Questions Presented
You have requested an opinion concerning the validity of the adoption of a child in
Utah-specifically, whether Chelsie, a minor child, can be entitled to child's benefits
on the record of her grandfather and adoptive father, deceased number holder Blaine,
SSN ~.
Short Answer
We believe that the State of Utah would find that Blaine legally adopted Chelsie.
We further believe that Chelsie would qualify for child's benefits on Blaine's account.
FACTS
The available facts in this case indicate that Chelsie ("Chelsie") was born in Weber
County, Utah, on August. Chelsie's natural mother was Rebecca ("Rebecca"), who was
16 years old on the date of Chelsie's birth, and Chelsie's natural father was Marty.
("Marty"). There is no indication that Rebecca and Marty ever married. Rebecca's parents
were number holder Blaine ("Blaine") and his wife, Irene ("Irene").
Rebecca and Chelsie lived with Blaine and Irene after Chelsie's birth. Rebecca married
in 1990 or 1991, and Rebecca and Chelsie subsequently lived with Rebecca's husband
for approximately one and one-half years afterward.
On July 8, 1994, the Second Judicial District Court of Weber County in the State of
Utah granted a Decree of Adoption ("adoption decree") regarding Chelsie. The adoption
decree listed the petitioners as Blaine, Rebecca, and Irene. The adoption decree indicated
that Marty had been relieved of all parental duties, responsibilities, and rights
concerning Chelsie. The adoption decree declared Chelsie was adopted by Blaine and
stated that Blaine would have the status of natural father. The adoption decree also
indicated that "all other persons" were relieved of parental duties and responsibilities
for, and would have no right or control over, Chelsie, except for her natural mother,
Rebecca. Blaine agreed to pay $2,500.00 as payment for Marty's past-due child support
obligations.
The adoption decree further ordered the Utah Department of Vital Records to issue
a birth certificate showing Chelsie to be the child of "petitioners herein." The information
provided contains only a birth certificate that was "registered" on September 7, 1989,
10 days after Chelsie's birth, and "issued" in February 2002. It lists Rebecca and
Blaine as Chelsie's parents. In Utah, adoption-related birth certificate changes occur
via the issuance of a supplemental birth certificate showing the adoptive parents'names.
The law does not require the supplemental certificate to indicate that it is supplemental.
It is difficult to discern from the information provided exactly where Chelsie lived,
and who provided support for her, after the adoption decree was issued. A statement
by Irene indicated that Chelsie "stayed with" Blaine and Irene during the week in
order to attend school, but it is unclear exactly when (and for how long) this arrangement
existed, or whether it continues to exist.
Chelsie's numident record lists Rebecca as her mother, and does not list any father.
In May 2002, Blaine became entitled to retirement benefits. A computer screen printout
related to Blaine's application for benefits indicated he had no dependent children;
however, Irene stated she and Blaine told the Agency about Chelsie at the time he
applied for benefits.
The information you provided included a juvenile court Review Order dated October
10, 2002, related to the interests of four children: Chelsie, Shaylee, Bodee , and
Symatha. The Review Order listed the children's mother as Becky (presumably Rebecca's
married name) and father as Trent . The court found that the children were "at risk
even if father is in jail because of her drinking and domestic violence with a boyfriend."
The court placed the children, including Chelsie, in the custody of the Division of
Child and Family Services ("Division"), and gave the Division "prior release to place
the children with relatives." The matter was scheduled for review in November 2002.
Blaine died on July 20, 2004. In August, 2004, on behalf of Chelsie, Irene filed an
application for child's benefits on Blaine's account. In the application, Irene indicated
that Chelsie lived with Blaine and Irene at the time of Blaine's death, and that Chelsie
currently lived with Irene. Irene stated she had been appointed Chelsie's legal guardian
in September 2001 because Rebecca was an alcohol addict. The information provided
did not contain any documentation to verify that Irene is Chelsie's legal guardian.
Irene also completed an application to be Chelsie's representative payee.
Federal Law
To be entitled to child's benefits on the account of a wage earner who is receiving
retirement insurance benefits, a child must meet the regulatory definition of "child,"
be dependent upon the wage earner, file an application, be unmarried, and be under
age 18. 42 U.S.C. § 402(d)(1), 20 C.F.R. § 404.350(a) (2004). A legally adopted child
of the wage earner meets the regulatory definition of "child." 20 C.F.R. § 404.356
(2004).
