PR 01310.021: Louisiana

changes
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~~Effective Dates: 09/13/2017 - Present~~
Effective Dates: 05/31/2018 - Present
~~TN 45 (09-17)~~
TN 47 (05-18)
PR 01310.021 Louisiana
~~A. PR 17-142 Validity of Intrafamily Adoption on Child's Benefits - Louisiana Law~~
A. PR 18-058 Validity of Adult Notarial Adoption for Childhood Insurance Benefits in Louisiana
Date: February 28, 2018
1. Syllabus
Louisiana recognizes the validity of an adult adoption for a person who has attained the age of majority, which is 18 years of age or older. The legal requirements for a valid adult adoption under Louisiana law are:
* court authorization, unless the adoptive parent is the spouse or surviving spouse of a parent of the person to be adopted;
* consent of the adoptive parent and person to be adopted in an authentic act of adoption and concurrence of any spouse; and
* the adult adoption must be filed for registry with the clerk of court of any parish. The adoption is effective when filed for registry.
In this case, the agency may reasonably conclude that the adult adoption complied with Louisiana law. The agency should further develop the record on the issue of whether the claimant lived with or received at least one-half support from the number holder for the year immediately preceding his adoption.
2. Opinion
QUESTION PRESENTED
For purposes of P~’s (Claimant’s) application for student benefits (child’s insurance benefits) under Title II of the Social Security Act (Act) on the record of the number holder C~ (NH), you asked whether the Claimant is the NH’s legally adopted child based on a Louisiana adult adoption. If so, you also asked for the effective date of the adoption.
ANSWER
We believe that there is legal support for the Social Security Administration (SSA or agency) to find that the Claimant is the NH’s legally adopted child under the Act based on the November XX, 2017 Louisiana Judgment Approving Act of Adoption and the underlying documents of a Joint Petition for Adoption of an Adult and Notarial Act of Adoption. The adoption was effective on November XX, 2017.
Although you asked only whether the adoption was valid, based on the present record and specific circumstances of this case indicating that the Claimant did not live with the NH until the month prior to the adoption, we defer to the agency to determine and, as necessary, further develop the record on the issue of whether the Claimant lived with or received at least one-half of his support from the NH, during the year immediately preceding his adoption in accordance with 20 C.F.R. § 404.350(a)(2) and 20 C.F.R. § 404.362(b)(1)(ii). See also Program Operations Manual System (POMS) GN 00306.009 (noting that “Dependency must be established for the year immediately before the month in which the event occurred.”), GN 00306.137C (for a child age 18 or over when the adoption proceedings were commenced, the child is deemed dependent on the NH if the adoption was decreed by a court of competent jurisdiction in the U.S. and the child “was living with or receiving at least one-half support from the NH for the year immediately preceding the month in which the adoption is decreed.”).
BACKGROUND
The NH became entitled to retirement benefits effective November 2015. On November XX, 2017, the Claimant (the NH’s biological grandson) filed an application for student benefits on the NH’s record as the NH’s adopted child.1 The Claimant was born on October XX, 1999, and was 18 years old at the time of his application and at the time of the adoption, both of which occurred in November 2017. The Claimant’s biological mother is Y~ and his biological father is D~. The NH, the NH’s spouse (J~), and the Claimant were domiciled in Louisiana at the time of the Claimant’s adoption and application for benefits. The NH and the Claimant advised the agency that the Claimant lived with his mother, Y~, until October 2017 when he began living with the NH and the NH’s wife.
On November XX, 2017, the Claimant, the NH, and the NH’s spouse signed an Act of Adoption before a notary public (Notarial Act of Adoption) stating that they were all domiciled in St. John the Baptist Parish, Louisiana and that the Claimant, the NH, and the NH’s spouse all concurred and consented to the adoption of the Claimant by the NH and the NH’s spouse. On November XX, 2017, the Claimant, the NH, and the NH’s spouse filed a Joint Petition for Adoption of Adult (Joint Adoption Petition) in the 40th Judicial District Court of St. John the Baptist Parish, Louisiana seeking a court judgment approving of the Notarial Act of Adoption.2 They attached the Notarial Act of Adoption as Exhibit A to the Joint Adoption Petition. On this same date, the District Court issued a Judgment Approving the Act of Adoption.
On December XX, 2017, the NH completed the Form SSA-795 Statement of Claimant or Other Person stating he and his wife began the adoption process in July 2017 when the Claimant was still a minor (age 17), but they had to adopt the Claimant as an adult because it took time getting the Claimant’s father’s signature (his father is incarcerated). However, the NH did not provide any evidence showing that any adoption proceedings began when the Claimant was a minor. Instead, the documents described above show that the adult adoption proceedings were initiated in November 2017 after the Claimant had already attained age 18.
ANALYSIS
A. Federal Law: Entitlement to Child’s Insurance Benefits (Student Benefit) under the Act as the NH’s Legally Adopted Child3
The Claimant has filed for student benefits on the NH’s record as the NH’s legally adopted child. Under Section 202(d)(1)(B) of the Act, a child of an individual entitled to old-age or disability insurance benefits may be eligible for child’s insurance benefits if, among other things, he is the individual’s child as defined in section 216(e) of the Act and he is under age 18 or he is age 18 and a full-time elementary or secondary school student. See 42 U.S.C. § 402(d)(1)(B), (6)(A)(i), (7); 20 C.F.R. §§ 404.350(a)(1), (5), 404.367. The SSA’s POMS refers to these child insurance benefits as student benefits when the claimant is 18 and a full-time student. See POMS RS 00205.001.
The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, and equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Consistent with the scope of your legal opinion request, we consider whether the Claimant is the NH’s legally adopted child. In determining whether a child is an individual’s legally adopted child, the agency applies the laws of the state where the adoption took place. 20 C.F.R. § 404.356. The NH adopted the Claimant in Louisiana; therefore, Louisiana law is controlling.
B. State Law: Whether the Claimant is the NH’s Legally Adopted Child under Louisiana Law
1. Validity of Adult Notarial Adoption under Louisiana Law
“Adoption is a creature of statute, and all the statutory requirements must be strictly carried out; otherwise the adoption is an absolute nullity.” In re Succession of Lain, 147 So.3d 1204, 1211 (La. Ct. App. 2014). Louisiana recognizes the validity of an adult adoption for a person who has attained the age of majority, which is 18 years of age or older. See La. Civ. Code Ann. art. 29, 212, 213, 214; La. Rev. Stat. Ann. §§ 9:461-9:465. We next consider the statutory requirements for a valid adult adoption under Louisiana law.
a. Legal Requirements for a Valid Adult Adoption
i. Court Authorization is Required for an Adult Adoption (Unless the Adoptive Parent is the Spouse or Surviving Spouse of a Parent of the Person to be Adopted)
A person who has attained the age of majority (18 years) may be adopted without judicial authorization only when the adoptive parent is the spouse or surviving spouse of a parent of the person to be adopted. La. Civ. Code Ann. art. 212. In all other adult adoptions, such as the present mater, a court must authorize the adult adoption. Id.4
Either party to the adoption may bring a court action to authorize an adult adoption in either party’s parish or domicile. La. Code Civ. Proc. Ann. art. 74.5; see also La. Code Civ. Proc. Ann. art. 10(A)(1) (a court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings under the following conditions, including an adoption proceeding in accordance with Civil Code Article 212, if either party to the adoption of an adult is domiciled in this state). A Louisiana court, upon the joint petition of the adoptive parent and the person to be adopted, may authorize the adoption if the court finds after a hearing that the adoption is in the parties’ best interest. La. Civ. Code Ann. art. 212.
ii. Consent is Required of the Adoptive Parent and Person to be Adopted in an Authentic Act of Adoption and Concurrence is Required of any Spouse
The adult adoption requires consent of both the adoptive parent and the person to be adopted in an authentic act of adoption. La. Civ. Code Ann. art. 213. The adult adoption statutes do not define “an authentic act of adoption,” but an “authentic act” is defined elsewhere as “a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed.” La. Civ. Code Ann. art. 1833; see also La. Civ. Code Ann. art. 1835 (“An authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title.”).
