The Michigan Court asserted authority to “set aside” the adoption under Michigan Compiled Laws § 710.62, which allows a court to deny an adoption and return a minor to the original custodians or make a disposition appropriate for the welfare of the ward. Based on that decision, the Agency’s regulations mandate termination of the claimants benefits as of August 24, 2012.

QUESTION PRESENTED

You asked whether an order from a Michigan court that “set aside” an adoption “annulled” that adoption for the purpose of terminating child benefits.

SHORT ANSWER

The Michigan court appears to believe that it could effectuate the purpose of order—to make Kennisha eligible for federal Special Juvenile Immigrant (SJI) status—only if the court used “set aside” and “annul” interchangeably, and thus SSA should treat the order as an annulment for purposes of terminating benefits.

BACKGROUND

On August 24, 2012, Michigan’s 17th Circuit Family Court “set aside” Marilyn’s September 2010 adoption of Kennisha, assumed custody of Kennisha, and reopened Kennisha’s child protective case. The Court asserted authority to “set aside” the adoption under Michigan Compiled Laws § 710.62, which allows a court to deny an adoption and return a minor to the original custodians or make a disposition appropriate for the welfare of the ward. The Family Court found that returning Kennisha to the care of the Marilyn, her “fictive kin,” best served her interests. The Marilyn have received child benefits on Kennisha’s behalf since October 2010.

DISCUSSION

The Agency must terminate Kennisha’s child’s benefits as of August 24, 2012, if the order “setting aside” the September 2010 adoption meant that the court “annulled” the adoption. See POMS RS 00203.035B.3. Accordingly, we must consider whether the set-aside order is equivalent to an order of annulment. 

“Annul” has a rather consistent definition, “to erase, as if it never existed.” Garner’s Dictionary of Legal Usage 620 (3rd ed. 2011); see Black’s Law Dictionary 91 (6th ed. 1990) (“An ‘annulment’ differs from a divorce in that an annulment establishes that a marital status never existed.”). But the meaning of “set aside” in both dictionaries and caselaw has been more elastic. Every edition of Black’s Law Dictionary defines “set aside” as “annul.” Black’s Law Dictionary Second Pocket Edition 640 (2001); Black’s Law Dictionary 1372 (6th ed. 1990); Black’s Law Dictionary 1230 (5th ed. 1979). However, the 2011 (third) edition of Garner’s Dictionary of Legal Usage defines “set aside” simply as “to vacate” and dismisses all other definitions, including “to annul.” Garner’s Dictionary of Legal Usage 812 (3rd ed. 2011). 

The Michigan Adoption Code does not define “set aside.” MICHIGAN COMP. LAWS § 710.22 (listing definitions). In adoption cases, Michigan courts appear to use the words “revoke,” “set aside,” and “annul” interchangeably, although they have never explicitly equated a “set aside” and “annulled” adoption. See, e.g., In re Leach, 373 Mich. 148, 152-53 (1964); In re B~’s Estate, 310 Mich. 394, 397 (1945).  In criminal cases, however, the Supreme Court has attributed distinct meanings to “set aside” and “annulled” sentences—a court may “set aside” the unlawful excess of a partially invalid sentence without “wholly revers[ing] or anull[ing] it.” Michigan v. Thomas, 447 Mich. 390, 393 (1994). 

The variety of definitions and uses of the term “set aside” suggests that interpreting its meaning will depend on context. The context here suggests that the Family Court used “set aside” and “annul” interchangeably because the Family Court appeared to believe it could achieve the order’s purpose—to make Kennisha eligible for SJI status—only by making the Marilyn’s adoption of Kennisha as if it had never existed.  The Family Court here relied for authority on Michigan Compiled Laws § 710.62, which provides the statutory power to deny an adoption. As discussed below, we believe that the court believed it could achieve SJI status for Kennisha only by denying that the adoption had existed from the outset—in other words, by annulling the adoption. 

8 U.S.C. § 1101a(27)(J)(i)-(ii) defines an SJI as a juvenile present in the United States and dependent on a juvenile court who cannot be reunited with parent(s) based on abuse, neglect, abandonment, or a similar basis under state law and who would not be best served by returning to his or her country of nationality. Notably, the very next clause, § 1101a(27)(J)(iii)(II), unlike § 1101a(27)(J)(i)-(ii), specifically equates birth and adoptive parents, 8 U.S.C. § 1101a(27)(J)(iii)(II) declares that “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter.” which suggests that § 1101a(27)(J)(i)-(ii) does not apply to an immigrant juvenile who can be reunified with any parent, including former adoptive parents. Michigan Compiled Law § 710.60(1) similarly declares that as of the Marilyn’ adoption of Kennisha, they became her parents as if Kennisha had been born to them. Likewise, the Marilyn became “liable for all duties and entitled to all the rights of parents.” 

