BASIC (05-14)

PR 01405.024 Massachusetts

A. PR 14-079 Effect of a Subsequent Adoption by Natural Father on Prior Adoption by Paternal Grandmother (Joseph/Joshua)

DATE: April 22, 2014

1. SYLLABUS

Any inheritance rights held by the children as a result of the first adoption were terminated by the second adoption. Although the children do not meet the inheritance requirement, we believe they would still qualify as Charlene’s children for benefits purposes. Under the policy described in POMS GN 00306.165C, if a child has lost inheritance rights in the number holder’s estate because he/she was adopted by another person but can meet the dependency requirements referred to in GN 00306.165A., the child may be entitled under section 216(h)(3) of the Act, if all other requirements are met. The children satisfy the dependency requirements under GN 00306.165A and we also believe they satisfy the additional statutory requirements. We do not believe the second adoption by the children’s natural father terminated the children’s entitlement to benefits on the record of their first adoptive parent, Charlene. The Massachusetts statute does not state that the previous adoption is “invalidated” or “revoked” – but that it has been terminated. A termination is an ending, not a finding that something has never occurred and a subsequent adoption itself is not listed as a terminating event for child’s benefits. . For those reasons, it is our opinion that the children remain entitled on the records of both Mr. A~ and Charlene.

2. OPINION

I. Question Presented

You asked whether a subsequent adoption (by a natural father) in the Commonwealth of Massachusetts effectively terminated child’s benefits based on the record of the prior adoptive parent (the paternal grandmother).

II. Short Answer

The subsequent adoption by the natural father did not terminate the children’s entitlement to benefits on the record of the first adoptive parent.

III. Background

The claimants in this case, Joseph and Joshua, were born on March 2003, and July 2004, respectively, to Laura (now deceased) and Joseph. Joshua and Joseph were awarded auxiliary child benefits on the record of their father, Mr. A~, as his natural children. The date of entitlement for Joseph is the month after his birth, April. Joshua became entitled in September.

In 2005, the children were adopted by their paternal grandmother, Charlene, in the State of New Hampshire. Charlene was awarded disability benefits effective August 2007 and she named her adopted children as beneficiaries on her record. At the time benefits were awarded it was determined that the adoption did not affect the children’s entitlement on their natural father’s record and benefits were paid based on the combined family maximum.

On May 7, 2009, Charlene surrendered custody and care of the children to their natural father, Joseph. At that time, Charlene reported that she resided in Massachusetts. Mr. A~ legally adopted the children on July 14, 2009, in Massachusetts. The children remain technically entitled on his record while benefits are paid on Charlene’s record.

IV. Applicable Law

Section 202(d) of the Social Security Act (Act) provides for the payment of child’s insurance benefits if certain requirements for entitlement are met. 42 U.S.C. § 402(d). The applicant must show, among other things, that he is the number holder’s “child,” as defined in section 216(e) of the Act, and that he was dependent on the number holder at one of three relevant points in time. See Section 202(d)(1) of the Act; 20 C.F.R. § 404.350. 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. Program Operations Manual System (POMS) GN 00306.165 also provides clarification about when a child will remain entitled to child’s benefits after a subsequent adoption by someone other than the number holder.

V. Analysis

  1. The subsequent adoption by Mr. A~ did not terminate the children’s entitlement to benefits on Charlene’s record.

Once child’s benefits are awarded, there are only limited circumstances in which those benefits can be terminated. See Section 202(d)(1)(D)-(H); 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b)-(e). The terminating events involve factors such as the child’s: death; age; disability status; enrollment in an elementary or secondary school; marriage status; compliance with drug or alcohol treatment; and whether a divorce between the child’s parent and a stepparent (number holder) has occurred. Id. A subsequent adoption is not included among the list of terminating events. In fact, POMS GN 00306.165A acknowledges that “[a]doption by someone other than the [number holder] does not terminate a child’s entitlement.”

With respect to subsequent adoptions by someone other than the number holder, POMS GN 00306.165 provides that:

[a] natural or legally adopted child of the [number holder] who is adopted by another person during the [number holder’s] lifetime . . . is the [number holder’s] child for benefit purposes only if:

  • The adoption did not cut off the child’s inheritance rights in the [number holder’s] estate under applicable State law; and

  • The [number holder] was living with or contributing to the child’s support at one of the points set forth in GN 00306.007 or GN 00306.008.

POMS GN 00306.165.

