PR 01510.005 Arkansas
A. PR 05-250 Validity of Posthumous Arkansas Adoption Decree (NH Clayton H. C~, SSN ~) (OGC Region VI Opinion No. 05-1654) - REPLY
DATE: September 28, 2005
Arkansas does not recognize the concept of equitable adoption for inheritance purposes and has not since at least 1984.
The purpose of this memorandum is to respond to your request for an opinion regarding the possible entitlement of William G. H. C~ (William) to survivor's benefits on the disability account of Clayton H. C~ (Mr. C~), the deceased number holder (NH) and widowed maternal grandfather to William. Mr. C~ received disability benefits from 1991 until his death on July 2, 2002. William was born on May 31, 1996. He and his biological mother lived with Mr. C~ until the NH died. Just over nine months before he passed away, Mr. C~ filed a petition to adopt William. However, the petition for adoption was not acted upon by the Arkansas Circuit Court until January 27, 2004, almost 17 months after Mr. C~ died. On that date, the petition was granted "nunc pro tunc" to July 1, 2002./
Your request for an opinion asks whether the Social Security Administration (SSA or Agency) is bound by the posthumously issued adoption decree. Additionally, if SSA does not have to accept the adoption decree, you ask whether the legal concept of equitable adoption would apply in this case, even though the biological mother continued to share custody and control of the child with the purported adoptive parent contrary to the guidance contained in the POMS. See POMS § GN 00306.200 (an equitable adoption requires a complete and absolute surrender of the custody and control of the child to the adoptive parent). Equitable adoption as a legal concept is not permitted in every jurisdiction, but it generally allows a child's adoption status to be recognized in some manner by promises and deeds that fall short of the statutory requirements under state law. See Black's Law Dictionary at 50 (7th ed. 1999); POMS § GN 00306.225 (state laws on equitable adoption-policy chart).
After reviewing the facts, prior legal opinions, and relevant law, as detailed below, our Office believes that SSA is not bound by the posthumously issued adoption decree. Arkansas jurisprudence recognizes the concept of equitable adoption, but only as an enforceable contract or agreement to adopt. SSA's regulations regarding equitable adoption require that the claimant be able to "inherit" a child's share of the insured's personal property if he were to die without leaving a will. Equitable adoption in Arkansas does not grant inheritance rights to the child. Consequently, Arkansas recognizes equitable adoption, but in a manner inconsistent with Agency regulations. Assuming there was a valid equitable adoption that provided for inheritance rights, SSA's regulations also state that if such an adoption is found to have occurred after the insured became entitled to old age or disability benefits, as was the case here, dependency cannot be established during the insured's life. Finally, we agree with the concerns expressed in your request for a legal opinion that the mother never relinquished custody and control over William to the deceased NH, contrary to the guidance contained in the POMS. This is a separate factual determination apart from the legal concept of equitable adoption under Arkansas jurisprudence. Since custody was never relinquished, the applicable POMS provision would likely direct against a finding of equitable adoption independent of state law requirements.
In 1991, Mr. C~ successfully filed for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act) with entitlement commencing July 1991. See Social Security Act § 223(d)(1)(A), 42 U.S.C. § 423(d)(1)(A). On February 28, 1995, Ms. Maren L. E. C~ began to live with her widowed father. On May 31, 1996, she gave birth to William. William and his mother continuously lived with Mr. C~, the maternal grandfather, until the grandfather's death on July 7, 2002. According to your request for legal opinion, both Mr. C~ and his daughter shared supervision of William. Mr. C~ treated William as his son, and William referred to Mr. C~ as his father. William's biological father does not pay child support, has never visited William, and has not registered himself as William's putative father with the Arkansas Department of Health, Division of Vital Records.