Therefore, if the Family Court order merely terminated the adoption from August 24, 2012, onward, Kennisha would not satisfy § 1101a(27)(J)(i), and thus would apparently be denied SJI status, because she could still reunite with her former parents, the Marilyn s. After all, the order continues Kennisha’s placement with the Marilyn’s, which implies that they have never abused, abandoned, or neglected her.  Thus, we conclude that the court intended to annul the adoption so as to ensure that Kennisha’s parents under the SJI statute would be her natural parents, not the Marilyn, her adoptive parents. In this way, it appeared more likely that Kennisha would obtain SJI status. 

The Family Court may have used cryptic terms like “set aside” and “fictive kin” as a well-intentioned attempt to avoid terminating Kennisha’s social security benefits while at the same time allowing her to obtain SJI status. Absent SJI status, 8 U.S.C. § 1431 confers citizenship on juvenile aliens born outside the United States only if the juvenile alien entered the country legally. Furthermore, an alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible. 8 U.S.C. § 1182(a)(6)(A)(i). According to 9 FAM 42.21 N11a, b PROCESSING VISAS IN ADOPTION CASES, the Bureau of Consular Affairs must process adoptions of juvenile aliens.

Ironically, the court’s ruling may have been unnecessary to secure SJI status for Kennisha. 8 CFR § 204.11(c)(5), effective July 2009, declares that an alien “eligible for long term foster care” and dependent on a juvenile court, may become an SJI under 8 U.S.C. § 1101a(27)(J). And 8 CFR § 204.11(a) clarifies that a juvenile alien “who has been adopted…after having been found dependent on a juvenile court in the United States will continue to be considered eligible for long-term foster care.” Thus, assuming that Kennisha formally depended on the Family Court after her birth parents relinquished custody in July 2010 yet before her adoption by the Marilyn s in September 2010, Kennisha may have been eligible for SJI status without “setting aside” the adoption. In any case, now that the Family Court has formally declared that Kennisha is dependent, the Marilyn may be able to readopt Kennisha without affecting her eligibility for SJI status. 

CONCLUSION

The Agency’s regulations mandate termination of Kennisha’s benefits as of August 24, 2012. We note that the record refers to further court proceedings with respect to the denial of Kennisha’s adoption. Should these proceedings in any way modify the court’s existing order denying the adoption, we recommend you seek further guidance from OGC unless the Family Court reinstates the Marilyn’s adoption of Kennisha.  

Donna L. Calvert

Regional Chief Counsel, Region V

By: _______________

Eric Schepard

Assistant Regional Counsel

The laws of all six states that comprise Region V state that after an insured individual’s parental rights have been terminated with respect to his adopted child, the child is no longer a legally adopted child of the insured. Accordingly, the child would not be eligible for child’s benefits on the insured’s account. 

You asked us to research the laws of the states in Region V to determine the right of children to inherit from their adoptive parents after the termination of parental rights, for purposes of a child’s potential entitlement to Social Security benefits. As discussed more fully below, we believe the proper analytical framework in such instance is to determine the effect of termination of parental rights of adoptive parents on the children’s status as the legally adopted children of the adoptive parents under state law. Our review of such laws indicates that, in all Region V states, termination of parental rights completely and permanently severs the legal parent-child relationship such that the child is no longer a legally adopted child of the adoptive parent. 

DISCUSSION

Section 202(d) of the Social Security Act (the Act) provides for the payment of child’s insurance benefits to a child (as defined in section 216(e) of the Act) of an insured individual.  The applicant must show, among other things, that he is the insured’s child based on a recognized relationship. See Section 202(d)(1) of the Act; 20 C.F.R. § 404.350(a)(1). Under the Act and regulations, the term “child” means a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. See Section 216(e) of the Act; 20 C.F.R. § 404.354.  To determine whether an applicant is the insured’s legally adopted child, SSA considers whether the applicant was legally adopted by the insured under the adoption laws of the state or country where the adoption took place. See 20 C.F.R. § 404.356; see also POMS GN 00306.135.  

You requested an opinion on the effect of termination of parental rights of an adoptive parent on the inheritance rights of an adopted child. Your request appears to be based on the fact that a natural child may be eligible for child’s benefits if he could inherit from his natural parent under state inheritance laws. See Section 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(a)(1). However, the Act and regulations apply different tests for a natural child and for an adopted child.  Section 216(h)(2)(A) states, in relevant part:

In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death. . . .Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

Our research reveals that the test set forth in section 216(h)(2)(A) applies only to a natural “child,” not to a “legally adopted child,” which is a different term of art under the statute. See Section 216(e) of the Act (“The term ‘child’ means (1) the child or legally adopted child of an individual. . .”). Rather, an applicant’s status as a legally adopted child is determined solely by looking to state adoption laws. See 20 C.F.R. § 404.356.

