We are responding to the Office of Disability and International Operations" request
for our opinion as to the effect of a Relinquishment of Parental Rights and Consent
to Adoption executed under New Mexico law on a claimant's entitlement to child"s insurance
benefits. Specifically, the child, Jack M. P. D~ was adopted by the wage earner, Jack
M. D~ on November 20, 1989. The Social Security Administration (SSA) paid child's
insurance benefits on behalf of Patrick during the time he lived with the wage earner.
On February 22, 1991, a New Mexico district judge approved a Relinquishment of Parental
Rights and Consent to Adoption executed by the wage earner and his wife. You have
requested our opinion as to whether the Relinquishment of Parental Rights and Consent
to Adoption constitutes an "annulment" of adoption under Program Operations Manual
System (POMS) RS 00203.035B.3 requiring the termination of benefits to an adopted child. For the reasons set forth
below, we believe that the Relinquishment of Parental Rights and Consent to Adoption
did not nullify the adoption of Patrick by the wage earner as if it never existed.
The file you have provided indicates that the wage earner, Jack M. D~, became entitled
to disability insurance benefits beginning in May 1984, with a disability onset date
of May 15, 1983. On November 20, 1989, a New Mexico district court approved the adoption
of Jack M. P. D~ (Patrick) by the wage earner and his spouse, Stephanie L. D~. Patrick
was born in New Mexico on August 8, 1980. A claim for child's insurance benefits filed
on November 28, 1989 on behalf of Patrick was denied because Patrick was not dependent
upon the wage earner at the time of his disability onset or entitlement date, and
is not biologically related to the wage earner or his wife. This claim was reopened
based on a change in the law which allows dependency to be deemed, and Patrick became
entitled to benefits effective January 1990.
On February 22, 1991, a New Mexico district judge approved a Relinquishment of Parental
Rights and Consent to Adoption executed by the wage earner and his wife. Through this
document, the wage earner and his wife gave up their parental rights to Patrick, but
the document states that Patrick retains inheritance rights from the wage earner and
his wife until he is adopted by someone else. The New Mexico Human Services Department
assumed custody of Patrick until a new adoptive family could be found. On August 2,
1993, Patrick was adopted by another couple.
A child is entitled to child's insurance benefits on the earnings record of a wage
earner if he is the wage earner"s child, he was dependent on the wage earner, he applies
for benefits, he is unmarried, and he is under age 18. 20 C.F.R. §404.350. The child
will be considered the wage earner's legally adopted child if he was legally adopted
by him. 20 C.F.R. §404.356. Entitlement to child's benefits based on legal adoption
will terminate if the adoption is annulled. POMS RS 00203.035B.3.
The relationship between Patrick and Jack M. D~ is determined by the law of the State
of New Mexico, as this is where Jack M. D~ had his permanent home at the time he applied
for benefits on behalf of Patrick. 20 C.F.R. §404.354("0). Under New Mexico law, a
decree of adoption may not be attacked after one year from the date of entry of the
adoption decree, unless the Indian Child Welfare Act of 1978 applies. N.M. $TAT. ANN.
§32A-5- 36(K) (Michie 1993). This time limitation on the right to attack an adoption
decree shows legislative intent to ensure that adopted children are given status equal
to that of children begotten by marriage. Matter
of Adoption Petition of Webber, 116 N.M. 47, 859 P.2d 1074, 1077 (N.M. App. 1993).
Thus, we believe that under New Mexico law, a legal adoption cannot be nullified after
one year from the date the adoption decree was entered if, as here, there is no indication
that the Indian Child Welfare Act applies. The decree allowing the adoption of Patrick
by Jack M. and Stephanie L. D~ was entered on November 20, 1989. Therefore, the legal
adoption could be annulled only on or prior to November 20, 1990. The Relinquishment
of Parental Rights and Consent to Adoption was not executed by Jack M. and Stephanie
L. D~ or approved by a New Mexico court until February 22, 1991, more than one year
after the date of entry of the adoption decree. Thus, this document cannot operate
to annul the adoption.
The provision of the Relinquishment of Parental Rights and Consent to Adoption that
Patrick retains inheritance rights from Jack M. D~ until such time as he is adopted
follows New Mexico law providing that termination of parental rights shall not affect
the child"s right of inheritance through the former parent. N.M. STAT. ANN. §32A-5-16(J)
(Michie 1993). Moreover, New Mexico law provides that where relinquishment of parental
rights is not in contemplation of adoption, the parent relinquishing his rights shall
remain financially responsible for the child. N.M. STAT. ANN. §32A-5-24(c) (Michie
1993). Jack M. D~'s relinquishment of parental rights to Patrick was not made in contemplation
of adoption. The New Mexico Human Services Department assumed custody of Patrick,
and Patrick was not adopted until August 2, 1993, more than two years after the wage
earner relinquished his parental rights. Patrick"s continued entitlement to child's
insurance benefits on the wage earner's account is consistent with the wage earner's
statutory retention of financial responsibility for Patrick, and Patrick's retention
of inheritance rights prior to his subsequent adoption.
In addition, it may be unconstitutional under New Mexico law to nullify the vested
rights and privileges that Patrick acquired as a result of his legal adoption by the
wage earner. See N.M. Const. art. II, §18. (For discussion of a similar relinquishment
of parental rights under Texas law, see HHS GC Opinion--Effect of Order Vacating Texas
Adoption, October 13, 1993). For these reasons, we believe that the court-approved
Relinquishment of Parental Rights and Consent to Adoption ended the legal relationship
between Patrick and Jack M. D~, but did not nullify the adoption of Patrick as if
the adoption never existed. Thus, Patrick remains entitled to children's insurance
benefits on the wage earner"s account.