In Indiana, a State which does not recognize equitable adoption, an adoption decree was requested by the claimant's guardians after the number holder's death and issued by the Elkhart County Superior Court. Since the decree was issued in a manner not consistent with State law and was not contested in court by parties with opposing interests, it is not binding on the Social Security Administration.

You asked whether an Indiana adoption decree declaring that Slade B~, the number-holder (NH), was the father of the minor child Sydney A. B~ established a valid adoptive relationship between the NH and the child. The decree was issued after the NH's death. We conclude that the decree is inconsistent with Indiana law, and therefore does not establish a valid adoptive relationship under the Social Security Act.

BACKGROUND

Sydney was born out of wedlock to Elizabeth J. A~ on March 3, 1997. The NH was not her biological father. Elizabeth married the NH on April 20, 1997. They were divorced in November 1999, re-married on July 3, 2000, and divorced again in October 2003. In February 2002, during the second marriage, the NH took steps to adopt Sydney. The attorney whom the NH asked to prepare the adoption papers attempted to contact the NH about the adoption in March 2002, but never heard back from him. No adoption was completed before the second divorce between Elizabeth and the NH. However, an amended birth certificate, issued on January 7, 2003, gave Sydney's name as Sydney A. B~, and listed the NH as her father. The NH retained visitation rights to Sydney after the divorce, and at some point was named guardian ad litem to Sydney and given temporary custody of her. The NH died while domiciled in Indiana on April 17, 2006. He apparently left Sydney half his estate in his will.

After the NH's death, Sydney lived with Elizabeth, but the NH's parents, James and Jeraldine B~, were named as Sydney's legal guardians. In 2006, Elizabeth, James, and Jeraldine filed a petition for adoption with the Elkhart (Indiana) Superior Court, asking that the NH be decreed Sydney's adoptive father. Sydney's biological father, who had not supported her financially, was given notice of the petition but did not appear at the adoption hearing; the court ruled that his consent was not necessary for the adoption. The court acknowledged that the NH was deceased, but found that, prior to his death, the NH had not only had temporary custody of Sydney and supported her financially, but treated her has if she were his biological child. The court found that the adoption was in Sydney's best interest, and granted the adoption petition on December 31, 2006, decreeing that Sydney be adopted by the NH, and that her name be changed to Sydney A. B~.

DISCUSSION

In order to be eligible for child's benefits on the account of a wage earner who has died, a child under 18 must (a) meet the regulatory definition of "child;" (b) have been dependent on the wage-earner; _1 (c) be unmarried; and (d) file an application. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The regulatory definition of "child" includes legally adopted children and equitably adopted children. 20 C.F.R. §§ 404.354, 404.356, 404.359. The law of the state where the adoption took place, or where the wage earner was domiciled at the time of his death, is used to determine whether the adoption was valid. 20 C.F.R. §§ 404.356, 404.359. For that reason, Indiana law governs this case.

Indiana does not recognize equitable adoptions. Lindsey v. Wilcox, 479 N.E.2d 1330, 1332 (Ind. Ct. App. 1985) ("With other readily available alternative of disposing of property by will or gift, no compelling reason surfaces to create a judicial doctrine to serve the same purpose when the statutory schemes of probate or adoption seem quite adequate"); Seger v. Seger, 780 N.E.2d 855, 858 (Ind. Ct. App. 2002); POMS GN 00306.225(A)(1)(a). Therefore, Sydney may be considered the NH's child for purposes of receiving child's insurance benefits on his account only if she is his legally adopted child under Indiana law.

The Indiana Adoption Act states that "[a] resident of Indiana who seeks to adopt a child" may file a petition for adoption. Ind. Code § 31-19-2-2(a); In re Infant Girl W., 845 N.E.2d 229, 242 (Ind. Ct. App. 2006). Thus, prospective adoptive parents must be residents of Indiana. In re adoption of M.M.G.C., 785 N.E.2d 267, 270 (Ind. Ct. App. 2003) (in dicta),_2 citing Ind. Code § 31-19-2-2(a). The Adoption Act includes a consent statute, but that statute does not require the prospective adopting parent to consent to the adoption. Ind. Code § 31-19-9-2; see In re Adoption of Infant Child Baxter, 799 N.E.2d 1057, 1060 (Ind. Ct. App. 2003). Such consent is presumably implied from the filing of a petition for adoption.