In addition to the parties’ consent to the adoption, any spouse of the adoptive parent and spouse of the person to be adopted must sign the act of adoption for purpose of concurrence in the adoption only. La. Civ. Code Ann. art. 213. The act of adoption without this spousal concurrence is absolutely null, but the spousal concurrence does not establish the legal relationship of parent and child (as to that spouse). Id.
Finally, neither a party to an adult adoption nor a concurring spouse may consent by procuration or mandate. Id.; see also La. Civ. Code Ann. art. 2987 (defining procuration as a “unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations.”), art. 2989 (defining mandate as “a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.”).
iii. The Adult Adoption Must be Filed for Registry with the Clerk of Court of any Parish and the Adoption is Effective When Filed for Registry
If article 212 requires court authorization of the adult adoption, as in this case, the judgment with the act of adoption shall be filed for registry with the clerk of any parish. La. Rev. Stat. Ann. § 9:463. An adult adoption is effective when the act of adult adoption and any judgment required to authorize the adoption are filed for registry, except as otherwise provided by law. La. Civ. Code Ann. art. 214. If the act of an adult adoption is filed within five days, exclusive of legal holidays, after the date of the last signature required for validity of the act, the adoption shall be effective as of the date of the last signature. La. Rev. Stat. Ann. § 9:462.
b. Application of the Law to the NH’s Adult Adoption of the Claimant
In this case, we believe the agency may reasonably conclude that the adult adoption complied with Louisiana law. The Claimant, born October XX, 1999, was 18 years old and thus had attained the age of majority on October XX, 2017, prior to filing the Joint Adoption Petition on November XX, 2017. Thus, the adult adoption standards apply.
Because the NH and the NH’s wife were the Claimant’s grandparents, and not the spouse or surviving spouse of the Claimant’s parent, they needed court authorization to adopt the Claimant. See La. Civ. Code Ann. art. 212. In accordance with article 212, the Claimant, the NH, and the NH’s wife, residents of the St. John the Baptist Parish, Louisiana, filed the Joint Adoption Petition in the 40th Judicial District Court of the St. John the Baptist Parish, Louisiana seeking the court’s authorization of the NH and his wife’s adoption of the Claimant. See La. Code Civ. Proc. Ann. art. 10(A)(1), art. 74.5.
As noted, the adult adoption requires consent of both the adoptive parent and the person to be adopted in an authentic act of adoption as well as concurrence of any spouse of the adoptive parent or the person to be adopted. See La. Civ. Code Ann. art. 213. Here, the Notarial Act of Adoption shows that the Claimant, the NH, and the NH’s spouse all consented to the adoption. See Notarial Act of Adoption, attached as Exhibit A to the Joint Adoption Petition. The Claimant, the NH, the NH’s spouse, two witnesses, and the notary public signed the Notarial Act of Adoption in front of a notary public on November XX, 2017, as required for an authentic act. See La. Civ. Code Ann. art. 1833.
On November XX, 2017, the district court, “[c]onsidering the pleadings, the stipulations of the parties and counsel for the parties, the law, and the entire record of this proceeding,” issued a Judgment Approving Act of Adoption finding that it was in the best interests of the Claimant, the NH, and the NH’s spouse (the petitioners). See La. Civ. Code Ann. art. 212. Although the district court does not expressly state that a hearing was held, we assume the court held a hearing in accordance with the law and based on the language in the Judgment stating that the court considered “the entire record of this proceeding.” See id. The stamp from the St. John the Baptist Parish Clerk of Court shows that the Judgment Approving Act of Adoption was recorded on November XX, 2017. As such, the adoption was effective that same day. See La. Rev. Stat. Ann. § 9:463; La. Civ. Code Ann. art. 214.
In summary, we believe that the agency could reasonably find that the evidence, including the NH’s statement, the Adoption Petition, the Notarial Act of Adoption, and the Judgment Approving Act of Adoption supports a valid adult adoption in compliance with Louisiana law, as the Louisiana district court recognized in issuing the decree. Further, the adoption was effective November XX, 2017.
2. Social Security Ruling 83-37c Applies to Determine Whether the Court Judgment Approving Act of Adoption Binds the Agency
As this involves a state court judgment approving the act of adoption, we note that generally, a state court decision does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray v. Richardson). Pursuant to SSR 83-37c, state court determinations on domestic relations matters are entitled to deference and bind the agency only when certain specific factors are satisfied. The factors are: (1) when a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) when parties with opposing interests genuinely contested the issue before the state court; (3) when the issue falls within the general category of domestic relations law; and (4) when the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. The Fifth Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray criteria. See Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444 (5th Cir. 1989);5 Garcia v. Sullivan, 883 F.2d 18 (5th Cir. 1989).6 We apply these criteria to the Judgment Approving Act of Adoption.
a. State Court of Competent Jurisdiction Previously Determined an Issue in a Claim for Social Security Benefits
We believe that the Judgment Approving Act of Adoption meets the first Gray criteria as it declares the Claimant to be the NH’s adopted child, which is the determinative issue in the Claimant’s claim for student benefits. Further, the 40th Judicial District Court in the Parish of St. John the Baptist, Louisiana, where the NH and the Clamant are both domiciled, is a state court of competent jurisdiction. See La. Code Civ. Proc. Ann. art. 74.5; La. Code Civ. Proc. Ann. art. 10(A)(1). Thus, the Judgment Approving Act of Adoption satisfies the first Gray criteria.
b. Parties with Opposing Interest Genuinely Contested the Issue before the State Court
We believe that the Judgment Approving Act of Adoption does not meet the second Gray criteria. In this case, the Claimant, the NH, and the NH’s wife all consented to the adoption, in accordance with Louisiana law requiring such consent. We have no information as to the Claimant’s biological parents’ position on the adult adoption, but the law does not require that they consent to any adoption of their adult child. Thus, because all parties consented to the Judgment Approving Act of Adoption, it does not satisfy the second Gray criteria.
c. The Issue Falls Within the General Category of Domestic Relations Law
We believe that the Judgment Approving Act of Adoption meets the third Gray criteria as the issue of adult adoption falls within the general category of domestic relations law. Thus, Judgment Approving Act of Adoption satisfies the third Gray criteria.
d. The State Court Order is Consistent with the Law as Enunciated by the State’s Highest Court
Finally, as to the fourth Gray criteria, we believe the Judgment Approving Act of Adoption is consistent with the law as enunciated by the Louisiana Supreme Court. We look to Louisiana adoption law to determine whether the Judgment Approving Act of Adoption is consistent with Louisiana law. As addressed in the prior section, we believe there is legal support for the agency to find that the Judgment Approving Act of Adoption is valid and complies with Louisiana law. Accordingly, we believe that if the Louisiana Supreme Court were to address the validity of the Judgment Approving Act of Adoption, the Louisiana Supreme Court would find the order consistent with Louisiana law. Thus, the Judgment Approving Act of Adoption meets the fourth Gray criteria.
In summary, as explained above, the Judgment Approving Act of Adoption does not bind the agency because it does not meet the second criteria of Gray of being genuinely contested. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. The agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. See Garcia, 883 F.2d at 20. As discussed above, the Judgment Approving Act of Adoption appears to be valid under Louisiana State law. Thus, notwithstanding the fact that the Judgment Approving Act of Adoption does not meet the second Gray criteria and does not bind the agency, we believe the state court’s decree is entitled to deference. Based upon the evidence as a whole and a review of Louisiana adult adoption law, we believe that there is legal support for the agency to conclude that the Claimant is the NH’s legally adopted child.
CONCLUSION
We believe that there is legal support for the agency to find that the Claimant is the NH’s legally adopted child under the Act based on the Louisiana Judgment Approving Act of Adoption and the underlying documents of a Joint Petition for Adoption of an Adult and Notarial Act of Adoption. The adoption was effective November XX, 2017.
