TN 5 (04-09)

PR 08605.016 Illinois

A. PR 09-081 Request for Legal Opinion - REPLY Your Ref: S2D5G6, State of Illinois Our Ref: 08-0144-NC

DATE: April 6, 2009

1. SYLLABUS

Te DCFS surrender form and certificate of acknowledgment are acceptable documents for purposes of determining who is a proper applicant for a Social Security number/card.

2. OPINION

You asked us whether the "Final and Irrevocable Surrender to an Agency for Purposes of Adoption of a Born Child" form, used by the Illinois Department of Children and Family Services (DCFS), is an acceptable document for purposes of determining who is a proper applicant for a Social Security number/card. Specifically, you want to know if the State of Illinois recognizes the surrender form as proof of legal custody. For the reasons discussed below, we conclude that the surrender form can be used to establish that DCFS has legal custody of a child, in order that DCFS may be considered a proper applicant for a Social Security number/card.

DISCUSSION

POMS RM 00202.005(C)(3)(e) provides a priority list of proper applicants who can apply for a Social Security number or card on behalf of an individual when they can establish a relationship to and custody/responsibility for an individual who is unable to file a Social Security number/card application on his own behalf. When no one higher on the priority list exists, a State agency (including State foster care and child protective service agencies such as DCFS) may be considered a proper applicant if it has legal custody of the individual.

You submitted for our review two forms used by DCFS--a "Final and Irrevocable Surrender to an Agency for Purposes of Adoption of a Born Child" and a "Certificate of Acknowledgment." The issue is whether these forms can be used to establish that DCFS has legal custody of an individual for whom the Social Security number/card will be issued, in order that DCFS may be considered a proper applicant.

Under the Illinois Adoption Act, consents or surrenders are required in all adoption cases. See 750 Ill. Comp. Stat. Ann. 50/8(a). When a minor child is placed with an agency for purposes of adoption, the mother must surrender the child to the agency; in certain circumstances, the father must also surrender the child. See id. 50/8(c). Illinois law requires that the consent form be substantially similar to the statutory surrender form, which contains a statement that the parent "irrevocably and permanently give[s] up all custody and other parental rights" the parent has to the child. 750 Ill. Comp. Stat. Ann. 50/10(C). The form further states that the parent surrenders the entire custody of the child to the agency, for purposes of caring for the child and placing him or her for adoption. See id.; Illinois v. Kerwood, 359 N.E.2d 183, 186 (Ill. App. Ct. 1977) (surrender form details transfer of all parental rights from birth parent(s) to agency, so that it may consent to adoption sometime in future).

To be valid, a surrender must be acknowledged as a free and voluntary act by the parent. See 750 Ill. Comp. Stat. Ann. 50/10(I); Meza v. Rodriguez, 713 N.E.2d 764, 769, 774 (Ill. App. Ct. 1999). The acknowledgment may be made before a representative of an agency, who then must sign a certificate of acknowledgment before a notary public. See 750 Ill. Comp. Stat. Ann. 50/10(K); Kerwood, 359 N.E.2d at 187. Also, before or at the time of the surrender, the mother must execute an affidavit identifying the father of the child. See 750 Ill. Comp. Stat. Ann. 50/11(b). The language of the surrender document, certificate of acknowledgment, and affidavit of identification must substantially comply with that provided in the statutory forms at 750 Ill. Comp. Stat. Ann. 50/10(C), (J), (K) and 50/11(b). See also Meza, 713 N.E.2d at 769.

A surrender of a born child may not be taken within the 72 hour period immediately following the birth of the child. See 750 Ill. Comp. Stat. Ann. 50/9(B). A validly executed surrender is irrevocable unless it was obtained by fraud or duress on the part of the person before whom the surrender was acknowledged. See 750 Ill. Comp. Stat. Ann. 50/11(a); Regenold v. Baby Fold, Inc., 369 N.E.2d 858, 864, 868 (Ill. 1977); Meza, 713 N.E.2d at 771-72; Kerwood, 359 N.E.2d at 186. The purpose of the formal statutory requirements and irrevocability of the surrender is to add stability and finality to adoption proceedings. See Regenold, 369 N.E.2d at 864, 868; Illinois v. Nolan, 419 N.E.2d 550, 554-55 (Ill. App. Ct. 1981).

Here, the language of the DCFS surrender form and certificate of acknowledgment is nearly identical to that of the statutory forms. In particular, the DCFS surrender form states that the parent "irrevocably and permanently give[s] up all custody and other parental rights" the parent has to his or her child, and that the parent surrenders the entire custody of the child to the agency. Also, the surrender form and certificate of acknowledgment state that the parent is signing the form and acknowledging it as his or her free and voluntary act. Notably, the Nolan case involved a surrender form and certificate of acknowledgment used by DCFS that appear to be similar to or the same as the ones submitted here. See Nolan, 419 N.E.2d at 555. In that case, the Illinois Appellate Court did not question the validity of the birth mother's surrender, and held that her surrender was not invalidated because she failed to prove her surrender was obtained by fraud. See id. at 554-57.

We believe the above legal authority clearly establishes that the State of Illinois recognizes the "Final and Irrevocable Surrender to an Agency for Purposes of Adoption of a Born Child" and "Certificate of Acknowledgment" forms used by DCFS as proof of legal custody. Therefore, so long as there are no questions raised that a surrender was obtained less than 72 hours after the birth of a child or by fraud or duress, SSA may rely on these forms to establish that DCFS has legal custody of the child, in order that DCFS may be considered a proper applicant for a Social Security number/card on the child's behalf.

CONCLUSION

For the reasons discussed above, we conclude that the DCFS surrender form and certificate of acknowledgment are acceptable documents for purposes of determining who is a proper applicant for a Social Security number/card.

Very truly yours,

Donna L. C~
Regional Chief Counsel

Cristine B~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508605016
PR 08605.016 - Illinois - 10/23/2012
Batch run: 10/23/2012
Rev:10/23/2012