QUESTION
You have asked whether Adena Renee S~ was the legally the adopted child of Jerry and
Renee S~ as of December 2004 and whether a completed "Relinquishment of Minor for
Adoption by Parent or Guardian" serves as an annulment of a previous adoption under
North Carolina Law.
ANSWER
According to the information you provided, Jerry and Renee S~ adopted Adena Renee
S~ on May 2, 2003. This adoption is still valid until some type of legally terminating
event. Pursuant to North Carolina law, the "Relinquishment of Minor for Adoption by
Parent or Guardian" form completed by the adoptive parents does not serve as a legal
termination of the adoption. Furthermore, there does not appear to be evidence of
another event legally terminating the adoption. So, the child remains the adopted
child of adoptive parents, notwithstanding their execution of such a document.
BACKGROUND
According to your inquiry, Jerry S~, and his wife, Robin S~, adopted Renee S~ (Claimant),
on May 2, 2003. On July 27, 2005, NH and his wife executed a "Relinquishment of Minor
for Adoption by Parent or Guardian" form and transferred legal and physical custody
of Claimant to the Currituck County Department of Social Services. NH and his wife
claim the form "revokes" the previous adoption of Claimant. On December 6, 2005, the
Currituck County Department of Social Services filed a claim on behalf of Claimant
for child's benefits on NH's record.
DISCUSSION
In North Carolina, the "Relinquishment of Minor for Adoption by Parent or Guardian"
(Relinquishment) form executed by NH and his wife is a form a parent completes when
he or she wants to place a child up for adoption. See N.C. GEN. STAT. ANN. § 48-100-3 (2006). In this case, the adopted parents have executed
the Relinquishment form and placed their previously adopted daughter again with the
state for adoption. In executing the Relinquishment, NH and wife have vested "legal
and physical custody of the minor in the agency" and "empower[ed] the agency to place
the minor for adoption . . . ." N.C. GEN. STAT. ANN. § 48 3 705(b), (c) (2006). This
section means that NH and wife have transferred "legal and physical custody" to the
agency for the purposes of adoption. However, while the Relinquishment transfers custody
to the adoption agency, it does not transfer or terminate all parental rights and
responsibilities. Section 48 3 705(d) states that:
Except as provided in subsection (c) of this section, parental rights and duties of
a parent who executed a relinquishment are not terminated until the decree of adoption
becomes final or the parental relationship is otherwise legally terminated, whichever
occurs first. Until termination the minor remains the child of a parent who executed
a relinquishment for purposes of any inheritance, succession, insurance, arrears of
child support, and other benefit or claim that the minor may have from, through, or
against the parent.
N.C. GEN. STAT. ANN. § 48 3 705(d) (2006). Consequently, absent a legal termination
of parental rights or subsequent adoption, "the minor remains the child of a parent
who executed a relinquishment for purposes of any inheritance, succession, insurance,
arrears of child support, and other benefit or claim that the minor
may have from, through, or against the parent." Id. (emphasis added). We did not find any case law interpreting section 48 3 705
(d). However, North Carolina requires a legal "termination of parental rights" proceeding
and order from a court of competent jurisdiction to fully terminate parental legal
responsibility. See N.C. GEN. STAT. ANN. § 7B-1100 (Termination of Parental Rights); see
also Matter of Montgomery, 316 S.E.2d 346 (N.C. 1984). Based on the information presented, it does not appear
that a legal termination of rights has occurred in this case. Thus, the completion
of the Relinquishment form by NH and his wife did not render the adoption of Claimant
by NH and his wife null and void. Claimant remains the legally adopted child of NH
and his wife until a future adoption of Claimant or until a legal termination of the
parental rights of NH and his wife.
Furthermore, North Carolina statute section 48 3 703 (a)(8) states:
That the individual executing the relinquishment understands that when the adoption
is final, all rights and duties of the individual executing the relinquishment with
respect to the minor will be extinguished and all other aspects of the legal relationship
between the minor child and the parent will be terminated.
N.C. GEN. STAT. ANN. § 48 3 703(a)(8) (2006). Consistent with the statute, bullet
number seven of the Relinquishment form signed by NH and his wife states that "I understand
that when the adoption is final, all of my rights and duties with respect to the minor
will be extinguished and all other aspects of my legal relationship with the minor
child will be terminated." (Emphasis added).
You also asked whether the Relinquishment would annul NH's adoption of Claimant. SSA
policy indicates that "[e]ntitlement to a child's benefit based on a legal adoption
will terminate if the adoption is annulled. The effective date of the termination
to benefits is the month in which the annulment becomes effective." POMS RS 00203.035(B)(3). At this point, it does not appear that we have any evidence of an annulment
of the previous adoption, a court order terminating the parental rights of NH, or
that Claimant has been adopted by another party. As noted above, the Relinquishment
merely served to surrender Claimant to the State to pursue adoption. Nothing in the
materials you sent us indicates any action to legally terminate or annul the existing
adoption. Thus, Claimant remains NH's the adopted child.
CONCLUSION
Pursuant to North Carolina law, the "Relinquishment of Minor for Adoption by Parent
or Guardian" form completed by NH and wife does not serve as a legal termination of
Claimant's adoption. Claimant is still the child of NH for the purposes of determining
eligibility for benefits on NH's record.
Very truly yours,
Mary Ann S~
Regional Chief Counsel
_______________
J. Samuel C~
Assistant Regional Counsel