Although you asked only whether the adoption was valid, based on the present record and specific circumstances of this case indicating that the Claimant did not live with the NH until the month prior to the adoption, we defer to the agency to determine and, as necessary, further develop the record on the issue of whether the Claimant lived with or received at least one-half of his support from the NH, during the year immediately preceding his adoption in accordance with 20 C.F.R. § 404.350(a)(2) and 20 C.F.R. § 404.362(b)(1)(ii). See also POMS GN 00306.009 (noting that “Dependency must be established for the year immediately before the month in which the event occurred.”), GN 00306.137.C (for a child age 18 or over when the adoption proceedings were commenced, the child is deemed dependent on the NH if the adoption was decreed by a court of competent jurisdiction in the U.S. and the child “was living with or receiving at least one-half support from the NH for the year immediately preceding the month in which the adoption is decreed.”).
B. PR 17-142 Validity of Intrafamily Adoption on Child's Benefits - Louisiana Law
Date: August 11, 2017
1. Syllabus
Louisiana recognizes the validity of an intrafamily adoption that complies with state law requirements. Upon issuance of the final decree of adoption, the adopting parents are the adopted child’s legal parents, and the biological parents of the adopted child are “legal strangers” to the child.
In this case, the Intrafamily Adoption Decree does not bind the agency because it does not meet all of the criteria in Gray v. Richardson. However, because the Intrafamily Adoption Decree appears to be valid under Louisiana State law, we believe the State court’s decree is entitled to deference. Therefore, we believe there is legal support for the agency to conclude that the claimant is the number holder’s (NH) legally adopted child. The NH’s valid adoption of the claimant precludes finding the claimant to be the stepchild of the claimant’s biological mother’s current husband.
2. Opinion
QUESTION PRESENTED
For purposes of C~’s (Claimant’s) application for child’s insurance benefits under the Social Security Act (Act) on the record of the number holder L~ (NH), you asked whether the Claimant is the NH’s child based on a Louisiana state court’s intrafamily adoption decree. If the adoption is valid, you asked if such adoption prevents finding the Claimant to be the stepchild of L2~ (L2~), the Claimant’s biological mother’s current husband, under the Act.
ANSWER
We believe that there is legal support for the Social Security Administration (SSA or agency) to find that the Claimant is the NH’s legally adopted child under the Act based on the Louisiana state court’s intrafamily adoption decree. We further believe that the agency could reasonably conclude that the NH’s valid adoption of the Claimant precludes finding the Claimant to be L2~’s stepchild under the Act.
BACKGROUND
On June XX, 2013, the NH filed a Petition for Intrafamily Adoption (Adoption Petition) to adopt the Claimant, his step grandson, in the 40th Judicial District Court in the Parish of St. John the Baptist, Louisiana (District Court). The Claimant’s biological mother is the NH’s stepdaughter (the biological daughter of the NH’s deceased wife). At the time of filing the Adoption Petition, the NH was 58 years old and the Claimant, who was born in 2006, was XX years old. The Adoption Petition provided that the Claimant’s biological mother consented to the NH’s adoption of the Claimant and that consent from the unknown biological father was not necessary. On July XX, 2013, the District Court held a private hearing, and entered a Final Decree of Adoption (Intrafamily Adoption Decree) granting the Adoption Petition and declaring the Claimant to be the NH’s child “for all legal purposes” and “to the same extent as if the child had been born” to the NH.
On May XX, 2014, L2~ filed for disability benefits. L2~, who married the Claimant’s biological mother in 2010, did not list the Claimant as his child on his application. The agency awarded benefits effective May 2013.
On March XX, 2016, the NH filed an application for retirement benefits and an application for Title II disability benefits alleging a disability onset date of February XX, 2016. The agency awarded benefits effective August XX, 2016. On August XX, 2016, the NH filed an application for child’s insurance benefits on the Claimant’s behalf on the NH’s record as his adopted child. In support of this application, the NH provided the agency with copies of the Adoption Petition and Intrafamily Adoption Decree and other documents, such as the Claimant’s Louisiana birth certificate, as well as his own statements describing his relationship with the Claimant. The NH advised the agency that the Claimant has lived on the same property as the NH since he was born in February 2006 and stated that he has taken care of the Claimant his whole life. The NH advised the agency that he lives in the main home on the property and that the Claimant lives on the same property with the same address, but goes back and forth between the NH’s main home and a back home on the property where his biological mother lives (with L2~).
ANALYSIS
A. Federal Law: Entitlement to Child’s Insurance Benefits Under the Act as the NH’s Child
Under the Act, a child of an individual entitled to old-age or disability insurance benefits may be eligible for child’s insurance benefits if, among other things, he is the individual’s child as defined in section 216(e) of the Act.1 See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R. 404.350. The Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, and equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Consistent with the scope of your legal opinion request, we consider whether the Claimant is the NH’s legally adopted child. In determining whether a child is an individual’s legally adopted child, the agency applies the laws of the state where the adoption took place. 20 C.F.R. § 404.356. The NH adopted the Claimant in Louisiana; therefore, Louisiana law is controlling.
B. State Law: Whether the Claimant is the NH’s Adopted Child Under Louisiana Law
1. Validity of Intrafamily Adoption Under Louisiana Law
Adoption “is defined to be the establishment of the relationship of parent and child between persons not so related by nature and the act of adoption creates a status and not a contractual relation.” Succession of Gambino, 73 So.2d 800, 802 (La. 1954). Louisiana law allows three types of adoption of minor children: agency, private, and intrafamily adoption. See La. Child. Code Ann. art. 1170.
In this matter, the District Court granted the NH’s adoption of the Claimant as an intrafamily adoption. Louisiana recognizes the validity of an intrafamily adoption that complies with state law requirements. See La. Child. Code Ann. arts. 1170, 1243-1257 (Louisiana Children’s Code articles governing intrafamily adoption specifically). The Louisiana Supreme Court has held that “adoption statutes are to be strictly complied with and that laws providing for adoption must be given a strict construction as they are in derogation of the natural right of a parent to his child.” In re Ackenhausen, 154 So.2d 380, 383 (La. 1963) (citations omitted). Thus, a procedural flaw in the entire adoption process will result in the reversal of an adoption. See In re Landry, 702 So.2d 1092, 1096 (La. Ct. App. 1997) (setting aside a judgment of adoption due to a procedural flaw regarding the petitioner’s custody of child); see also Stewart v. Goeb, 432 So. 2d 246 (La. 1983) (permitting an action to annul an adoption decree where adopting parents failed to serve biological father with notice of the adoption proceedings). We consider the law and whether the NH’s intrafamily adoption of the Claimant complies with the law.
First, Louisiana adoption law requires consent. Unless parental rights have been terminated, Louisiana law requires consent to a child’s adoption from the child’s mother, the child’s father (in specific circumstances), and the custodial agency (if applicable). See La. Child. Code Ann. art. 1193; see also La. Child. Code Ann. art. 1245 (parental consent is not necessary in certain situations). Any parent may execute an authentic act consenting to the adoption of his/her child in an intrafamily adoption. La. Child. Code Ann. art. 1244. Here, the Adoption Petition, which includes an authentic act of consent, shows that the biological mother provided written consent to the NH’s adoption of the Claimant. See La. Child. Code Ann. arts. 1193(1), 1244. Further, the Adoption Petition states that the biological father is unknown; that the Claimant’s Certificate of Live Birth does not list a father; and that a search of the Putative Father Registry revealed that no person is listed or registered as the Claimant’s biological father. Therefore, consent by the unknown biological father was not required. See La. Child. Code Ann. art. 1193(2)-(4). Thus, the evidence indicates that the consent requirement is met.
Second, Louisiana law governing intrafamily adoption limits who can be a proper petitioner for such an adoption. A stepparent, step grandparent, great-grandparent, grandparent, or collateral within the twelfth degree may petition to adopt a related child if all of the following elements are met:
(1) The petitioner is related to the child by blood, adoption, or affinity through a parent recognized as having parental rights;
(2) The petitioner is a single person over the age of eighteen or a married person whose spouse is a joint petitioner;
(3) The petitioner has had legal or physical custody of the child for at least six months prior to filing the petition for adoption.
