TN 13 (10-16)

PR 02805.053 Washington

A. PR 16-181 Evaluation of Evidence for Foreign-Born Adoptee's Date of Birth Change in WA State

Date: August 30, 2016

1. Syllabus

Accept a Washington State-issued court order or Delayed Certificate of Birth that indicates documentary evidence was submitted that supports the new date of birth (such as medical records from the child’s physician or the court petition stating the birth date in the original record is erroneous) when prepared as acceptable evidence to either establish or change an individual’s date of birth on our Numident record if the individual is a foreign born adopted child.

If the court order or delayed birth certificate does not indicate that documentary evidence supporting the new date of birth was used to prepare the court order or delayed birth certificate, then accept the court order or delayed birth certificate only if submitted with documentary evidence that supports the new date of birth (such as medical records from the child’s physician or the court petition stating the birth date in the original record is erroneous).

2. Opinion

Question Presented

Is there sufficient evidence presented to change the foreign-born adoptees’ dates of birth?

Short Answer

Yes. Washington State law allowed the court to change the foreign-born adoptees’ dates of birth through court order upon a clear showing of error in the original documents. Based on the information provided, that standard is met.

Background

Washington State residents S~ and K~ (“Parents”) adopted four Ethiopian-born children in Ethiopia on an unknown date. The children, B~ (f/k/a B~ and B~, S2~(f/k/a S2~ and S2~), C~ (f/k/a C~ and C~), and K2~ (f/k/a K2~ and K2~) (collectively, “Children”), are residents of the State of Washington. In 2008, the Children received Social Security cards. On March XX, 2012, a Washington State Superior Court judge issued a re-adoption decree, changing the Children’s names and dates of birth. On March XX, 2012, the Washington State Department of Health issued birth certificates for the Children with information consistent with the re-adoption decree. On May XX, 2013, the Parents applied for name and date of birth changes for their Children to reflect the Children’s names and dates of birth in the State court order and birth certificates. The Parents provided a letter explaining that the dates of birth listed in the documents provided in connection with the original Social Security card applications were incorrect.

Discussion

Social Security Regulations require an individual requesting a change in the personal identifying information (e.g., date of birth) previously submitted in connection with a Social Security Number (SSN) application to submit documentary evidence that the Commissioner of Social Security regards as convincing. See 20 C.F.R. §§ 422.107(a), (b), 422.110. For foreign-born adoptees, the Accuracy for Adoptees Act requires that Federal agency documents reflect the child’s name and date of birth as shown on a State court order or State vital records document issued by the child’s State of residence after the child has been adopted or re-adopted in that State. See Pub. L. No. 113-74, 127 Stat. 1212 (amending Section 320 of the Immigration and Nationality Act, 8 U.S.C. § 1431(c)). Emergency Message 14023 (EM-14023) provides instructions for processing SSN applications affected by the Accuracy for Adoptees Act.

Emergency Message 14023

Pursuant to EM-14023, when a document issued by a State is presented as evidence to establish a date of birth different from what is shown on the child’s other evidence of age documents, the Regional Chief Counsel opinion should provide the following information:

1) whether the State has the authority under state law to change a foreign-born individual’s date of birth through a state court order;

2) the State legal requirements to change a date of birth;

3) whether the court order needs to list the supporting documentation of the change of date of birth on the state court order;

4) if the State has the authority to change a date of birth, the documents the State issues as proof of the change of date of birth; and

5) whether the State issues a Certificate of Foreign Birth, Certificate of Birth Abroad, or other Bureau of Vital Statistics (BVS) document as proof of change of date of birth. If the State issues the document under a different title, identify the name of the document.

See EM-14023.F.1.

Washington Law

To provide the information required under EM-14023, we looked to Washington adoption law because the documents presented as evidence of dates of birth are a Washington State re-adoption decree and Washington State birth certificates, and the Children are residents of the State of Washington. See 8 U.S.C. § 1431(c).

1) whether the State has the authority under State law to change a foreign-born individual’s date of birth through a court order.

Under Section 26.33.250 of the Revised Code of Washington (RCW), Washington State Superior courts have the authority to change a foreign-born individual’s date of birth through a decree of adoption or re-adoption.

2) what are the State legal requirements to change a date of birth.

To change a foreign-born individual’s date of birth through a decree of adoption or re-adoption, Washington State law requires “a clear showing that the information in the original record is erroneous.” RCW § 26.33.250(2). Thus, unless the Court is satisfied that there has been a clear showing that the information in the original record is erroneous, the Court must enter into the decree the date of birth exactly as it appears on that original record.

