We were asked by the Policy and Legislation Division to advise you whether, pursuant
to section 216(h)(2)(A) of the Social Security Act (Act), the child applicant would
be considered to be the child of the insured worker under the intestate succession
laws of the District of Columbia (D.C.). Based on our review of D.C. law, the law
librarian's opinion concerning Mexican law, and our understanding of the facts as
presented to us, we do not believe the child applicant, Dulce M. B~ F~, would be considered
the child of the insured worker, Robert B~, under the intestate succession laws of
D.C.
The facts as we understand them indicate that Robert, Dulce, and Robert's wife, Candelaria,
are presently domiciled in Nayarit, Mexico. Dulce was born out of wedlock on July
3, 1988, in Jalisco, Mexico. On June 9, 1989, Dulce's biological mother signed a document
stating that she gave her "mother's rights" to Candelaria. The document also stated
that "[a]bout the child that is sick and whose health I cannot care for like it should
be I promise not to interfere in her private life, and my only request is that I be
able to see her when you say I can." The document was executed before an auxiliary
judge in San V~, Nayarit, Mexico. In January 1990 and in December 1993, Robert and
Candelaria attempted to adopt Dulce in accordance with local Mexican law, but were
unable to do so because Dulce's biological mother disappeared from the region, was
never found, and did not appear before the proper authorities to complete the adoption
process. There was no information with regard to Dulce's biological father.
On April 6, 1995, when Dulce was five years old, a certificate of birth was issued
by the Office of the Civil Registry of San V~, Nayarit, showing Robert as Dulce's
biological father and Candelaria as her biological mother. Dulce has lived continuously
with Robert and Candelaria since June 9, 1989. Robert and Candelaria have supported
Dulce and treated her as their child at all times, and Dulce treats them as her parents.
In April 1999, at the request of the Policy and Legislation Division, the Law Library
of Congress issued a report entitled "Civil Status of Children and Inheritance Rights
Under the Laws of Nayarit, Mexico." The report concluded that Dulce could not be considered
the legally adopted child of Robert under the laws of Nayarit, Mexico. According to
the law librarian, for a valid adoption, there must be a court decree authorizing
the adoption, a subsequent registration of the decree in the Office of the Civil Registry,
and the annotation of the decree on the birth certificate of the adoptee. None of
these requirements were complied with in this case. The report also concluded that
Dulce could not be considered the equitably adopted child of Robert because equitable
adoption is not recognized by Nayarit or any other state in Mexico. However, the report
also concluded that, based on the certificate of birth issued by the Nayarit authorities,
Dulce would be treated as the offspring of Robert and Candelaria and would be able
to inherit intestate personal property from Robert under the law of intestate succession
of that state, even though the law and the facts reveal that Dulce is not the biological
child, the adopted, or equitably-adopted child of Robert.
Section 216(h)(2)(A) of the Act provides that an applicant for child's insurance benefits
will be deemed a child of the insured individual if she would be entitled to inherit
under the intestacy laws of the state in which the insured individual is domiciled
at the time such applicant filed her application. In this case, the insured individual,
Robert, was domiciled in Nayarit, Mexico at the time Dulce filed her application for
child insurance benefits. Under section 216(h)(2)(A), when the insured individual's
domicile is outside the United States at the time the applicant files her application,
the intestate succession laws of D.C. apply in determining whether the applicant is
the child of an insured individual.
Under District of Columbia law, an adopted child is entitled to inherit to the same
extent as a natural child. D.C. CODE ANN. § 16-312(a) (1997) provides that "[a] final
decree of adoption establishes the relationship of natural parent and natural child
between adopter and adoptee for all purposes, including mutual rights of inheritance
and succession as if adoptee were born to adopter." D.C. will also recognize adoption
judgments of other states. In re Gray's Estate, 168 F. Supp. 124, 126 (D.D.C. 1958).