See La. Child. Code Ann. art. 1243(A).2
As to the requirement for “legal or physical custody of the child for at least six months prior to filing the petition for adoption,” an intrafamily adoption petition must include the date and circumstances under which the child entered the petitioner’s home because the petitioning relative must have undertaken responsibility for the child’s caretaking in his or her home for at least six months prior to filing for the adoption. See La. Child. Code Ann. art. 1246; La. Child. Code Ann. art. 1243(A), Comment--1999. The intrafamily adoption articles do not specifically define legal custody or physical custody. However, the Louisiana Children’s Code’s general definitions provision defines “legal custody” as the right to have physical custody of the child and to determine where and with whom the child shall reside; to exercise the rights and duty to protect, train, and discipline the child; the authority to consent to major medical, psychiatric, and surgical treatment; and to provide the child with food, shelter, education, and ordinary medical care, all subject to any residual rights possessed by the child’s parents. La. Child. Code Ann. art. 116(12). Although this general definitions provision does not also define “physical custody,” the Louisiana Children’s Code defines it elsewhere as “the duty and authority to provide care for a child in the home of the custodian.” La. Child. Code Ann. art. 1511(2) (definition found in the Chapter of the Louisiana Children’s Code regarding Voluntary Transfer of Custody). The Louisiana Supreme Court described physical custody as “actual” custody. Evans v. Lungrin, 708 So.2d 731, 737 (La. 1998) (noting that “[t]he term ‘custody’ is usually broken down into two components: physical or ‘actual’ custody and legal custody” and that the typical joint custody plan allocates time periods for physical custody between parents so as to promote a sharing of the care and custody of the child to ensure frequent and continuing contact with both parents). And, as noted, comments to article 1243 describe this custody requirement as a requirement that the petitioner must have “undertaken responsibility for the child’s caretaking in his or her home for at least six months prior to the filing for the adoption.” La. Child. Code Ann. art. 1243(A)(3), Comment—1999.
In this case, the NH, as a step grandparent (a widower, over the age 18) was a proper party to the Adoption Petition as the Louisiana Children’s Code requires. See La. Child. Code Ann. art. 1243(A). We believe that the evidence shows that the NH had physical custody of the Claimant for at least six months prior to filing for the adoption. Id. at 1243(A)(3). The Adoption Petition states that the Claimant had been living in the NH’s home since his birth. The record indicates that the Claimant and the Claimant’s biological mother have lived with the NH since the Claimant’s birth in 2006. The Claimant’s biological mother lives in a “back house” on the property with the same address as the NH. The NH stated that the Claimant goes back and forth from the main house where the NH lives and the back house where the biological mother lives. The NH stated that he “cannot say that there were any months that [Claimant] did not live with me.” The NH also stated to the agency that he has “taken care of [Claimant] his whole life.” Consistently, the Claimant’s biological mother stated that the NH had cared for the Claimant since birth. Based on this evidence, we believe that the agency could reasonably conclude that the NH had physical custody of the Claimant for six months prior to the adoption based on their living arrangement. Thus, we believe there is support for the agency to find that the NH was a proper petitioner for this intrafamily adoption of the Claimant.
Third, we consider the content requirements for an intrafamily adoption petition. The law provides that the intrafamily adoption petition must include specific information, including identifying information for the petitioners and the child, the name of every parent whose consent is required and proof of their consent, diligent efforts made to establish that the unknown alleged father’s rights should be terminated, the date and circumstances under which the child entered the petitioner’s home, and any relationship existing between the petitioner and the child. See La. Child. Code Ann. art. 1246. Notice of filing of the petition for intrafamily adoption is required on every parent whose consent to the adoption is required and whose parental rights have not been terminated. See La. Child. Code Ann. art. 1247. Here, the Adoption Petition complies with these content requirements.
Fourth, we consider the requirements for a hearing and final order. The court is to hold a hearing on the petition for intrafamily adoption. See La. Child. Code Ann. art. 1253. Following the hearing, based upon the child’s best interests, the court may enter a final decree of adoption or may deny the adoption. See La. Child. Code Ann. art. 1255. Upon the court’s issuance of the final decree of adoption, the child’s parents (whose rights were not previously terminated) and all other blood relatives of the adopted child “are relieved of all of their legal duties and divested of all their legal rights with regard to the adopted child.” See La. Child. Code Ann. art. 1256(A). The adopting parents are the adopted child’s legal parents, and the biological parents of the adopted child are “legal strangers” to the child. See Walton v. Hutton, 457 So.2d 1230, 1231 (La. Ct. App. 1984).
In this case, after holding a private hearing on July XX, 2013, the District Court entered the Intrafamily Adoption Decree the same day. The Intrafamily Adoption Decree, which the clerk of the court filed, states that the Judge considered the evidence and findings; and determined that “the requirements of law [had] been met” and that “the adoption is in the best interests of the child.” Accordingly, the District Court granted the NH’s Adoption Petition and declared the Claimant to be the NH’s child “for all legal purposes” and “to the same extent as if the child had been born” to the NH. In addition, the District Court entered an Order terminating the unknown biological father’s rights. Thus, in accordance with the law, a hearing was properly held and a final order of adoption issued.
We believe that the agency could reasonably find that the evidence, including the NH’s statements, the Adoption Petition, and the Intrafamily Adoption Decree, supports a valid intrafamily adoption in compliance with Louisiana law, as recognized by the Louisiana District Court in issuing the decree.
2. Social Security Ruling 83-37c Applies to Determine Whether the Intrafamily Adoption Decree Binds the Agency
You asked whether the Intrafamily Adoption Decree binds the agency. Generally, a state court decision does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray v. Richardson). Pursuant to SSR 83-37c, state court determinations on domestic relations matters are entitled to deference and bind the agency only when certain specific factors are satisfied. The factors are: (1) when a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) when parties with opposing interests genuinely contested the issue before the state court; (3) when the issue falls within the general category of domestic relations law; and (4) when the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. The Fifth Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray criteria. See Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444 (5th Cir. 1989);3 Garcia v. Sullivan, 883 F.2d 18 (5th Cir. 1989).4 We apply these criteria to the Intrafamily Adoption Decree.
a. State Court of Competent Jurisdiction Previously Determined an Issue in a Claim for Social Security Benefits
We believe that the Intrafamily Adoption Decree meets the first Gray criteria as it declares the Claimant to be the NH’s adopted child, which is the determinative issue in the Claimant’s claim for child’s benefits. Further, the 40th Judicial District Court in the Parish of St. John the Baptist, Louisiana, where the NH is domiciled, is a state court of competent jurisdiction. See La. Child. Code Ann. art. 1180 (stating that the juvenile court, which is part of the district court, has jurisdiction over adoption petitions). Thus, the Intrafamily Adoption Decree satisfies the first Gray criteria.
b. Parties with Opposing Interest Genuinely Contested the Issue before the State Court
We believe that the Intrafamily Adoption Decree does not meet the second Gray criteria. In this case, the Claimant’s biological mother consented to the adoption and thus, the Intrafamily Adoption Decree falls between an ex parte proceeding and a suit with an “adversarial nature.” See Warren, 868 F.2d at 1446-47; Garcia, 883 F.2d at 20. Intrafamily adoptions are not adversarial unless a parent files an opposition to the adoption by filing a clear and written answer. See, e.g., In re B.L.M., 136 So. 3D 5, 7 (La. App. 1 Cit. 2013) (showing that the parent raised an objection to the adoption proceeding, which created the controversy in the adoption proceeding). Thus, because an intrafamily adoption is not adversarial when, as here, the parties consent, it does not satisfy the second Gray criteria.5
c. The Issue Falls Within the General Category of Domestic Relations Law
We believe that the Intrafamily Adoption Decree meets the third Gray criteria as the issue of intrafamily adoption falls within the general category of domestic relations law and, as noted, the District Court has jurisdiction to resolve issues relating to adoption. See La. Child. Code Ann. art. 1180 (stating that the juvenile court, which is part of the district court, has jurisdiction over adoption petitions). Thus, the Intrafamily Adoption Decree satisfies the third Gray criteria.
d. The State Court Order is Consistent with the Law as Enunciated by the State’s Highest Court
Finally, as to the fourth Gray criteria, we believe the Intrafamily Adoption Decree is consistent with the law as enunciated by the Louisiana Supreme Court. We look to Louisiana adoption law to determine whether the Intrafamily Adoption Decree is consistent with Louisiana law. As addressed in the prior section, we believe there is legal support for the agency to find that the Intrafamily Adoption Decree is valid and complies with Louisiana law.
