TN 5 (07-14)

PR 02805.048 Texas

A. PR 14-136 Texas State Law Authority to Establish Different Dates of Birth for Foreign-Born Adopted Children Under the Accuracy for Adoptees Act—REPLY

DATE: July 11, 2014

1. SYLLABUS

Accept a date of birth determination shown on a U.S. State-issued court order or Certificate of Foreign Birth issued by the State of Texas as evidence to either establish or change an individual’s date of birth in our Numident record if the individual is a foreign born adopted child.

2. OPINION

QUESTION PRESENTED

You have asked us to provide a legal opinion about the validity of a Texas court order purporting to amend the birth dates of three children who were born in Ethiopia; adopted by American citizens in Ethiopia; and subsequently readopted by Joshua and Lori in Texas. Specifically, you asked: (1) whether the Texas court had the authority to change the children’s birth dates via a court order; (2) what the legal requirements are under Texas law for changing their birth dates; (3) whether the court order must list the supporting documentation; (4) what documents Texas issues as proof of the changed birth dates; and (5) whether Texas issues a Certificate of Foreign Birth, Certificate of Birth Abroad, or other similar document as proof of the changed birth dates.

ANSWER

We conclude (1) that the Texas court had the authority to change the children’s birth dates via court order; (2) that the individuals seeking the changed birth dates must prove their previously-listed birth dates were incorrect by a preponderance of the evidence; (3) that that the Texas court order did not need to specifically list the documents upon which the court relied, though the order should show that the preponderance standard has been satisfied; (4) that the new or amended Texas birth certificates constitute proof of the changed birth dates; and (5) that Texas does not supply any other proof other than the court order and the amended birth certificate of the changed birth dates.

BACKGROUND

You have provided us with only limited information regarding the procedural posture of this case, but the following are the facts as we understand them. In March 2012, Joshua and Lori adopted three children born in Ethiopia. The Ethiopian birth certificates and adoption records identify the three children as Nigusom, birth date October ; Hewan , birth date September; and Tsehaye , birth date November (collectively, the K~ children). Subsequently, in June 2012, the United States Citizenship and Immigration Services issued a Certificate of Citizenship to each child, listing their respective birth dates as stated in the Ethiopian documentation. Then, in September 2013, the 305th Judicial District Court for Dallas, County, Texas, issued a Final Decree of Re-Adoption, in which the court approved the validity of the Ethiopian adoption but also purported to change the birth dates for all three children. Specifically, the court found by a preponderance of the evidence that medical evidence submitted by the children’s pediatrician and dentist warranted changing Nigusom’s birth date from Year to Year; Hewan’s birth date from Year to Year; and Tsehaye’s birth date from Year to Year. The court also found that the change was in the children’s best interests. Consequently, the court ordered that the appropriate state authority issue amended birth certificates for the children reflecting their amended birth dates. Finally, the court ordered the court clerk to transmit the associated records to the State Department of Human Services and then seal the file.

ANALYSIS

  1. The Accuracy for Adoptees Act Requires the Agency to Accept Valid, State-Issued Birth Certificates as Proof of a Changed Birth Date.

    A child born outside the United States automatically becomes a citizen of the United States where: (1) at least one parent of the child is a United States citizen; (2) the child is under eighteen-years old; and (3) the child legally resides in the United States with the citizen parent pursuant to the terms of a lawful admission for permanent residence. 8 U.S.C. § 1431. The Accuracy for Adoptees Act, Public Law No. 113-74 (Jan. 16, 2014), amended 8 U.S.C. § 1431, provides that a Certificate of Citizenship or other Federal document issued or requested to be amended under this section shall reflect the child’s name and date of birth as indicated on a State court order, birth certificate, certificate of foreign birth, certificate of birth abroad, or similar State vital records document issued by the child’s State of residence in the United States after the child has been adopted or readopted in that State.

    8 U.S.C. § 1431(c); see also Program Operating Manual Instructions (POMS) EM-14023 (implementing Accuracy for Adoptees Act). Thus, a foreign-born child may prove a name or birth date change to the agency by proving that he or she (a) was subject to a foreign adoption; (b) became a United States citizen; and (c) was issued a qualifying state-issued birth record reflecting the name or birth date change. Id. Qualifying documentation includes state-issued court orders; birth certificates; certificates of foreign birth; and other vital record documents issued after the child has been adopted or readopted in that state. Id. at (D), (E), (F). The agency must verify, however, that the court or applicable state authority validly issued the documentation. Id. at (F)(1).

