BASIC (12-07)

PS 01335.037 North Dakota

A. PS 08-036 Native American Tribes and SSI Deeming Policy (Nathan Z~)

DATE: December 11,2007

1. SYLLABUS

This opinion evaluates the parent-to-child deeming determination involving a Native American child of the Cheyenne River Sioux Tribe and provides general guidance related to SSI deeming policy in similar cases. In the subject case, the child's natural mother lost her parental rights, and the child was legally adopted by another tribal couple. The adoptive parents subsequently terminated their parental rights. The tribe then became the guardian of the SSI eligible child, and granted physical custody of the child to the natural mother. The applicable Tribal Code in this case establishes that the natural parent loses legal status as a parent once the child is adopted. Once the legal status of the natural parent is terminated due to adoption, the parent-child relationship is not restored based on the child's presence in the natural parent's household.

The opinion also discusses a larger issue related to general SSI policy in situations where a Native American child has been adopted. The established general policy is that Tribal Law must be consulted to determine parental relationship and that the regions should seek OGC opinion in these cases.

2. OPINION

Issue

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.

Short Answer

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.

Facts

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.

Legal Analysis

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 m