TN 7 (06-11)

PR 08605.026 Minnesota

A. PR 11-106 MOS-Request for Legal Opinion

DATE: May 19, 2011

1. SYLLABUS

In the state of Minnesota, any transfer of parental rights or permanent custody of a child under 14 years old requires court involvement. Therefore, a Minnesota adoption agency must obtain a court custody document. A Department of Human Services (DHS) form, without a court document, is not an acceptable document for the purposes of determining who is a proper applicant for a Social Security card or card.

2. OPINION

QUESTION PRESENTED

You asked whether, in Minnesota, a Department of Human Services (DHS) form is sufficient proof establishing legal custody, or whether a court document is needed, for purposes of determining who is a proper applicant for a Social Security number or card. For the reasons discussed below, we conclude that the DHS form does not establish legal custody, without a court order, under Minnesota law. Thus, in order to be considered a proper applicant, a Minnesota adoption agency must be a state-licensed agency, and must provide a court document giving the adoption agency legal custody of the children for whom it seeks to obtain Social Security numbers.

BACKGROUND

New Horizons Adoption Agency (New Horizons), a Minnesota private adoption agency, has applied for Social Security numbers for multiple children in its care. It appears that New Horizons uses a form established by the Minnesota DHS pursuant to Minn. Stat. § 259.25, entitled “Agreement Conferring Authority to Place for Adoption including Consent to Adoption, Waiver of Notice and Right to Withdraw the Agreement and the Consent and Acceptance of the Agreement and the Consent by Agency” (Agreement Conferring Authority) when the parents surrender their children to the adoption agency and consent to their adoption. New Horizons claims that the state of Minnesota does not issue court documents establishing legal custody for the children in its care, and that the DHS form serves as sufficient evidence of legal custody in Minnesota.

DISCUSSION

POMS RM 10205.025(B)(3) 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 the individual. When no one higher on the priority list exists, a state-licensed agency (including a private adoption agency) may be considered a proper applicant if it has legal custody of the individual. See POMS RM 10205.025(B)(3)(e), RM 10205.050.

Thus, New Horizons may be considered a proper applicant if it is a state-licensed agency and has legal custody of the children for whom the Social Security numbers will be issued. We have not been provided any information regarding New Horizons’ licensing status. However, the Minnesota DHS provides licensing information on its website: http://licensinglookup.dhs.state.mn.us/. We were able to confirm via the DHS licensing search tool that New Horizons is currently a state-licensed agency in Minnesota.

Next, we must determine whether New Horizons has legal custody of the children. At issue is POMS RM 10205.050(B)(3) which states: “We must see court custody documents that give a State agency, or State-licensed agency, custody of the NH. Court custody documents establish the Agency’s relationship, as well as custody and responsibility of the Agency for the individual.” OGC has determined that a court custody document is not needed for some states because their adoption statutes provide that a different type of document confers legal custody of a child on an adoption agency. See, e.g., POMS PR 08605.016 (PR 09-081) (Illinois-surrender form), PR 08605.049 (PR 07-141) (Utah-statement of relinquishment), PR 08605.052 (PR 07-174) (Virginia-entrustment agreement). However, as discussed below, we do not believe that, in Minnesota, the Agreement Conferring Authority is sufficient to establish legal custody without a court order.

Initially, we note that the Agreement Conferring Authority deals only with the birth parent’s consent to the adoption agency placing his or her child for adoption. The DHS form itself does not address the issue of legal custody. It does not, for example, contain any language that the parent has surrendered legal custody of the child to the adoption agency, or that the adoption agency has assumed legal custody of the child.

Minnesota statutory and regulatory laws likewise are silent on the issue of legal custody when a parent signs an Agreement Conferring Authority. Minnesota’s adoption statute does not define the term “legal custody,”1 see Minn. Stat. § 259.20 et seq., nor does it indicate that the Agreement Conferring Authority confers legal custody of a child on an adoption agency. See Minn. Stat. § 259.25; see also Minn. Adoption Procedure Rule 33.06; Minn. R. 9560.0030. And, although the Commissioner of Human Services has created a publication describing the rights and responsibilities of adoption agencies, birth parents, and prospective adoptive parents in the legal adoption process, as required by Minn. Stat. § 259.39, this publication does not make any mention of legal custody. See Minn. Dept. of Hum. Servs., Adoption Publications, http://www.dhs.state.mn.us/main/idcplg?IdcService=GET_DYNAMIC_CONVERSION&RevisionSelectionMethod=LatestReleased&dDocName=id_003702 (updated May 10, 2010) (click on “Completing an Adoption in Minnesota: Rights and Responsibilities”).

