TN 1 (08-07)

PR 08605.052 Virginia

A. PR 09-070 Reply to Your Request for a Legal Opinion as to Whether a Document Entitled "Entrustment Agreement for Permanent Surrender of Child in the Commonwealth of Virginia" Signed by the Birth Mother Entrusting the Child, Isaiah A. G~, to the Care and Custody of a Virginia Adoption/Foster Care Agency, Is Sufficient to Confer Legal Custody Under Virginia Law to Establish the Adoption/Foster Care Agency as a Proper Applicant for a Social Security Number (SSN) on the Child's Behalf.

DATE: February 27, 2009

1. SYLLABUS

In Virginia, an adoption/foster care agency, such as BCS, need not present a court custody document to qualify as a proper applicant who may file an application for a SSN on behalf of another individual so long as the agency has established that it is a state agency, or a state-licensed agency, and has obtained an entrustment agreement executed in accordance with Virginia law. However, in this case, there is an issue with respect to whether the identity of the birth father is reasonably ascertainable and, if so, whether he has been given notice of the entrustment agreement. Additionally, the name of the foster care/adoption agency does not appear on the face of the SS-5 application Thus, absent additional information indicating that the application was filed on behalf of BCS, there would be no basis for making a determination that BCS is a "proper applicant" for a SSN on behalf of the child.

2. OPINION

QUESTION PRESENTED

The Program Operations Manual System (POMS) at RM 00202.005(D)(5) requires a court custody document to establish a state agency, or a state-licensed agency as a proper applicant for a SSN on behalf of a child. You requested our opinion as to whether an entrustment agreement signed by the birth mother giving legal and physical custody of the child, Isaiah A.G~, to Bethany Christian Services (BCS), a Virginia adoption/foster care agency, would be sufficient to confer legal custody of the child upon the adoption/foster care agency under Virginia law and would eliminate the need for a court custody document to establish the agency as a proper applicant for a SSN on behalf of the child as required by the POMS.

SUMMARY

We do not believe that the documentation you submitted to us would be adequate to eliminate the need for a court custody document in this case. We have reviewed the information that you provided and have researched the relevant provisions of Virginia and federal law. Based upon this information and our research, we continue to hold the opinion that a Virginia adoption/foster care agency, such as BCS, need not present a court custody document to qualify as a proper applicant who may file an application for a SSN on behalf of another individual so long as the agency has established that it is a state agency, or a state-licensed agency, and has obtained an entrustment agreement executed in accordance with Virginia law. (See Memorandum of July 9, 2007, which you submitted to us with your request for a legal opinion). In this case, however, there is an issue with respect to whether the identity of the birth father is reasonably ascertainable and, if so, whether he has been given notice of the entrustment agreement. We also note that the name of the foster care/adoption agency does not appear on the face of the SS-5 application. Absent additional information indicating that the application was filed on behalf of BCS, there would be no basis for making a determination that BCS is a "proper applicant" for a SSN on behalf of the child.

BACKGROUND

You have asked that we review a notarized agreement entitled "Entrustment Agreement for Permanent Surrender of Child in the Commonwealth of Virginia," signed by Christina G~, the mother of Isaiah A. G~, on December 31, 2008.

The entrustment agreement contains several clauses that are relevant to whether it has been properly executed in accordance with Virginia law. Specifically, the agreement includes clauses:

stating that the birth mother has surrendered legal and physical custody of the child to BCS;

indicating that the birth mother has been provided with counseling;

providing for revocation by either the birth parent or BCS at any time prior to the child's placement into the physical custody of the adoptive parents;

indicating the birth mother's understanding and acknowledgment that the agreement will constitute her permanent separation from and termination of all legal rights and obligations with respect to the child from the effective date of the agreement, in this case, January 9, 2009;

stating that the birth mother grants to BCS legal and physical custody of the child with all rights and responsibilities to plan for his future care, protection, and maintenance, including the right to place the child for adoption in accordance with Virginia law;

providing that BCS accepts full custody and assumes full responsibility, including financial responsibility for the child;

providing for the birth mother's consent to and approval of all medical and surgical treatment necessary to the welfare of her child while under the care of BCS.

You also provided us with an SS-5 application for Isaiah A.G~ signed by Kathryn J~, who described her relationship to the child as "Child Placing Agency".