In this case, the NH was dead at the time the petition for adoption was filed. Therefore, he was not a resident of Indiana. Because he was not a resident of Indiana, he could not be a prospective adoptive parent. M.M.G.C., 785 N.E.2d at 270. Similarly, because he was dead, he could not "seek to adopt" a child. Ind. Code § 31-19-2-2(a). The persons who filed the petition for adoption - Elizabeth, James, and Jeraldine - were all residents of Indiana, but none of them were "seek[ing] to adopt" Sydney. Id. Nothing in the Adoption Act contemplates the possibility of a dead person, including a deceased former resident, being a prospective adoptive parent. _3 The NH in this case had the opportunity to adopt Sydney, but did not do so during his lifetime; instead he left her his property by means of a will. Thus, under the plain language of the Indiana Adoption Act, the NH could not be a prospective adoptive parent, and the petitioners could not file an adoption petition on his behalf. _4

Although Indiana law governs, this finding is also consistent with Social Security regulations, which do not contemplate post-mortem legal adoptions. The regulations define a legally adopted child as someone who is either adopted by the NH, or legally adopted after the NH's death by his surviving spouse. 20 C.F.R. § 404.356. The NH did not adopt Sydney while he was alive; Elizabeth was Sydney's natural mother, not her adoptive mother, and because they were divorced she was not the NH's "surviving spouse" after his death.

The Elkhart Superior Court, which issued the adoption decree adjudicating the NH to be Sydney's father, has jurisdiction to resolve issues relating to adoption. The adoption proceeding, however, was not contested in the state court by parties with opposing interests. In addition, although the Indiana Supreme Court has never directly addressed the questions at issue in this case, the decree was inconsistent with Indiana law. For those reasons, the adoption decree is not binding on the Agency. SSR 83-37C; Grey v. Richardson, 474 F.2d 1370 (6th Cir. 1973); George v. Sullivan, 909 F.2d 857, 860-61 (6th Cir. 1990).

CONCLUSION

For the reasons discussed above, we conclude that the claimant is not entitled to benefits as the NH's adopted child.

Donna L. C~

Regional Chief Counsel, Region V

By: _________________

Julie L. B~

Assistant Regional Counsel

1 We were not asked to determine whether Sydney was dependent on the NH.

_/2 The key issue in M.M.G.C. was not whether the prospective adoptive parent was a living resident of Indiana, but whether an adoptive mother's same-sex partner could file her own petition to adopt the children without cutting off the first adoptive mother's parental rights.

_/3 Even considering the NH a non-resident instead of a deceased former resident does not resolve the issue. A person who is not a resident of Indiana may petition to adopt a hard-to-place child, but that statute presumes the existence of a living non-resident who files the petition to adopt. Ind. Code § 31-91-2-3(a). Other than cases involving equitable adoptions, research has not revealed any decision, in Indiana or elsewhere, where a court has considered whether a dead person may legally adopt a minor child.

_/4 Despite the fact that none of the petitioners were themselves seeking to adopt Sydney, the case caption does not state that any of the petitioners were filing the petition for adoption on the NH's behalf. We also do not know whether the NH's parents had standing to file a petition on his behalf; the NH left a will, but we do not whether his parents were the administrators of his estate.

Under Indiana law, a child may be legally adopted by her maternal grandmother and aunt and subsequently be eligible for child's benefits on both adoptive parents' records.

You asked whether an adoption of a minor child by the child's maternal aunt and grandmother was legal and created a co-parent relationship under Indiana law. You also asked whether the child is entitled to child's benefits on the maternal aunt and grandmother's records. We conclude that, assuming the appropriate affidavits from the Indiana Department of Health, concerning the putative father registry and any applicable paternity determinations, have been filed with the county court, the adoption was valid and that the child is entitled to child's benefits under her maternal grandmother and aunt's records.

BACKGROUND

Sophia M. L. S~, the minor child, was born on February 26, 2001, to Sarah E. S~. The identity of her biological father is unknown.

Carolyn S~, Sophia's maternal grandmother (DOB September 25, 1941), applied for disability benefits in September 1988, alleging an onset date of February 1, 1988. She was granted benefits as of July 1988. Carolyn is not currently married.

Cara M. S~ (DOB March 1, 1969), is Sophia's maternal aunt and the daughter of Carolyn S~. Cara applied for disability benefits in December 2003, alleging an onset date of January 16, 2003. She became entitled to benefits in July 2003. Cara has never been married.