On September 18, 2001, Mr. C~ signed a petition to adopt William, and Maren C~ signed an affidavit of consent to the adoption. According to the documentation provided to our Office, both the petition to adopt and affidavit of consent were filed with the Probate Division of the Circuit Court of Garland County, Arkansas. Additionally, on October 2, 2001, Mr. C~ executed a Last Will and Testament that stated, in part, that he was in the process of adopting William as his son. Mr. C~ also stated that the disposition of his tangible personal property would be by a list attached to the will, dated, and signed by him. Mr. C~ related that he was leaving the remainder of his property to a revocable trust in his own name. Ms. Maren C~ was designated to serve as testamentary guardian for William. The Will was filed on July 19, 2002, in the probate court for Garland County, Arkansas./
On January 27, 2004, the Honorable Vicki S. C~, Garland County Circuit Judge for the Probate Division of the Circuit Court of Garland County, Arkansas, posthumously issued an adoption decree granting Mr. C~'s 2001 adoption petition for William. However, Judge C~ granted the adoption nunc pro tunc to July 1, 2002, the day before the petitioner had passed away and almost 17 months prior to the date the adoption order was issued.
As you know, the Act and the applicable Agency regulations contain the criteria for entitlement to Child's Insurance Benefits. Section 201(d)(1) of the Act provides, in pertinent part, that a child may receive insurance benefits on the account of an aged or disabled NH, if the child is the child of the individual as defined in section 216(e) of the Act, 42 U.S.C. § 416(e), and is dependent upon such individual. See 42 U.S.C. ' 402(d)(1); 20 C.F.R. ' 404.350 (2005). The Act defines the term "child" as the child or legally adopted child of an individual. 42 U.S.C. ' 416(e)(1); 20 C.F.R. ' 404.356.
Under section 201(d)(8) of the Act, a child who was adopted by an aged or disabled NH does not meet the dependency requirements unless the child was legally adopted by the individual in an adoption decreed by a court of competent jurisdiction within the United States. See 42 U.S.C. ' 402(d)(8); 20 C.F.R. ' 404.362. The regulations provide that SSA will apply the adoption laws of the State or foreign country where the adoption took place to determine whether a child is the insured individual's legally adopted child. See 20 C.F.R. ' 404.356. Because the adoption proceeding took place in the State of Arkansas, the adoption laws of Arkansas determine whether, and when, the child became the "legally adopted child" of the deceased NH.
Under the Arkansas Revised Uniform Adoption Act, a final decree of adoption (or an interlocutory decree of adoption which has become final)/ has the effect of terminating all legal relationships of the child to his biological parents and relatives, so that the adopted individual thereafter becomes "a stranger to his former relatives for all purposes." See Ark. Code Ann. § 9-9-215(a)(1)(adoption decree effects)(amended by 2005 Ark. Acts 437, 85th Gen. Assembly, 2005 Reg. Sess.). Moreover, the final adoption decree has the effect of creating a parent-child relationship between the adopted individual and petitioner, as if the adopted child were the legitimate blood descendent of the petitioner for all purposes. See Ark. Code Ann. § 9-9-215(a)(2). This includes inheritance, as well as the interpretation or construction of documents, statutes, and other instruments. Id. The comments to Ark. Code Ann. § 9-9-215 make it clear that the purpose of the law is to provide a clean and final "cut off" of the legal relationship with the old family and to establish a legal relationship with the adoptive family commencing from the date of the decree's issuance. Id. Finally, the Arkansas Supreme Court has held that for purposes of an appeal, any decree of adoption shall be prospectively construed as a final decree, so long as no subsequent hearing is required by the terms of the decree. See In the Matter of Appeals From Adoption Orders, 277 Ark. 520, 642 S.W.2d 573 (Ark. 1982).