The SS-5 application states that Christina G~ is the mother of Isaiah A.G~. The name of the child's father is not shown on the SS-5 application.

You also provided us with a copy of a license issued by the Commonwealth of Virginia, Department of Social Services, which shows that BCS is a licensed Child Placing Agency in Virginia, and that its license will be in effect from December 18, 2008 through December 17, 2011, unless revoked for violations of the provisions of law, or for the failure to comply with the limitations set forth on the license.

You also provided us with a copy of a Certificate of Live Birth, which states that Isaiah A. G~ was born on December 30, 2008, and that the name of his mother is Christina M. G~. This document was filed on January 12, 2009, and issued on January 22, 2009. The name of the child's father is not shown on the copy of the Certificate of Live Birth.

DISCUSSION

1. The Applicable Regulations and POMS Provisions

Please see the POMS provisions cited in the July 9, 2007 Memorandum, which you have attached with your request for a legal opinion.

2. Virginia Law

Pursuant to Va. Code Ann. § 63.2-1817, a licensed child-placing agency shall have the right to accept, for any purpose not contrary to the limitations contained in its license, such children as may be entrusted or committed to it by the parents, guardians, relatives or other persons having legal custody thereof, or committed by a court of competent jurisdiction. The agency shall, within the terms of its license and the agreement or order by which such child is entrusted or committed to its care, have custody and control of every child so committed and accepted, until he or she is lawfully discharged, has been adopted, or has attained his or her majority. Va. Code Ann. § 63.2-1817.

An entrustment agreement for the termination of parental rights and responsibilities shall be executed in writing and notarized, and should divest the birth parent(s) of all legal rights and obligations with respect to the child. Va. Code Ann. §§ 63.2-903, 63.2-1221, 63.2-1817. For the purposes of Va. Code Ann. §§ 63.2-903, 63.2-1817, a parent who is less than 18 years of age shall be deemed fully competent and shall have legal capacity to execute a valid entrustment agreement, including an agreement that provides for the termination of all parental rights and responsibilities, and shall be as fully bound thereby as though such parent had attained the age of 18 years. Va. Code Ann. § 63.2-903. An entrustment agreement for the termination of all parental rights and responsibilities shall be valid notwithstanding the fact that it is not signed by the father of a child born out of wedlock if the identity of the father is not reasonably ascertainable, or if such father is given notice of the entrustment by registered or certified mail to his last known address and fails to object to the entrustment agreement within 15 days of mailing of such notice. Va. Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of the father is not reasonably ascertainable shall be sufficient, provided there is no other evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However, the absence of such an affidavit shall not be deemed evidence that the identity of the father is reasonably ascertainable. Va. Code Ann. § 63.2-903. Prior to the placement of a child for adoption, the licensed child-placing agency shall counsel the birth mother or, if reasonably available, both birth parents, concerning the disposition of their child. Va. Code Ann. § 63.2-1224.

A valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until (i) the child has reached the age of 10 days and (ii) seven days have elapsed from the date of execution of the agreement; and shall also be revocable by either of the birth parents if the child has not been placed in the physical custody of the prospective adoptive parents at the time of such revocation. 23 Va. Code Ann. § 63.2-1223.

The provisions of the Virginia Administrative Code which address the minimum standards for licensed child caring institutions are instructive insofar as they address the documentation which must be made part of the case record, including a copy of a court commitment and/or entrustment agreement which shall include information concerning financial responsibility, and consent for necessary medical and surgical treatment and hospitalization. 22 Va. ADC 40-100-350. In addition, the entrustment shall only be entered into once it has been determined that the placing person has legal authority to do so. 22 Va. ADC 40-100-350.

3. The SS-5 Application Does Not Indicate On Its Face That It Was Filed By Bethany Christian Services.

The SS-5 application does not contain any information on its face indicating that it was filed by BCS on behalf of the child. Although you have provided information indicating that Kathryn J~ is an employee of BCS, it would be preferable that the individual signing the SS-5 application identify the name of the child placing agency on the SS-5 application. Therefore, there would be no question, assuming that all of the requirements of Virginia law have been met, that the foster care/adoption agency is a "proper applicant" for a SSN on behalf of the child. POMS RM 00202.005(B). Even if you have obtained documentation which shows that the SS-5 application was filed by BCS, the entrustment agreement does not appear to satisfy all requirements of Virginia Law.