Accordingly, we believe that if the Louisiana Supreme Court were to address the validity of the Intrafamily Adoption Decree, the Louisiana Supreme Court would find the order consistent with Louisiana law. Thus, the Intrafamily Adoption Decree meets the fourth Gray criteria.
In summary, as explained above, the Intrafamily Adoption Decree does not bind the agency because it does not meet the second criteria of Gray of being genuinely contested. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. The agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. See Garcia, 883 F.2d at 20. As discussed above, the Intrafamily Adoption Decree appears to be valid under Louisiana State law. The record suggests that the Claimant has lived with the NH since birth and the NH has cared for him “his whole life.” Thus, notwithstanding the fact that the Intrafamily Adoption Decree does not meet the second Gray criteria, we believe the state court’s decree is entitled to deference. Based upon the evidence as a whole and a review of Louisiana intrafamily adoption law, we believe that there is legal support for the agency to conclude that the Claimant is the NH’s legally adopted child.
C. Whether the NH’s Valid Intrafamily Adoption of the Claimant Prohibits Finding the Claimant to be L2~’s Stepchild under the Act
Finally, if the Claimant is the NH’s legally adopted child, you also asked whether this precludes the agency from finding the Claimant to be L2~’s stepchild under the Act. Under the Act, a child may be eligible for child’s insurance benefits as an insured individual’s stepchild if after birth, the child’s natural or adopting parent married the insured. See 42 U.S.C. § 416(e)(2); 20 C.F.R. § 404.357. Additionally, the child must have been the insured’s stepchild for at least one year immediately preceding the day on which the application for child’s insurance benefits is filed. See 42 U.S.C. § 416(h)(2); 20 C.F.R. § 404.357.
As noted above, the Claimant was born in 2006, and L2~ married the Claimant’s biological mother in 2010. The NH adopted the Claimant in July 2013. The July 2013 Final Decree of Adoption states that the Claimant became “for all legal purposes, the child of [NH], to the extent as if [Claimant] had been born to [NH].” At this time, the Claimant’s biological mother’s legal rights as to the Claimant were terminated.
On May XX, 2014, nearly one year after the valid intrafamily adoption occurred, L2~ filed for disability benefits. L2~ did not list the Claimant as his child or stepchild on his application, and you have not indicated that an application for child’s insurance benefits has been filed on Claimant’s behalf on L2~’s earnings record as his stepchild. At the time of L2~’s May 2014 application, the Claimant was the NH’s child “for all legal purposes” and he was no longer considered his biological mother’s child. Thus, even though L2~ married the Claimant’s biological mother in 2010, in light of the NH’s adoption of the Claimant in July 2013 (and termination of the biological mother’s legal rights), we believe it is reasonable for the agency to conclude that the Claimant was not L2~’s stepchild for at least one year preceding an application for child’s benefits under the Act.
CONCLUSION
We believe that there is legal support for the agency to find that the Claimant is the NH’s legally adopted child under the Act based on the Louisiana state court’s Intrafamily Adoption Decree. We further believe that the agency could reasonably conclude that the NH’s valid adoption of the Claimant in July 2013 precludes finding the Claimant to be L2~’s stepchild under the Act.
~~B. PR 15-109 Louisiana State Law – Validity of Adult Adoption Based on Notarial Adoption and Judgment Approving Adoption (NH: T~; SSN ~) – REPLY~~
C. PR 15-109 Louisiana State Law – Validity of Adult Adoption Based on Notarial Adoption and Judgment Approving Adoption (NH: T)
~~DATE: April 8, 2015~~
Date: April 8, 2015
~~1. SYLLABUS~~
1. Syllabus
Louisiana recognizes the validity of an adult adoption. Upon the joint petition of the adoptive parent and the person to be adopted, a Louisiana court may authorize the adoption if the court finds after a hearing that the adoption is in the best interest of both parties. Either party to the adoption may bring an action to authorize an adoption in either party’s parish or domicile.
Louisiana recognizes the validity of an adult adoption. Upon the joint petition of the adoptive parent and the person to be adopted, a Louisiana court may authorize the adoption if the court finds after a hearing that the adoption is in the best interest of both parties. Either party to the adoption may bring an action to authorize an adoption in either party’s parish or domicile.
~~2. OPINION~~
2. Opinion
QUESTION PRESENTED
This memorandum is in response to your request for a legal opinion on whether the Louisiana state court’s judgment granting T~’s adoption of his adult biological granddaughter, B~, is a valid adult adoption under Louisiana law for purpose of entitlement to child’s benefits. If the adult adoption is valid, you asked the effective date of the adoption.
ANSWER
We conclude that the adult adoption is valid under Louisiana law and effective in September 2014. However, based on the present record and specific circumstances of this case, we conclude that further development is required to determine whether B~ met the dependency requirement of 20 C.F.R. § 404.350(a)(2) in order to be entitled to benefits. Specifically, we defer to the Social Security Administration (agency) to determine whether B~ lived with or received at least one-half of her support from the NH, during the year immediately preceding her adoption in accordance with 20 C.F.R. § 404.362(b)(1)(ii).
BACKGROUND
The NH became entitled to old-age benefits effective July 1998. In August 2014, B~, the NH, and the NH’s wife (B~’s biological grandmother) filed a Joint Petition to Authorize Adult Adoption in the Sabine Parish, Louisiana District Court. In September 2014, all three parties signed an Authentic Act of Adoption before a Notary Public. On this same date, the District Court judge signed the Judgment Approving Adult Adoption, and the District Court stamped the Judgment “received and filed.” Born on December, B~ was 36 years old at the time of the adoption.
The next month, October 2014, B~ filed an application for disabled adult child’s benefits on the NH’s record as the NH’s adopted child. B~ has lived in the NH’s household since birth and became entitled to supplemental security income (SSI) payments effective May 1992, when she was 14 years old. The NH and B~ were domiciled in Louisiana at the time of the adoption and the application for disabled adult child’s benefits. B~’s biological parents are neither disabled nor deceased.
ANALYSIS
Validity of Adoption Under Louisiana Law
In determining whether a child is a number holder's legally adopted child, the agency applies the laws of the state where the adoption took place. 20 C.F.R. § 404.356. The NH adopted B~ in Louisiana; therefore, Louisiana law is controlling. Louisiana recognizes the validity of an adult adoption. La. Civ. Code Ann. art. 212. A Louisiana court, upon the joint petition of the adoptive parent and the person to be adopted, may authorize the adoption if the court finds after a hearing that the adoption is in the best interest of both parties. Id. Either party to the adoption may bring an action to authorize an adult adoption in accordance with La. Civ. Code Ann. art 212 in either party’s parish or domicile. La. Code Civ. Proc. Ann. art. 74.5. An adult adoption is effective when the act of adult adoption and any judgment required to authorize the adoption are filed for registry, except as otherwise provided by law. La. Civ. Code Ann. art. 214. If the act of an adult adoption is filed within five days, exclusive of legal holidays, after the date of the last signature required for validity of the act, the adoption shall be effective as of the date of the last signature. La. Rev. Stat. Ann. 9:462. If article 212 requires court authorization, as in the case at hand, the judgment with the act of adoption shall be filed for registry with the clerk of any parish. Id. at 9:463.
