QUESTION PRESENTED
This memorandum is in response to your request for a legal opinion on whether the
Louisiana state court’s intrafamily adoption decree, which granted C~’s (NH) adoption
of her biological grandson, D~. (D~), binds the Social Security Administration (the
agency). We also address, if the intrafamily adoption decree does not bind the agency,
whether the agency can disregard the intrafamily adoption decree in determining D~
’s status as the NH’s adopted child. If the agency can disregard the intrafamily adoption
decree, you further ask if administrative finality allows for reopening of D~ ’s December
16, 2003, application for child’s benefits and his May 13, 2014, application for lump-sum
death payment (the applications).
ANSWER
Based on the present record and specific circumstances of this case, we conclude that
the Louisiana state court’s intrafamily adoption decree does not bind the agency.
The evidence is insufficiently developed to determine whether the agency can disregard
the intrafamily adoption decree to determine D~’s status as the NH’s adopted child.
Additionally, the agency may, if warranted, reopen the determinations on D~’s applications
because it has been less than 12 months from the agency’s initial determinations on
the applications.
BACKGROUND
Effective November 1990, the NH became entitled to old-age insurance benefits. The
NH is D~’s biological paternal grandmother, and D~ began living with the NH in 2006.
D~ Sr. (biological father) is D~’s biological father and the NH’s son. L~ (biological
mother) is the child’s biological mother. The biological father moved in with the
NH in approximately 2009 because he was the NH’s caretaker, and the NH granted him
power of attorney over all her affairs in April 2013.
On June XX, 2013, the NH filed a Petition for Intrafamily Adoption (Adoption Petition)
to adopt D~ in the 40th Judicial District Court in the Parish of St. John the Baptist,
Louisiana (District Court). At the time of filing the Adoption Petition, the NH was
84 years old and D~ was 13 years old. The Adoption Petition provided that D~’s biological
parents consented to the NH’s adoption of D~ and that the biological father was “currently”
D~’s “custodial parent.” Exhibit No. 2 of the Adoption Petition states that D~’s biological
father was his “legal custodian.”
On June 21, 2013, the biological father executed a Voluntary Act of Surrender for
Adoption for Surrendering Father of a Child (Father’s Voluntary Surrender), in which
he: (1) surrendered D~ to the NH; (2) freely and voluntarily surrendered custody of
D~ for the purpose of placement and adoption; and (3) consented to the NH’s adoption
of D~. On June 31, 2013, the biological mother executed a Voluntary Act of Surrender
for Adoption for Surrendering Mother of a Child (Mother’s Voluntary Surrender), in
which she: (1) surrendered D~ to the NH; (2) freely and voluntarily surrendered custody
of D~ for the purpose of placement and adoption; and (3) consented to the NH’s adoption
of D~.
On December 6, 2013, the Court held a private hearing, and on December XX, 2013, the
District Court entered a Final Decree and Judgment (Adoption Decree) granting the
Adoption Petition and declaring D~ to be the NH’s child “for all legal purposes” and
“to the same extent as if the child had been born” to the NH. On the same day as the
hearing, the NH and D~’s biological parents executed a Provisional Custody By Mandate
document whereby the NH, as D~’s “sole custodial parent,” granted provisional custody
of D~ to his biological parents.
Two days after the District Court entered the December XX, 2013 Adoption Decree, the
biological father went into a field office on December XX, 2013, and scheduled a future
appointment for the NH to apply for child’s benefits on D~’s behalf. The biological
father indicated that the NH adopted D~ solely for the purpose of receiving Social
Security benefits. After the field office offered an appointment in January 2014,
the biological father requested an earlier appointment, stating that the NH would
probably be dead before then. On December 16, 2013, the biological father assisted
the NH as she filed an application with the agency for child’s benefits on D~’s behalf.
On December XX, 2013, the agency awarded child’s benefits to D~ effective January
2014.
