TN 4 (04-07)

PR 01805.036 North Carolina

A. PR 07-089 Whether a completed "Relinquishment of Minor for Adoption by Parent or Guardian" legally terminates a previous adoption under North Carolina Law.

DATE: March 14, 2007

1. SYLLABUS

Under North Carolina law, the "Relinquishment of Minor for Adoption by Parent or Guardian" form completed by the number holder and his wife does not serve as a legal termination of the claimant's adoption, nor does it constitute a termination of parental rights. The claimant is still the child of the number holder for the purposes of determining eligibility for benefits on the number holder's record.

Only when and if the child is actually adopted once more will the parents' "rights and duties with respect to the minor will be extinguished and all other aspects of [their] legal relationship with the minor child" be terminated.

2. OPINION:

QUESTION

You have asked whether Adena R. S~ was the legally the adopted child of Jerry and Renee S~ as of December 2004 and whether a completed "Relinquishment of Minor for Adoption by Parent or Guardian" serves as an annulment of a previous adoption under North Carolina Law.

ANSWER

According to the information you provided, Jerry and Renee S~ adopted Adena R. S~ on May 2, 2003. This adoption is still valid until some type of legally terminating event. Pursuant to North Carolina law, the "Relinquishment of Minor for Adoption by Parent or Guardian" form completed by the adoptive parents does not serve as a legal termination of the adoption. Furthermore, there does not appear to be evidence of another event legally terminating the adoption. So, the child remains the adopted child of adoptive parents, notwithstanding their execution of such a document.

BACKGROUND

According to your inquiry, Jerry S~, and his wife, Robin S~, adopted Renee S~ (Claimant), on May 2, 2003. On July 27, 2005, NH and his wife executed a "Relinquishment of Minor for Adoption by Parent or Guardian" form and transferred legal and physical custody of Claimant to the Currituck County Department of Social Services. NH and his wife claim the form "revokes" the previous adoption of Claimant. On December 6, 2005, the Currituck County Department of Social Services filed a claim on behalf of Claimant for child's benefits on NH's record.

DISCUSSION

In North Carolina, the "Relinquishment of Minor for Adoption by Parent or Guardian" (Relinquishment) form executed by NH and his wife is a form a parent completes when he or she wants to place a child up for adoption. See N.C. GEN. STAT. ANN. § 48-100-3 (2006). In this case, the adopted parents have executed the Relinquishment form and placed their previously adopted daughter again with the state for adoption. In executing the Relinquishment, NH and wife have vested "legal and physical custody of the minor in the agency" and "empower[ed] the agency to place the minor for adoption . . . ." N.C. GEN. STAT. ANN. § 48 3 705(b), (c) (2006). This section means that NH and wife have transferred "legal and physical custody" to the agency for the purposes of adoption. However, while the Relinquishment transfers custody to the adoption agency, it does not transfer or terminate all parental rights and responsibilities. Section 48 3 705(d) states that:

Except as provided in subsection (c) of this section, parental rights and duties of a parent who executed a relinquishment are not terminated until the decree of adoption becomes final or the parental relationship is otherwise legally terminated, whichever occurs first. Until termination the minor remains the child of a parent who executed a relinquishment for purposes of any inheritance, succession, insurance, arrears of child support, and other benefit or claim that the minor may have from, through, or against the parent.

N.C. GEN. STAT. ANN. § 48 3 705(d) (2006). Consequently, absent a legal termination of parental rights or subsequent adoption, "the minor remains the child of a parent who executed a relinquishment for purposes of any inheritance, succession, insurance, arrears of child support, and other benefit or claim that the minor may have from, through, or against the parent." Id. (emphasis added). We did not find any case law interpreting section 48 3 705 (d). However, North Carolina requires a legal "termination of parental rights" proceeding and order from a court of competent jurisdiction to fully terminate parental legal responsibility. See N.C. GEN. STAT. ANN. § 7B-1100 (Termination of Parental Rights); see also Matter of Montgomery, 316 S.E.2d 346 (N.C. 1984). Based on the information presented, it does not appear that a legal termination of rights has occurred in this case. Thus, the completion of the Relinquishment form by NH and his wife did not render the adoption of Claimant by NH and his wife null and void. Claimant remains the legally adopted child of