QUESTION PRESENTED
You asked whether, in Minnesota, a Department of Human Services (DHS) form is sufficient
proof establishing legal custody, or whether a court document is needed, for purposes
of determining who is a proper applicant for a Social Security number or card. For
the reasons discussed below, we conclude that the DHS form does not establish legal
custody, without a court order, under Minnesota law. Thus, in order to be considered
a proper applicant, a Minnesota adoption agency must be a state-licensed agency, and
must provide a court document giving the adoption agency legal custody of the children
for whom it seeks to obtain Social Security numbers.
BACKGROUND
New Horizons Adoption Agency (New Horizons), a Minnesota private adoption agency,
has applied for Social Security numbers for multiple children in its care. It appears
that New Horizons uses a form established by the Minnesota DHS pursuant to Minn. Stat.
§ 259.25, entitled “Agreement Conferring Authority to Place for Adoption including Consent to Adoption, Waiver of Notice and Right to Withdraw the Agreement and the Consent and Acceptance of the Agreement and the Consent by Agency” (Agreement Conferring Authority)
when the parents surrender their children to the adoption agency and consent to their
adoption. New Horizons claims that the state of Minnesota does not issue court documents
establishing legal custody for the children in its care, and that the DHS form serves
as sufficient evidence of legal custody in Minnesota.
DISCUSSION
POMS RM 10205.025(B)(3) 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 the individual. When no one higher on the priority
list exists, a state-licensed agency (including a private adoption agency) may be
considered a proper applicant if it has legal custody of the individual. See POMS RM 10205.025(B)(3)(e), RM 10205.050.
Thus, New Horizons may be considered a proper applicant if it is a state-licensed
agency and has legal custody of the children for whom the Social Security numbers
will be issued. We have not been provided any information regarding New Horizons’
licensing status. However, the Minnesota DHS provides licensing information on its
website: http://licensinglookup.dhs.state.mn.us/. We were able to confirm via the DHS licensing search tool that New Horizons is currently
a state-licensed agency in Minnesota.
Next, we must determine whether New Horizons has legal custody of the children. At
issue is POMS RM 10205.050(B)(3) which states: “We must see court custody documents that give a State agency,
or State-licensed agency, custody of the NH. Court custody documents establish the
Agency’s relationship, as well as custody and responsibility of the Agency for the
individual.” OGC has determined that a court custody document is not needed for some
states because their adoption statutes provide that a different type of document confers
legal custody of a child on an adoption agency. See, e.g., POMS PR 08605.016 (PR 09-081) (Illinois-surrender form), PR 08605.049 (PR 07-141) (Utah-statement of relinquishment), PR 08605.052 (PR 07-174) (Virginia-entrustment agreement). However, as discussed below, we do
not believe that, in Minnesota, the Agreement Conferring Authority is sufficient to
establish legal custody without a court order.
Initially, we note that the Agreement Conferring Authority deals only with the birth
parent’s consent to the adoption agency placing his or her child for adoption. The
DHS form itself does not address the issue of legal custody. It does not, for example,
contain any language that the parent has surrendered legal custody of the child to
the adoption agency, or that the adoption agency has assumed legal custody of the
child.
Minnesota statutory and regulatory laws likewise are silent on the issue of legal
custody when a parent signs an Agreement Conferring Authority. Minnesota’s adoption
statute does not define the term “legal custody,”[1] see Minn. Stat. § 259.20 et seq., nor does it indicate that the Agreement Conferring Authority confers legal custody
of a child on an adoption agency. See Minn. Stat. § 259.25; see also Minn. Adoption Procedure Rule 33.06; Minn. R. 9560.0030. And, although the Commissioner
of Human Services has created a publication describing the rights and responsibilities
of adoption agencies, birth parents, and prospective adoptive parents in the legal
adoption process, as required by Minn. Stat. § 259.39, this publication does not make
any mention of legal custody. See Minn. Dept. of Hum. Servs., Adoption Publications, http://www.dhs.state.mn.us/main/idcplg?IdcService=GET_DYNAMIC_CONVERSION&RevisionSelectionMethod=LatestReleased&dDocName=id_003702 (updated May 10, 2010) (click on “Completing an Adoption in Minnesota: Rights and
Responsibilities”).
Other legal authority supports the conclusion that the Agreement Conferring Authority
alone does not confer legal custody on an adoption agency. For example, under the
adoption statute, a parent’s consent to adoption does not terminate parental rights,
and the parent may still be asked to support the child. See Minn. Stat. §§ 259.24 subd. 5(2), 259.25 subd. 1; Minn. Adoption Procedure Rule 33.06
subd. 4. Also, the child custody statute indicates generally that any transfer of
parental rights or permanent custody of a child under 14 years old requires court
involvement:
No person other than the parents or relatives may assume the permanent care and custody
of a child under 14 years of age unless authorized to do so by an order or decree
of court….Except in proceedings for adoption or by a [custody] consent decree…, no
parent may assign or otherwise transfer to another parental rights or duties with
respect to the permanent care and custody of a child under 14 years of age. Any such
transfer shall be void.
Minn. Stat. § 257.02. Further, in a Minnesota Supreme Court case, although it was
not an issue, the facts showed that the birth mother executed an affidavit of consent
which included not only her consent to adoption pursuant to Minn. Stat. § 259.25 subd.1,
but also an agreement to commit her child to the guardianship and legal custody of
the adoption agency. See McDonald v. Children’s Home Society, 119 N.W.2d 731, 733 (Minn. 1963). Here, the Agreement Conferring Authoright does
not include similar language concerning legal custody.
We also spoke with staff at the Minnesota Attorney General’s Office and the Minnesota
DHS. An attorney in the Minnesota Attorney General’s Office confirmed that there was
nothing in the Minnesota statutes or the DHS form which indicated that the Agreement
Conferring Authority conferred legal custody of a child on an adoption agency. A supervisor
in the adoptions unit of the Minnesota DHS also stated that a birth parent who signs
an Agreement Conferring Authority retains legal custody of his or her child and only
loses legal custody when the child is adopted.
Thus, although New Horizons is a state-licensed agency, the information provided does
not establish that the adoption agency has legal custody of the children for whom
it seeks to obtain Social Security numbers. That is, there does not appear to be any
legal authority supporting New Horizon’s assertion that the Agreement Conferring Authority
is sufficient to establish legal custody in Minnesota, without the need for a court
order. Therefore, New Horizons is not a proper applicant for a Social Security number/card
on behalf of the children.
“Legal custody” is defined in delinquency and child protection statutes as “the right
to the care, custody, and control of a child,” Minn. Stat. §§ 260B.007 subd. 8, 260C.007
subd. 22; Minn. Admin. Rule 9560.0521 subd. 15, and in the marriage dissolution statute
as “the right to determine the child’s upbringing, including education, health care,
and religious training.” Minn. Stat. § 518.003 subd. 3(a).
CONCLUSION
For the reasons discussed above, we conclude that the Agreement Conferring Authority
is not sufficient evidence of legal custody in Minnesota, for purposes of determining
who is a proper applicant for a Social Security number or card. Therefore, a Minnesota
adoption agency must obtain a court custody document.
Donna L. C~
Regional Chief Counsel, Region V
Cristine B~
Assistant Regional Counsel