On January XX, 2014, the NH passed away. On January 13, 2014, the biological father
went into a field office to apply to be D~’s representative payee. The biological
father stated that the NH adopted D~ so that D~ could receive Social Security benefits
because the biological father could not afford to raise his son. On May 13, 2014,
the biological father applied for the lump-sum death benefit on D~’s behalf, which
the agency awarded in May 2014.
ANALYSIS
Entitlement to Title II Child’s Benefits as an Adopted Child
Under the Social Security Act (Act), a child may be eligible for Social Security benefits
if he is the child of an individual who is entitled to old-age or disability benefits.
42 U.S.C. §§ 402(d)(1), 416(e)(1). To be entitled to child’s insurance benefits on
an insured number holder’s account, a child must: (1) be the number holder’s child;
(2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried;
and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5).
As to the first requirement, the Act and regulations define “child” as an insured
individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild,
or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. A child that is adopted after
an insured number holder becomes entitled to old-age or disability benefits is considered
dependent on the number holder if the child had not attained age 18 when the adoption
proceedings were started, and a court of competent jurisdiction within the United
States issued the child’s adoption. See 20 C.F.R. § 404.362.
In this case, D~ is purportedly the NH’s legally adopted child pursuant to the Adoption
Decree. Because D~ had not attained age 18 at the time the Adoption Petition was filed
and because the District Court is a court of competent jurisdiction to enter the Adoption
Decree, D~ is considered dependent on the NH. See 20 C.F.R. § 404.362 (providing that a child is dependent on the adopting number holder
if not 18 at the time the adoption proceeding starts and the adoption is issued by
a court of competent jurisdiction in the United States); La. Child. Code Ann. art.
1180 (stating that the juvenile court, which is part of the district court, has jurisdiction
over adoption petitions). D~ is unmarried and under the age of 18, and the NH applied
for benefits on D~’s behalf. Effective January 2014, the agency granted D~’s application
for child’s benefits as the NH’s adopted child under Louisiana law. 9 Entitlement to Lump-Sum Death Payment
Under the Act, if a person is fully or currently insured when he or she dies, a lump-sum
death payment of $255.00 may be paid to the deceased number holder’s widow or widower
if he or she was living in the same household with the deceased number holder at the
time of the deceased number holder’s death. 42 U.S.C. § 402(i); 20 C.F.R. § 404.390.
If no one satisfies this requirement, the $255.00 payment may be made: (1) to a person
who is entitled (or would have been entitled had a timely application been filed)
to widow’s or widower’s benefits or mother’s or father’s benefits on the deceased
number holder’s work record for the month of that worker’s death; or (2) in equal
shares to each person who is entitled (or would have been entitled had a timely application
been filed) to child’s benefits on the work record of the deceased number holder for
the month of his or her death. 20 C.F.R. § 404.392(a). Absent specific circumstances,
an application must be filed within two years of the deceased number holder’s death.
20 C.F.R. § 404.392(b).
In this case, there is no evidence of a widower, D~ was receiving child’s benefits
on the NH’s work record for the month of her death, and the biological father timely
filed an application on D~ ’s behalf for the lump-sum death payment. Accordingly,
the agency found that D~ was entitled to and, in May 2014, paid the lump-sum death
payment.
Because D~’s entitlement to Title II child’s benefits and to the NH’s lump-sum death
payment depends on his status as the NH’s adopted child, we must look at the validity
of the adoption. We first address whether the Adoption Decree binds the agency.
Social Security Ruling 83-37c Applies to Determine Whether a State Court
Order Binds the Agency
Generally, a state court decision does not bind the agency if it involves a proceeding
to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where
the evidence includes a state court decision on the issue, SSA is not necessarily
bound by the court decision; referring the agency to SSR 83-37c for the applicable
criteria of Gray v. Richardson). Pursuant to SSR 83-37c, state court determinations on domestic relations matters
are entitled to deference and bind the agency only when certain specific factors are
satisfied. The factors are: (1) when a state court of competent jurisdiction previously
determined an issue in a claim for Social Security benefits; (2) when parties with
opposing interests genuinely contested the issue before the state court; (3) when
the issue falls within the general category of domestic relations law; and (4) when
the resolution by the state trial court is consistent with the law enunciated by the
highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3.
