This memorandum is in response to your July 25, 2005 request for a legal opinion as
to (1) whether a parent-child relationship exists between Janice H~ (referred to as
"the Number Holder") and Lauren M. H~ (referred to as "the claimant"), a Guatemalan-born
child adopted by the number holder in Guatemala; (2) the effective date of that relationship,
if it exists; and (3) the date upon which benefits should be paid. We apologize for
the delay in responding to your request; however, because an answer to your question
required an interpretation of Guatemalan law, we were required to consult with the
Law Library of Congress.
The Number Holder and David A. H~, her husband, adopted a Guatemalan-born child, Lauren
M. H~, in Caserio El Paraiso, Guatemala, on April 12, 1991. Based upon the documentation
you provided and our review of the requirements of Guatemalan law in 1991, we have
concluded that further evidence is required in order to determine if a parent-child
relationship exists between the Number Holder and the minor claimant. Accordingly,
we suggest that the agency obtain a copy of the notarized deed of adoption or additional
evidence to verify that the adoption procedure utilized by the Number Holder and her
Husband was in accordance with Guatemalan law.
The Number Holder applied for social security retirement benefits on May 24, 2005,
and became entitled to such benefits beginning September 2005. The Number Holder also
filed an application on her record for child's benefits on May 24, 2005, for the claimant.
She filed an application on June 16, 2005, to be the representative payee for the
claimant should child's benefits be granted.
The Number Holder and David A. H~, her husband, adopted a Guatemalan-born child, the
claimant, in Caserio El Paraiso, Guatemala, on April 12, 1991. The claimant was born
on October 16, 1990. The record contains a certified birth record which listed the
Number Holder as the claimant's mother and the Number Holder's husband as the claimant's
father. The social security number application (NUMI) completed on November 15, 1991,
listed the Number Holder as the claimant's mother and the Number Holder's husband
as the claimant's father.
As evidence of their parent-child relationship with the claimant, the H~s submitted
two Spanish language documents. You provided us with a line-by-line verbatim English
translation of these documents. The translator who interpreted these documents indicated
that they were certified copies of a birth record executed on April 15, 1991, by the
Civil Registrar of Esquipulas Palo Gordo San Marcus, Guatemala.
Translation of the document indicated that the Civil Registrar certifies that page
497 of the book of births No. 11, act no 920-91, recorded Maria M. R~ as being born
to Juana I. R~ M~ (biological mother) on October 16, 1990, in Caserio El Paraiso.
The document further provided that Public Record of Adoption No. 33, issued on April
12, 1991, by Notary, Oscar F. C~ M~, an attorney, and executed by Jose E. C~ S~, an
attorney representing the H~s, recorded the adoption of Maria M. R~ by the H~s and
her name change to Maria M. H~ K~ .
The claimant's name was changed to Lauren M. H~ on January 15, 1993, by petition filed
with the United States District Court for the Western District of Pennsylvania. The
United States District Court for the Western District of Pennsylvania also issued
a Certificate of Naturalization for the claimant on September 15, 1993.
In order to be eligible for child's benefits on a wage earner's account, a claimant
must show that he or she is the wage earner's "child" as that term is defined in the
regulations. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. § 404.350. The regulations define
a child as a natural child, legally adopted child, stepchild, grandchild, step-grandchild,
or equitably adopted child. 20 C.F.R. §§ 404.350-359. In order to determine whether
a claimant is a legally adopted child, the Social Security Administration applies
the adoption laws of the State or the foreign country where the adoption took place.
20 C.F.R. § 404.356. To be a legal adoption, the adoption must be valid under the
law of the State or foreign country where it took place. Id. Accordingly, the claimant can qualify for benefits as the legally adopted child of
the Number Holder, if the adoption was valid under the law of Guatemala, the foreign
country where the adoption took place.
Guatemala's Civil Code provides two alternative adoption procedures. The first adoption
procedure applies to contested adoptions and provides that a contested adoption becomes
effective on the date when a Guatemalan court of first jurisdiction, or a Guatemalan
Family Court, approves the formalities of the public instrument of adoption (such
as a notarized deed of adoption and birth certificate).
The other adoption procedure applies to uncontested adoptions, or situations where
the child in question has been declared abandoned by a Guatemalan court. When such
circumstances apply, an adoption may be effectuated by a notary public without approval
by a court. A notary public under Guatemala's civil law is an experienced attorney,
and a Guatemalan citizen living in Guatemala, who serves as a public official. A notary
public who effectuates an uncontested adoption must file a petition of adoption, supported
by the child's birth certificate and the names and testimony of two witnesses who
can attest to the moral and financial standing of the adoptive parents in regard to
the fulfillment of their legal obligations. The biological parent(s) or guardian of
the child must consent to the adoption petition, and must be present when the petition
is executed. The adoptive parents must also be present when the petition is executed.
The notary procedure further requires that the Solicitor General of Guatemala and
a Family Court appointed social worker be given the opportunity to review and object
to the adoption petition. If neither party files an objection to the adoption petition,
then the notary public authorizes the adoption and records the deed of adoption as
a public document. The notarized deed of adoption must be registered in the book of
adoption registration in the Office of Civil Registry within fifteen days. According
to the Law Library of Congress, a notarized deed of adoption, its civil registry record,
and birth certificate, are public documents evidencing adoption. The validity and
authenticity of these public documents under Guatemala's Public Document law are presumed
unless successfully challenged before a court of law.
In this case, the adoption at issue appears uncontested because the information contained
in the certified birth certificate demonstrated issuance of the public record of adoption
by a notary public. The certified birth certificate documented the recording of the
notarized deed of adoption in the Office of Civil Registry within fifteen days of
issuance and a civil registry record number. A presumption regarding a valid adoption,
however, cannot be established in this case because the evidence did not contain a
copy of the notarized deed of adoption, which is one of the public documents necessary
to establish the existence of a valid adoption under Guatemalan law. If the Number
Holder presents the notarized deed of adoption, the deed, along with the evidence
currently in the record would be sufficient to establish that a parent-child relationship
In the event that the Number Holder does not have a copy of the notarized deed of
adoption, the Agency should obtain additional evidence to determine whether the claimant's
adoption satisfied the criteria of Guatemala's uncontested adoption procedures. This
would include documentation regarding the witnesses who attested to the moral and
financial standing of the adoptive parents, the consent of the biological parent,
and evidence from the Solicitor General or a Guatemalan Family Court appointed social
worker that they had no objection to the adoption petition.
With regard to the effective date of the parent-child relationship, the regulations
provide that, if the insured is living and the child's first month of entitlement
is September 1981 or later, the child is entitled to benefits beginning with the first
month covered by the application in which she meets all other requirements for entitlement.
20 C.F.R. § 404.352(a)(2). In this case, should the Number Holder present the notarized
deed of adoption, it is our opinion that a parent-child relationship would be effective
as of the date of adoption. Hence, the claimant would be entitled to child's benefits
and any appropriate retroactive benefits, provided you determine that all the other
requirements for these benefits are met.
We suggest that the Agency seek additional evidence related to whether the claimant's
adoption was valid under the laws of Guatemala. If the Number Holder produces a copy
of the notarized deed of adoption, this document, along with the evidence currently
in the record would be sufficient to establish that a parent-child relationship exists
between the Number Holder and the claimant.
If the Number Holder cannot produce the notarized deed of adoption, we suggest that
the additional evidence discussed above be secured and forwarded to the undersigned
for further evaluation.
Regional Chief Counsel
Assistant Regional Counsel