4. The Entrustment Agreement Does Not Appear to Satisfy All Requirements of Virginia Law.

We note that there may be an issue with respect to whether the identity of the birth father is reasonably ascertainable. The name of the child's father is not shown on the SS-5 application or on the Certificate of Live Birth. Virginia law states that an entrustment agreement for the termination of all parental rights and responsibilities shall be valid notwithstanding the fact that it is not signed by the father of a child born out of wedlock if the identity of the father is not reasonably ascertainable. Va. Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of the father is not reasonably ascertainable shall be sufficient, provided there is no other evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However, the absence of such an affidavit shall not be deemed evidence that the identity of the father is reasonably ascertainable. Va. Code Ann. § 63.2-903. Therefore, if the identity of the birth father is not reasonably ascertainable, we recommend that the birth mother provide an affidavit stating that the identity of the birth father is not reasonably ascertainable. If you should obtain any documentation indicating that the identity of the birth father is ascertainable, we recommend that the birth father be given notice of the entrustment agreement by registered or certified mail to his last known address. Va. Code Ann. § 63.2-903. If the birth father is given notice of the entrustment agreement and fails to object within 15 days of mailing such notice, this requirement would be met. Va. Code Ann. § 63.2-903.

We also note that Virginia law allows revocation of an entrustment agreement. Pursuant to 23 Va. Code Ann. § 63.2-1223, a valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until (i) the child has reached the age of 10 days and (ii) seven days have elapsed from the date of execution of the agreement; and shall also be revocable by either of the birth parents if the child has not been placed in the physical custody of the prospective adoptive parents at the time of such revocation. We of course have no information that the birth mother revoked her consent to the entrustment agreement as allowed under the Virginia statute and assume for purposes hereof that there was no such revocation.

For the foregoing reasons, we believe that further development is required in this case.

CONCLUSION

We do not believe that the documentation you submitted to us would be adequate to eliminate the need for a court custody document in this case. The name of the foster care/adoption agency does not appear on the face of the SS-5 application. Absent additional information indicating that the application was filed by Ms. J~ on behalf of BCS, there would be no basis for making a determination that it is a "proper applicant" for a SSN on behalf of the child. Furthermore, the entrustment agreement which you have submitted to us does not appear to satisfy all requirements under Virginia law. There is no evidence of an affidavit from the birth mother indicating that the identity of the birth father is not reasonably ascertainable; or, if the identity of the birth father is reasonably ascertainable, that he has been given notice of the entrustment agreement. Therefore, we believe that further development is required in this case.

Very truly yours,

Eric K~
Acting Regional Chief Counsel

Beverly H. Z~
Assistant Regional Counsel

B. PR 09-029 Reply to Your Request for a Legal Opinion as to Whether a Document entitled "Entrustment Agreement" Signed by the Child's Mother Entrusting the Child, Francesca W~, to the Care and Custody of a Virginia Adoption Agency, Is Sufficient to Confer Legal Custody Under Virginia Law to Establish the Adoption Agency as a Proper Applicant for a Social Security Number (SSN) on the Child's Behalf

DATE: December 9, 2008

1. SYLLABUS

In Virginia, an entrustment agreement signed by the birth mother giving temporary custody of a child is sufficient to confer legal custody of the child upon the adoption/foster care agency. However, although a court custody document is not needed, each entrustment agreement must be reviewed by the Office of the Regional Chief Counsel, Region III, Philadelphia, to determine whether it has been executed in conformity with Virginia law.

The Region III Office of Chief Counsel reviewed the entrustment agreement in question and determined that it would not be adequate to eliminate the need for a court custody document in this case. The documentation was not deemed sufficient to confer legal custody of the child upon the adoption agency under Virginia law, thus eliminating the need for a court custody document to establish the agency as a proper applicant for a SSN on behalf of the child as required by the POMS, RM 00202.005D.

