The documentation submitted in this case would not be adequate to eliminate the need for a court custody document. The entrustment agreement submitted does not satisfy all requirements under Virginia law. There is no evidence of an affidavit from the birth mother indicating that the identity of the birth father is not reasonably ascertainable; or, if the identity of the birth father is reasonably ascertainable, that he has been given notice of the entrustment agreement.

QUESTION PRESENTED

The Program Operations Manual System (POMS) at RM 00202.005(D)(5) requires a court custody document to establish a state agency, or a state-licensed agency as a proper applicant for a SSN on behalf of a child. You requested our opinion as to whether an entrustment agreement signed by the birth mother giving legal and physical custody of the child, Emily J. M~, to Bethany Christian Services (BCS), a Virginia adoption agency, would be sufficient to confer legal custody of the child upon the adoption agency under Virginia law and would eliminate the need for a court custody document to establish the agency as a proper applicant for a SSN on behalf of the child as required by the POMS.

SUMMARY

We do not believe that the documentation you submitted to us would be adequate to eliminate the need for a court custody document in this case. We have reviewed the information that you provided and have researched the relevant provisions of Virginia and federal law. Based upon this information and our research, we continue to hold the opinion that a Virginia adoption agency, such as BCS, need not present a court custody document to qualify as a proper applicant who may file an application for a SSN on behalf of another individual so long as the agency has established that it is a state agency, or a state-licensed agency, and has obtained an entrustment agreement executed in accordance with Virginia law. (See Memorandum of July 9, 2007, which we have attached with our response to your request for a legal opinion). In this case, however, there is an issue with respect to whether the identity of the birth father is reasonably ascertainable and, if so, whether he has been given notice of the entrustment agreement.

BACKGROUND

You have asked that we review a notarized agreement entitled "Entrustment Agreement for Permanent Surrender of Child in the Commonwealth of Virginia," signed by Estefani J. M~, the mother of Emily J. M~, on November 13, 2008.

The entrustment agreement contains several clauses that are relevant to whether it has been properly executed in accordance with Virginia law. Specifically, the agreement includes clauses:

stating that the birth mother has surrendered legal and physical custody of the child to BCS;indicating that the birth mother has been provided with counseling;

providing for revocation by either the birth parent or BCS at any time prior to the child's placement into the physical custody of the adoptive parents;

indicating the birth mother's understanding and acknowledgment that the agreement will constitute her permanent separation from and termination of all legal rights and obligations with respect to the child from the effective date of the agreement, in this case, November 21, 2008;

stating that the birth mother grants to BCS legal and physical custody of the child with all rights and responsibilities to plan for her future care, protection, and maintenance, including the right to place the child for adoption in accordance with Virginia law;

providing that BCS accepts full custody and assumes full responsibility, including financial responsibility for the child;

providing for the birth mother's consent to and approval of all medical and surgical treatment necessary to the welfare of her child while under the care of BCS.

You also provided us with an SS-5 application for Emily J. M~ signed by Jadiece K. B~, who described her relationship to the child as "Legal Guardian". The SS-5 application states that Estefani J. M~ is the mother of Emily J. M~. The name of the child's father is reported as "unknown" on the SS-5 application.

You have not provided us with a copy of a license issued by the Commonwealth of Virginia, which shows that BCS is a licensed Child Placing Agency in Virginia. We note, however, that you previously provided us, in connection with another request for a legal opinion concerning BCS, with a copy of a license issued by the Commonwealth of Virginia, Department of Social Services, which shows that BCS is a licensed Child Placing Agency in Virginia, and that its license is effective from December 18, 2008 through December 17, 2011, unless revoked for violations of the provisions of law, or for the failure to comply with the limitations set forth on the license. We assume for the purposes herein that you will associate the copy of the license, which you previously obtained, with the documentation attached to this request for advice, or that you will obtain another copy of the license from BCS.

You also provided us with a copy of a Certificate of Live Birth, which states that Emily J. M~ was born on November 11, 2008, and that the name of her mother is Estefani J. M~. This document was filed on November 25, 2008, and issued on January 5, 2009. The name of the child's father is not shown on the copy of the Certificate of Live Birth.