  2. Texas District Courts Have the Authority to Change a Foreign Adoptee’s Birth date by Court Order.

    We must next determine whether the Texas district court complied with Texas law when it issued the order changing the K~ children’s birth dates. 1 At the threshold, we note that the K~ children resided in Texas, therefore satisfying the statutory requirement that the vital record reflecting the changed birth dates be issued by the children’s state of residence.

    The Texas Constitution provides that district courts are courts of general jurisdiction and consequently, enjoy subject-matter jurisdiction over all claims unless the legislature provides otherwise. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); accord Tex. Const. art. 5, § 8; Tex. Gov’t Code Ann. §§ 24.007, 24.008. Pursuant to this broad grant of authority, a district court “may grant any relief that could be granted by either courts of law or equity.” Tex. Gov’t Code Ann. § 24.008. More specifically, district courts exercise jurisdiction over suits affecting the parent-child relationship, see Tex. Fam. Code Ann. § 101.008, including adoption proceedings, Tex. Fam. Code Ann. § 101.032.

    With respect to foreign adoptions, Texas expressly requires that a court validate any adoption granted in a foreign country before the adoption may be recognized in Texas vital records. See 25 Tex. Admin. Code § 181.29(b); accord Tex. Fam. Code Ann. § 162.023 (authorizing court to order state registrar to file birth certificate in cases involving foreign adoptions); see also Tex. Health & Safety Code §§ 192.006, 192.008 (requiring supplemental birth certificates to be issued following adoption). The adoption is then “enforced as if the order were rendered by a court in this state.” Tex. Fam. Code Ann. § 162.023. After the court has validated the adoption, the state registrar must prepare a new birth certificate based on the order and documentation the clerk of court provided. 25 Tex. Admin. Code § 181.29(b), (c)(2), (d)(1). The state registrar may not alter or change the place of birth or the birth date from the information contained in the documentation presented. Id. § 181.29(c)(1). After issuing the new birth certificate, the state registrar must seal the file, including all of the documentation used to prepare the new birth certificate. Id. § 181.29(d)(3).

    The question remains whether the district court, when validating the adoption, may change the birth date in its order. Although Texas law is not entirely clear, we conclude that the district court may order such amendments. Section 191.028(b) of the Texas Health and Safety Code permits the Texas Department of Health to issue a birth certificate amendment to “correct a record that is incomplete or proved by satisfactory evidence to be inaccurate.” Although section 191.028 does not explicitly imbue courts with the power to make such amendments, Texas courts have indicated that a court has the authority to act under the statute. See Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App.—San Antonio, pet. denied) (acknowledging trial court’s authority to approve petition to correct birth certificate pursuant to § 191.028). Furthermore, section 108.009 of the Texas Family Code directs the state registrar to substitute a birth certificate based upon a court order pursuant to “laws or rules that permit the correction or substitution of a birth certificate for an adopted child.” Tex. Fam. Code Ann. § 108.009(a). Section 162.023 places validated foreign adoption records on equal footing with adoption orders that Texas courts issue, but it does not render them impervious to the normal amendment process.

    At a more basic level, courts look to whether the preponderance of the evidence supports changes to parent-child relationship, including in adoption proceedings, unless a specific statute requires the court to use a different standard. Tex. Fam. Code Ann. § 105.005. 2 A child’s birth date is unquestionably a fact that must be included in any suit affecting the parent-child relationship. Id. § 108.001(a). Thus, as with any other fact not expressly subject to a different standard, the court may issue factual findings regarding the child’s birth date pursuant to the preponderance of the evidence standard. Id. § 105.005.

    We also note that the state registrar may not alter a birth date from that contained in the “documentation” presented. 25 Tex. Admin. Code § 181.29. The word “documentation” suggests that the birth date need not be taken solely from the foreign birth certificate but, rather, from the information provided by the court clerk pursuant to § 108.001(a) of the Texas Family Code. Such information would, presumably, be subject to the preponderance of the evidence standard section105.005 of the Family Code imposes. Finally, we acknowledge that section 162.023 of the Texas Family Code expressly authorizes a court to implement a name change as part of its validation of a foreign adoption without mentioning whether the court may likewise order an amendment of a birth date. Nevertheless, in light of the broad powers Texas grants district courts to render findings of fact in suits affecting the parent-child relationship, we doubt that the absence of any mention of the child’s birth date reflects an intentional omission.