We could not find any legal authority under Arkansas State law that allows a court to posthumously issue a final adoption decree almost 17 months after the death of the petitioner, let alone grant it nunc pro tunc to the day before the petitioner died. The Arkansas Supreme Court has consistently held that adoption statutes are to be strictly construed and applied. See e.g. Tate v. Bennett, 341 Ark. 829, 831, 20 S.W.3d 370, 371 (Ark. 2000). Given that Arkansas adoption laws create legal rights and obligations from the date of issuance of the final decree, and such laws are to be strictly construed and applied, it is our opinion that an Arkansas court cannot create an adoptive parent-child relationship with a petitioner who is no longer living./
Nunc pro tunc literally means "now for then." Birdwell v. Davis, 175 S.W.2d at 994. It is based upon a power inherent in a court to make the record show at a later date what originally occurred. Id. The concept applies to adoption orders. See Ozment v. Mann, 235 Ark. 901, 903-04, 363 S.W.2d 129, 131 (Ark. 1962); Newell v. Black, 201 Ark. 937, 147 S.W.2d 991, 994 (Ark. 1941)(page citations to the Arkansas Reporter not available).
Nunc pro tunc is described under Rule 60 of the Arkansas Rules of Civil Procedure, which deals with obtaining relief from a judgment, decree, or order. See Ark. R. Civ. P. Rule 60(a), (b)(2005); see also Holt Bonding Company, Inc. v. State of Arkansas, 353 Ark. 136, 139, 114 S.W.3d 179, 182 (Ark. 2003)(referring to Rule 60(b) of the Arkansas Rules of Civil Procedure as a restatement of nunc pro tunc judgments or orders); Lord v. Mazzanati, 339 Ark. 25, 28-30, 2 S.W.3d 76, 78-79 (Ark. 1999)(referring to Rule 60(a) of the Arkansas Rules of Civil Procedure as also a restatement of nunc pro tunc judgments or orders). Specifically, Rule 60 states:
Rule 60(a): Ninety-day limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
Rule 60(b): Exception; Clerical Errors. Notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court. Id.
Based upon the foregoing, the authority granted to State courts under Rule 60 of the Arkansas Rules of Civil Procedure is limited to correcting, modifying, or vacating a previously issued judgment, order, or decree and cannot be used, as was the case here, as the basis to establish the initial judgment, order, or decree. Id.
This view is further supported by the fact that the Arkansas Supreme Court has stated that any correction of the record nunc pro tunc must be, ". . . auxiliary to the original action and not be by an independent action." Birdwell v. Davis, 175 S.W.2d at 994. The fact an order was labeled nunc pro tunc is not dispositive; rather, a reviewing court must look beyond the form of judgment to determine its true nature. See Holt Bonding Company, Inc. v. State of Arkansas, 353 Ark. at 141. Looking beyond the nunc pro tunc label, we believe that the Circuit Court of Garland County tried to correct the fact that it had not acted on the adoption petition before Mr. C~ had passed away and, therefore, posthumously issued the decree on January 27, 2004, but granted it nunc pro tunc to July 1, 2002, the day before Mr. C~ passed away. This, the Court did not have the power to do. See id. at 139 (a nunc pro tunc order is designed, ". . . to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken"); Griggs v. Cook, 315 Ark. 74, 78, 864 S.W.2d 832, 834 (Ark. 1993).
Additionally, there is no credible evidence that the deceased NH and William appeared before the Circuit Court of Garland County in support of the adoption petition as required under State law. See Ark. Code Ann. § 9-9-214(a) (current through 2003 Sec. Extra. Sess.)("[t]he petitioner and the individual to be adopted shall appear at the hearing on the petition, unless the presence of either is excused by the court for good cause shown"). We have found nothing in the adoption petition or order from the court excusing their appearance for good cause. Id. In our view, this is another factor negating the credibility of the adoption decree issued by the State court.