DISCUSSION

1. The Applicable Regulations and POMS Provisions

Please see the POMS provisions cited in the July 9, 2007, Memorandum, which we have attached with our response to your request for a legal opinion.

2. Virginia Law

Pursuant to Va. Code Ann. § 63.2-1817, a licensed child-placing agency shall have the right to accept, for any purpose not contrary to the limitations contained in its license, such children as may be entrusted or committed to it by the parents, guardians, relatives or other persons having legal custody thereof, or committed by a court of competent jurisdiction. The agency shall, within the terms of its license and the agreement or order by which such child is entrusted or committed to its care, have custody and control of every child so committed and accepted, until he or she is lawfully discharged, has been adopted, or has attained his or her majority. Va. Code Ann. § 63.2-1817.

An entrustment agreement for the termination of parental rights and responsibilities shall be executed in writing and notarized, should divest the birth parent(s) of all legal rights and obligations with respect to the child, and shall be revocable prior to entry of an order finalizing the agreement upon proof of fraud or duress, or after the placement of the child in an adoptive home upon written mutual consent of the birth parents and prospective adoptive parents.

Va. Code Ann. §§ 63.2-903, 63.2-1221, 63.2-1817. For the purposes of Va. Code Ann.

§§ 63.2-903, 63.2-1817, a parent who is less than 18 years of age shall be deemed fully competent and shall have legal capacity to execute a valid entrustment agreement, including an agreement that provides for the termination of all parental rights and responsibilities, and shall be as fully bound thereby as though such parent had attained the age of 18 years. Va. Code Ann. § 63.2-903. An entrustment agreement for the termination of all parental rights and responsibilities shall be valid notwithstanding the fact that it is not signed by the father of a child born out of wedlock if the identity of the father is not reasonably ascertainable, or if such father is given notice of the entrustment by registered or certified mail to his last known address and fails to object to the entrustment agreement within 15 days of mailing of such notice. Va. Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of the father is not reasonably ascertainable shall be sufficient, provided there is no other evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However, the absence of such an affidavit shall not be deemed evidence that the identity of the father is reasonably ascertainable. Va. Code Ann. § 63.2-903. Prior to the placement of a child for adoption, the licensed child-placing agency shall counsel the birth mother or, if reasonably available, both birth parents, concerning the disposition of their child. Va. Code Ann. § 63.2-1224.

A valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until (i) the child has reached the age of 10 days and (ii) seven days have elapsed from the date of execution of the agreement; and shall also be revocable by either of the birth parents if the child has not been placed in the physical custody of the prospective adoptive parents at the time of such revocation. 23 Va. Code Ann. § 63.2-1223.

The provisions of the Virginia Administrative Code, which address the minimum standards for licensed child caring institutions, are instructive insofar as they address the documentation that must be made part of the case record, including a copy of a court commitment and/or entrustment agreement, which shall include information concerning financial responsibility, and consent for necessary medical and surgical treatment and hospitalization. 22 Va. ADC 40-100-350. In addition, the entrustment shall only be entered into once it has been determined that the placing person has legal authority to do so. 22 Va. ADC 40-100-350.

3. The Entrustment Agreement Does Not Appear to Satisfy All Requirements of Virginia Law.

We note that there may be an issue with respect to whether the identity of the birth father is reasonably ascertainable. The name of the child's father is not shown on the SS-5 application or on the Certificate of Live Birth. Virginia law states that an entrustment agreement for the termination of all parental rights and responsibilities shall be valid notwithstanding the fact that it is not signed by the father of a child born out of wedlock if the identity of the father is not reasonably ascertainable. Va. Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of the father is not reasonably ascertainable shall be sufficient, provided there is no other evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However, the absence of such an affidavit shall not be deemed evidence that the identity of the father is reasonably ascertainable. Va. Code Ann. § 63.2-903. Therefore, if the identity of the birth father is not reasonably ascertainable, we recommend that the birth mother provide an affidavit stating that the identity of the birth father is not reasonably ascertainable. If you should obtain any documentation indicating that the identity of the birth father is ascertainable, we recommend that the birth father be given notice of the entrustment agreement by registered or certified mail to his last known address. Va. Code Ann. § 63.2-903. If the birth father is given notice of the entrustment agreement and fails to object within 15 days of mailing such notice, this requirement would be met. Va. Code Ann. § 63.2-903.