2. OPINION

QUESTION PRESENTED

The Program Operations Manual System (POMS) at RM 00202.005(D)(5) requires a court custody document to establish a state-licensed adoption agency as a proper applicant for a SSN on behalf of a child. You requested our opinion as to whether an entrustment agreement signed by the birth mother giving custody of her child, Francesca W~, to ABC Adoption Services Inc., a Virginia adoption agency, would be sufficient to confer legal custody of the child upon the adoption agency under Virginia law and would eliminate the need for a court custody document to establish the agency as a proper applicant for a SSN on behalf of the child as required by the POMS.

SUMMARY

We do not believe that the documentation you submitted to us would be adequate to eliminate the need for a court custody document in this case. We have reviewed the information that you provided and have researched the relevant provisions of Virginia and federal law. Based upon this information and our research, we continue to hold the opinion that a Virginia adoption agency, such as ABC Adoption Services Inc., need not present a court custody document to qualify as a proper applicant who may file an application for a SSN on behalf of another individual so long as the agency has established that it is a state-licensed agency, and has obtained an entrustment agreement executed in accordance with Virginia law.

(See Memorandum of July 9, 2007, in which we previously addressed this issue).

The entrustment agreement that you have submitted to us, however, does not appear to satisfy all of the requirements of Virginia law. Additionally, there is no evidence that the birth mother has provided an affidavit that the identity of the father is not reasonably ascertainable.

BACKGROUND

You have asked that we review a notarized agreement entitled "Entrustment Agreement," signed by Jennifer F. W~, the birth mother, on August 15, 2008. The entrustment agreement, signed by Ms. W~, contains a clause indicating that she relinquishes all legal rights and obligations with respect to the child; contains a clause indicating her understanding that surrender of the child and assignment of all legal rights and obligations with respect to the child shall constitute a full, complete, and permanent separation of the child from her; contains a revocation clause; contains a clause indicating that she has received counseling concerning the disposition of her child, and that the agreement was made voluntarily without fraud or duress; and contains a clause authorizing ABC Adoption Services Inc. to place the child for adoption with the couple she has selected to be the child's parents and to undertake all legal steps and procedures for the finalization of the adoption.

You also provided us with an SS-5 application submitted by ABC Adoption Services Inc. indicating that it was signed by Leslie G. T~, who described her relationship to the Child as "custodian." The SS-5 application states that Jennifer F. W~ is the mother, and that the father is unknown for Francesca W~.

You also provided us with the Virginia Driver's License for Leslie G. T~, whom you indicate is authorized to sign the SS-5 application on behalf of ABC Adoption Services Inc.

You also provided us with a copy of a Certificate of Live Birth, which states that Francesca W~ was born on August 14, 2008, and that the name of her mother is Jennifer F. W~. This document was recorded on August 26, 2008. The name of the child's father is not shown on the copy of the Certificate of Live Birth.

In your Memorandum to us you indicated that you were aware that further documentation was required regarding ABC Adoption Services' status as a state-licensed adoption agency. See POMS RM 00202.005(C)(3). You also indicated that you were aware that additional documentation was required with respect to whether Leslie G. T~ was authorized to sign the application on behalf of ABC Adoption Services, Inc., and that additional evidence concerning the identity of Francesca W~ was required as well. See POMS RM 00202.005(D)(5); RM 00203.200. Therefore, we will not address these issues.

DISCUSSION

1. The Applicable Regulations and POMS Provisions

Please see the POMS provisions cited in our July 9, 2007 Memorandum, which you attached to your request for a legal opinion.

2. Virginia Law

Pursuant to Va. Code Ann. § 63.2-1817, a licensed child-placing agency shall have the right to accept, for any purpose not contrary to the limitations contained in its license, such children as may be entrusted or committed to it by the parents, guardians, relatives or other persons having legal custody thereof, or committed by a court of competent jurisdiction. The agency shall, within the terms of its license and the agreement or order by which such child is entrusted or committed to its care, have custody and control of every child so committed and accepted, until he or she is lawfully discharged, has been adopted, or has attained his or her majority. Va. Code Ann. § 63.2-1817.