This is evident from the language of 20 C.F.R. §§ 404.355 and 404.356, the regulations which pertain to the eligibility requirements for a natural child and a legally adopted child, respectively. See Section 205(a) of the Act (granting Commissioner general rulemaking authority to “adopt reasonable and proper rules and regulations” in order to establish right to benefits under the Act); Heckler v. Campbell, 461 U.S. 458, 466 (1983) (Congress has “conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Social Security] Act”) (internal quotation and citations omitted). Section 404.356 states, in relevant part: “You may be eligible for benefits as the insured’s child if you were legally adopted by the insured. . . .We apply the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws described in § 404.355, to determine whether you are the insured’s legally adopted child.” In contrast, section 404.355 states that SSA applies state inheritance laws to determine an applicant’s eligibility for benefits as an insured’s natural child.  

Moreover, in October 1998 SSA issued final rules amending its regulations to clarify how the agency determines an applicant’s status as a natural child or as a legally adopted child. See 63 Fed. Reg. 57590 (Oct. 28, 1998).  In these rules, SSA made it very clear that “[o]ur policy for determining whether an applicant qualifies as the ‘child’ of an insured individual has always been that we apply State law on inheritance rights to determine the status under the Act of a natural child, i.e., biological child, and State law on adoption to determine the status of a child legally adopted by the insured.” 63 Fed. Reg. at 57592. These rules further explain: 

[S]ection 216(h)(2)(A) provides that the status of an applicant for benefits as a child (as opposed to a legally adopted child, a stepchild, or other type of individual who can qualify under section 216(e) of the Act as a “child” for purposes of section 202(d) of the Act) is determined by applying the law on devolution of intestate personal property that would be applied by the courts in the State of the insured individual’s domicile. This is a test for the status of a natural child.

The legislative history of sections 216(e) and 216(h)(2)(A) shows that Congress intended us to use section 216(h)(2)(A) to determine the status of natural children. [Discussion of legislative history omitted.] Thus, since the first provision for paying benefits to children of an insured worker, there has been a clearly defined distinction between natural children and adopted children and clearly defined conditions for determining the status of an adopted child, which conditions are not affected by section 216(h)(2)(A).

Along with the structure of the Act and the legislative history of provisions defining “child,” we have consistently interpreted the State intestacy law provisions of section 216(h)(2)(A) as not applying to children legally adopted by the insured individual….In the present §404.354, we state that a child may be related to the insured as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. In §404.355, we explain the conditions for eligibility as a natural child, which include applying State inheritance law, and in §404.356 we state the requirement for eligibility as a legally adopted child.

Id. (emphases added). By the very strong language of these final rules, SSA has stated unequivocally its longstanding policy that, for purposes of determining “child” status, it applies the state inheritance laws described in section 216(h)(2)(A) of the Act to natural children, and state adoption laws to legally adopted children. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845 (1984) (agency’s interpretation of an ambiguous statute which it administers may be entitled to substantial deference). The agency has incorporated this policy in its regulations at 20 C.F.R. §§ 404.355 and 404.356, respectively. We were unable to find a provision in the POMS that addresses this issue. We believe it may be helpful for the agency to implement a substantive POMS provision incorporating language similar to that in the regulations and the comments to the regulations to clarify this point.

There are numerous precedential opinions that determine an applicant’s status as a legally adopted child by applying state adoption laws. See, e.g., POMS PR 01310.016(B) (PR 05-129), PR 01310.016(C) (PR 04-232), PR 01310.016(D) (PR 04-046), PR 01310.017(A) (PR 08-094), PR 01310.017(B) (PR 05-071), PR 01310.025(A) (PR 02-030), PR 01310.039(A) (PR 04-130), PR 01310.055(A) (PR 02-118). 

Since an applicant’s relationship as a natural child of an insured individual is established by showing he could inherit the insured’s personal property as the insured’s child under state inheritance laws, it follows that when the parental rights of a natural parent are terminated, we consider how that affects the child’s inheritance rights. By the same reasoning, since an applicant’s relationship as a legally adopted child of an insured individual is established by showing he was legally adopted by the insured under state adoption laws, it follows that when the parental rights of an adoptive parent are terminated, we consider how that affects the child’s status as the legally adopted child of the adoptive parent.