In terms of evidence that an adoption has occurred, an amended birth certificate issued
as the result of an adoption in the United States will establish that there has been
a final order or decree of adoption, and that the persons shown as parents of the
adopted child were named as parents in the decree or order. POMS GN 00306.155(A). Adoption decrees also constitute evidence to establish that an adoption occurred
on a certain date. POMS GN 00306.155(B)(1)(a).
Agency policy specifies a "payee preference list" to be used as a guideline for choosing
the applicant best suited to serve as a payee. POMS GN 00502-105. The list of possible
payees includes a natural or adoptive parent with custody; a legal guardian; a natural
or adoptive parent without custody, but who shows strong concern; and a relative or
close friend who shows strong concern. Id.
Utah State Law
In determining whether a child was legally adopted, the applicable law is the law
of the state where the adoption took place. 20 C.F.R. § 404.356 (2004). Thus, Utah
law determines whether Chelsie was Blaine's legally adopted child for purposes of
entitlement to child's benefits on Blaine's account.
In Utah, a child may be adopted by adults who are (a) legally married to each other
or (b) single and not cohabiting (residing and having a sexual relationship) with
another person. Utah Code Ann. § 78-30-1 (2004). However, Utah law provides that a
married adult who is not lawfully separated from his or her spouse requires the spouse's
consent in order to adopt, which suggests that a married person may legally adopt
a child even if the married person's spouse does not join in the adoption, as long
as the spouse consents. Utah Code Ann. § 78-30-3 (2004). See also In re Adoption of W.A.T., V.E.T., J.T.T., J.S.T., and B.D.T., 808 P.2d 1083, 1084-85 (Utah 1991) (noting that the "statutes governing adoption
contain certain minimum requirements to be met by adopting petitioners; for example,
. . . married people cannot adopt without consent of their spouses. . . . Aside from
these technical requirements, there are virtually no restrictions on or exceptions
to the right to petition . . . [and the sole standard is] that the interests of the
child will be promoted by the adoption. . . ."); In re Adoption of B.B.D., 984 P.2d 967, 971 (Utah 1999) (noting that Utah Code Ann. § 78-30-4.13(2)(d) requires
notice of an adoption proceeding to be given to "the petitioner's spouse, if any,
only if he has not joined in the petition") (citations omitted).
DISCUSSION
To be entitled to child's benefits on the account of a wage earner who is receiving
retirement insurance benefits, a child must meet the regulatory definition of "child,"
be dependent upon the wage earner, file an application, be unmarried, and be under
age 18. 42 U.S.C. § 402(d)(1), 20 C.F.R. § 404.350(a) (2004). For reasons discussed
below, we believe that Chelsie was legally adopted by Blaine and, therefore, met the
regulatory definition of "child", and that she further met the remainder of the eligibility
requirements to receive child's benefits on Blaine's account.
The first prong of the analysis rests of whether Chelsie meets the regulatory definition
of "child." A legally adopted child of the wage earner meets the regulatory definition
of "child." 20 C.F.R. § 404.356 (2004). Thus, we must begin by determining whether
Chelsie was legally adopted by Blaine. In determining whether a child was legally
adopted, the applicable law is the law of the State where the adoption took place.
Id. Thus, Utah law determines whether Chelsie was Blaine's legally adopted child for
purposes of entitlement to child's benefits on Blaine's account.
In Utah, a child may be adopted by adults who are (a) legally married to each other
or (b) single and not cohabiting (residing and having a sexual relationship) with
another person. Utah Code Ann. § 78-30-1 (2004). In this case, Chelsie was adopted
by her grandfather Blaine, who was married to Chelsie's grandmother Irene at the time,
and also by her natural mother Rebecca, who was single at the time. Although Irene's
name appeared on the adoption decree as a petitioner, she was not awarded any parental
rights or responsibilities, or named as one of Chelsie's adoptive parents in the decree.
On its face, the Blaine's adoption of Chelsie initially seems legally problematic
because the adoptive parents were not married to each other and Blaine was not single.
However, it appears that Utah law would still allow Blaine to legally adopt Chelsie.