3) whether the court order needs to list the supporting documentation of the change of date of birth on the State court order.

No. The court order does not need to list the supporting documentation. RCW § 26.33.250. Furthermore, once the decree issues, all of the supporting documentation will be placed under seal. RCW § 26.33.330(1).

4) what are the documents the State issues as proof of the change of date of birth.

The State court will issue a decree after the child has been adopted or re-adopted, ordering a change of date of birth. RCW § 26.33.250. The state registrar of vital statistics, acting under the authority of the Department of Health, will issue a new certificate of birth reflecting the information contained in the decree. RCW § 26.33.290(3).

5) whether the State issues a Certificate of Foreign Birth, Certificate of Birth Abroad, or other BVS document as proof of change of date of birth. If the state issues the document under a different title, identify the name of the document.

As noted, the State of Washington issues a certificate of birth. “Unless the court orders otherwise, the certificate of birth shall have the same overall appearance as the certificate which would have been issued if the adopted child had been born in the state of Washington.” RCW § 70.58.210(2).

Analysis

The documents presented are sufficient evidence to change the Children’s dates of birth. The Washington State Superior Court had the authority to change the Children’s dates of birth in a decree of re-adoption upon “a clear showing that the information in the original record is erroneous.” RCW § 26.33.250(2). According to the letter submitted by the Parents, the dates of birth listed in the records originally provided to the Agency were incorrect. The Washington State Superior Court altered the Children’s dates of birth in the decree of re-adoption. The registrar of vital statistics had the authority to issue new birth certificates reflecting the information contained in that decree. Pursuant to the Accuracy for Adoptees Act, Agency documents should reflect the Children’s dates of birth as shown on these State-issued records.

Conclusion

It is our opinion that the Agency may rely on the documents presented as evidence to establish different dates of birth.

B. PR 15-163 – Washington State Legal Authority to Change Foreign-Born Adoptee’s Date of Birth

Date: April 13, 2015

1. Syllabus

The Washington state issued court orders and resulting U.S. foreign birth Certificates changing the dates of birth of foreign born adopted children (B~ and D~) are not acceptable evidence to establish a “new” date of birth for the children. Washington law allows a court to change the date of birth of a foreign-born adoptee through court order upon a clear showing of error in the adoptee’s original birth certificate. Because the evidence does not demonstrate a clear error in the original Ethiopian birth certificates of B~ and D~, and in the absence of any explanation from the court for changing the dates of birth, the requirements for changing the dates of birth under Washington State law have not been met.”

2. Opinion

QUESTION PRESENTED

Does Washington State allow a court entering a decree of adoption to change the date of birth of a foreign-born adoptee?  Based on information provided, did the decrees of adoption issued by a Washington State court for foreign-born B~ and D~ properly change their dates of birth?

BRIEF ANSWER

Washington law allows a court to change the date of birth of a foreign-born adoptee through court order upon a clear showing of error in the adoptee’s original birth certificate; does not require supporting documentation be listed in the order; and requires the State registrar of vital statistics to issue a new birth certificate.  The decrees of adoption issued by a Washington State court for B~ and D~ did not include a clear showing of error to support changing their dates of birth.

SUMMARY OF FACTS

In 20XX, a Washington State court issued adoption decrees declaring B~ and D~ (collectively, “the children”) the adopted children of Mr. and Mrs. L (collectively, “the parents”). The decrees changed the children’s names to B~ and D~. Both decrees listed the children’s place of birth as “Ethiopia, Africa.” B~’s date of birth was listed as XX/XX/2006, and D~’s date of birth was listed as XX/XX/2002. The Washington State Department of Health issued birth certificates for each child consistent with the information in the adoption decrees.

The original birth certificates for each child are consistent with the adoption decrees, with the exception of the dates of birth. On their original birth certificates, D~’s date of birth was XX/XX/2001, and B~’s was listed as XX/XX/2004.1

ANALYSIS

A. Emergency Message 14023

Emergency Message (EM) 14023 addresses agency policy relating to the Accuracy for Adoptees Act. This Act requires Federal agencies to accept documents issued in the United States as evidence of legal name and birthdate for foreign-born individuals. In certain instances, the date of birth on the U.S. issued evidence may vary from the date listed in the documentation from the home country of the foreign-born individual. In such circumstances, EM-14023 requires an opinion from the Regional Chief Counsel regarding the law of the issuing State. Specifically, the opinion should address the following issues:

whether the issuing State has the authority under State law to change a foreign-born individual’s date of birth through a court order;

what are the State’s legal requirements to change a date of birth;

whether the court order needs to list the supporting documentation of the change of birth on the State court order;

if the State has the authority to change a date of birth, what are the documents the State issues as proof of the change of birth date; and

whether the State issues a Certificate of Foreign Birth, Certificate of Birth Abroad, or other Bureau of Vital Statistics document as proof of change of birth date.