An entrustment agreement for the termination of parental rights and responsibilities shall be executed in writing and notarized, and should divest the birth parent(s) of all legal rights and obligations with respect to the child. Va. Code Ann. §§ 63.2-903, 63.2-1221, 63.2-1817. For the purposes of Va. Code Ann. §§ 63.2-903, 63.2-1817, a parent who is less than 18 years of age shall be deemed fully competent and shall have legal capacity to execute a valid entrustment agreement, including an agreement that provides for the termination of all parental rights and responsibilities, and shall be as fully bound thereby as though such parent had attained the age of 18 years. Va. Code Ann. § 63.2-903. An entrustment agreement for the termination of all parental rights and responsibilities shall be valid notwithstanding the fact that it is not signed by the father of a child born out of wedlock if the identity of the father is not reasonably ascertainable, or if such father is given notice of the entrustment by registered or certified mail to his last known address and fails to object to the entrustment agreement within 15 days of mailing of such notice. Va. Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of the father is not reasonably ascertainable shall be sufficient, provided there is no other evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However, the absence of such an affidavit shall not be deemed evidence that the identity of the father is reasonably ascertainable. Va. Code Ann. § 63.2-903. Prior to the placement of a child for adoption, the licensed child-placing agency shall counsel the birth mother or, if reasonably available, both birth parents, concerning the disposition of their child. Va. Code Ann. § 63.2-1224.

A valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until (i) the child has reached the age of 10 days and (ii) seven days have elapsed from the date of execution of the agreement; and shall also be revocable by either of the birth parents if the child has not been placed in the physical custody of the prospective adoptive parents at the time of such revocation. 23 Va. Code Ann. § 63.2-1223.

The provisions of the Virginia Administrative Code which address the minimum standards for licensed child caring institutions are instructive insofar as they address the documentation which must be made part of the case record, including a copy of a court commitment and/or entrustment agreement which shall include information concerning financial responsibility, and consent for necessary medical and surgical treatment and hospitalization. 22 Va. ADC 40-100-350. In addition, the entrustment shall only be entered into once it has been determined that the placing person has legal authority to do so. 22 Va. ADC 40-100-350.

3. The Entrustment Agreement Does Not Appear to Satisfy All Requirements of Virginia Law.

The entrustment agreement shall, under Virginia law, include information concerning financial responsibility and consent for necessary medical and surgical treatment and hospitalization.

22 Va. ADC 40-100-350. These terms are not present in the entrustment agreement provided for our review. Thus the entrustment agreement is not sufficient under Virginia Law.

We note that ABC Adoption Services' entrustment agreement does not contain any information concerning financial responsibility as required by 22 Va. ADC 40-100-350. It would be our preference that the agency include a clause in its entrustment agreement that is specific as to its terms with respect to its obligation concerning "financial responsibility."

We also note that ABC Adoption Services' entrustment agreement does not include a clause giving consent for necessary medical and surgical treatment and hospitalization on behalf of the child. 22 Va. ADC 40-100-350. Therefore, it would be our preference that the agency include a clause in its entrustment agreement that is specific as to its terms with respect to consent for all necessary medical and surgical treatment and hospitalization.

We also note that there may be an issue with respect to the identity of the father. There is no father identified on the certificate of live birth provided to us. Additionally, the SS-5 application provides that the father's name is "unknown." As discussed above, Virginia law states that an entrustment agreement for the termination of all parental rights and responsibilities shall be valid notwithstanding the fact that it is not signed by the father of a child born out of wedlock if the identity of the father is not reasonably ascertainable. Va. Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of the father is not reasonably ascertainable shall be sufficient, provided there is no other evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However, the absence of such an affidavit shall not be deemed evidence that the identity of the father is reasonably ascertainable. Va. Code Ann. § 63.2-903. Therefore, we recommend that the birth mother provide an affidavit stating that the identity of the father of Francesca W~ is not reasonably ascertainable.

We also note that Virginia law allows revocation of an entrustment agreement. Pursuant to 23 Va. Code Ann. § 63.2-1223, a valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until (i) the child has reached the age of 10 days and (ii) seven days have elapsed from the date of execution of the agreement; and shall also be revocable by either of the birth parents if the child has not been placed in the physical custody of the prospective adoptive parents at the time of such revocation. We of course have no information that Ms. W~ revoked her consent to the entrustment agreement as allowed under the Virginia statute and assume for purposes here that there was no such revocation.

For the foregoing reasons, we believe that further development is required in this case.

CONCLUSION

We do not believe that the documentation you submitted to us would be adequate to eliminate the need for a court custody document in this case. The entrustment agreement which you have submitted to us does not appear to satisfy all requirements under Virginia law. Moreover, there is no evidence of an affidavit from the birth mother indicating that the identity of the birth father of Francesca W~ is not reasonably ascertainable. Therefore, we believe that further development is required in this case.