In this case, the adult adoption complied with Louisiana law. B~ was 36 years old and thus had attained the age of majority in August 2014, the date she filed the Joint Petition to Authorize Adult Adoption. Because the NH and the NH’s wife were B~’s grandparents, and not the spouse or surviving spouse of a parent of the person to be adopted, they needed judicial authorization to adopt B~. See La. Civ. Code Ann. art. 212. In accordance with article 212, B~, the NH, and the NH’s wife, residents of Sabine Parish, Louisiana filed a Joint Petition to Authorize Adult Adoption in the 11th Judicial District Court, Sabine Parish, Louisiana. 6 The NH, NH’s wife, and B~ signed the Authentic Act of Adoption in September 2014, and the District Court judge, after a hearing, approved the adult adoption on the same day. The stamp from the District Court on the Judgment Approving Adult Adoption states that the District Court received and filed and registered the Judgment on the same day. Thus, the NH’s adoption of B~ appears to be a valid adult adoption.
In this case, the adult adoption complied with Louisiana law. B~ was 36 years old and thus had attained the age of majority in August 2014, the date she filed the Joint Petition to Authorize Adult Adoption. Because the NH and the NH’s wife were B~’s grandparents, and not the spouse or surviving spouse of a parent of the person to be adopted, they needed judicial authorization to adopt B~. See La. Civ. Code Ann. art. 212. In accordance with article 212, B~, the NH, and the NH’s wife, residents of Sabine Parish, Louisiana filed a Joint Petition to Authorize Adult Adoption in the 11th Judicial District Court, Sabine Parish, Louisiana. 6 The NH, NH’s wife, and B~ signed the Authentic Act of Adoption in September 2014, and the District Court judge, after a hearing, approved the adult adoption on the same day. The stamp from the District Court on the Judgment Approving Adult Adoption states that the District Court received and filed and registered the Judgment on the same day. Thus, the NH’s adoption of B~ appears to be a valid adult adoption.
B~’s Entitlement to Social Security Benefits on the NH’s Record
Under the Social Security Act (Act), a disabled adult child may be eligible for Social Security benefits if she is the child of an individual who is entitled to old-age or disability benefits. 42 U.S.C. §§ 402(d)(1), 416(e)(1); see 20 C.F.R. §§ 404.350, 404.354, 404.356, 404.358. In order to qualify, the child must meet the following criteria: (1) she is the insured person’s child, based upon a relationship described in §§ 404.355 through 404.359; (2) she is dependent on the insured, as defined in §§ 404.360 through 404.365; (3) she applies; (4) she is unmarried; and (5) she is under age 18 or 18 years or older and has a disability that began before she became 22 years old. 20 C.F.R. § 404.350.
We now examine whether B~ meets these five criteria necessary to receive child’s benefits on the NH’s record. First, B~ is the NH’s child pursuant to a valid adoption of a grandchild under Louisiana law. See 20 C.F.R. § 404.358(b) (you may be eligible for the benefits as the insured’s child if you are the insured’s grandchild and were legally adopted by the insured).
Second, B~ must be dependent on the insured to be eligible for benefits. See 20 C.F.R. § 404.350(a)(2) (you are dependent on the insured, as defined in §§ 404.360 through 404.365). Because the NH legally adopted B~ after the NH became entitled to benefits in July 1998, and B~ was not the NH’s natural child or stepchild, she can be considered dependent on the NH during his lifetime only if, in relevant part, she attained age 18 before adoption proceedings were started, the adoption was issued by a court of competent jurisdiction within United States, and she was living with or receiving at least one-half support from the NH for the year immediately preceding the month in which the adoption was issued. See 20 C.F.R. § 404.362(b)(1)(ii). The 11th Judicial District Court, Sabine Parish, Louisiana, which issued the Judgment Approving the Adult Adoption, is a court of competent jurisdiction within the United States. Thus, we next look to whether B~ was living with or receiving at least one-half support from the NH during the year immediately preceding September 2014, when the court issued the Judgment Approving the Adult Adoption.
An individual is considered living with an insured if she ordinarily lives in the same home with the insured and the insured is exercising, or has the right to exercise, parental control and authority over the individual’s activities. 20 C.F.R. § 404.366(c). The adoption decree states that B~ had lived with the NH since birth. Furthermore, according to agency records, the most recent SSI redetermination in December 2014 concluded that B~ had been living with the NH from March 2008 through December 2014. However, we have no information indicating whether the NH exercised, or had the right to exercise, parental control and authority over B~’s activities during the year immediately preceding the September 2104 adoption. Consequently, the agency should further develop these facts. Assuming the NH had such authority over B~, the dependency requirement would be met.
As noted, B~ can also meet the dependency requirement by showing that she was receiving at least one-half support from the NH during the year immediately preceding the September 2014 adoption. An insured person provides one-half of support if he makes regular contributions for the claimant’s ordinary living costs; the amount of these contributions equals or exceeds one-half of the claimant’s ordinary living costs; and any income (from sources other than the insured person) the claimant has available for support purposes is one-half or less of the claimant’s ordinary living costs. 20 C.F.R. § 404.366(b). The facts presented do not reveal how much the NH contributed to B~’s living costs during the year preceding the September 2014 adoption. Consequently, the agency should further develop these facts. Assuming the NH provided the requisite support, the dependency requirement would be met.
B~ met the third requirement -- she applied for benefits. See 20 C.F.R. § 404.350(a)(3). She met the fourth requirement that she be unmarried -- court documents provided to us indicate that she is single. 7 20 C.F.R. § 404.350(a)(4). B~ met the fifth requirement because she is older than 18, and the record indicates that she has received SSI payments based on her disability since 1992 when she was 14 years old. See 20 C.F.R. § 404.350(a)(5). Thus, on the basis of the facts presented, if further development shows that B~ was dependent on the NH, B~ appears to meet the five requirements of 20 C.F.R. § 404.350(a).
Whether the State Court Adoption Decree Binds the Agency
If the agency’s further development of the record reveals that B~ met the dependency requirement of 20 C.F.R. § 404.350(a)(2), we must determine whether the state court adoption decree binds the agency. Generally, a state court judgment does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray). Pursuant to SSR 83-37c, state court determinations on domestic relations matters bind the agency only when certain specific factors are satisfied. The factors are: (1) when a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) when parties with opposing interests genuinely contested the issue before the state court; (3) when the issue falls within the general category of domestic relations law; and (4) when the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. The Fifth Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray criteria. See Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444, 1446-47 (5th Cir. 1989) (citing Gray); Garcia v. Sullivan, 883 F.2d 18, 20 (5th Cir. 1989).
The Judgment Approving the Adult Adoption meets the first Gray criteria as it declares B~ to be the NH’s adopted child, which is the determinative issue in B~’s claim for child’s benefits. The Judgment Approving the Adult Adoption also meets the third criteria as the issue of an adult adoption falls within the general category of domestic relations law. See La. Code Civ. Proc. Ann. art. 74.5 (district court in the parish or domicile of either party has jurisdiction over adoption petitions).
As to the second criteria, the evidence suggests that parties with opposing interests did not genuinely contest the Joint Petition to Authorize Adult Adoption before the District Court. Although the Fifth Circuit has not articulated what constitutes a “genuinely contested” issue, an ex parte judgment does not generally satisfy the “genuinely contested” criteria. See Warren, 868 F.2d at 1446-47 (noting the ex parte nature of the judgment); Dennis v. R.R. Ret. Bd., 585 F.2d 151, 155 n.2 (6th Cir. 1978) (noting that ex parte proceedings do not bind the federal government). However, when a judgment results from a suit, that judgment appears to satisfy the “genuinely contested” criteria, even when the opposing party consents to judgment. See Garcia, 883 F.2d at 20 (disagreeing with the agency’s genuinely contested finding because of the “adversarial nature” of a paternity suit); Dennis, 585 F.2d at 154 (finding that a suit filed in the Ohio Probate Court was a contested matter); but see George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (holding that a nunc pro tunc divorce decree was not “genuinely contested” because, in part, there was no indication that any material controversy was resolved).
