You have requested a legal opinion concerning parent-to-child deeming involving a
Native American child, whose natural mother's parental status was terminated through
an adoption, the adopted parents subsequently terminated their parental rights, the
tribe restored custody of the child to the natural mother, and the child resumed living
with the her.
We believe tribal law supports the position that a parent-child relationship between
the natural mother and the child was not reestablished. Therefore, the natural mother's
income should not be deemed to the child.
According to facts you provided, Nathan Z~'s natural mother, Hope W~ B~, lost her
parental rights to Nathan "some time ago." Her Indian tribe, the Cheyenne River Sioux
Tribe in the State of North Dakota, took custody of Nathan. A couple legally adopted
Nathan but subsequently voluntarily terminated their parental rights. Once again,
the tribe took custody of Nathan. The tribe granted custody of Nathan to Hope but
retained guardianship of him. Nathan resides with Hope.
Although the Social Security Act, regulations, and POMS are silent as to the effect
of adoption on the relationship of the adoptee and the natural parent, OGC supports
the position that a natural parent loses legal status as a parent for deeming purposes
once the child is adopted. See Memorandum, Question Concerning
Deeming Provisions and the Termination of a Natural Parent Child
Relationship Following Adoption, from Deputy Associate General Counsel, Program Law to Associate Commissioner for
Program Benefits (January 22, 2003); see also Memorandum, Deeming
and Termination of a Natural Parent/Child Relationship Following
Adoption, from Associate Commissioner, Office of Income Security Programs (OISP), to Regional
Commissioner, Atlanta (Deeming
and Termination Memorandum) (July 26, 2003). This position is supported by the Uniform Adoption Act of 1994,
which states that "[a]fter a decree of adoption becomes final, each adoptive parent
and the adoptee have the legal relationship of parent and child and have all the rights
and duties of that relationship." § 1-104; see §1-105 (stating "when a decree of adoption becomes final... the legal relationship
of parent and child between each of the adoptee's former parents and the adoptee terminates,
except for a former parent's duty to pay child support. . .").
Furthermore, and the determinative factor in this case,1 the position that a natural parent loses legal status as a parent once a child is
adopted is supported by the Cheyenne Rive Sioux Tribal Code, Chapter 11, Section 11.10,
which states, "[t]he natural parents of an adopted child are, from the time of adoption,
relieved of all parental duties towards the child adopted and of all responsibility
for the child so adopted, and shall have no rights over them." There is no provision
of the tribal code that indicates the parent-child relationship is automatically restored
when a natural parent whose parental rights have been terminated regains custody,
and the child resumes living with the parent. Therefore, we believe that Nathan's
adoption severed the parent-child relationship between Nathan and Hope, and that this
relationship remains severed, despite the circumstances that have resulted in Nathan
returning to live with Hope. Consequently, Hope's income should not be deemed to Nathan
for SSI purposes.
As you noted in your opinion request, the Deeming
and Termination Memorandum contains a paragraph that notes one major exception to the policy that adoption terminates
the legal parent-child relationship between natural parent and child. The memorandum
Native American tribes frequently treat children who have been adopted away from their
natural parents as continuing their relationship with both their natural parents and
their tribe. For many years, we have informally advised regions to treat Native American
children subject to tribal law who resume living with their parents as having regained
the natural parent/child relationship unless there is tribal law to the contrary.
Based on this language, it would appear that the "informal exception" results in Native
American children subject to tribal law being treated differently, unless there is
countermanding tribal law, which is not the case here. We are troubled by the possible
equal protection and due process ramifications that could result from applying the
"informal exception" in this case and have consulted with Office of Income Support
Programs (OISP). OISP agrees with us that the better course of action in this case
is for deeming from Hope to Nathan not to occur, because the natural parent-child
relationship was not restored under tribal law. In order to clarify the deeming policy
with regard to Native American children, OISP plans to draft proposed changes to POMS
SI01310.145 and SI01320.4550 to emphasize that tribal law governs the parent-child
relationship, and that the regions should seek an OGC opinion to determine whether
the parent-child relationship has been restored.
We believe the law supports the position that the Hope has not reestablished a parent-child
relationship with Nathan, therefore, her income should not be deemed to Nathan.
Deana R. E~-L~
Regional Chief Counsel, Region VIII
William T. D~
Assistant Regional Counsel
1tribal laws and judicial proceedings must be given full faith and credit by the "United
States, every State, very territory or possession of the United States, and every
Indian tribe 25U.S.C. § 1991(d) (2003).