Very truly yours,

Eric P. K~
Acting Regional Chief Counsel

Amanda R. R~
Assistant Regional Counsel

C. PR 07-174 Reply to Your Request for a Legal Opinion as to Whether an Entrustment Agreement Signed by the Birth Mother Giving Temporary Custody of Her Child, Sean Michael H~, to Bethany Christian Services, a Virginia Adoption/Foster Care Agency, Is Sufficient to Confer Legal Custody of Sean Upon the Agency Under Virginia Law, and Eliminates the Need for a Court Custody Document to Establish the Agency as a Proper Applicant for a Social Security Number on Behalf of the Child.

DATE: July 9, 2007

1. SYLLABUS

In Virginia, an entrustment agreement signed by the birth mother giving temporary custody of a child is sufficient to confer legal custody of the child upon the adoption/foster care agency. However, although a court custody document is not needed, each entrustment agreement must be reviewed by the Office of the Regional Chief Counsel, Region III, Philadelphia, to determine whether it has been executed in conformity with Virginia law. In addition, information should be obtained in every case to determine whether the agency is a State-licensed agency.

2. OPINION

QUESTION PRESENTED

The Program Operations Manual System (POMS) at RM 00202.005(D)(5) requires a court custody document to establish a state-licensed agency as a proper applicant for a Social Security number on behalf of a child. You requested our opinion as to whether an entrustment agreement signed by the birth mother giving temporary custody of her child, Sean Michael H~, to Bethany Christian Services, a Virginia adoption/foster care agency, would be sufficient to confer legal custody of the child upon the adoption/foster care agency under Virginia law and would eliminate the need for a court custody document to establish the agency as a proper applicant for a Social Security Number on behalf of the child as required by the POMS.

SUMMARY

We have reviewed the information that you provided and have researched the relevant provisions of Virginia and federal law. Based upon this information and our research, it is our opinion that a Virginia adoption/foster care agency, such as Bethany Christian Services, need not present a court custody document to qualify as a proper applicant who may file an application for a Social Security Number on behalf of another individual so long as the agency has established that it is a state-licensed agency, and has obtained an entrustment agreement executed in accordance with Virginia law. In this case, however, the entrustment agreement which you have submitted to us has expired. Nor has the agency provided any proof that it is a state-licensed agency. Therefore, we find that the documentation is not adequate in this case.

BACKGROUND

You have asked that we review a notarized agreement entitled "Temporary Entrustment, Parents' Agreement and Medical Permit," signed by Jonique M. H~, the birth mother, on February 9, 2007. The temporary entrustment agreement, signed by Ms. H~, provides that it is for less than 90 days from the date of signing the agreement, and requests Bethany Christian Services to accept temporary custody and place Sean in temporary foster care on February 9, 2007, or upon discharge from Sentra Careplex Hospital. The temporary entrustment agreement states that Bethany Christian Services will provide an approved foster home, food, clothing and medical care for the time throughout the time it has custody of the child; states that the agreement does not terminate parental rights, privileges and obligations to the child; provides that by signing the agreement, the parent delegates to Bethany Christian Services such rights, privileges and obligations which are necessary for the child's well-being from the date of admission until the parent signs a release requesting termination of care by Bethany Christian Services and receives the child from the agency; states that parental rights can only be terminated by due process of law; states the parent's understanding that if she has not made an adoption plan for the child in 60 days and is not prepared to have the child returned to her, Bethany Christian Services will contact the appropriate local Department of Social Services - Child Protective Services for intervention on the child's behalf; provides that if the temporary entrustment agreement is for less than 90 days from the date of signing and if the child remains in care more than 60 days while awaiting adoptive placement, Bethany Christian Services is required by Virginia law to petition Juvenile Court within 60 days for approval of the foster care placement; states that the parent consents to and approves all medical or surgical treatment necessary for the welfare of the child while under the care of Bethany Christian Services; sets forth the financial responsibilities of the parties; provides that professional counseling is available to the parent through Bethany Christian Services; and states that Bethany Christian Services is licensed for foster care.