Sarah, the natural mother of Sophia, resides in the same household with Carolyn, Cara, and Sophia. Sarah currently receives childhood disability benefits on Carolyn's record. The onset date is August 31, 1989, and the diagnosis code indicates personality disorders. Carolyn is Sarah's representative payee.

Carolyn and Cara, the maternal grandmother and aunt, submitted a petition in the Superior Court of Hendricks County, Indiana, to adopt Sophia (7/12/04 Decree of Adoption at 1). On July 12, 2004, Judge R. W. F~ entered a decree of adoption, approving and granting Carolyn and Cara's petition to adopt Sophia (7/12/04 Decree of Adoption at 2).

The decree notes that all necessary consents to this adoption are in proper form and filed, that the co-petitioners are able to furnish suitable support and education for Sophia, and that the adoption is in the best interests of Sophia (7/12/04 Decree of Adoption at 1). The decree deems Sophia entitled to receive all rights and interests in the estate of the adopting parents, "which she would be entitled to if she had been the natural heir of Cara M. S~ and Carolyn L. S~. . . ." (7/12/04 Decree of Adoption at 2). Additionally, the decree states that the natural father of Sophia is not known and that the legal rights of the natural father and the consenting natural mother are terminated (7/12/04 Decree of Adoption at 2). Finally, the decree provides that Sophia shall be given the name of Sophia M. L. S~, and, for all intents and purposes, "shall be considered the natural child of Cara M. S~ as adoptive mother, and Carolyn L. S~ as adoptive co-parent, or either of them, and shall be entitled to the same rights and privileges which she would be entitled to" as the natural heir of either co-parent (7/12/04 Decree of Adoption at 2).

An amended Certificate of Birth, dated July 27, 2004, lists Sophia's full legal name as Sophia M. L. S~, and states that she is the child of Carolyn S~ and Cara S~.

On July 29, 2004, Carolyn and Cara each separately filed applications for child's insurance benefits (life claim) on behalf of Sophia. On that same date, Carolyn also filed a request to be selected as representative payee for Sophia.

DISCUSSION

To be entitled to child's insurance benefits on the account of a wage earner who is receiving DIB, a child under age 18 must (a) meet the regulatory definition of "child;" (b) be dependent on the wage earner; (c) be unmarried; and (d) file an application. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. A child whom the wage holder has legally adopted meets the definition of "child." 20 C.F.R. § 404.356. The laws of the state where the adoption took place are used to determine whether the adoption was legal. Id. For that reason, Indiana law determines whether Sophia is the legally adopted child of Carolyn S~ and Cara S~, for purposes of receiving child's insurance benefits on their accounts. If the adoption is legal, Sophia would be deemed dependent on her maternal aunt and grandmother, because she was under 18 at the time of the adoption proceedings, and the adoption was issued by a court of competent jurisdiction within the United States. 42 U.S.C. § 402(d)(8); 20 C.F.R. § 404.362(b)(1)(i); POMS GN 00306.137.

According to Indiana law, the prospective adoptive parent must be an Indiana resident. In Re the Adoption of M.M.G.C., H.H.C., and K.E.A.C., 785 N.E.2d 267, 270 (Ind. Ct. App. 2003). The statute states: "A resident of Indiana who seeks to adopt a child less than eighteen (18) years of age may, by attorney of record, file a petition for adoption with the clerk of the court" having proper probate jurisdiction. See Ind. Code § 31-19-2-2(a). In Indiana, the courts have recognized that an unmarried person can adopt as well as a married person. Browder v. Harmeyer, 435 N.E.2d 301, 306 (Ind. Ct. App. 1983). Indiana law also recognizes adoption by the grandparent of a minor child, where such adoption is determined to be in the best interest of the child. See id. at 307. Indiana law also recognizes the validity of adoption of minor children by petitioners of the same gender who seek to be co-parents. See In Re A.B., 818 N.E.2d 126, 129 (Ind. Ct. App. 2004).

Carolyn S~'s current Indiana driver's license indicates that she resides in Indiana. You have indicated that Cara S~ lives with Carolyn. Therefore, we conclude that these individuals are both residents of Indiana and were eligible to petition to adopt Sophia.

Neither Carolyn nor Cara is married. Therefore, no spousal consent to adopt Sophia was necessary before the adoption could be effectuated. See Ind. Code § 31-19-2-4 (requiring that, in the case of a married petitioner seeking adoption, the spouse of that petitioner join in the petition, unless the petitioner is married to the natural or adoptive parent of the child and an acknowledged consent to adoption is filed).