The Fifth Circuit’s test for determining when a state court order binds the agency
is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth
Gray criteria. In Warren v. Sec'y of Health & Human
Servs., 868 F.2d 1444 (5th Cir. 1989), the agency declined to accept the Texas state court’s
determination that there was a common law marriage. Id. at 1446-47. “The Secretary is under no constitutional compulsion to give full faith
and credit to the Judgment, nor is he bound by the Judgment under principles of res judicata since he was not a party to the probate court proceeding.” Id. However, the agency is obligated, pursuant to the Act, to determine how the state
courts would decide the matter by applying the law of the state as would the highest
court of that state in a proceeding contested by parties with opposing interests.
Id. at 1447 (citing Gray, 474 F.2d 1370). When deciding how the state courts would decide a matter, the agency
should consider the state court’s order as one part of a broader inquiry into both
the facts and the applicable law. Id. In Warren, the Fifth Circuit upheld the Commissioner’s decision that there was no common law
marriage, despite a state court order to the contrary, because substantial evidence
supported the Administrative Law Judge’s conclusion that the highest court of that
state would not hold that a common law marriage existed. Id. Warren focused specifically upon the fourth Gray criteria to find that the state court order did not bind the agency.
In Garcia v. Sullivan, 883 F.2d 18 (5th Cir. 1989), the Commissioner declined to accept a state court determination
regarding paternity because parties with opposing interests did not genuinely contest
the issue. Id. at 20. Thus, the agency relied upon the second Gray criteria to find that the state court order did not bind the agency. The Fifth Circuit
stated in Garcia that because the agency is required to determine how the state courts would decide
the matter, “where a state trial court has adjudicated the issue in an adversarial
setting the [agency’s] inquiry is manifestly simplified: the [agency] should follow
the decision of the state court, absent extraordinary reasons.” Id. (citing Warren, 868 F.2d 1444). The agency should only disregard a state court’s decision when the
agency is convinced that the decision is in conflict with what the state supreme court
has held or would hold were it presented with the issue. Id. In reversing the Commissioner’s decision to disregard the state court order, the
Fifth Circuit again emphasized that the agency should disregard a state court order
when the order did not meet the fourth Gray
criteria. Notably, however, the Fifth Circuit also disagreed with the agency that
the matter was not genuinely contested. See id. at 20 (“Despite the adversarial nature of the proceeding the Secretary refused to
give effect to the state court judgment, concluding that the paternity issue was not
genuinely contested by parties with opposing interests.”). Warren and Garcia appear to validate the agency’s application of the criteria of SSR 83-37c in determining
whether a state court determination binds the agency, but suggest that the fourth
Gray
criteria may be the most significant.
The Adoption Decree meets the first Gray criteria as it declares D~ to be the NH’s adopted child, which is the determinative
issue in D~’s claims for child’s benefits and the lump-sum death payment. The Adoption
Decree also meets the third criteria as the issue of intrafamily adoption falls within
the general category of domestic relations law and the District Court has jurisdiction
to resolve issues relating to adoption. See La. Child. Code Ann. art. 1180 (stating that the juvenile court, which is part of
the district court, has jurisdiction over adoption petitions).
