QUESTION PRESENTED
The Program Operations Manual System (POMS) at RM 00202.005(D)(5) requires a court custody document to establish a state agency, or a state-licensed
agency as a proper applicant for a SSN on behalf of a child. You requested our opinion
as to whether an entrustment agreement signed by the birth mother giving legal and
physical custody of the child, LaShawn D~, to Bethany Christian Services (BCS), a
Virginia adoption agency, would be sufficient to confer legal custody of the child
upon the adoption agency under Virginia law and would eliminate the need for a court
custody document to establish the agency as a proper applicant for a SSN on behalf
of the child as required by the POMS.
SUMMARY
We do not believe that the documentation you submitted to us would be adequate to
eliminate the need for a court custody document in this case. We have reviewed the
information that you provided and have researched the relevant provisions of Virginia
and federal law. Based upon this information and our research, we continue to hold
the opinion that a Virginia adoption agency, such as BCS, need not present a court
custody document to qualify as a proper applicant who may file an application for
a SSN on behalf of another individual so long as the agency has established that it
is a state agency, or a state-licensed agency, and has obtained an entrustment agreement
executed in accordance with Virginia law. (See Memorandum of July 9, 2007, which we have attached with our response to your request
for a legal opinion). In this case, however, there is an issue with respect to whether
the identity of the birth father is reasonably ascertainable and, if so, whether he
has been given notice of the entrustment agreement.
BACKGROUND
You have asked that we review a notarized agreement entitled "Entrustment Agreement
for Permanent Surrender of Child in the Commonwealth of Virginia," signed by Tina
M. D~, the mother of LaShawn D~, on October 15, 2008.
The entrustment agreement contains several clauses that are relevant to whether it
has been properly executed in accordance with Virginia law. Specifically, the agreement
includes clauses:
stating that the birth mother has surrendered legal and physical custody of the child
to BCS;
indicating that the birth mother has been provided with counseling;
providing for revocation by either the birth parent or BCS at any time prior to the
child's placement into the physical custody of the adoptive parents;
indicating the birth mother's understanding and acknowledgment that the agreement
will constitute her permanent separation from and termination of all legal rights
and obligations with respect to the child from the effective date of the agreement,
in this case, October 24, 2008;
stating that the birth mother grants to BCS legal and physical custody of the child
with all rights and responsibilities to plan for her future care, protection, and
maintenance, including the right to place the child for adoption in accordance with
Virginia law;
providing that BCS accepts full custody and assumes full responsibility, including
financial responsibility for the child;
providing for the birth mother's consent to and approval of all medical and surgical
treatment necessary to the welfare of her child while under the care of BCS.
You also provided us with an SS-5 application for LaShawn D~ signed by Jadiece K.
B~, who described her relationship to the child as "Legal Guardian". The SS-5 application
states that Tina M. D~ is the mother of LaShawn D~. The name of the child's father
is reported as "unknown" on the SS-5 application.
You have not provided us with a copy of a license issued by the Commonwealth of Virginia,
which shows that BCS is a licensed Child Placing Agency in Virginia. We note, however,
that you previously provided us, in connection with another request for a legal opinion
concerning BCS, with a copy of a license issued by the Commonwealth of Virginia, Department
of Social Services, which shows that BCS is a licensed Child Placing Agency in Virginia,
and that its license is effective from December 18, 2008 through December 17, 2011,
unless revoked for violations of the provisions of law, or for the failure to comply
with the limitations set forth on the license. We assume for the purposes herein that
you will associate the copy of the license, which you previously obtained, with the
documentation attached to this request for advice, or that you will obtain another
copy of the license from BCS.
You also provided us with a copy of a Certificate of Live Birth, which states that
LaShawn D~ was born on October 14, 2008, and that the name of her mother is Tina M.
D~. This document was filed on October 24, 2008, and issued on December 11, 2008.
The name of the child's father is not shown on the copy of the Certificate of Live
Birth.
DISCUSSION
1. The Applicable Regulations and POMS Provisions
Please see the POMS provisions cited in the July 9, 2007, Memorandum, which we have attached
with our response to your request for a legal opinion.
2. Virginia Law
Pursuant to Va. Code Ann. § 63.2-1817, a licensed child-placing agency shall have
the right to accept, for any purpose not contrary to the limitations contained in
its license, such children as may be entrusted or committed to it by the parents,
guardians, relatives or other persons having legal custody thereof, or committed by
a court of competent jurisdiction. The agency shall, within the terms of its license
and the agreement or order by which such child is entrusted or committed to its care,
have custody and control of every child so committed and accepted, until he or she
is lawfully discharged, has been adopted, or has attained his or her majority. Va.
Code Ann. § 63.2-1817.
An entrustment agreement for the termination of parental rights and responsibilities
shall be executed in writing and notarized, should divest the birth parent(s) of all
legal rights and obligations with respect to the child, and shall be revocable prior
to entry of an order finalizing the agreement upon proof of fraud or duress, or after
the placement of the child in an adoptive home upon written mutual consent of the
birth parents and prospective adoptive parents.
Va. Code Ann. §§ 63.2-903, 63.2-1221, 63.2-1817. For the purposes of Va. Code Ann.
