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.