As to the second criteria, the evidence suggests that parties with opposing interests
did not genuinely contest the Adoption Decree before the District Court. Although
the Fifth Circuit has not articulated what constitutes a “genuinely contested” issue,
an ex parte judgment does not generally satisfy the “genuinely contested” criteria. See Warren, 868 F.2d at 1446-47 (noting the ex parte nature of the judgment); Dennis v. R.R. Ret. Bd., 585 F.2d 151, 155 n.2 (6th Cir. 1978) (noting that ex parte proceedings do not bind the federal government). However, when a judgment results
from a suit, that judgment appears to satisfy the “genuinely contested” criteria,
even when the opposing party consents to judgment. See Garcia, 883 F.2d at 20 (disagreeing with the agency’s genuinely contested finding because
of the “adversarial nature” of a paternity suit); Dennis, 585 F.2d at 154 (finding that a suit filed in the Ohio Probate Court was a contested
matter); but see George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (holding that a nunc pro tunc divorce decree was
not “genuinely contested” because, in part, there was no indication that any material
controversy was resolved). In this case, the Adoption Decree falls between an ex parte proceeding and a suit with an “adversarial nature.” See Warren, 868 F.2d at 1446-47; Garcia, 883 F.2d at 20. Intrafamily adoptions are not adversarial unless a parent files
an opposition to the adoption by filing a clear and written answer. La. Child. Code
Ann. art. 1244.1(A); see also, e.g., In re B.L.M., 136 So. 3d 5, 7 (La. App. 1 Cir. 2013) (showing that the parent raised an objection
to the adoption proceeding, which created the controversy in the adoption proceeding).
Thus, because an intrafamily adoption is not adversarial when parents’ consent and
because D~’s biological parents consented to the NH’s adoption of D~ , it does not
satisfy the second Gray criteria.
Finally, as to the fourth Gray criteria, we look to Louisiana adoption law to determine whether the Adoption Decree
is consistent with what the Louisiana Supreme Court has enunciated. Louisiana law
allows three types of adoption: agency, private, and intrafamily adoption. See La. Child. Code Ann. art. 1170. In this matter, the District Court’s Adoption Decree
granted the NH’s adoption of the child as an intrafamily adoption. See La. Child. Code Ann. arts. 1243– 1257.
Louisiana law governing intrafamily adoption provides that a petitioner may adopt
a related child, 10 which would include a grandmother adopting her grandson, if:
(1) The petitioner is related to the child by blood, adoption, or affinity through
a parent recognized as having parental rights;
(2) The petitioner is a single person over the age of eighteen or a married person
whose spouse is a joint petitioner;
(3) The petitioner has had legal or physical custody of the child for at least six
months prior to filing the petition for adoption.
See La. Child. Code Ann. art. 1243(A).
As to the third requirement of “legal or physical custody of the child for at least
six months prior to filing the petition for adoption,” the Louisiana Children’s Code
defines “legal custody” as the right to have physical custody of the child and to
determine where and with whom the child shall reside; to exercise the rights and duty
to protect, train, and discipline the child; the authority to consent to major medical,
psychiatric, and surgical treatment; and to provide the child with food, shelter,
education, and ordinary medical care, all subject to any residual rights possessed
by the child’s parents. La. Child. Code Ann. art. 116(12). While the statutory sections
pertaining to intrafamily adoptions do not specifically define physical custody, the
Louisiana Children’s Code defines it elsewhere as “the duty and authority to provide
care for a child in the home of the custodian.” La. Child. Code Ann. art. 1511(2)
(definition found in the Chapter of the Louisiana Children’s Code regarding Voluntary
Transfer of Custody). The Louisiana Supreme Court described physical custody as “actual”
custody. Evans v.
Lungrin, 708 So. 2d 731, 737 (La. 1998).
An intrafamily adoption petition must include the date and circumstances under which
the child entered the petitioner’s home because the petitioning relative must have
undertaken responsibility for the child’s caretaking in his or her home for at least
six months prior to filing for the adoption. See La. Child. Code Ann. art. 1246; La. Child. Code Ann. art. 1243(A), Comment--1999.
