TN 9 (08-12)

PR 08605.014 Hawaii

A. PR 12-114 Replacement Cards for Hawaii Children Under a Voluntary Foster Custody Agreement

DATE: June 29, 2012

1. SYLLABUS

In Hawaii, an unrevoked Voluntary Foster Custody Agreement between a child’s parent and the Hawaii Department of Human Services (DHS) is an acceptable document for purposes of establishing legal custody.

2. OPINION

QUESTION

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.

SHORT ANSWER

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.

BACKGROUND

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.

ANALYSIS

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 custody1 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. 2 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 parental3 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. § 587A-11(5)(B).

The CPA clarifies that an Agreement confers the legal status of foster custody on the DHS.4 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).

CONCLUSION

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.

B. PR 11-085 Whether Maktenina has provided proof of guardianship of Jerina under the law of the State of Chuuk in the Federated States of Micronesia.

DATE: September 30, 2010

1. SYLLABUS

In the state of Chuuk of the Federated States of Micronesia, the Supreme Court Trial Division may issue orders for custody of minor children, as it deems justice and as the best interests of all concerned may require. A notarized document that was not issued by the court is insufficient to confer legal guardianship. Additionally, the State of Hawaii, where the citizens (applicant and minor) of Chuuk reside, requires court approval of guardianship appointments.  

2. OPINION

QUESTION PRESENTED

You asked whether Maktenina is the legal guardian of her granddaughter, Jerina , for purposes of applying for an original Social Security number on Jerina’s behalf. Additionally, you requested the requirements for establishing legal guardianship in the State of Chuuk of the Federated States of Micronesia (Micronesia). There are four states in Micronesia: Chuuk, Kosrae, Pohnpei, and Yap. The guardianship laws in Micronesia are particular to each state, as the states have independent legislatures. Accordingly, the guardianship laws of Kosrae, Pohnpei and Yap are not applicable to this case. For more information about Chuuk, please visit the legal information system about Micronesia, http://www.fsmlaw.org/chuuk/index.htm“About the State of Chuuk,” at

SHORT ANSWER

A notarized document is insufficient to confer legal guardianship in the State of Chuuk. Additionally, the State of Hawaii, where Maktenina and Jerina reside, requires court approval of guardianship appointments. Accordingly, Maktenina as not provided sufficient evidence to establish herself as Jerina’s guardian under the law of either Chuuk or Hawaii.

FACTUAL BACKGROUND

According to the information Maktenina provided to the Honolulu Field Office, Jerina is a minor from the State of Chuuk in Micronesia, and she currently resides with Maktenina in Waipahu, Hawaii. Maktenina alleges that she is Jerina’s paternal grandmother, and the mother of Jerina’s alleged biological father, Fraim . Maktenina indicated that Jerina was born on January and is a citizen of Chuuk. From the information provided, Jerina appears to have at least one living parent, her father, who lives in Chuuk. We have no information on the custodial status of Jerina’s mother, Reiki . The Field Office states that the only information it obtained concerning Jerina’s mother is that she lives in Chuuk. On or about March 2, 2010, Maktenina told the Field Office that she was Jerina’s guardian under the laws of the Micronesia. She asserted that legal guardianship of a child may be obtained through a notarized document and does not require a formal court procedure. In support of her position, she submitted a piece of paper entitled “Appointment of Legal Guardianship” and alleged that it conferred her legal guardianship of Jerina. The “Appointment” consists of a signed declaration from Jerina, purporting to appoint Maktenina as the guardian for his daughter. The declaration attempts to assign Maktenina “all the powers and authorities to act on my behalf to sign any and all documents … [and] receive all benefits which the minor is entitle [sic] to.” This letter, dated March 27, 2008, included the stamp and illegible signature of the Clerk of Court of the Chuuk State Supreme Court in Micronesia. Additionally, Maktenina submitted an affidavit, in which she attested to being a legal citizen of Chuuk and a resident of Hawaii. She represented that her son, Jerina, lived in Chuuk. She further represented that Mr. F~ gave her legal guardianship over Jerina. Maktenina and a notary public signed the affidavit on February 17, 2010. The Field Office provided us with an illegible copy of Jerina’s passport, a copy of a Chuuk court order concerning non-parties, and a copy of Jerina’s application for a Social Security Card (Form SS-5), dated February 27, 2010. Maktenina did not provide Jerina’s birth record or any custody orders. Thus, we have no evidence regarding Jerina’s birth mother, or other potential parties of interest. We have no evidence that any such parties were notified of Mr. F~’s attempt to appoint guardianship of Jerina. Additionally, we have no evidence of any court order appointing guardianship.