B. Washington Law

The children were born in Ethiopia and were adopted by parents in Washington State. The adoption proceedings occurred in a Washington State court. This court issued the adoption decree, and new birth certificates were issued from the State of Washington. Accordingly, this opinion will look to the law of Washington State.

The above-listed bullet points are answered as follows:

1. Washington State law allows a court order to change a foreign-born individual’s date of birth through a court order upon a clear showing that the original is erroneous. (answering bullets one and two)

Generally, a decree of adoption must include the original name of the adoptee, the full name of the adoptive parent or parents and whether the parents are married, the new name of the adoptee, and the date and place of birth of the adoptee. Rev. Code Wash. § 26.33.250(1) (2014). Information set forth in the adoption decree cannot differ from that shown in the original birth certificate except upon “a clear showing that the information in the original record is erroneous.” Rev. Code Wash. § 26.33.250(2).

2. The court is not required to list supporting documentation.
(answering bullet three)

The law does not expressly specify that the court’s decree include the source of the information. However, the law requires the court to include in its decree the exact date and place of birth as stated in the birth certificate from the country of origin or as indicated in documents of the United States Immigration and Naturalization Service. Rev. Code Wash. § 26.33.250(3)(a). Moreover, “[i]f the exact date of birth is unknown, determine a date of birth based upon medical testimony as to the probable chronological age of the adoptee and other evidence regarding the adoptee’s age that the court finds appropriate to consider[.]” Thus, though there is no express requirement to list supporting documents, it is reasonable to expect a court to discuss its findings based on the evidence.

3. Upon receipt of the adoption decree, the only document the State issues is a new birth certificate. (answering bullets four and five)

Upon receipt of a decree of adoption, the State registrar of vital statistics shall, if the adoptee was born outside the United States, issue a new certificate of birth reflecting the information contained in the decree. Rev. Code Wash. § 26.33.290(3).2 The State does not issue a Certificate of Foreign Birth, Certificate of Birth Abroad, or other Bureau of Vital Statistics document as proof of change of birth date.

C. Analysis

In this case, the decrees’ dates of birth differ from those listed on both the original documentation and the INS documentation. Thus, the decrees could only change the dates of birth upon a clear showing of error. Whether a clear showing of error was made in this case, however, is not apparent. The adoption decrees differ from the original birth certificates; in each case, the final digit of the year was changed. All other parts of the dates of birth were the same in the adoption decrees as they were on the original birth certificates and Ethiopian passports. The adoption decrees both reference findings of facts, presumably in separate orders issued by the court, but do not describe the bases for the change of the dates of birth. The adoption decrees themselves were drafted by the counsel for the L family, not by the court. While it is possible that the findings of facts explain the basis for the change in dates of birth, it is also possible that a scrivener’s error led to the decrees themselves reflecting incorrect birthdates.

Without a clear showing that the original birth certificates and INS documents were erroneous, the Washington State legal requirements supporting the changes have not been met.

CONCLUSION

Because the evidence does not demonstrate a clear error in the original Ethiopian birth certificates of B~ and D~, and in the absence of any explanation from the court for changing the dates of birth, the requirements for changing the dates of birth under Washington State law have not been met.

The parents of the children should be recontacted in order to obtain an explanation and the court’s findings of facts or any supporting documentation.


Footnotes:

[1]

. Each Ethiopian birth certificate lists Mr. and Mrs. L as the adoptive parents of the Children. However, each also has a typographical error regarding the last name of the adoptive parents and the children. Mr. L’s surname is listed as “?,” which is actually his middle name, and the name “C?” is included as each child’s adopted last name. Additionally, B~’s Ethiopian birth certificate lists his first name with a different spelling. In any event, this should not affect the analysis regarding the children’s dates of birth.

[2]

. A second provision of State law requires the inclusion of evidence of the foreign-born child’s place and date of birth—such as the original birth certificate or certain immigration documents—in addition to the adoption decree when registering the adoption. See Rev. Code Wash. § 70.58.210(2). The Washington State Department of Health, however, only applies this requirement to adoptions granted prior to January 1, 1985. See http://www.doh.wa.gov/
LicensesPermitsandCertificates/BirthDeathMarriageandDivorce/Adoptions/AdoptionRegistrationBornOutsideUSA.


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PR 02805.053 - Washington - 10/12/2016
Batch run: 10/12/2016
Rev:10/12/2016