After a child is adopted in Indiana, its biological parents are "relieved of all legal duties and obligations to the adopted child" and "divested of all rights with respect to the child." Ind. Code §§ 31-19-15-1(1), (2). Upon adoption, the adoptive parent becomes the actual parent of the child. Collard v. Enyeart, 718 N.E.2d 1156, 1160 (Ind. Ct. App. 1999). Adoption in Indiana "severs the child entirely from its own family tree and engrafts it upon that of another." In the Matter of Adoption of Thomas, 431 N.E.2d 506, 513 (Ind. Ct. App. 1982).

We conclude that Carolyn and Cara S~ were not barred by Indiana law from adopting Sophia as co-parents, and that, as the consequence of a valid adoption, Sophia appears to be the legal child of Carolyn S~ and Cara S~, entitled to benefits on the accounts of her maternal grandmother and aunt. However, we recommend that, before proceeding with payment of benefits, you clarify a few matters relating to the adoption decree, as the language in the decree is ambiguous in several respects.

Under the Indiana statute, the court shall grant a petition for adoption and enter an adoption decree after hearing the evidence and finding that:

• •

  the adoption requested is in the best interest of the child;

• •

  the petitioner or petitions for adoption are of sufficient ability to rear the child and furnish suitable support and education;

• •

  the report of the investigation and recommendation under IC 31-19-8-5 has been filed;

• •

  the attorney or agency arranging an adoption has filed with the court an affidavit prepared by the state department of health under IC 31-19-5-16 indicating whether a man is entitled to notice of the adoption because the man has registered with the putative father registry in accordance with IC 31-19-5;

• •

  proper notice arising under subdivision (4), if notice is necessary, of the adoption has been given;

• •

  the attorney or agency has filed with the court an affidavit prepared by the state department of health under:

  • –

    IC 31-19-6 indicating whether a record of a paternity determination; or

  • –

    IC-16-37-2-2(g) indicating whether a paternity affidavit executed under IC 16-37-2-2.1;

  • –

    has been filed in relation to the child;

• •

  proper consent, if consent is necessary, to the adoption has been given; and

• •

  the petition for adoption is not prohibited from adopting the child as the result of an inappropriate criminal history described in subsection (c)[.]

Ind. Code § 31-19-11-1(a)(1)-(8).

Further, Indiana Code § 31-19-11-1(b) states: “A court may not grant an adoption unless the department's affidavit under IC 31-19-5-16 is filed with the court as provided under subsection (a)(4).” Ind. Code 31-19-11-1(b).

Here, the Court recognized that the first three requirements under Ind. Code § 31-19-11-1(a)(1)-(3) were met. Specifically, the Superior Court's Decree of Adoption states that the adoption was in the best interests of Sophia, and that Carolyn and Cara had sufficient ability to rear Sophia as well as furnish suitable support and education for her. Additionally, the Superior Court stated that the report of investigation and recommendation of the Office of Children and Family Services for the county was filed with the Court (7/12/04 Decree of Adoption at 1).

The Court also recognized that “all the necessary consents to said adoption are in proper form and have been filed” (7/12/04 Decree of Adoption at 1). Indiana law states that the consent of a biological father of a child born out of wedlock is not required if the man's paternity has not been established either by a court proceeding other than the adoption proceeding, or by executing a paternity affidavit under IC 6-37-2-2.1. Ind. Code § 31-19-9-8. Absent any reference in your records to Sophia's marital status, we assume that Sarah bore Sophia out of wedlock and that she did not identify Sophia's biological father. Given the Court's statement that the father is unknown, it appears there is no paternity determination or paternity affidavit that would require consent of the biological father. It thus appears that the consent requirement under Ind. Code § 31-19-11-1(a)(7) was most likely met via Sarah's consent to the adoption alone. However, we recommend that you confirm whether the attorney filed with the Court a state department of health affidavit, indicating whether a record of a paternity determination or a paternity affidavit has been filed in relation to the child. See Ind. Code § 31-19-11-1(a)(6).

We also note the absence of any mention in the Court's decree of whether proper notice requirements were met under Ind. Code § 31-19-11-1(a) (4) and (5). Specifically, we are concerned about the Court's failure to mention whether an affidavit by the state department of health has been filed, indicating whether a man is entitled to notice of the adoption due to having registered with the state's putative father registry.