We also note that Virginia law allows revocation of an entrustment agreement. Pursuant to 23 Va. Code Ann. § 63.2-1223, a valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until (i) the child has reached the age of 10 days and (ii) seven days have elapsed from the date of execution of the agreement; and shall also be revocable by either of the birth parents if the child has not been placed in the physical custody of the prospective adoptive parents at the time of such revocation. We of course have no information that the birth mother revoked her consent to the entrustment agreement as allowed pursuant to 23 Va. Code Ann § 63.2-1223 and assume for purposes hereof that there was no such revocation.

Pursuant to 23 Va. Code Ann. § 63.2-1221, an entrustment agreement shall be revocable prior to entry of an order finalizing the agreement (i) upon proof of fraud or duress, or (ii) after the placement of the child in an adoptive home upon written mutual consent of the birth parents and prospective adoptive parents. Section 63.2.-1221 of the Virginia statutes was amended on April 8, 2009, to include the foregoing language regarding revocation. Therefore, we believe that any entrustment agreement executed after April 8, 2009, should contain language that addresses the additional conditions for revocation as set forth in the amended statute. In this case, this is not an issue because the entrustment agreement that you have submitted to us for review was executed in October 2008.

For the foregoing reasons, we believe that further development is required in this case.

CONCLUSION

We do not believe that the documentation you submitted to us would be adequate to eliminate the need for a court custody document in this case. The entrustment agreement that you have submitted to us does not appear to satisfy all requirements under Virginia law. There is no evidence of an affidavit from the birth mother indicating that the identity of the birth father is not reasonably ascertainable; or, if the identity of the birth father is reasonably ascertainable, that he has been given notice of the entrustment agreement. Therefore, we believe that further development is required in this case.

Eric K~
Acting Regional Chief Counsel
By:_____________________
Beverly H. Z~
Assistant Regional Counsel

For an entrustment agreement to be valid in the State of Virginia all requirements under Virginia law must be satisfied. In this case, there is no evidence of an affidavit from the birth mother indicating that the identity of the birth father is not reasonably ascertainable; or, if the identity of the birth father is reasonably ascertainable, that he has been given notice of the entrustment agreement. Therefore, we believe that further development is required in this case.

QUESTION PRESENTED

The Program Operations Manual System (POMS) at RM 00202.005(D)(5) requires a court custody document to establish a state agency, or a state-licensed agency as a proper applicant for a SSN on behalf of a child. You requested our opinion as to whether an entrustment agreement signed by the birth mother giving legal and physical custody of the child, LaShawn D~, to Bethany Christian Services (BCS), a Virginia adoption agency, would be sufficient to confer legal custody of the child upon the adoption agency under Virginia law and would eliminate the need for a court custody document to establish the agency as a proper applicant for a SSN on behalf of the child as required by the POMS.

SUMMARY

We do not believe that the documentation you submitted to us would be adequate to eliminate the need for a court custody document in this case. We have reviewed the information that you provided and have researched the relevant provisions of Virginia and federal law. Based upon this information and our research, we continue to hold the opinion that a Virginia adoption agency, such as BCS, need not present a court custody document to qualify as a proper applicant who may file an application for a SSN on behalf of another individual so long as the agency has established that it is a state agency, or a state-licensed agency, and has obtained an entrustment agreement executed in accordance with Virginia law. (See Memorandum of July 9, 2007, which we have attached with our response to your request for a legal opinion). In this case, however, there is an issue with respect to whether the identity of the birth father is reasonably ascertainable and, if so, whether he has been given notice of the entrustment agreement.

BACKGROUND

You have asked that we review a notarized agreement entitled "Entrustment Agreement for Permanent Surrender of Child in the Commonwealth of Virginia," signed by Tina M. D~, the mother of LaShawn D~, on October 15, 2008.