Although D.C. gives full faith and credit to adoption judgments issued by other states,
comity is the basis on which D.C. recognizes judgments of foreign countries. A judgment
rendered in a foreign nation may be enforced if it does not violate American public
policy. Tahan v. Hodgson, 662 F.2d 862 (D.C. Cir. 1981). But, before a foreign judgment will be recognized
through comity, the foreign court's jurisdictional basis for entertaining the suit
must be analyzed to determine whether the judgment is valid. Rzeszotarski v. Rzeszotarski, 296 A.2d 431, 437 (D.C. 1972).
In this case, however, Dulce was never legally adopted. While Robert and Candelaria
allegedly made attempts to adopt Dulce in accordance with local Mexican statutory
law, their attempts were unsuccessful. Hence, there was never any formal judgment
of adoption rendered in Mexico. This was confirmed by the law librarian who reported
that based on facts of this case, Dulce could not be considered the legally adopted
child of Robert under local Mexican law because none of the statutory requirements
for legal adoption were complied with. Thus, since there was no evidence of a judgment
of adoption rendered in Mexico, there was no judgment that D.C. could have recognized
through comity to find that Dulce was an adopted child.
Similarly, D.C. would not recognize Dulce as the adopted child of Robert under the
doctrine of equitable adoption. According to the law librarian, Mexico is a civil
law country and its states do not recognize equitable or common law adoption. Because
Mexico would not recognize Dulce as Robert's equitably adopted daughter, D.C. would
also not recognize Dulce as an equitably adopted child under its law. See In re McConnell's Estate, 268 F. Supp. 346, 347 (D.D.C. 1967); In re Jarboe's Estate, 235 F. Supp. 505, 507-08 (D.D.C. 1964) (recognizing that when determining whether
a child is equitably adopted, federal courts in D.C. will look to law of the state
where the alleged equitable adoption occurred). Accordingly, because equitable adoption
is not recognized in Mexico and because there was no valid adoption under Mexican
statutory law, Dulce would not be recognized as a child under the intestacy laws of
D.C.
Finally, with regard to the birth certificate, while it is true that such a document
could serve as evidence of parentage, we do not believe the birth certificate in this
case would be sufficient to establish Dulce as Robert's child. As we understand the
facts, the birth certificate apparently identifies Robert as Dulce's biological father
and Candelaria as Dulce's biological mother. While this document may be considered
valid under local Mexican law simply because it is recorded in the Office of Civil
Registry, we do not believe D.C. would give it much credence. As noted in the law
librarian's report, "we cannot ascertain the reasons why the Office of the Civil Registry
. . . registered the child as the offspring of the insured worker and his wife." Thus,
the circumstances surrounding the issuance of the birth certificate are not entirely
clear. Indeed, the facts thus far, suggest the birth certificate is not valid. First,
the fact that Robert and Candelaria attempted to adopt Dulce on two separate occasions
tends to cast doubt on the validity of the birth certificate. Second, under local
Mexican law, a child's parents must register their child within one hundred and eighty
days after the child's birth or they will be fined. The fact that, here, Robert and
Candelaria did not obtain a birth certificate for Dulce until April 1995, over five
years after her birth, only further suggests that Robert and Candelaria are not her
biological parents and that the birth certificate may be based on false or erroneous
information.
As stated above, D.C. will recognize foreign judgments through comity, but the foreign
judgment must be valid and not violate American public policy. In this case, however,
the circumstances suggest that the birth certificate is not valid. Accordingly, it
is very unlikely that D.C. would rely on the birth certificate recorded in Nayarit,
Mexico, to find that Dulce was now the biological child of Robert.
Hence, based on the evidence presented to us, we do not believe Dulce would be recognized
as the child of Robert B~ under the intestate succession laws of D.C.
James A. W~
Regional Chief Counsel
Patricia M. S~
Deputy Chief Counsel
By:
Kenneth D~
Assistant Regional Counsel