Other legal authority supports the conclusion that the Agreement Conferring Authority alone does not confer legal custody on an adoption agency. For example, under the adoption statute, a parent’s consent to adoption does not terminate parental rights, and the parent may still be asked to support the child. See Minn. Stat. §§ 259.24 subd. 5(2), 259.25 subd. 1; Minn. Adoption Procedure Rule 33.06 subd. 4. Also, the child custody statute indicates generally that any transfer of parental rights or permanent custody of a child under 14 years old requires court involvement:

No person other than the parents or relatives may assume the permanent care and custody of a child under 14 years of age unless authorized to do so by an order or decree of court….Except in proceedings for adoption or by a [custody] consent decree…, no parent may assign or otherwise transfer to another parental rights or duties with respect to the permanent care and custody of a child under 14 years of age. Any such transfer shall be void.

Minn. Stat. § 257.02. Further, in a Minnesota Supreme Court case, although it was not an issue, the facts showed that the birth mother executed an affidavit of consent which included not only her consent to adoption pursuant to Minn. Stat. § 259.25 subd.1, but also an agreement to commit her child to the guardianship and legal custody of the adoption agency. See McDonald v. Children’s Home Society, 119 N.W.2d 731, 733 (Minn. 1963). Here, the Agreement Conferring Authoright does not include similar language concerning legal custody.

We also spoke with staff at the Minnesota Attorney General’s Office and the Minnesota DHS. An attorney in the Minnesota Attorney General’s Office confirmed that there was nothing in the Minnesota statutes or the DHS form which indicated that the Agreement Conferring Authority conferred legal custody of a child on an adoption agency. A supervisor in the adoptions unit of the Minnesota DHS also stated that a birth parent who signs an Agreement Conferring Authority retains legal custody of his or her child and only loses legal custody when the child is adopted.

Thus, although New Horizons is a state-licensed agency, the information provided does not establish that the adoption agency has legal custody of the children for whom it seeks to obtain Social Security numbers. That is, there does not appear to be any legal authority supporting New Horizon’s assertion that the Agreement Conferring Authority is sufficient to establish legal custody in Minnesota, without the need for a court order. Therefore, New Horizons is not a proper applicant for a Social Security number/card on behalf of the children.

“Legal custody” is defined in delinquency and child protection statutes as “the right to the care, custody, and control of a child,” Minn. Stat. §§ 260B.007 subd. 8, 260C.007 subd. 22; Minn. Admin. Rule 9560.0521 subd. 15, and in the marriage dissolution statute as “the right to determine the child’s upbringing, including education, health care, and religious training.” Minn. Stat. § 518.003 subd. 3(a).

CONCLUSION

For the reasons discussed above, we conclude that the Agreement Conferring Authority is not sufficient evidence of legal custody in Minnesota, for purposes of determining who is a proper applicant for a Social Security number or card. Therefore, a Minnesota adoption agency must obtain a court custody document.

Donna L. C~

Regional Chief Counsel, Region V

Cristine B~
Assistant Regional Counsel


Footnotes:

[1]

“Legal custody” is defined in delinquency and child protection statutes as “the right to the care, custody, and control of a child,” Minn. Stat. §§ 260B.007 subd. 8, 260C.007 subd. 22; Minn. Admin. Rule 9560.0521 subd. 15, and in the marriage dissolution statute as “the right to determine the child’s upbringing, including education, health care, and religious training.” Minn. Stat. § 518.003 subd. 3(a).


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http://policy.ssa.gov/poms.nsf/lnx/1508605026
PR 08605.026 - Minnesota - 06/15/2011
Batch run: 06/15/2011
Rev:06/15/2011