Utah law provides that a married adult who is not lawfully separated from his or her
spouse requires the spouse's consent in order to be adopt. Utah Code Ann. § 78-30-3
(2004). Here, Blaine and Irene were not separated at the time of Chelsie's adoption,
so Blaine would only be able to adopt Chelsie if he had Irene's consent. Id.; see also In re Adoption of W.A.T., V.E.T., J.T.T., J.S.T., and B.D.T., 808 P.2d at 1084-85; In re Adoption of B.B.D., 984 P.2d at 971. We may reasonably assume that Irene consented to Blaine's adoption
of Chelsie, since Irene was listed as a petitioner in the adoption along with her
husband, was represented by an attorney in the adoption proceedings, and has continued
to provide care for Chelsie. Further, the court that issued the adoption decree expressly
stated that all legal requirements for the proposed adoption were satisfied. For these
reasons, we believe that the adoption of Chelsie by Blaine was valid under Utah law.
In terms of evidence establishing that the adoption actually took place, Agency policy
holds that an amended birth certificate issued as the result of an adoption in the
United States will establish that there has been a final order or decree of adoption,
and that the persons shown as parents of the adopted child were named as parents in
the decree or order. POMS GN 00306.155(A). In this case, the court ordered the Utah Department of Vital Statistics to prepare
a birth certificate listing the petitioners as Chelsie's parents. The birth certificate
provided does in fact list Blaine and Rebecca (the adoptive parents) as Chelsie's
parents, and would presumably satisfy the evidentiary requirement. Moreover, even
if that birth certificate was found to be insufficient because it did not specify
that it whether or not it was an amended version, here we have the actual adoption
decree specifying that Blaine adopted Chelsie. Adoption decrees constitute evidence
to establish that an adoption occurred on a certain date. POMS GN 00306.155(B)(1)(a). Thus, the evidence establishes that the adoption of Chelsie by Blaine occurred.
As noted above, the second prong of the analysis regarding Chelsie's entitlement to
child's benefits on Blaine's account concerns whether Chelsie was dependent on Blaine.
20 C.F.R. § 404.350(a)(2) (2004). Notwithstanding the fact that Chelsie apparently
did not live continuously with Blaine and that a computer printout related to Blaine's
application indicated he had no dependent children, the regulations direct that a
legally adopted child is in fact considered dependent on the wage earner if the wage
earner adopted the child before becoming entitled to benefits. 20 C.F.R. § 404.362(a)
(2004). Blaine legally adopted Chelsie in 1994. Blaine became entitled to benefits
in 2002. Therefore, since the adoption occurred prior to Blaine's entitlement to benefits,
Chelsie meets the dependency prong of the analysis. Id.
Chelsie further meets the remaining prongs of the analysis because she filed an application
for benefits (via Irene), she is unmarried, and she is under age 18 years of age.
20 C.F.R. § 404.350(a) (2004). Thus, Chelsie meets the requirements for entitlement
to child's benefits on Blaine's account.
Irene has applied to be the representative payee on Chelsie's behalf. Agency policy
specifies a "payee preference list" to be used as a guideline for choosing the applicant
best suited to serve as a payee. POMS GN 00502-105. The list of possible payees includes
a natural or adoptive parent with custody; a legal guardian; a natural or adoptive
parent without custody, but who shows strong concern; and a relative or close friend
who shows strong concern. Id. Although Chelsie has one parent still living-her natural (and adoptive) mother, Rebecca
- Irene has stated that she is Chelsie's legal guardian and that Chelsie currently
resides with her. Irene is, therefore, eligible to serve as a representative payee
on Chelsie's behalf as either a legal guardian or a relative who shows strong concern.
We suggest that before making the decision on who will serve as Chelsie's representative
payee, you document Irene's legal guardian status and Chelsie's living arrangements.
CONCLUSION
Accordingly, we conclude that Chelsie's adoption by Blaine was legal under Utah state
law. We further conclude that Chelsie meets the requirements for entitlement to child's
benefits on Blaine's account, and that Irene is eligible to serve as a representative
payee on Chelsie's behalf.
Deana R. Ertl-Lombardi
Regional Chief Counsel
By______________
Dorrelyn K. Dietrich
Assistant Regional Counsel