Thus, when determining whether an adopted child is eligible for child’s benefits in a case where the adoptive parent’s parental rights have been terminated, the question is whether the child is still considered the legally adopted child of the adoptive parent under state law. Here, we are looking only at initial entitlement, i.e., whether termination of the parent-child relationship prior to an application for child’s benefits on the account of the adoptive parent would preclude an award of benefits. If, however, the child is already receiving benefits on the adoptive parent’s account, termination of the adoptive parent’s parental rights is not a terminating event that would end the child’s entitlement. See POMS RS 00203.035(B)(3) (entitlement ends only if adoption is annulled).   As outlined below, in all six states in Region V, an adopted child is conferred the same legal status as a natural child. Also, termination of parental rights completely and permanently severs the parent-child relationship.  Thus, we conclude that, under the laws of all Region V states, a court order terminating the parental rights of an adoptive parent effectively terminates the adoptive parent-child relationship such that the child is no longer the legally adopted child of the adoptive parent.

Illinois: Once adopted, a child attains the status of a natural child of the adoptive parents. See In re M.M., 619 N.E.2d 702, 708 (Ill. 1993).  Upon a court order terminating parental rights, parents are relieved of all parental responsibility for the child and are deprived of all legal rights as respects the child. See 705 Ill. Comp. Stat. 405/2-29(2) (Juvenile Court Act); 750 Ill. Comp. Stat. 50/17 (Adoption Act). From the child’s perspective, the parent whose parental rights have been terminated no longer exists, and the situation is as if parent has died. See In Interest of C.B., 583 N.E.2d 107, 108 (Ill. App. Ct. 1991).

Indiana: Upon adoption, an adoptive parent becomes “the actual parent of the child.” Lipginski v. Lipginski, 476 N.E.2d 924, 927 (Ind. Ct. App. 1985).  A court order terminating parental rights has the effect of permanently terminating “all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, parenting time, or support” pertaining to the parent-child relationship, and the parent’s consent to the child’s adoption is not required. See Ind. Code § 31-35-6-4(a).

Michigan: Adoptive parents are treated as though they are the birth parents of the adoptee under the law. Mich. Comp. Laws § 710.60(1). If a person’s parental rights are terminated by the court, the child is placed in the permanent custody of the court and is legally available for adoption. See Mich. Comp. Laws §§ 710.41, 712A.19b(1). The state foster care program places and supervises children who are permanent court wards. See Mich. Dep’t of Human Servs., Foster Care Program, http://www.michigan.gov/dhs/0,1607,7-124-5452_7117-14769--,00.html (last visited Jan. 10, 2011).  The former parent is not obligated to pay child support or to reimburse the state for foster care expenses. See Mich. Comp. Laws § 712A.18(2) (parent reimbursement provision does not apply when child is in permanent custody of court). 

Minnesota:  Adoption creates a legal parent-child relationship with all the rights and duties of birth parents and legitimate child. Minn. Stat. § 259.59 (subd. 1). “Upon the termination of parental rights all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent shall be severed and terminated and the parent shall have no standing to appear at any further legal proceedings concerning the child.” Minn. State. §260C.317, subd. 1.

Ohio:  An adopted child is legally considered as if he were a legitimate blood descendant of the adoptive parents. Ohio Rev. Code § 3107.15(A)(2). Once a person’s parental rights are terminated, permanent custody of the child vests in the public children services agency (PCSA) or private child placing agency (PCPA). See Ohio Rev. Code §§ 2151.353, 2151.414, 2151.415; In re C.T., 895 N.E.2d 527, 530-31 (Ohio 2008). The PCSA/PCPA places children in substitute care (i.e., foster care) or adoptive placement. See Ohio Admin. Code §§ 5101:2-42-04, 5101:2-42-05, 5101:2-48-16(V); Ohio Dep’t of Jobs & Family Servs., Foster Care, http://jfs.ohio.gov/ families/foster_care/index.stm (last visited Jan. 12, 2010). The former parent is not obligated to pay for the cost of care incurred while the child is in the permanent custody of the PCSA/PCPA. See Ohio Admin. Code §§ 5101:2-42-09(J) (permanent custody by voluntarily surrender), 5101:2-47-21(C)(1)(e) (provision for reimbursement by federal government under Title IV-E of Social Security Act).

Wisconsin: Adoption creates the same legal parent-child relationship as a natural parent-child relationship.  Wis. Stat. § 48.92(1). “Termination of parental rights” is defined as “pursuant to a court order, all rights, powers, privileges, immunities, duties and obligations existing between parent and child are permanently severed.”  Wis. Stat. § 48.40(2). “An order terminating parental rights permanently severs all legal rights and duties between the parent whose parental rights are terminated and the child. . .” Wis. Stat. § 48.43(2).

CONCLUSION

For the reasons discussed above, we conclude that, under the laws of all six states that comprise Region V, after an insured individual’s parental rights have been terminated with respect to his adopted child, the child is no longer a legally adopted child of the insured. Accordingly, the child would not be eligible for child’s benefits on the insured’s account.

Donna L. Calvert

Regional Chief Counsel, Region V

By: _______________

Cristine Bautista

Assistant Regional Counsel