Although not express in the instruction, we interpret the inheritance requirement as a “child’s” right to inherit the property of his first adoptive parent by intestate succession. 1 Based on that interpretation, we believe the second adoption severed the children’s inheritance rights to the first adoptive parent’s estate under Massachusetts law. When a child is adopted in Massachusetts, “all rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between the child and the petitioner and his kindred, and such rights, duties and legal consequences shall . . . terminate between the child so adopted and his natural parents and kindred or any previous adopting parent” Mass. Gen. Laws Ann. ch. 210, § 6 (emphasis added). Thus, any inheritance rights held by the children as a result of the first adoption, were terminated by the second adoption. 2

In contrast, we believe the second requirement – that Charlene was living with or contributing to the children’s support at one of the points set forth in GN 00306.007– was satisfied in this case. Under GN 00306.007A.1., dependency may be met: 1) at the beginning of the number holder’s period of disability; 2) at the time the number holder last became entitled to disability benefits; or 3) at the time the child’s application is filed. As you indicated, Charlene’s period of disability began in August 2007 and both Joseph and Joshua lived with Charlene from their adoption in February 2005 until Charlene surrendered custody and care to the children’s natural father in May 2009. Based on those facts, it appears that the children were dependent on Charlene at each of the relevant points described in GN 00306.007A.1.

Although the children do not meet the inheritance requirement described above, we believe they would still qualify as Charlene’s children for benefits purposes. Under the policy described in POMS GN 00306.165C, “[i]f a child has lost inheritance rights in the [number holder’s] estate because he/she was adopted by another person but can meet the dependency requirements referred to in GN 00306.165A., the child may be entitled under section 216(h)(3) of the Act, if all other requirements are met.” As discussed above, the children satisfy the dependency requirements under GN 00306.165A. We also believe they satisfy the additional statutory requirements. Under section 216(h)(3)(B)(i) of the Act, those relevant, additional requirements are that the insured individual “has been decreed by a court to be the mother or father of the applicant,” and that “such . . . court decree . . . was made before such insured individual’s most recent period of disability began.” 42 U.S.C. § 416(h)(3)(B)(i). On March 11, 2005, Judge John of the the State of New Hampshire Judicial Branch, Family Division at Salem, approved Charlene’s adoption petition, naming her the legal parent of Joseph and Joshua. As you indicated, Charlene’s period of disability began in August 2007. Because the court-decreed adoption pre-dates Charlene’s period of disability, the additional requirements under section 216(h)(3) are satisfied and the children remain entitled to benefits on Charlene’s record.

You also asked whether the second adoption would effectively “revoke” the first adoption. POMS GN 00306.165B explains that a subsequently adopted child would no longer be entitled to benefits on the first adoptive parent’s record “if the adoption has been revoked, i.e., treated under State law as if it had not occurred.” Id. We do not believe the subsequent adoption revoked the prior adoption. Black’s Law Dictionary defines “revocation” generally as “an annulment, cancellation, or reversal” and, with respect to estates and wills, as an “invalidation.” Black’s Law Dictionary 1321 (7th ed. 1999). Because the first adoption occurred in New Hampshire and the second occurred in Massachusetts, we considered the adoption laws of both states.

As explained by the Supreme Court of New Hampshire, “Adoption is a creature of statute, and, as such requires strict observance of the statutory requirements.” In re Baby Girl P, 147 N.H. 772, 775, 802 A.2d 1192, 1194 (2002) (quoting In re M~ HH, 261 A.D.2d 723, 690 N.Y.S.2d 309, 311 (1999) (quotation and ellipses omitted)). For an adoption to be considered valid under New Hampshire’s adoption statute, all statutory rules must be followed, including those related to notice and consent. N.H. Rev. Stat. Ann. § 170-B. An individual can appeal the validity of an adoption decree within a specific time frame; however, subject to the disposition of an appeal, an adoption decree cannot be questioned by any person after one year has passed, “in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter.” N.H. Rev. Stat. Ann. § 170-B:17. In this case, there is no indication that the adoption was invalid. The court approved the petition, the natural mother is deceased, and there is no indication that the natural father, Mr. A~, was not notified of the adoption proceedings or that he withheld consent. In fact, the records show that Charlene later consented to Mr. A~’s subsequent legal adoption of the children in Massachusetts. Based on the facts in our possession, we do not believe the first adoption would be considered invalid under New Hampshire law.

We also do not believe that the second adoption revoked or rendered the first adoption invalid under Massachusetts law. As noted above, after a child is adopted in Massachusetts, “all rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between the child and the petitioner and his kindred, and such rights, duties and legal consequences shall . . . terminate between the child so adopted and his natural parents and kindred or any previous adopting parent” Mass. Gen. Laws Ann. ch. 210, § 6. The Massachusetts statute does not state that the previous adoption is “invalidated” or “revoked” – but that it has been “terminate[d].” A termination is an ending, not a finding that something has never occurred. Thus, the second adoption did not revoke the first adoption.

V. Conclusion

We do not believe the second adoption by the children’s natural father terminated the children’s entitlement to benefits on the record of their first adoptive parent, Charlene. A subsequent ado