§§ 63.2-903, 63.2-1817, a parent who is less than 18 years of age shall be deemed
fully competent and shall have legal capacity to execute a valid entrustment agreement,
including an agreement that provides for the termination of all parental rights and
responsibilities, and shall be as fully bound thereby as though such parent had attained
the age of 18 years. Va. Code Ann. § 63.2-903. An entrustment agreement for the termination
of all parental rights and responsibilities shall be valid notwithstanding the fact
that it is not signed by the father of a child born out of wedlock if the identity
of the father is not reasonably ascertainable, or if such father is given notice of
the entrustment by registered or certified mail to his last known address and fails
to object to the entrustment agreement within 15 days of mailing of such notice. Va.
Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of the
father is not reasonably ascertainable shall be sufficient, provided there is no other
evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However, the absence
of such an affidavit shall not be deemed evidence that the identity of the father
is reasonably ascertainable. Va. Code Ann. § 63.2-903. Prior to the placement of a
child for adoption, the licensed child-placing agency shall counsel the birth mother
or, if reasonably available, both birth parents, concerning the disposition of their
child. Va. Code Ann. § 63.2-1224.
A valid entrustment agreement terminating all parental rights and responsibilities
to the child shall be revocable by either of the birth parents until (i) the child
has reached the age of 10 days and (ii) seven days have elapsed from the date of execution
of the agreement; and shall also be revocable by either of the birth parents if the
child has not been placed in the physical custody of the prospective adoptive parents
at the time of such revocation. 23 Va. Code Ann. § 63.2-1223.
The provisions of the Virginia Administrative Code, which address the minimum standards
for licensed child caring institutions, are instructive insofar as they address the
documentation that must be made part of the case record, including a copy of a court
commitment and/or entrustment agreement, which shall include information concerning
financial responsibility, and consent for necessary medical and surgical treatment
and hospitalization. 22 Va. ADC 40-100-350. In addition, the entrustment shall only
be entered into once it has been determined that the placing person has legal authority
to do so. 22 Va. ADC 40-100-350.
3. The Entrustment Agreement Does Not Appear to Satisfy All Requirements of Virginia
Law.
We note that there may be an issue with respect to whether the identity of the birth
father is reasonably ascertainable. The name of the child's father is not shown on
the SS-5 application or on the Certificate of Live Birth. Virginia law states that
an entrustment agreement for the termination of all parental rights and responsibilities
shall be valid notwithstanding the fact that it is not signed by the father of a child
born out of wedlock if the identity of the father is not reasonably ascertainable.
Va. Code Ann. § 63.2-903. An affidavit provided by the mother that the identity of
the father is not reasonably ascertainable shall be sufficient, provided there is
no other evidence that would refute the affidavit. Va. Code Ann. § 63.2-903. However,
the absence of such an affidavit shall not be deemed evidence that the identity of
the father is reasonably ascertainable. Va. Code Ann. § 63.2-903. Therefore, if the
identity of the birth father is not reasonably ascertainable, we recommend that the
birth mother provide an affidavit stating that the identity of the birth father is
not reasonably ascertainable. If you should obtain any documentation indicating that
the identity of the birth father is ascertainable, we recommend that the birth father
be given notice of the entrustment agreement by registered or certified mail to his
last known address. Va. Code Ann. § 63.2-903. If the birth father is given notice
of the entrustment agreement and fails to object within 15 days of mailing such notice,
this requirement would be met. Va. Code Ann. § 63.2-903.
We also note that Virginia law allows revocation of an entrustment agreement. Pursuant
to 23 Va. Code Ann. § 63.2-1223, a valid entrustment agreement terminating all parental
rights and responsibilities to the child shall be revocable by either of the birth
parents until (i) the child has reached the age of 10 days and (ii) seven days have
elapsed from the date of execution of the agreement; and shall also be revocable by
either of the birth parents if the child has not been placed in the physical custody
of the prospective adoptive parents at the time of such revocation. We of course have
no information that the birth mother revoked her consent to the entrustment agreement
as allowed pursuant to 23 Va. Code Ann § 63.2-1223 and assume for purposes hereof
that there was no such revocation.
Pursuant to 23 Va. Code Ann. § 63.2-1221, an entrustment agreement shall be revocable
prior to entry of an order finalizing the agreement (i) upon proof of fraud or duress,
or (ii) after the placement of the child in an adoptive home upon written mutual consent
of the birth parents and prospective adoptive parents. Section 63.2.-1221 of the Virginia
statutes was amended on April 8, 2009, to include the foregoing language regarding
revocation. Therefore, we believe that any entrustment agreement executed after April
8, 2009, should contain language that addresses the additional conditions for revocation
as set forth in the amended statute. In this case, this is not an issue because the
entrustment agreement that you have submitted to us for review was executed in October
2008.
For the foregoing reasons, we believe that further development is required in this
case.
CONCLUSION
We do not believe that the documentation you submitted to us would be adequate to
eliminate the need for a court custody document in this case. The entrustment agreement
that you have submitted to us does not appear to satisfy all requirements under Virginia
law. There is no evidence of an affidavit from the birth mother indicating that the
identity of the birth father is not reasonably ascertainable; or, if the identity
of the birth father is reasonably ascertainable, that he has been given notice of
the entrustment agreement. Therefore, we believe that further development is required
in this case.
Eric K~
Acting Regional Chief Counsel
By:_____________________
Beverly H. Z~
Assistant Regional Counsel