DISCUSSION

Maktenina alleges that Jerina is a citizen of Micronesia. Although citizens of Micronesia are not citizens or nationals of the United States, they are citizens of a Compact of Free Association (CFA) nation. See Program Operations Manual Support (POMS) RM 10211.050. A citizen of a CFA nation who presents appropriate evidence of age, identity, and citizenship may obtain a work-authorized Social Security card. POMS RM 00203.420(B);

RM 10211.075(D). In order to obtain a non-work Social Security card, the individual must also establish a valid non-work need for a Social Security card, and submit a letter from “the appropriate government entity explaining the need for the [card].” POMS RM 00203.510. Your question pertained only to the legal requirements for establishing guardianship. Therefore, we will not discuss whether Jerina is eligible for a non-work Social Security card. 

Because Maktenina alleges that Jerina is a citizen of Micronesia, but lives in Hawaii, we will discuss the legal requirements for establishing guardianship under the laws of both Hawaii and Micronesia.

In Hawaii, family courts have exclusive jurisdiction to appoint guardians for minors. Haw. Rev. Stat. Ann. § 551-1 (West 2010). Family courts also have exclusive original jurisdiction to determine custody and guardianship of any child in Hawaii. Id. § 571-11. Thus, under Hawaii law, Maktenina’s notarized documents would be insufficient to establish guardianship.  Additionally, the Hawaii Supreme Court has held that Hawaii is limited in its power to terminate the parental rights of a mother who is a citizen of a foreign nation. In Interest of Doe, 926 P.2d 1290, 1298 (Haw. 1996). We do not have evidence regarding the parental status and domicile of Jerina’s mother, but assuming that she is a citizen of Micronesia, a Hawaii court would not have jurisdiction to terminate her parental rights.

Maktenina’s notarized documents appear to be insufficient to establish guardianship under Chuuk State law. The Chuuk State Supreme Court Trial Division may issue orders for custody of minor children, as it deems justice and as the best interests of all concerned may require. Chuuk State Code http://www.fsmlaw.org/chuuk/code/tit. 23, § 1042 (1966). Available at (last visited on Aug. 3, 2010).

 Although the documents provided by Maktenina appear to have been notarized in Chuuk, the documents were not issued by a Chuuk court. Our research identified no legal authority allowing guardianship based on notarized documents. Therefore, Maktenina’s notarized documents did not establish guardianship under statutory law.

Although some government entities have erroneously honored notarized documents as sufficient evidence of guardianship, no statute authorizes the practice to make it legally binding. See E-mail from Larry , Staff Attorney, Micronesia Supreme Court, to Kathryn (Sept. 2, 2010). We could find no court decision in either Micronesia or Chuuk that was directly on point.  Furthermore, the Micronesia Social Security Administration does not accept notarized documents in cases involving death benefits. To receive benefits on a non-birth parent’s account, the Micronesia Social Security Administration requires two different types of documentation proving child status: (1) proof that the child has been adopted, and (2) proof that the child is actually dependent on the adoptive http://www.fm/fsmss/Index.htmparent.  See Micronesia Social Security Administration,  (last visited Sept. 13, 2010). The agency does not indicate that proof of guardianship is sufficient. Furthermore, it indicates that proof of “Customary adoption or Court order for adoption must be petitioned and signed by the wage earner.” Id. (emphasis added). See Kathryn E-mail. Thus, notarized documents would not be legally binding in this case.

CONCLUSION

Maktenina has not provided sufficient evidence to establish guardianship in the State of Chuuk. Moreover, Hawaii requires a court order to honor an assertion of guardianship over a minor. Accordingly, Maktenina has not established herself as Jerina’s guardian. 


Footnotes:

[1]

In the context of representative payees, POMS clarifies that “Legal custody exists when a court places an individual in the custody of an individual, institution, social agency, etc.” POMS GN 00501.010(B)(9).

[2]

In connection with the request for this legal opinion, some concern was raised about the language in paragraph (B)(5) of the Agreement, which refers to filing a petition with the family court within three days. This language does not apply to voluntary custody situations but addresses a situation where DHS receives custody of the child from police protective custody. In such a case, DHS has “temporary” custody, but not “voluntary” custody. DHS must then file a court petition, relinquish custody, or execute an Agreement within three days of receiving the child. This is made clear in paragraph (B)(3) and (4) of the Agreement. Put another way, the three-day requirement is for a situation where DHS does not have an Agreement in place. Haw. Rev. Stat. § 587A-9(a).

Id.

[3]

Use of the term “parent, parents or parental” in this section also refers to any person with legal custody of the child.

[4]

“Foster custody” is the legal status created when DHS places a child outside of the family home with the agreement of the legal custodian or pursuant to court order, after the court has determined that the child’s family is not presently willing and able to provide the child with a safe family home, even with the assistance of a service plan. Haw. Rev. Stat. § 587A-4.


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http://policy.ssa.gov/poms.nsf/lnx/1508605014
PR 08605.014 - Hawaii - 10/23/2012
Batch run: 10/23/2012
Rev:10/23/2012