The Louisiana Supreme Court has held that “adoption statutes are to be strictly complied
with and that laws providing for adoption must be given a strict construction as they
are in derogation of the natural right of a parent to his child.” In re Ackenhausen, 154 So.2d 380, 383 (La. 1963) (citations omitted). Thus, a procedural flaw in the
entire adoption process will result in the reversal of an adoption. See In re Landry, 702 So. 2d 1092, 1096 (La. App. 3 Cir. 1997) (setting aside a judgment of adoption
due to a procedural flaw regarding the petitioner’s custody of child); see also Stewart v. Goeb, 432 So. 2d 246 (La. 1983) (permitting an action to annul an adoption decree where
adopting parents failed to serve biological father with notice of the adoption proceedings).
We now examine the particular Adoption Decree to determine if it is consistent with
the law the highest court in Louisiana enunciated and, as a consequence, whether it
binds the agency.
After holding a private hearing on December 6, 2013, the District Court entered the
Adoption Decree on December 11, 2013. The Adoption Decree, which the NH’s attorney
submitted, states that the Judge considered the Adoption Petition and exhibits; considered
the parties’ testimony concerning the adoption; and determined that “the requirements
of law [had] been met.” Accordingly, the District Court granted the Adoption Petition
and declared D~ to be the NH’s child “for all legal purposes” and “to the same extent
as if the child had been born” to the NH.
However, despite the District Court’s statement that “the requirements of law [were]
met,” the evidence presented does not show that the NH had legal or physical custody
of D~ for at least six months prior to filing the Adoption Petition. See La. Child. Code Ann. art. 1243(A)(3); see also In
re Ackenhausen, 154 So.2d at 383 (providing that adoption statutes are to be strictly complied with
and given a strict construction); Garcia, 883 F.2d at 20 and Warren, 868 F.2d at 1447 (providing that state court orders must be consistent with state
law as enunciated by the state’s highest court to bind the agency). To the contrary,
the evidence showed that the biological father had physical and legal custody of D~
when the NH filed the Adoption Petition on June 6, 2013. As noted above, to adopt
D~ under Louisiana’s law governing intrafamily adoption, the NH must have “had legal
or physical custody of the child for at least six months prior to filing the petition
for adoption.” La. Child. Code Ann. art. 1243(A)(3).
With regard to “physical custody,” although the evidence indicates that D~ lived with
both his biological father and the NH, physical custody is more than living in the
same household because it requires “the duty and authority to provide care for a child
in the home of the custodian.” La. Child. Code Ann. art. 1511(2). The evidence indicates
that the biological father had physical custody, i.e., “the duty and authority to provide care” for D~. As noted, the Adoption Petition
identified the biological father as D~’s “custodial parent,” indicating that he had
physical or actual custody of the child. See La. Child. Code Ann. art. 1511(2) (describing physical custody); Evans, 708 So. 2d at 737 (discussing physical custody). Additionally, the intrafamily adoption
statute contemplates that the petitioning relative must have undertaken responsibility
for the child’s caretaking in his or her home for at least six months prior to filing
for the adoption. See La. Child. Code Ann. art. 1243(A), Comment--1999. The biological father claimed to
be the NH’s caretaker and the NH granted him power of attorney over all her affairs
in April 2013, indicating that the NH was incapable of caring for herself, and thus,
suggesting she was unable to care for D~ . There is no evidence that the NH satisfied
this requirement and undertook responsibility for D~ ’s caretaking in her home for
at least six months prior to filing the Adoption Petition, and indeed, suggests otherwise.
Id. Thus, the evidence suggests that the NH did not have “physical custody” of D~ for
at least six months prior to filing the Adoption Petition.
With regard to “legal custody,” Exhibit No. 2 of the Adoption Petition provided that
the biological father was D~’s legal custodian, i.e., “Legal custodian of child: D~.” The Adoption Petition provided that the biological
father is D~’s custodial parent, i.e., the biological father “is currently the custodial parent of the minor child.” Moreover,
as shown in the Father’s Voluntary Surrender executed on June 21, 2013, the biological
father did not surrender legal custody of D~ to the NH until after she filed the Adoption
Petition. Similarly, as shown in the Mother’s Voluntary Surrender executed on June
31, 2013, the biological mother did not surrender custody of D~ to the NH until after
she filed the Adoption Petition. Thus, the evidence indicates that the NH did not
have “legal custody” of D~ for at least six months prior to filing the Adoption Petition.