You also provided us with an SS-5 application submitted by Bethany Christian Services signed by Audrey S~, a representative of Bethany Christian Services, who described her relationship to the child as "legal guardian". The SS-5 application states that Jonique M. H~ is the mother, and that the father's name is unknown. The SS-5 application also states that Sean was born on February 7, 2007, and that a Virginia birth certificate was submitted as evidence in connection with the application.

DISCUSSION

1. The Applicable Regulations and POMS Provisions

The regulations at 20 C.F.R. § 422.103 provide that an individual who needs a Social Security Number may apply for one by filing a signed application (SS-5) and providing all necessary evidence. 20 C.F.R.§ 422.103 (2006). A "proper applicant" for a Social Security Number is a person whose signature is valid on Form SS-5 filed on behalf of himself/herself or on behalf of someone else. POMS RM 00202.005(B). Under the POMS, there are three categories of proper applicants:

1) adults age 18 or over who are physically and mentally capable of reading and completing Form SS-5;

2) children who are physically and mentally capable of reading and completing Form SS-5; and

3) other applicants who may file on behalf of another individual if the individual is unable to file an application on his or her own behalf, in which case the “other applicant” may sign a Form SS-5 if able to establish relationship to and custody/responsibility for the individual.

POMS RM 00202.005(C) (1) - (3).

"Other applicants" in order of priority are as follows:

1) a court-appointed legal guardian (individual or agency);

2) a parent (natural, adoptive or step) with custody of a child;

3) an administrator of an individual's (adult or child) estate;

4) a brother, sister, grandparent, aunt, or uncle with custody of a child;

5) 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

6) an individual who applies on behalf of another individual (adult or child) who can establish relationship and responsibility.

POMS RM 00202.005 (C)(3).

Relationship, custody and/or responsibility must be established in every case in which the person who signs the application is not the person to whom the card will be issued. POMS RM 00202.005 (D). In the case of agency applicants, court custody documents giving a State agency or State-licensed agency custody of the Number Holder establish the agency's relationship, as well as custody and responsibility of the agency for the individual. POMS RM 00202.005 (D)(5). (See POMS GN 00301.030(B)(3) regarding evaluation of court orders).

2. Virginia Law

Pursuant to Va. Code Ann. § 63.2-1817, a licensed child-placing agency shall have the right to accept, for any purpose not contrary to the limitations contained in its license, such children as may be entrusted or committed to it by the parents, guardians, relatives or other persons having legal custody thereof, or committed by a court of competent jurisdiction. The agency shall, within the terms of its license and the agreement or order by which such child is entrusted or committed to its care, have custody and control of every child so committed and accepted, until he or she is lawfully discharged, has been adopted, or has attained his or her majority. Id.

The provisions of the Virginia Administrative Code which set forth the licensing standards for independent foster homes are instructive insofar as they address the requirements for temporary entrustment agreements, including placement for less than 180 days, and revocation upon parental request. 22 Va. ADC. 40-141-85.

The provisions of the Virginia Administrative Code which address the minimum standards for licensed child caring institutions are also instructive insofar as they address the documentation which must be made part of the case record, including a copy of a court commitment and/or entrustment agreement which shall include information concerning financial responsibility, and consent for necessary medical and surgical treatment and hospitalization. 22 Va. ADC 40-100-350. In addition, the entrustment shall only be entered into once it has been determined that the placing person has legal authority to do so. Id.

The provisions of the Virginia statute which address the requirements for approval of an entrustment agreement by the Juvenile and Domestic Relations Court in a case in which a child has been entrusted to the local board of social services or to a child welfare agency are also instructive insofar as they provide that an affidavit of the birth mother that the identity of the father is not reasonably ascertainable shall be sufficient to establish this fact, provided there is no other evidence before the court which would refute the affidavit. Va. Code. Ann. § 16.1-277.01.

3. A State Licensed Virginia Adoption or Foster Care Agency Need Not Present a Court Custody Document To Qualify as a Proper Applicant Who May File an Application for a Social Security Number on Behalf of Another Individual So Long as It Has Obtained an Entrustment Agreement Executed in Accordance With Virginia Law.

