerry S~, and his wife, Robin S~, adopted Renee S~ (Claimant), on May 2, 2003. On July 27, 2005, NH and his wife executed a "Relinquishment of Minor for Adoption by Parent or Guardian" form and transferred legal and physical custody of Claimant to the Currituck County Department of Social Services. NH and his wife claim the form "revokes" the previous adoption of Claimant. On December 6, 2005, the Currituck County Department of Social Services filed a claim on behalf of Claimant for child's benefits on NH's record.

DISCUSSION

In North Carolina, the "Relinquishment of Minor for Adoption by Parent or Guardian" (Relinquishment) form executed by NH and his wife is a form a parent completes when he or she wants to place a child up for adoption. See N.C. GEN. STAT. ANN. § 48-100-3 (2006). In this case, the adopted parents have executed the Relinquishment form and placed their previously adopted daughter again with the state for adoption. In executing the Relinquishment, NH and wife have vested "legal and physical custody of the minor in the agency" and "empower[ed] the agency to place the minor for adoption . . . ." N.C. GEN. STAT. ANN. § 48 3 705(b), (c) (2006). This section means that NH and wife have transferred "legal and physical custody" to the agency for the purposes of adoption. However, while the Relinquishment transfers custody to the adoption agency, it does not transfer or terminate all parental rights and responsibilities. Section 48 3 705(d) states that:

Except as provided in subsection (c) of this section, parental rights and duties of a parent who executed a relinquishment are not terminated until the decree of adoption becomes final or the parental relationship is otherwise legally terminated, whichever occurs first. Until termination the minor remains the child of a parent who executed a relinquishment for purposes of any inheritance, succession, insurance, arrears of child support, and other benefit or claim that the minor may have from, through, or against the parent.

N.C. GEN. STAT. ANN. § 48 3 705(d) (2006). Consequently, absent a legal termination of parental rights or subsequent adoption, "the minor remains the child of a parent who executed a relinquishment for purposes of any inheritance, succession, insurance, arrears of child support, and other benefit or claim that the minor may have from, through, or against the parent." Id. (emphasis added). We did not find any case law interpreting section 48 3 705 (d). However, North Carolina requires a legal "termination of parental rights" proceeding and order from a court of competent jurisdiction to fully terminate parental legal responsibility. See N.C. GEN. STAT. ANN. § 7B-1100 (Termination of Parental Rights); see also Matter of Montgomery, 316 S.E.2d 346 (N.C. 1984). Based on the information presented, it does not appear that a legal termination of rights has occurred in this case. Thus, the completion of the Relinquishment form by NH and his wife did not render the adoption of Claimant by NH and his wife null and void. Claimant remains the legally adopted child of NH and his wife until a future adoption of Claimant or until a legal termination of the parental rights of NH and his wife.

Furthermore, North Carolina statute section 48 3 703 (a)(8) states:

That the individual executing the relinquishment understands that when the adoption is final, all rights and duties of the individual executing the relinquishment with respect to the minor will be extinguished and all other aspects of the legal relationship between the minor child and the parent will be terminated.

N.C. GEN. STAT. ANN. § 48 3 703(a)(8) (2006). Consistent with the statute, bullet number seven of the Relinquishment form signed by NH and his wife states that "I understand that when the adoption is final, all of my rights and duties with respect to the minor will be extinguished and all other aspects of my legal relationship with the minor child will be terminated." (Emphasis added).

You also asked whether the Relinquishment would annul NH's adoption of Claimant. SSA policy indicates that "[e]ntitlement to a child's benefit 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." POMS RS 00203.035(B)(3). At this point, it does not appear that we have any evidence of an annulment of the previous adoption, a court order terminating the parental rights of NH, or that Claimant has been adopted by another party. As noted above, the Relinquishment merely served to surrender Claimant to the State to pursue adoption. Nothing in the materials you sent us indicates any action to legally terminate or annul the existing adoption. Thus, Claimant remains NH's the adopted child.

CONCLUSION

Pursuant to North Carolina law, the "Relinquishment of Minor for Adoption by Parent or Guardian" form completed by NH and wife does not serve as a legal termination of Claimant's adoption. Claimant is still the child of NH for the purposes of determining eligibility for benefits on NH's record.

Very truly yours,
Mary Ann S~
Regional Chief Counsel
_______________
J. Samuel C~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501320036
PR 01320.036 - North Carolina - 04/02/2007
Batch run: 11/29/2012
Rev:04/02/2007