The Louisiana Supreme Court requires strict compliance with adoption statutes, and
the evidence suggests that the NH failed to satisfy the six-month physical or legal
custody requirement in the intrafamily adoption statute. See In re
Ackenhausen, 154 So. 2d at 383; La. Child. Code Ann. art. 1243(A)(3); Garcia, 883 F.2d at 20 and Warren, 868 F.2d at 1447 (providing that state court orders must be consistent with state
law as enunciated by the state’s highest court to bind the agency). Accordingly, we
believe that if the Louisiana Supreme Court were to address the validity of the Adoption
Decree, the Louisiana Supreme Court would find the order to be in conflict with Louisiana
law. See Garcia, 883 F.2d at 20; Warren, 868 F.2d at 1447. This result is similar to In re Landry, 702 So. 2d 1092 (La. App. 3 Cir. 1997), where a Louisiana appellate court set aside
an adoption order because the petitioner failed to satisfy the strict custody requirements
in a different portion of Louisiana’s intrafamily adoption statute. See id. at 1096. Thus, the evidence shows that because the Adoption Decree is inconsistent
with Louisiana’s requirements for a valid intrafamily adoption, the Adoption Decree
does not bind the agency under the fourth criteria of Gray or applicable Fifth Circuit law. See Garcia, 883 F.2d 18; Warren, 868 F.2d 1444.
The Agency Should Conduct Additional Factual Development to Determine Whether the
Agency Can Disregard the Adoption Decree
Because of the conflict between the evidence submitted to the agency and the District
Court’s conclusion that the NH satisfied the legal requirements to adopt D~ , we believe
the facts presented are not sufficient to establish whether the agency should disregard
the Adoption Decree and deny D~ ’s applications. The Fifth Circuit directs that the
agency consider a state court determination as one part of a broader inquiry into
both the facts and the applicable law. Warren, 868 F.2d at 1447. Because the District Court’s reasoning for its determination that
the NH satisfied the legal requirements to adopt D~ is unclear, additional factual
development appears necessary.
Specifically, the additional facts that need development concern whether the NH satisfied
the six-month physical or legal custody requirement in the intrafamily adoption statute.
Because the NH filed the Adoption Petition on June 6, 2013, the NH’s legal or physical
custody of D~ for the six months prior must be established, i.e., from approximately December 6, 2012, through June 6, 2013, for the Adoption Decree
to be consistent with Louisiana’s requirements for a valid intrafamily adoption.
Administrative Finality Does Not Prohibit Reopening
For administrative finality, the agency’s regulations restrict reopening prior determinations
except under specific circumstances. 20 C.F.R. §§ 404.987, 404.988. However, the regulations
provide that the agency may reopen a determination for any reason within 12 months
of the date of the notice of the initial determination. 20 C.F.R. § 404.988(a).
The agency made its initial favorable determination regarding D~’s application for
child’s benefits on December 17, 2013. The agency made its initial determination awarding
D~ the lump-sum death payment in May 2014. Because it has been less than 12 months
since the agency made its initial determinations on D~’s applications, the agency
may reopen these applications.
We find that the Adoption Decree does not bind the agency. 11 However, we believe that additional factual development appears necessary, as detailed
above, because although the Adoption Decree does not bind the agency, the facts presented
are not sufficient to establish whether the agency should disregard the Adoption Decree
and deny D~’s applications. Further, if warranted, the agency may reopen and revise
D~’s applications because it has been less than 12 months since the agency made its
initial determinations.
Finally, you also inquired whether you should submit all Louisiana intrafamily adoptions
to the Office of the General Counsel (OGC) for a determination of validity. Please
submit intrafamily adoption matters to OGC where you have concerns about the validity
of the adoption or where you suspect fraud.