The entrustment agreement contains several clauses that are relevant to whether it has been properly executed in accordance with Virginia law. Specifically, the agreement includes clauses:

stating that the birth mother has surrendered legal and physical custody of the child to BCS;

indicating that the birth mother has been provided with counseling;

providing for revocation by either the birth parent or BCS at any time prior to the child's placement into the physical custody of the adoptive parents;

indicating the birth mother's understanding and acknowledgment that the agreement will constitute her permanent separation from and termination of all legal rights and obligations with respect to the child from the effective date of the agreement, in this case, October 24, 2008;

stating that the birth mother grants to BCS legal and physical custody of the child with all rights and responsibilities to plan for her future care, protection, and maintenance, including the right to place the child for adoption in accordance with Virginia law;

providing that BCS accepts full custody and assumes full responsibility, including financial responsibility for the child;

providing for the birth mother's consent to and approval of all medical and surgical treatment necessary to the welfare of her child while under the care of BCS.

You also provided us with an SS-5 application for LaShawn D~ signed by Jadiece K. B~, who described her relationship to the child as "Legal Guardian". The SS-5 application states that Tina M. D~ is the mother of LaShawn D~. The name of the child's father is reported as "unknown" on the SS-5 application.

You have not provided us with a copy of a license issued by the Commonwealth of Virginia, which shows that BCS is a licensed Child Placing Agency in Virginia. We note, however, that you previously provided us, in connection with another request for a legal opinion concerning BCS, with a copy of a license issued by the Commonwealth of Virginia, Department of Social Services, which shows that BCS is a licensed Child Placing Agency in Virginia, and that its license is effective from December 18, 2008 through December 17, 2011, unless revoked for violations of the provisions of law, or for the failure to comply with the limitations set forth on the license. We assume for the purposes herein that you will associate the copy of the license, which you previously obtained, with the documentation attached to this request for advice, or that you will obtain another copy of the license from BCS.

You also provided us with a copy of a Certificate of Live Birth, which states that LaShawn D~ was born on October 14, 2008, and that the name of her mother is Tina M. D~. This document was filed on October 24, 2008, and issued on December 11, 2008. The name of the child's father is not shown on the copy of the Certificate of Live Birth.

DISCUSSION

1. The Applicable Regulations and POMS Provisions

Please see the POMS provisions cited in the July 9, 2007, Memorandum, which we have attached with our response to your request for a legal opinion.

2. Virginia Law

Pursuant to Va. Code Ann. § 63.2-1817, a licensed child-placing agency shall have the right to accept, for any purpose not contrary to the limitations contained in its license, such children as may be entrusted or committed to it by the parents, guardians, relatives or other persons having legal custody thereof, or committed by a court of competent jurisdiction. The agency shall, within the terms of its license and the agreement or order by which such child is entrusted or committed to its care, have custody and control of every child so committed and accepted, until he or she is lawfully discharged, has been adopted, or has attained his or her majority. Va. Code Ann. § 63.2-1817.

An entrustment agreement for the termination of parental rights and responsibilities shall be executed in writing and notarized, should divest the birth parent(s) of all legal rights and obligations with respect to the child, and shall be revocable prior to entry of an order finalizing the agreement upon proof of fraud or duress, or after the placement of the child in an adoptive home upon written mutual consent of the birth parents and prospective adoptive parents.

Va. Code Ann. §§ 63.2-903, 63.2-1221, 63.2-1817. For the purposes of Va. Code Ann.

§§ 63.2-903, 63.2-1817, a parent who is less than 18 years of age shall be deemed fully competent and shall have legal capacity to execute a valid entrustment agreement, including an agreement that provides for the termination of all parental rights and responsibilities, and shall be as fully bound thereby as though such parent had attained the age of 18 years. Va. Code Ann. § 63.2-903. An entrustment agreement for the termination of all parental rights and responsibilities shall be valid notwithstanding the fact that it is not signed by the father of a child born out of wedlock if the identity of the father is not reasonably ascertainable, or if such father is given notice of the entrustment by registered or certified mail to his last known address and fails to object to the entrustment agreement within 15 days of mailing of such notice. Va. Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of the father is not reasonably ascertainable shall be sufficient, provided there is no other evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However, the absence of such an affidavit shall not be deemed evidence that the identity of the father is reasonably ascertainable. Va. Code Ann. § 63.2-903. Prior to the placement of a child for adoption, the licensed child-placing agency shall counsel the birth mother or, if reasonably available, both birth parents, concerning the disposition of their child. Va. Code Ann. § 63.2-1224.

A valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until (i) the child has reached the age of 10 days and (ii) seven days have elapsed from the date of execution of the agreement; and shall also be revocable by either of the birth parents if the child has not been placed in the physical custody of the prospective adoptive parents at the time of such revocation. 23 Va. Code Ann. § 63.2-1223.

The provisions of the Virginia Administrative Code, which address the minimum standards for licensed child caring institutions, are instructive insofar as they address the documentation that must be made part of the case record, including a copy of a court commitment and/or entrustment agreement, which shall include information concerning financial responsibility, and consent for necessary medical and surgical treatment and hospitalization. 22 Va. ADC 40-100-350. In addition, the entrustment shall only be entered into once it has been determined that the placing person has legal authority to do so. 22 Va. ADC 40-100-350.

3. The Entrustment Agreement Does Not Appear to Satisfy All Requirements of Virginia Law.

We note that there may be an issue with respect to whether the identity of the birth father is reasonably ascertainable. The name of the child's father is not shown on the SS-5 application or on the Certificate of Live Birth. Virginia law states that an entrustment agreement for the termination of all parental rights and responsibilities shall be valid notwithstanding the fact that it is not signed by the father of a child born out of wedlock if the identity of the father is not reasonably ascertainable. Va. Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of the father is not reasonably ascertainable shall be sufficient, provided there is no other evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However, the absence of such an affidavit shall not be deemed evidence that the identity of the father is reasonably ascertainable. Va. Code Ann. § 63.2-903. Therefore, if the identity of the birth father is not reasonably ascertainable, we recommend that the birth mother provide an affidavit stating that the identity of the birth father is not reasonably ascertainable. If you should obtain any documentation indicating that the identity of the birth father is ascertainable, we recommend that the birth father be given notice of the entrustment agreement by registered or certified mail to his last known address. Va. Code Ann. § 63.2-903. If the birth father is given notice of the entrustment agreement and fails to object within 15 days of mailing such notice, this requirement would be met. Va. Code Ann. § 63.2-903.

We also note that Virginia law allows revocation of an entrustment agreement. Pursuant to 23 Va. Code Ann. § 63.2-1223, a valid entrustment agreement terminating all parental rights and responsibilities to the child shall be revocable by either of the birth parents until (i) the child has reached the age of 10 days and (ii) seven days have elapsed from the date of execution of the agreement; and shall also be revocable by either of the birth parents if the child has not been placed in the physical custody of the prospective adoptive parents at the time of such revocation. We of course have no information that the birth mother revoked her consent to the entrustment agreement as allowed pursuant to 23 Va. Code Ann § 63.2-1223 and assume for purposes hereof that there was no such revocation.

Pursuant to 23 Va. Code Ann. § 63.2-1221, an entrustment agreement shall be revocable prior to entry of an order finalizing the agreement (i) upon proof of fraud or duress, or (ii) after the placement of the child in an adoptive home upon written mutual consent of the birth parents and prospective adoptive parents. Section 63.2.-1221 of the Virginia statutes was amended on April 8, 2009, to include the foregoing language regarding revocation. Therefore, we believe that any entrustment agreement executed after April 8, 2009, should contain language that addresses the additional conditions for revocation as set forth in the amended statute. In this case, this is not an issue because the entrustment agreement that you have submitted to us for review was executed in October 2008.

For the foregoing reasons, we believe that further development is required in this case.

CONCLUSION

We do not believe that the documentation you submitted to us would be adequate to eliminate the need for a court custody document in this case. The entrustment agreement that you have submitted to us does not appear to satisfy all requirements under Virginia law. There is no evidence of an affidavit from the birth mother indicating that the identity of the birth father is not reasonably ascertainable; or, if the identity of the birth father is reasonably ascertainable, that he has been given notice of the entrustment agreement. Therefore, we believe that further development is required in this case.

Eric K~
Acting Regional Chief Counsel
By:_____________________
Beverly H. Z~
Assistant Regional Counsel