You asked us whether the "Final and Irrevocable Surrender to an Agency for Purposes
of Adoption of a Born Child" form, used by the Illinois Department of Children and
Family Services (DCFS), is an acceptable document for purposes of determining who
is a proper applicant for a Social Security number/card. Specifically, you want to
know if the State of Illinois recognizes the surrender form as proof of legal custody.
For the reasons discussed below, we conclude that the surrender form can be used to
establish that DCFS has legal custody of a child, in order that DCFS may be considered
a proper applicant for a Social Security number/card.
DISCUSSION
POMS RM 00202.005(C)(3)(e) 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 an individual who is unable to file a Social Security
number/card application on his own behalf. When no one higher on the priority list
exists, a State agency (including State foster care and child protective service agencies
such as DCFS) may be considered a proper applicant if it has legal custody of the
individual.
You submitted for our review two forms used by DCFS--a "Final and Irrevocable Surrender
to an Agency for Purposes of Adoption of a Born Child" and a "Certificate of Acknowledgment."
The issue is whether these forms can be used to establish that DCFS has legal custody
of an individual for whom the Social Security number/card will be issued, in order
that DCFS may be considered a proper applicant.
Under the Illinois Adoption Act, consents or surrenders are required in all adoption
cases. See 750 Ill. Comp. Stat. Ann. 50/8(a). When a minor child is placed with an agency for
purposes of adoption, the mother must surrender the child to the agency; in certain
circumstances, the father must also surrender the child. See id. 50/8(c). Illinois law requires that the consent form be substantially similar to
the statutory surrender form, which contains a statement that the parent "irrevocably
and permanently give[s] up all custody and other parental rights" the parent has to
the child. 750 Ill. Comp. Stat. Ann. 50/10(C). The form further states that the parent
surrenders the entire custody of the child to the agency, for purposes of caring for
the child and placing him or her for adoption. See id.; Illinois v. Kerwood, 359 N.E.2d 183, 186 (Ill. App. Ct. 1977) (surrender form details transfer of all
parental rights from birth parent(s) to agency, so that it may consent to adoption
sometime in future).
To be valid, a surrender must be acknowledged as a free and voluntary act by the parent.
See 750 Ill. Comp. Stat. Ann. 50/10(I); Meza v. Rodriguez, 713 N.E.2d 764, 769, 774 (Ill. App. Ct. 1999). The acknowledgment may be made before
a representative of an agency, who then must sign a certificate of acknowledgment
before a notary public. See 750 Ill. Comp. Stat. Ann. 50/10(K); Kerwood, 359 N.E.2d at 187. Also, before or at the time of the surrender, the mother must
execute an affidavit identifying the father of the child. See 750 Ill. Comp. Stat. Ann. 50/11(b). The language of the surrender document, certificate
of acknowledgment, and affidavit of identification must substantially comply with
that provided in the statutory forms at 750 Ill. Comp. Stat. Ann. 50/10(C), (J), (K)
and 50/11(b). See also Meza, 713 N.E.2d at 769.
A surrender of a born child may not be taken within the 72 hour period immediately
following the birth of the child. See 750 Ill. Comp. Stat. Ann. 50/9(B). A validly executed surrender is irrevocable unless
it was obtained by fraud or duress on the part of the person before whom the surrender
was acknowledged. See 750 Ill. Comp. Stat. Ann. 50/11(a); Regenold v. Baby Fold, Inc., 369 N.E.2d 858, 864, 868 (Ill. 1977); Meza, 713 N.E.2d at 771-72; Kerwood, 359 N.E.2d at 186. The purpose of the formal statutory requirements and irrevocability
of the surrender is to add stability and finality to adoption proceedings. See Regenold, 369 N.E.2d at 864, 868; Illinois v. Nolan, 419 N.E.2d 550, 554-55 (Ill. App. Ct. 1981).
Here, the language of the DCFS surrender form and certificate of acknowledgment is
nearly identical to that of the statutory forms. In particular, the DCFS surrender
form states that the parent "irrevocably and permanently give[s] up all custody and
other parental rights" the parent has to his or her child, and that the parent surrenders
the entire custody of the child to the agency. Also, the surrender form and certificate
of acknowledgment state that the parent is signing the form and acknowledging it as
his or her free and voluntary act. Notably, the Nolan case involved a surrender form and certificate of acknowledgment used by DCFS that
appear to be similar to or the same as the ones submitted here. See Nolan, 419 N.E.2d at 555. In that case, the Illinois Appellate Court did not question the
validity of the birth mother's surrender, and held that her surrender was not invalidated
because she failed to prove her surrender was obtained by fraud. See id. at 554-57.
We believe the above legal authority clearly establishes that the State of Illinois
recognizes the "Final and Irrevocable Surrender to an Agency for Purposes of Adoption
of a Born Child" and "Certificate of Acknowledgment" forms used by DCFS as proof of
legal custody. Therefore, so long as there are no questions raised that a surrender
was obtained less than 72 hours after the birth of a child or by fraud or duress,
SSA may rely on these forms to establish that DCFS has legal custody of the child,
in order that DCFS may be considered a proper applicant for a Social Security number/card
on the child's behalf.
CONCLUSION
For the reasons discussed above, we conclude that the DCFS surrender form and certificate
of acknowledgment are acceptable documents for purposes of determining who is a proper
applicant for a Social Security number/card.
Very truly yours,
Donna L. C~
Regional Chief Counsel
Cristine B~
Assistant Regional Counsel