    We now respond to your queries in order:

    1. Does Texas law permit a change to a foreign-born individual’s birth date through a court order?

      Yes. As explained above, a Texas district court may issue an order amending a foreign-born individual’s birth date. Tex. Fam. Code Ann. §§ 101.008, 101.032, 105.005, 108.001(a), 162.023; Tex. Health & Safety Code Ann. § 191.028; Littleton, 9 S.W.3d at 231.

    2. What are the state legal requirements to change a birth date?

      The petitioner, such as the adoptive parent, may seek an amendment of the birth date while, at the same time, seeking to validate the foreign adoption order. See Tex. Fam. Code Ann. §§ 101.008, 101.032, 105.005. Alternatively, the petitioner may file an action in a court of competent jurisdiction, such as a district court, specifically to obtain a new or amended birth certificate. Littleton, 9 S.W.3d at 231; Tex. Health & Safety Code Ann. § 191.028. Under such circumstances, the court must base its findings on the preponderance of the evidence. Tex. Fam. Code Ann. § 105.005. Furthermore, a petitioner may request the Texas Department of Health to attach an amending certificate to a birth certificate to correct inaccurate information. Tex. Health & Safety Code Ann. § 191.028. In this situation, the petitioner must prove by “satisfactory evidence” that the existing birth certificate is inaccurate.

    3. Does the court order need to list the supporting documentation of the change of birth date in the state court order?

      There are no specific requirements that the court must specify the documentation upon which it relies before changing a child’s birth date. However, since a court must base its findings on a preponderance of the evidence, any order that does not identify the evidence supporting it would be questionable. Tex. Fam. Code. Ann. § 105.005; SSR 83-37C (1983), available at 1983 WL 31272, at *3 (setting forth standard for evaluating validity of state-court judgments).

    4. What are the documents the state issues as proof of the change of birth date?

      Texas specifically instructs that all of the documentation used to prepare a new birth certificate must be placed in a sealed file and may be accessed only by order of the court that validated the adoption. 25 Tex. Admin. Code § 181.29(d)(3); accord Tex. Health & Safety Code § 192.008. Thus, the only document the state issues as “proof” is the new or amended birth certificate itself.

    5. Does the state issue a Certificate of Foreign Birth, Certificate of Birth Abroad, or other document as proof of change of birth date?

      As stated above, the only document issued as proof of a changed birth date would be the birth certificate. Id.

CONCLUSION

Texas courts have the authority, based on a preponderance of the evidence, to change a foreign-born individual’s birth date via a court order. No specific documentation is required, and the only proof of the changed birth date will be the new or amended birth certificate. Furthermore, under the facts presented, we think that there is adequate proof of a birth date change for each of the K~ children.

Michael McGaughran

Regional Chief Counsel

By: ____________

Mark J. Mendola

Assistant Regional Counsel

B. PR 04-047 MOS-Ohio-SSA Acceptance of Legal Date of Birth Change SSN Applicant: Zachary Your Ref: S2D5G6; Our Ref: 03P064

DATE: December 12, 2003

1. SYLLABUS

Ohio law permits adoptive parents to revise the proven and valid date of birth (DB) of their adopted child for emotional or social reasons if a physician recommends such a revision. SSA, however, relies on an individual's proven DB in order to establish entitlement to, and the amount of, benefits. Although Ohio law allows adoptive parents to revise an adopted child's proven DB based on a physician's recommendation, SSA does not revise the child's DB on its records.