Finally, SSA is not bound by a decision in a State trial court proceeding to which the Agency is not a party. See Gray v. Richardson, 474 F.2d 1370, 1372 (6th Cir. 1973); Social Security Ruling 83-37c. SSA is not free to ignore the adjudication of a State trial court where the following four prerequisites are found: (1) an issue in a claim for Social Security benefits previously has been determined by a State court of competent jurisdiction; (2) the issue was genuinely contested before the State court by parties with opposing interests; (3) the issue falls within the general category of domestic relations law; and (4) the resolution by the State trial court is consistent with the laws enunciated by the highest court in the State. Id. However, under the facts presented to our Office, it appears that the first, second, and fourth prerequisites listed above were not met in this case. While this case involved domestic relations, the issue never concerned a claim for Social Security benefits, was not genuinely contested between the parties, and State trial court's decision was inconsistent with the laws enunciated by the highest court in the State. Id.
Even though SSA is not bound by the posthumously issued adoption decree, Social Security regulations recognize the doctrine of equitable adoption as one method of establishing a relationship to an insured person. See 20 C.F.R. § 404.359. A child may be eligible for benefits as an equitably adopted child if the insured has agreed to adopt the child, but the adoption did not occur. Id. The agreement to adopt must be recognized under state law so that the child would be eligible to inherit a share of the insured's personal property if he died without leaving a Will. Id. Additionally, the agreement to adopt must be in "whatever form," and the claimant must meet "whatever requirements for performance" under the agreement that state law directs. Id.
SSA will apply the law of the state where the insured had his permanent home at the time the application was filed or, if the insured died prior to the date of application, at the time of death. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.359. Mr. C~ was domiciled in Arkansas at the time of his death. Thus, Arkansas State law determines whether the child in question is the deceased NH's equitably adopted child. See 20 C.F.R. § 404.359.
While the Arkansas code makes no provisions for equitable adoption, Arkansas jurisprudence has long recognized the concept of equitable adoption as an enforceable contract or agreement to adopt. See Wilks v. Langley, 248 Ark. 227, 234-35, 451 S.W.2d 209, 213 (Ark. 1970); Thomas v. Costello, 226 Ark. 669, 672-73, 292 S.W.2d 267, 269-70 (Ark. 1956); Stanley v. Wacaster, 206 Ark. 872, 178 S.W.2d 50, 51 (Ark. 1944)(page citations to the Arkansas Reporter not available); O'Conner v. Patton, 171 Ark. 626, 286 S.W. 822, 826 (Ark. 1926)(page citations to the Arkansas Reporter not available). In Arkansas, the enforceable contract or agreement to adopt may be express or implied, but the burden is on the individual claiming the benefit of the equitable adoption to establish the agreement it by "clear, cogent, and convincing evidence." Id. This standard is analogous to the clear and convincing evidence standard, which is the highest burden of proof for civil actions. See Cooper v. Bradford, 196 Ark. 327, 117 S.W.2d 719, 720 (Ark. 1938)(page citations to the Arkansas Reporter not available)./
Arkansas jurisprudence does not recognize equitable adoption as a method to make a child the legal heir of the insured's estate. See Wilks v. Langley, 248 Ark. at 235, 451 S.W.2d at 213 (Ark. 1970)(the mere contract to adopt is not sufficient of itself to make the child a legal heir of the promisor because the right to take as heir exists only by operation of law); Thomas v. Costello, 226 Ark. at 672-73, 292 S.W.2d at 269-70 (the right of inheritance is conferred upon a stranger in blood only by pursuing the statutory proceeding for adoption); see also Cooper v. Bradford, 117 S.W.2d at 720; Mintree v. Mintree, 181 Ark. 111, 26 S.W.2d 101, 104 (Ark. 1930)(page citations to the Arkansas Reporter not available); O'Conner v. Patton, 286 S.W. at 826. Rather, if the individual claiming the benefit of the equitable adoption can meet his burden of proof, he is entitled to either damages or specific performance, which can include giving the individual a share of the decedent's estate, but not as a legal heir. See Wilks v. Langley, 248 Ark. at 235; Mintree v. Mintree, 26 S.W.2d at 104; Cooper v. Bradford, 117 S.W.2d at 720; O'Conner v. Patton, 286 S.W. at 826.
