TN 2 (04-17)

PR 01405.048 Texas

A. PR 17-073 – New York and Texas - Does Adoption Annul a Previous Adoption

Date: March 31, 2017

1. Syllabus

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 number holder’s (NH) legally adopted child. In this case, the child was adopted by the NH in Texas. She was subsequently adopted by relatives in New York.

The adoption of a child already entitled to child’s insurance benefits on the earnings record of an individual who previously adopted the child does not terminate the child’s entitlement to those benefits. However, an adopted child’s entitlement to benefits is terminated if the adoption is annulled.

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 basis for annulment of an adoption in New York. Therefore, we have no legal or factual basis to find that the child’s adoption by the NH has been annulled. As a result, no grounds exist to terminate the child’s continued entitlement to benefits on the NH’s account.

2. Opinion

QUESTION PRESENTED

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~.

OPINION

We find that the evidence does not show that A~’s adoption by the NH has been annulled.

BACKGROUND

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.1 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.

ANALYSIS

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).

CONCLUSION

We find that the documentation is not sufficient to establish that A~’s adoption was annulled.


Footnotes:

[1]

. J~ is the NH’s daughter.


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http://policy.ssa.gov/poms.nsf/lnx/1501405048
PR 01405.048 - Texas - 04/13/2017
Batch run: 04/13/2017
Rev:04/13/2017