INTRODUCTION

2. OPINION

DISCUSSION

On January 31, 2003, Nancy and Joseph, the adoptive parents of Zachary (Zachary), applied for a Social Security card on Zachary's behalf. They indicated on the application that Zachary's birth date was June, a revised birth date that was one year younger than Zachary's actual chronological age. Zachary's federal permanent resident card showed that his birth date was June. The Immigration and Naturalization Service also recorded his birth date as June. Zachary came to the United States for his international adoption in June 2002.3 ]

Section 3107.18(C) of the Ohio Revised Code allows adoptive parents to request the county court revise their child's birth date, if a physician has recommended a revision. Here, Zachary's adoptive parents applied for and were granted a revision of Zachary's birth date from the probate court of Hamilton County, Ohio. The court's judgment entry of December 9, 2002, revised Zachary's birth date, pursuant to Section 3107.18(c) of the Ohio Revised Code, so that he would be one year younger than his actual chronological age. Zachary's parents petitioned the court for the birth date change on the advice of Mary , M.D., M.P.H., a pediatrician and director of the International Adoption Center, who examined Zachary and found he was delayed educationally, emotionally, and socially. Dr. S~ explained that his delays were due in part to sub-optimal nutrition and care received when Zachary was in an orphanage in Bulgaria. Dr. S~ surmised that a change in the child's birth date to make him one year younger would help compensate for the discrepancy between his chronological age and his developmental milestones.

The Social Security Act, Regulations, Rulings, and POMS do not directly address whether to allow a change in an individual's birth date based on a state statute that allows revisions of birth dates for adopted children. The regulations at 20 C.F.R. 401.65 allow an individual to correct mistakes in his birth record. Likewise, POMS GN 00302.327E and SSR 81-16 allow Holocaust survivors to correct birth dates that were changed to avoid Nazi persecution. SSR 65-34c and 75-15c address evidence to consider as proof of a mistaken birth date. However, there is no question of mistake here. Zachary's parents acknowledge that his actual birth date was June, and that they legally changed it on the basis of a physician's recommendation under an Ohio statute that allows such a change. Thus, the regulation, POMS provision, and rulings that allow corrections of birth date mistakes do not appear to be relevant here.

POMS DI 25215.010 allows the application of a "corrected chronological age" for a premature infant when evaluating a child's developmental delays. This provision is used when evaluating disability in children who were born prematurely, to determine whether their developmental delays are the result of a medically determinable impairment or attributable to the child's prematurity. The child's prematurity is only considered so long as it is a relevant factor, with most developmental delays resolved by about chronological age two. This POMS provision does not appear to apply to Zachary, as he is merely applying for a Social Security number, not disability benefits. Moreover, he is eleven years old, and his developmental delays were attributed to poor care in Bulgaria, rather than premature birth. In any event, this provision does not state that the individual's date of birth will be adjusted for all purposes.

However, the POMS make clear that a birth certificate does not always control in determining an individual's date of birth, especially when the certificate was created after age 5, and when there is significant reliable evidence indicating that the date of birth is other than that listed on the birth certificate. e.g., POMS GN 00302.054(B), GN 00302.160, GN00302.165. We contacted a policy expert in the Office of Income Security Programs, who advised that the actual date of birth should be recorded on the numident record, regardless of whether state law would allow the individual to change the date of birth for emotional or other reasons. This policy seems sound since, as you noted, the date of birth could affect future entitlement to or amounts of benefits. Moreover, the POMS provide that, once claimants have established their age in connection with an SSN application, they will not be required to resubmit evidence of age if they later refile, unless the adjudicator has reason to question the accuracy of the proven age. POMS GN 00302.010(B). Thus, it seems appropriate to record the actual date of birth at the time of the SSN application, since an adjudicator may not have sufficient information to question the accuracy of the date when a subsequent application is filed.

Thank you for requesting our input.


Footnotes:

[1]

We note that, beyond the dictates of the POMS, SSA is not bound by state court determinations that are not the result of contested litigation between parties with genuinely adverse interests or that are inconsistent with the law pronounced by the highest courts in the state. See Social Security Ruling (SSR) 83-37C (1983), available at 1983 WL 31272, at *3, adopting as agency policy, Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1974) (holding that SSA is not free to ignore a state trial court’s decision when the following criteria are met: (1) an issue in a claim for Social Security benefits previously has been determined or adjudicated 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 law enunciated by the highest court in the state).

[2]

Notably, the district court in this case specifically invoked the preponderance of the evidence standard in finding that changing the K~ children’s dates of birth was warranted.

[3]

. Zachary was born in Bulgaria on June, and originally named Stiliyan. He was legally admitted into the United States on June 13, 2002, and was adopted by Nancy and Joseph in Hamilton County, Ohio on January 7, 2003.


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http://policy.ssa.gov/poms.nsf/lnx/1502805048
PR 02805.048 - Texas - 07/29/2014
Batch run: 07/29/2014
Rev:07/29/2014