You have asked whether a Voluntary Foster Custody Agreement (Agreement) between a
child’s parents and the Hawaii Department of Human Services (DHS) establishes the
necessary relationship, custody or responsibility as required in the Program Operations
Manual System (POMS) RM 10205.050(b)(3), for purposes of allowing DHS to apply for
a replacement Social Security card for a child.
Yes. Under the terms of the Hawaii Child Protective Act, Haw. Rev. Stat. § 587A, et seq., an unrevoked Agreement confers foster custody on DHS. The Agreement constitutes the
best available evidence of DHS custody during the 90-day voluntary foster custody
period. Court documents evidencing custody would not exist during that period.
The State of Hawaii Department of Human Services, Social Services Division, Child
Welfare Services Branch, sometimes seeks replacement Social Security cards for children
in state custody. To establish relationship, DHS has, on many occasions, submitted
an Agreement in support of its application for a replacement card.
The Agreement provides written consent by a person with legal and physical custody
of a child, to place the child in foster custody of DHS for a period of 90 days. DHS
uses the Agreement to quickly remove a child from an urgent situation.
You have advised that a Hawaii field office recently refused to accept the Agreement
as proof of relationship because it is not a “court document” establishing custody.
In addition, the Agreement forwarded to our office as a sample does not pertain to
any active application before our field office. As such, this opinion considers in
the abstract whether these Agreements establish relationship, custody and responsibility
necessary for standing as a proper applicant.
1. Agency Regulations and Policy
Agency regulations provide that “[a]n individual needing a[n] [SSN] may apply for
one by filing a signed form SS–5, ‘Application for A Social Security Number Card,’
. . . and submitting the required evidence.” 20 C.F.R. § 422.103(b)(1); see Social Security Act § 205(c)(2)(B)(ii) (requiring applicant to submit evidence of
individual’s age, citizenship or alien status, and true identity, and evidence needed
to identity any previously assigned SSNs). A “proper applicant” must complete and
sign this form. See Programs Operations Manual System (POMS) RM 10205.010 (stating application for SSN card is filed if “the proper applicant completes and
signs a paper Form SS-5”); see also RM 10205.025(C) (requiring SSA to return applications that are not from proper applicants).
The agency has established a hierarchy regarding qualification as the “proper applicant”
for an SSN on behalf of an individual who is unable to file an application. See POMS RM 10205.025(B)(3). The POMS establish the following order of priority, from
highest to lowest, provided the applicant can show a relationship to and custody/responsibility
for the individual:
(a) A court-appointed legal guardian (individual or other entity);
(b) A parent (natural, adoptive, or step) with custody of a child;
(c) An Administrator of an individual's (adult or child) estate;
(d) A brother, sister, grandparent, aunt, or uncle with custody of a child;
(e) A State agency (including State foster care and child-protective service agencies,
State mental institutions or hospitals, or State adoption agencies) or a State-licensed
agency (including State contractors and private adoption agencies) if it has legal
custody of the individual (adult or child); or
(f) An individual who applies on behalf of another individual (adult or child) who
can establish relationship and responsibility.
POMS RM 10205.025(B)(3). The agency considers someone lower on the list only when no one higher on
the list of proper applicants exists, although exceptions may be made in extenuating
circumstances with regional office approval. Id.
A state agency must establish relationship, custody, and responsibility for the child
to be considered a “proper applicant.” POMS RM 10205.025(C). POMS provides that “court
custody documents” giving a state agency custody of the child will successfully establish
relationship, custody and responsibility. See POMS RM 10205.050(B)(3).
Thus, under agency policy, DHS is a proper applicant if it has legal custody of the child, has court documents establishing that custody, and no one of higher
priority on the list exists.
2. The Voluntary Foster Custody Agreement Confers Legal Custody to Hawaii DHS
Child custody issues in Hawaii proceed under the Child Protective Act (CPA), Haw.
Rev. Stat. § 587A, et seq. The Act provides two means for the DHS to obtain foster custody of a child: 1) “temporary”
foster custody (requiring a court hearing); and 2) “voluntary” foster custody (not
under court review, requiring parental consent instead). To simplify the analysis
of this opinion, both forms of custody are discussed briefly.
Temporary foster custody is a legal status with or without a court order, whereby
the department temporarily assumes the duties and rights of a foster custodian of
a child. Haw. Rev. Stat. § 587A-4. Temporary custody usually arises in one of three
ways: 1) where the police take a child into protective custody, then transfers him
or her to DHS; 2) where a DHS investigation reveals that a child has been harmed,
or is subject to imminent or threatened harm; or 3) where a parent (or other person
with legal custody) revokes his or her consent for “voluntary” foster custody. Haw.
Rev. Stat. §§ 587A-9(a), 587A-11(6). Temporary foster custody requires a court hearing;
DHS must file for such a hearing within three days of taking temporary custody.  Like temporary foster custody, “voluntary” foster custody may occur where DHS finds
that a child has been harmed, or is subject to threatened or imminent harm. Haw. Rev.
Stat. § 587A11(5)(B). However, the distinguishing factor of voluntary foster custody
is parental consent. In lieu of a court order, DHS signs an Agreement with a child’s parent in
which the parent consents to place the child in the foster custody of the DHS for
a period of 90 days, or until revoked by the parent. This allows DHS to quickly and
legally remove the child from an urgent situation by placing him or her in “voluntary
foster custody,” while the parent attempts to complete a service plan that will remedy
the urgent situation. If, after expiration of the Agreement, the parents are unable
to successfully complete the service plan and ensure the child’s safety (or upon revocation
of the Agreement), DHS must (with one exception) file a petition in family court for
temporary foster custody. Id. During the pendency of the Agreement, there is no court involvement. Haw. Rev. Stat.
The CPA clarifies that an Agreement confers the legal status of foster custody on
the DHS. Haw. Rev. Stat. § 587A-4. Consequently, the Agreement carries legal import without
judicial action. By operation of law, an unrevoked Agreement confers legal foster
custody on DHS for a period of 90 days. Id.
3. The “Court Documents” Required by POMS Do Not Exist
As discussed in Section 1, above, POMS provides that “court custody documents” giving
a state agency custody of the child successfully establish relationship, custody and
responsibility. See POMS RM 10205.050(B)(3). In this case, in light of the terms of the CPA, an Agreement
establishes the legal custody in favor of DHS, by operation of law, for the 90 days
covered by the Agreement, as long as that Agreement remains unrevoked.
Here, because DHS obtains parental consent, no judicial proceeding occurs as a matter
of state law. Consequently, no court documents exist. As a legal matter, an unrevoked
Agreement is the best available evidence of DHS custody during the pendency of the
90-day window. No court documents are needed where the DHS has provided an unrevoked
Agreement. The agency has recognized similar situations in which voluntary agreements
that are sufficient to give rise to state agency custody confer proper applicant status
to the state agency without any action by a court. See, e.g., POMS PR 08605.016 (PR 09-081) (Illinois-surrender form), PR08605.049 (PR 07-141) (Utah-statement of
relinquishment), PR 08605.052 (PR 07-174) (Virginia-entrustment agreement, but finding the agreement inadequate
on other grounds).
In sum, we conclude that under the terms of the Hawaii Child Protective Act, Haw.
Rev. Stat. § 587A, et seq., an unrevoked Agreement constitutes the best available evidence of DHS custody during
the 90-day voluntary foster custody period. Court documents evidencing state custody
will not exist until after the temporary custody period begins.