In this case, the Joint Petition to Authorize Adult Adoption falls between an ex parte proceeding and a suit with an “adversarial nature.” See Warren, 868 F.2d at 1446-47; Garcia, 883 F.2d at 20. Intra-family adoptions are not adversarial unless a parent files an opposition to the adoption by filing a clear and written answer. See, e.g., In re B.L.M., 136 So. 3d 5, 7 (La. App. 1 Cir. 2013) (showing that the parent raised an objection to the adoption proceeding, which created the controversy in the adoption proceeding). Thus, because an intra-family adoption is not adversarial when the parties consent and because the NH and B~ consented to the NH’s adoption of B~, it does not satisfy the second Gray criteria. 8
In this case, the Joint Petition to Authorize Adult Adoption falls between an ex parte proceeding and a suit with an “adversarial nature.” See Warren, 868 F.2d at 1446-47; Garcia, 883 F.2d at 20. Intra-family adoptions are not adversarial unless a parent files an opposition to the adoption by filing a clear and written answer. See, e.g., In re B.L.M., 136 So. 3d 5, 7 (La. App. 1 Cir. 2013) (showing that the parent raised an objection to the adoption proceeding, which created the controversy in the adoption proceeding). Thus, because an intra-family adoption is not adversarial when the parties consent and because the NH and B~ consented to the NH’s adoption of B~, it does not satisfy the second Gray criteria. 8
Finally, as to the fourth Gray criteria, we look to Louisiana adoption law to determine whether the Judgment Approving Adult Adoption is consistent with what the Louisiana Supreme Court has enunciated. As stated above, B~’s adoption appears consistent with Louisiana law, thus in our opinion it would be upheld by the Louisiana Supreme Court.
Notwithstanding the fact that the adult adoption in this instance does not meet the second Gray criteria, it is our opinion that the agency, in accordance with the Fifth Circuit’s emphasis on the fourth Gray criteria, should give the state court’s decision deference, and therefore recognize B~’s adult adoption. As stated above, the Fifth Circuit held that the agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Garcia, 883 F.2d at 20.
The Effective Date of the Adult Adoption
Lastly, we address the date the adoption became effective. Under Louisiana law, if the act of an adult adoption is filed within five days, exclusive of legal holidays, after the date of the last signature required for validity of the act, the adoption shall be effective as of the date of the last signature. La. Rev. Stat. Ann. 9:462. In this instance, the provided court documents reveal that the NH, the NH’s wife, and B~ signed the Authentic Act of Adult Adoption in September 2014, and that the District Court judge approved the adult adoption on the same day. The District Court’s stamp on the Judgment Approving Adoption states that the District Court received and filed the Judgment on the same day. Accordingly, the effective date of the adoption is September 2014.
CONCLUSION
The adult adoption is valid under Louisiana law and effective September 2014. However, based on the present record and specific circumstances of this case, we conclude that further development is required to determine whether B~ meets the dependency requirement of 20 C.F.R. § 404.350(a)(2). Specifically, we defer to the agency to determine whether B~ lived with or received at least one-half of her support from the NH during the year immediately preceding her September 2014 adoption in accordance with 20 C.F.R. § 404.362(b)(1)(ii). In order for B~ to meet the requirement that she was living with the NH during the year immediately preceding her adoption, she must show that she ordinarily lived in the same home with the NH and the NH exercised, or had the right to exercise, parental control and authority over B~’s activities. In order to show B~ received one-half of her support from the NH, the record must show the NH made regular contributions for B~’s ordinary living costs; the amount of these contributions equaled or exceeded one-half of B~’s ordinary living costs; and any income (from sources other than the NH) B~ had available for support purposes was one-half or less of her ordinary living costs.
~~Michael McGaughranRegional Chief CounselBy: Brock C. CimaAssistant Regional Counsel~~
D. PR 15-017 Louisiana State Law–Validity of Intrafamily Adoption (NH: C)
~~C. PR 15-017 Louisiana State Law–Validity of Intrafamily Adoption (NH: C~)~~
DATE: October 27, 2014
Date: October 27, 2014
1. SYLLABUS
Louisiana law allows three types of adoptions: agency, private, and intrafamily. In this situation, a NH adopted her grandson by way of an intrafamily adoption and the validity of the adoption is being questioned. A legal opinion is requested on whether the adoption of the child by the NH binds the agency, whether the agency can disregard the adoption decree and deny the claims for child insurance benefits (CIB) filed December 2013 and the lump-sum death payment filed May 2014, and finally if the agency can reopen the determinations on those applications.
According to the Louisiana Supreme Court, adoption statutes must be strictly complied with or else a procedural flaw in the adoption process can result in the reversal of the adoption. The RCC examined the adoption decree to determine if it is consistent with Louisiana law and as a consequence, whether it binds the agency. For an intrafamily adoption petition, the petitioner must take responsibility for the child’s caretaking in his or her home for at least six months prior to filing for the adoption. In this case, the evidence showed that the biological father (the NH’s son) had physical and legal custody of the child at the time the NH filed the adoption petition. In addition, during the same period, the biological father claimed to be the caretaker of the NH (who was 84 years old) and had power of attorney over her affairs. This indicated that the NH was not capable of caring for herself, and also suggested she was unable to care for her grandson as it is required in the intrafamily adoption statutes, i.e., for the petitioner to have the “duty and authority to provide care for a child.” Since the evidence suggests the NH did not meet the six-month physical or legal custody requirement and the adoption decree is inconsistent with Louisiana’s laws for a valid adoption, the RCC determined the adoption decree does not bind the agency.
Also, because there is a conflict between the evidence submitted to SSA and the Louisiana District Court’s conclusion that the NH satisfied the legal requirements to adopt her grandson, the RCC determines the facts presented are not sufficient to establish whether the agency should disregard the adoption decree to deny the previously awarded applications for CIB and the lump-sum death payment. So, the agency is directed to conduct additional development and if warranted, may reopen and revise the determinations under the rules of administrative finality.
2. OPINION
QUESTION PRESENTED
This memorandum is in response to your request for a legal opinion on whether the Louisiana state court’s intrafamily adoption decree, which granted C~’s (NH) adoption of her biological grandson, D~. (D~), binds the Social Security Administration (the agency). We also address, if the intrafamily adoption decree does not bind the agency, whether the agency can disregard the intrafamily adoption decree in determining D~ ’s status as the NH’s adopted child. If the agency can disregard the intrafamily adoption decree, you further ask if administrative finality allows for reopening of D~ ’s December 16, 2003, application for child’s benefits and his May 13, 2014, application for lump-sum death payment (the applications).
ANSWER
Based on the present record and specific circumstances of this case, we conclude that the Louisiana state court’s intrafamily adoption decree does not bind the agency. The evidence is insufficiently developed to determine whether the agency can disregard the intrafamily adoption decree to determine D~’s status as the NH’s adopted child. Additionally, the agency may, if warranted, reopen the determinations on D~’s applications because it has been less than 12 months from the agency’s initial determinations on the applications.
BACKGROUND
Effective November 1990, the NH became entitled to old-age insurance benefits. The NH is D~’s biological paternal grandmother, and D~ began living with the NH in 2006. D~ Sr. (biological father) is D~’s biological father and the NH’s son. L~ (biological mother) is the child’s biological mother. The biological father moved in with the NH in approximately 2009 because he was the NH’s caretaker, and the NH granted him power of attorney over all her affairs in April 2013.
On June 6, 2013, the NH filed a Petition for Intrafamily Adoption (Adoption Petition) to adopt D~ in the 40th Judicial District Court in the Parish of St. John the Baptist, Louisiana (District Court). At the time of filing the Adoption Petition, the NH was 84 years old and D~ was 13 years old. The Adoption Petition provided that D~’s biological parents consented to the NH’s adoption of D~ and that the biological father was “currently” D~’s “custodial parent.” Exhibit No. 2 of the Adoption Petition states that D~’s biological father was his “legal custodian.”
On June XX, 2013, the NH filed a Petition for Intrafamily Adoption (Adoption Petition) to adopt D~ in the 40th Judicial District Court in the Parish of St. John the Baptist, Louisiana (District Court). At the time of filing the Adoption Petition, the NH was 84 years old and D~ was 13 years old. The Adoption Petition provided that D~’s biological parents consented to the NH’s adoption of D~ and that the biological father was “currently” D~’s “custodial parent.” Exhibit No. 2 of the Adoption Petition states that D~’s biological father was his “legal custodian.”