The Arkansas concept of equitable adoption conflicts with SSA's regulatory requirement, at least since 1979, that an agreement to adopt must be recognized under state law so that the child would be eligible to "inherit" a share of the insured's personal property if he died without leaving a will. 20 C.F.R. § 404.359./ The word "inherit" means to take real property as an heir at law by descent. See 23 Am.Jur.2d, Descent and Distribution, § 2 (2004); see also Ark. Code Ann. § 28 -1-102(a)(10) (current through 2003 Sec. Extra. Sess.)(heir denotes a person entitled by the law of descent and distribution to the real and personal property of the intestate decedent, excluding the surviving spouse). For the reasons previously discussed, Arkansas jurisprudence makes it clear that inheritance rights are not granted under the State's concept of equitable adoption. See e.g. Wilks v. Langley, 248 Ark. at 235, 451 S.W.2d at 213.
We recognize that our Office has heretofore opined that Arkansas recognizes equitable adoption. However, with the exception of the last opinion to address this matter in 1984, it is our understanding that all previous opinions were rendered prior to the 1979 publication of the finalized equitable adoption regulations. See 44 Fed. Reg. 34479, at 34488-89. On December 10, 1984, our Office released a legal opinion that concluded Arkansas still recognized the concept of equitable adoption, but only when the contract to adopt is proven, as opposed to being implied or inferred from surrounding circumstances (attached). The 1984 opinion clearly stated that equitable adoption in Arkansas was based upon contract theory and, as such, did not provide for inheritance rights. The legal conclusions rendered in the 1984 General Counsel opinion are still valid and consistent with State law. However, SSA's regulatory requirement that equitable adoption provide for the granting of inheritance rights under state law was apparently not at issue in 1984 as it is today./
We believe that William could prove an enforceable contract or agreement to adopt by clear, cogent, and convincing evidence under State law. There is little doubt that Mr. C~ promised to adopt William as his own child. This promise is evidenced by the fact the deceased NH filed a petition for adoption with the mother's consent. Additionally, Mr. C~ stated in his Will that he was in the process of adopting William. Finally, while SSA is not bound by the State court's nunc pro tunc adoption decree, nonetheless, it is still evidence supporting an enforceable contract to adopt. Even if William could ask for specific performance or damages under a contract theory, he could not take a share of the decedent's property as a legal heir. Thus, the fact that William could prove an enforceable contract to adopt between himself and the deceased NH under State law would not suffice to establish equitable adoption with inheritance rights as required by SSA's regulations. See 20 C.F.R 404.359.
Assuming that there was a valid equitable adoption that provided for inheritance rights, SSA's regulations also state that if such an adoption is found to have occurred after the insured became entitled to old age or disability benefits, as was the case here, dependency cannot be established during the insured's life. 20 C.F.R. § 404.365. According to information supplied with your request for legal opinion, the deceased NH filed for DIB under the Act and was awarded benefits in 1991. That is approximately five years before William was born and more than ten years before the adoption petition was filed in State court. Consequently, the dependency requirement cannot be established during the insured's life. Id.
Your final question concerned the determination of shared custody by William's mother contrary to the guidance contained in POMS § GN 00306.200. This is a separate factual determination apart from the legal concept of equitable adoption under Arkansas jurisprudence. We note that your request for legal opinion expressed doubts as to whether the mother relinquished custody and control over William to Mr. C~ while he was living. As stated in your request for legal opinion, William and his mother lived with Mr. C~ until his death on July 7, 2002. The application for benefits was denied at the initial level, in part, because the mother shared custody and control of William with the deceased NH. Since custody was shared and not relinquished, the applicable POMS provision would likely direct against a finding of equitable adoption independent of state law requirements.
Tina M. W~
Regional Chief Counsel
Thomas C. S~
Assistant Regional Counsel