You have asked whether the adoption of A~ by J~ and K~ constitutes an annulment of
the previous adoption of A~ by number holder D~ (NH) and his wife J2~.
We find that the evidence does not show that A~’s adoption by the NH has been annulled.
A~ was born in November 2004 in D~, Texas. She was subsequently adopted by her grandparents,
D~ and J2~; the order granting this adoption was issued on December XX, 2005 by the
304th Judicial District Court in Texas. A~ began receiving auxiliary benefits on her
grandmother’s record in January 2006 and on the NH’s record in December 2008.
A~’s grandparents subsequently became unable to care for her. A~ began living with
her aunt and uncle, J~ and K~, in June 2012 and was subsequently adopted by them. A final order of adoption was issued on February XX, 2015, by New York Family Court
in A~ County, New York, directing that A~ be treated in all respects as the lawful
child of J~ and K~. This order also changed A~’s last name, and noted the consent
of A~’s grandparents, but did not otherwise address the prior adoption.
A child may be eligible for Social Security benefits as an insured’s child if she
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. Once a child is awarded benefits
on a NH’s account, such as through a legal adoption, there are limited circumstances
in which such benefits will terminate. See Act § 202(d)(1)(D)-(H), 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b)-(c);
POMS RS 00203.035. Termination of parental rights is not included as one of the qualifying
events set forth therein. See Act § 202(d)(1)(D)-(H); 20 C.F.R. § 404.352(b)-(c); POMS RS 00203.035 see also POMS GN 00306.001(C)(6) (stating that “termination of parental rights and/or loss of inheritance rights
are not terminating events for child’s benefits”). Thus, A~’s entitlement to benefits
was not affected by the termination of her grandparents’ parental rights.
Similarly, adoption by a person other than the NH is not included as one of the terminating
events set forth in the Act. Act § 202(d)(1)(D)-(H); 20 C.F.R. § 404.352(b)-(c); POMS
RS 00203.035. Instead, POMS RS 00203.035(C) specifically provides that “[t]he adoption
of a child already entitled to benefits does not terminate the child’s benefits.”
POMS RS 00203.035(C); see POMS GN 00306.165(A)(Note) (“[a]doption by someone other than the NH does not terminate a child’s entitlement”);
Social Security Ruling (SSR) 91-6 (“[u]nder the Social Security Act (the Act), the
adoption of a claimant already entitled to child’s insurance benefits on the earnings
record of an individual who previously adopted the claimant does not terminate the
claimant’s entitlements to those benefits . . .”). Therefore, the adoption of A~ by
her aunt and uncle in February 2015 also does not have a direct effect on A~’s entitlement
to benefits on the NH’s account.
However, an adopted child’s entitlement to benefits is terminated “if the adoption
is annulled.” SSR 91-6; POMS RS 00203.035(B)(3). 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 question here is whether the adoption by the NH was
annulled. In our opinion, it was not.
In general, 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, A~’s adoption by the NH took place in Texas. First, there
is no evidence that any party sought to annul this adoption by filing a petition in
court and successfully obtaining a judgment annulling the adoption, or that the requisite
certificate of annulment of adoption has been filed in Texas. See Tex. Fam. Code Ann. § 162.602 (at the time a party files a petition for annulment
of adoption in court, the party must also file a completed certificate of annulment
of adoption); Tex. Health & Safety Code Ann. § 192.009(a) (providing that a certificate
of each annulment of adoption decreed in Texas must be filed with the State registrar).
Second, under Texas law, an action to challenge the validity of an adoption must take
place within six months after the date the adoption order was signed. See Tex. Fam. Code Ann. § 162.012(a) (providing that the validity of an adoption order
is not subject to attack after six months after the date the order was signed); see also Goodson v. Catellanos, 214 S.W.3d 741, 749 (Tex. App. – Austin 2007, pet. denied) (“By enacting [section
162.012], the legislature clearly evidenced its intent that it is the public policy
of this State that adoptions cannot be attacked more than six months after the issuance
of the adoption on any basis.”). Here, the NH’s adoption of A~ was ordered on December
xx, 2005. Therefore, an action to challenge the validity of the adoption must have
been filed on or before June XX, 2006. In summary, the evidence provided does not
show that anyone initiated any action or proceeding in court to annul or to otherwise
timely challenge the validity of the adoption by the NH, or that any court entered
an order annulling, vacating, setting aside, or otherwise nullifying this adoption.
Moreover, there is no evidence of fraud or other valid bases for annulment of an adoption
in New York, even assuming this were intended or permitted in connection with the
second adoption. See N.Y. Dom. Rel. Law § 114(3) (providing that an adoption may be vacated or set aside
for “fraud, newly discovered evidence, or other sufficient cause,” and made applicable
to private-placement adoptions by N.Y. Dom. Rel. Law § 115(1)(a)); see also In re Child A, 44 N.Y.S.3d 109, 112 (N.Y. App. Div. 2016) (noting that the plain language of that
statute only empowers a New York court to vacate its own adoption orders).
Therefore, we have no legal or factual basis to find that J~ and K~’s adoption of
A~ annulled A~’s prior adoption by the NH. As a result, no grounds exist to terminate
A~’s continued entitlement to benefits on the NH’s account. See 20 C.F.R. § 404.356; SSR 91-6; POMS RS 00203.035(B)(3).
We find that the documentation is not sufficient to establish that A~’s adoption was