PR 01410.001 Alabama

A. PR 85-024 Readoption By Natural Mother Kenneth J. H~ - ~

DATE: October 7, 1985

1. SYLLABUS

We held that a child was not entitled to benefits on the account of his grandfather where the child had been adopted by the grandfather but later readopted by his natural mother prior to the death of the grandfather and the application for benefits. We further found that the child would probably have no inheritance rights as the "child" of the deceased wage earner under Alabama law since the adoption by the natural mother was finalized before the prior adoptive parent's death.

(Kenneth J. H~ - ~~ -RAIV [A~], to ARC, Progs., Atl., 10/07/85)

2. OPINION

This case was referred to our office for assistance in making an entitlement determination in the following fact situation.

Dorothy A. H~ filed application September 2, 1983, for child's insurance benefits on behalf of Kenneth J. H~ as the adopted child of the deceased. Mrs. H~ furnished a final decree of adoption showing that she and the deceased wage earner adopted their grandson, Kenneth J. H~, on May 19, 1976. He was awarded child's benefits effective August 1983, the month the deceased wage earner died.

In December 1984 an anonymous report was received stating Kenneth J~ had been readopted by his natural mother. Investigation revealed that Donna H~, Kenneth's natural mother, readopted him on January 31, 1978, with the written consent of B. J. and Dorothy H~, the adoptive father and mother.

You have asked our opinion as to whether Kenneth's readoption by his natural mother precludes entitlement to survivor benefits on the earnings record of his prior adoptive father. Further contact with your office revealed that your primary concern is whether the second adoption, in fact, nullified the earlier adoption.

We have reviewed Alabama statutes regarding adoption which are found at Title 21 of the Code of Alabama, Chapter 10. Despite Ms. H~'s statements that she was unaware that the adoption had been completed, it appears that the adoption of Kenneth H~ by his natural mother was in compliance with state statutes and is, therefore, valid. However, the failure of the H~s to revoke or withdraw their consent in writing prior to the adoption by the natural parent resulted in a valid second adoption in January 1978 by the natural mother.

Under these statutes, Kenneth would inherit as the natural "child" of the H~s on the same level as his mother. Although we could find no precedent in Alabama law involving a similar situation, it is our opinion that Kenneth would not be entitled to inherit as a "child" of the H~s after he was readopted by his natural mother. We feel that a court would look to Kenneth's status as of the date Mr. H~ died and would find that he would not qualify as a "child" of the H~s on that date since he had been readopted by his natural mother. State statutes provide that the right to inherit from a natural parent may not be affected by an adoption but no provision exists to protect inheritance rights with respect to a prior adoptive parent. See, Code of Alabama §26-10S(c).

Kenneth H~ was not the "adopted" child of the deceased wage earner when the application for benefits was filed in September 1983 and was, therefore, not entitled to benefits on his account. The question which must be decided presently is whether Ms. H~ was at fault with respect to the creation of the overpayment in this case.