Under the POMS, a state-licensed private adoption or foster care agency may apply for a Social Security Number on behalf of another individual, provided it can establish relationship to and custody/responsibility for the child. POMS RM 00202.005(C)-(D). Court custody documents giving a state-licensed agency custody of the individual establish the agency's relationship, as well as custody and responsibility of the agency for the individual. POMS RM 00202.005 (D)(5). By operation of the Virginia statutes, a licensed child-placing agency may obtain custody and control of a child by means of court commitment or pursuant to an entrustment agreement. 23 Va. Code Ann § 63.2-1817. An entrustment agreement is not a "court custody document" as set forth in POMS RM 00202.005; however, in Virginia, it has the same effect as a court commitment in that it vests custody and control of every child so entrusted to the child-placing agency by the parents or other persons having legal custody of the child. 23 Va. Code Ann § 63.2-1817.

While the POMS RM 00202.005(D)(5) presumes that "court custody documents" are required to establish legal custody in all states, we believe that an entrustment agreement duly executed according to the law of Virginia, would be sufficient to establish legal custody in the State of Virginia because it has the same effect under Virginia's adoption statute as a court commitment. 23 Va. Code Ann § 63.2-1817. Therefore, we do not believe that a licensed child-placing agency in Virginia would need to present court custody documents giving the agency custody in order to qualify as a proper applicant for a Social Security Number on behalf of another. POMS RM 00202.005 (A), (B), (C)(3), (D)(5).

We believe, however, that each entrustment agreement should be reviewed by our office to determine if it meets the requirements of the Virginia statutes. Although a particular agreement may appear to be valid on its face, each case is fact specific. Therefore, we believe that it will be necessary to review each entrustment agreement separately to determine whether it has been executed in conformity with Virginia law. We note that information should be obtained in every case to determine whether the agency is a state-licensed agency. POMS RM 00202.005(C)(3).

4. The Entrustment Agreement Submitted By Bethany Christian Services Has Expired and The Agency's Status as a State-Licensed Agency Has Not Been Established.

This is a temporary entrustment agreement for less than 90 days from the date of signing. The agreement was signed on February 9, 2007, and, therefore, has expired by its own terms. We note, however, that the agreement contemplates return of the child to the mother upon signing a release requesting termination of care by the agency; or adoptive placement within 60 days; or the filing of a petition by Bethany Christian Services with the Juvenile Court for approval of the foster care placement in the event the child remains in care for more than 60 days. If Bethany Christian Services has petitioned the Juvenile Court for approval of the foster care placement, and has received a court order or decree conferring custody of the child upon Bethany Christian Services, this could establish the agency's relationship, as well as custody and responsibility of the agency for the child. POMS RM 00202.005 (D)(5). (See POMS GN 00301.030(B)(3) regarding evaluation of court orders).

We note that although the entrustment agreement provides that Bethany Christian Services is licensed for foster care, the agency has not provided any proof, such as a license or certificate of licensure from the State of Virginia. See POMS RM 00202.005(C)(3).

For your information, we note that if this agreement had not expired, it would appear to have satisfied the minimum standards for licensed child caring institutions under 22 Va. ADC 40-100-350 to the extent it contains information concerning financial responsibility, and consent for all medical and surgical treatment. We further note that the agreement would appear to have satisfied the requirements under 22 Va. ADC. 40-141-85 to the extent that it states that it is for less than 90 days, and contemplates revocation by the parent upon written release. We also note, however, that although the information on the SS-5 application states that the identity of the father is unknown, the birth mother did not provide a statement indicating that the identity of the father was not reasonably ascertainable. See Va. Code. Ann. § 16.1-277.01.

CONCLUSION

Based upon the information that you provided and our review of the relevant provisions of Virginia and federal law, a Virginia adoption/foster care agency, such as Bethany Christian Services, need not present a court custody document to qualify as a proper applicant who may file an application for a Social Security Number on behalf of another individual so long as it has established that it is a state-licensed agency, and has obtained an entrustment agreement that has been executed in accordance with Virginia law. In this case, the entrustment agreement which you have submitted to us has expired by its own terms. Nor has the agency provided any proof to establish that it is a state-licensed agency. Therefore, we conclude that the documentation is insufficient in this case.

Very truly yours,

Michael M~
Regional Chief Counsel

Beverly H. Z~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1508605052
PR 08605.052 - Virginia - 10/23/2012
Batch run: 10/23/2012
Rev:10/23/2012