Indiana law provides that a putative father is not entitled to notice of the adoption if:

• •

  on or before the date the mother of a child executes a consent to the child's adoption, the mother does not disclose to the attorney or agency arranging the adoption the identity or address, or both, of the putative father; and

• •

  the putative father has not registered with the putative father registry under IC 31-19-5 within the period under IC 31-19-5-12.

Ind. Code 31-19-4-6.

Here, the Court's decree makes clear that the putative father's identity was unknown. It may very well be that the unidentified father did not properly register with the putative father registry in Indiana, such that no notice was required to anyone. However, there is no express finding by the Court concerning the applicability of the notice requirement. Absent the filing of such an affidavit from the state department of health, the Indiana statute prohibits courts from granting an adoption. See Ind. Code § 31-19-11-1(b). Accordingly, we also recommend that you verify that an attorney filed with the court an affidavit prepared by the state department of health, indicating whether anyone is entitled to notice of the adoption because they have registered properly with the putative father registry.

CONCLUSION

We conclude that, that, assuming the appropriate affidavits from the state department of health concerning the putative father registry and any applicable paternity determinations have been filed with the county court, the adoption was valid and that the child is entitled to child's benefits under Carolyn S~'s and Cara S~'s accounts.

LEGAL ADOPTION — STATUTORY REQUIREMENTS — INDIANA

Indiana statutory law specifically provides for the adoption of an adult (a person age 18 or over) with the consent of the person to be adopted subject to the results of an investigation if the court deems advisable. Even prior to the enactment of the current statute, Indiana courts construed the general adoptions provisions as permitting the adoption of adults. An adoption by an individual of her disabled sister 62 years of age with whom she has lived prior to attaining age 18 is held to be valid in this case. (B~, Margaret M., ~ — RAV (K~), to ARC, 06/05/84.)

This is with reference,to your March 28, 1984 memorandum inquiring whether under Indiana law the adoption of an adult would be a valid adoption.

The pertinent facts are as follows. Margaret M. B~ adopted her 62 year-old sister, Martha, on October 8, 1982. Martha began living with Margaret prior to age 18 and more than one year before Margaret became entitled to retirement insurance benefits effective June 1975. She was adopted solely for the purpose of obtaining social security benefits. Martha became disabled in January 1921 when she was stricken with spinal meningitis and has had a residual partial paralysis of her left arm and leg with associated mental retardation. She has the capabilities of a four or five-year old.

Indiana in 1941 enacted legislation specifically providing for adoption of adults. Ind. Code Ann. §31-3-1-11 (enacted as chapter 146, section 10, Acts of 1941 and amended in 1973 by P.L. 298, Sec. 4 to reduce the age of the person to be adopted from 21 years to 18). That provision states:

31-3-1-11 Adults; adoption; jurisdiction

Sec. 11. Any person over eighteen (18) years Of age may be adopted by any resident of this state upon proper petition to the court having jurisdiction in probate matters in the county of residence of either party, and with the consent of such person acknowledged in open court: Provided, however, That the court in which the petition is filed may if in its discretion deemed necessary order investigation as provided for children, or such other inquiry as may to such court seem advisable, before granting such petition. In any county of this state where there is now or may hereafter be established a separate probate court, such court shall have exclusive jurisdiction in all adoption matters.

This office on several occasions has held that under Indiana law adoption of adults is permitted. N~, Roscoe D, GC (P~) to PC Chgo., 10/19/61; R~, James J., ~ , RA V (F~) to DM A~. IN, 7/9/64; S~, James A., ~, RA v (M~) to Reg. Rep., BRSI KC, 4/17/68. The Reed case involved an adoption of an individual 52-years old.

Even prior to the enactment of a specific adult adoption provision in 1941, Indiana courts construed the general statutory provisions covering adoptions to permit adult adoptions. Markover v. Krauss, 132 Ind. 294, 31 N.E. 1047 (1892); Scott v. Peters, Ind. App. 1, 158 N.E. 490 (1927); see, also, Nickerson v. Hoover, 70 Ind. App. 343, 115 N.E. 588 (1917). Of course, after the 1941 enactment Indiana courts continued to uphold the validity of adult adoptions. Adams v. Slater, 175 N.E. 2d 706 (Ind. App. 1961).

Thus, we are of the opinion that the adoption in question is valid under Indiana law.