On June 21, 2013, the biological father executed a Voluntary Act of Surrender for Adoption for Surrendering Father of a Child (Father’s Voluntary Surrender), in which he: (1) surrendered D~ to the NH; (2) freely and voluntarily surrendered custody of D~ for the purpose of placement and adoption; and (3) consented to the NH’s adoption of D~. On June 31, 2013, the biological mother executed a Voluntary Act of Surrender for Adoption for Surrendering Mother of a Child (Mother’s Voluntary Surrender), in which she: (1) surrendered D~ to the NH; (2) freely and voluntarily surrendered custody of D~ for the purpose of placement and adoption; and (3) consented to the NH’s adoption of D~.
On December 6, 2013, the Court held a private hearing, and on December 11, 2013, the District Court entered a Final Decree and Judgment (Adoption Decree) granting the Adoption Petition and declaring D~ to be the NH’s child “for all legal purposes” and “to the same extent as if the child had been born” to the NH. On the same day as the hearing, the NH and D~’s biological parents executed a Provisional Custody By Mandate document whereby the NH, as D~’s “sole custodial parent,” granted provisional custody of D~ to his biological parents.
On December 6, 2013, the Court held a private hearing, and on December XX, 2013, the District Court entered a Final Decree and Judgment (Adoption Decree) granting the Adoption Petition and declaring D~ to be the NH’s child “for all legal purposes” and “to the same extent as if the child had been born” to the NH. On the same day as the hearing, the NH and D~’s biological parents executed a Provisional Custody By Mandate document whereby the NH, as D~’s “sole custodial parent,” granted provisional custody of D~ to his biological parents.
Two days after the District Court entered the December 11, 2013 Adoption Decree, the biological father went into a field office on December 13, 2013, and scheduled a future appointment for the NH to apply for child’s benefits on D~’s behalf. The biological father indicated that the NH adopted D~ solely for the purpose of receiving Social Security benefits. After the field office offered an appointment in January 2014, the biological father requested an earlier appointment, stating that the NH would probably be dead before then. On December 16, 2013, the biological father assisted the NH as she filed an application with the agency for child’s benefits on D~’s behalf. On December 17, 2013, the agency awarded child’s benefits to D~ effective January 2014.
Two days after the District Court entered the December XX, 2013 Adoption Decree, the biological father went into a field office on December XX, 2013, and scheduled a future appointment for the NH to apply for child’s benefits on D~’s behalf. The biological father indicated that the NH adopted D~ solely for the purpose of receiving Social Security benefits. After the field office offered an appointment in January 2014, the biological father requested an earlier appointment, stating that the NH would probably be dead before then. On December 16, 2013, the biological father assisted the NH as she filed an application with the agency for child’s benefits on D~’s behalf. On December XX, 2013, the agency awarded child’s benefits to D~ effective January 2014.
On January XX, 2014, the NH passed away. On January 13, 2014, the biological father went into a field office to apply to be D~’s representative payee. The biological father stated that the NH adopted D~ so that D~ could receive Social Security benefits because the biological father could not afford to raise his son. On May 13, 2014, the biological father applied for the lump-sum death benefit on D~’s behalf, which the agency awarded in May 2014.
ANALYSIS
Entitlement to Title II Child’s Benefits as an Adopted Child
Under the Social Security Act (Act), a child may be eligible for Social Security benefits if he is the child of an individual who is entitled to old-age or disability benefits. 42 U.S.C. §§ 402(d)(1), 416(e)(1). To be entitled to child’s insurance benefits on an insured number holder’s account, a child must: (1) be the number holder’s child; (2) be dependent upon the number holder; (3) apply for benefits; (4) be unmarried; and (5) be under the age of 18. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1)-(5). As to the first requirement, the Act and regulations define “child” as an insured individual’s natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. A child that is adopted after an insured number holder becomes entitled to old-age or disability benefits is considered dependent on the number holder if the child had not attained age 18 when the adoption proceedings were started, and a court of competent jurisdiction within the United States issued the child’s adoption. See 20 C.F.R. § 404.362.
In this case, D~ is purportedly the NH’s legally adopted child pursuant to the Adoption Decree. Because D~ had not attained age 18 at the time the Adoption Petition was filed and because the District Court is a court of competent jurisdiction to enter the Adoption Decree, D~ is considered dependent on the NH. See 20 C.F.R. § 404.362 (providing that a child is dependent on the adopting number holder if not 18 at the time the adoption proceeding starts and the adoption is issued by a court of competent jurisdiction in the United States); La. Child. Code Ann. art. 1180 (stating that the juvenile court, which is part of the district court, has jurisdiction over adoption petitions). D~ is unmarried and under the age of 18, and the NH applied for benefits on D~’s behalf. Effective January 2014, the agency granted D~’s application for child’s benefits as the NH’s adopted child under Louisiana law. 9 Entitlement to Lump-Sum Death Payment
Under the Act, if a person is fully or currently insured when he or she dies, a lump-sum death payment of $255.00 may be paid to the deceased number holder’s widow or widower if he or she was living in the same household with the deceased number holder at the time of the deceased number holder’s death. 42 U.S.C. § 402(i); 20 C.F.R. § 404.390. If no one satisfies this requirement, the $255.00 payment may be made: (1) to a person who is entitled (or would have been entitled had a timely application been filed) to widow’s or widower’s benefits or mother’s or father’s benefits on the deceased number holder’s work record for the month of that worker’s death; or (2) in equal shares to each person who is entitled (or would have been entitled had a timely application been filed) to child’s benefits on the work record of the deceased number holder for the month of his or her death. 20 C.F.R. § 404.392(a). Absent specific circumstances, an application must be filed within two years of the deceased number holder’s death. 20 C.F.R. § 404.392(b).
In this case, there is no evidence of a widower, D~ was receiving child’s benefits on the NH’s work record for the month of her death, and the biological father timely filed an application on D~ ’s behalf for the lump-sum death payment. Accordingly, the agency found that D~ was entitled to and, in May 2014, paid the lump-sum death payment.
Because D~’s entitlement to Title II child’s benefits and to the NH’s lump-sum death payment depends on his status as the NH’s adopted child, we must look at the validity of the adoption. We first address whether the Adoption Decree binds the agency.
Social Security Ruling 83-37c Applies to Determine Whether a State Court Order Binds the Agency
Generally, a state court decision does not bind the agency if it involves a proceeding to which the agency was not a party. See Social Security Ruling (SSR) 83-37c (adopting Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where the evidence includes a state court decision on the issue, SSA is not necessarily bound by the court decision; referring the agency to SSR 83-37c for the applicable criteria of Gray v. Richardson). Pursuant to SSR 83-37c, state court determinations on domestic relations matters are entitled to deference and bind the agency only when certain specific factors are satisfied. The factors are: (1) when a state court of competent jurisdiction previously determined an issue in a claim for Social Security benefits; (2) when parties with opposing interests genuinely contested the issue before the state court; (3) when the issue falls within the general category of domestic relations law; and (4) when the resolution by the state trial court is consistent with the law enunciated by the highest court in the state. See Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3.
The Fifth Circuit’s test for determining when a state court order binds the agency is generally consistent with SSR 83-37c, but it places an emphasis upon the fourth Gray criteria. In Warren v. Sec'y of Health & Human Servs., 868 F.2d 1444 (5th Cir. 1989), the agency declined to accept the Texas state court’s determination that there was a common law marriage. Id. at 1446-47. “The Secretary is under no constitutional compulsion to give full faith and credit to the Judgment, nor is he bound by the Judgment under principles of res judicata since he was not a party to the probate court proceeding.” Id. However, the agency is obligated, pursuant to the Act, to determine how the state courts would decide the matter by applying the law of the state as would the highest court of that state in a proceeding contested by parties with opposing interests. Id. at 1447 (citing Gray, 474 F.2d 1370). When deciding how the state courts would decide a matter, the agency should consider the state court’s order as one part of a broader inquiry into both the facts and the applicable law. Id. In Warren, the Fifth Circuit upheld the Commissioner’s decision that there was no common law marriage, despite a state court order to the contrary, because substantial evidence supported the Administrative Law Judge’s conclusion that the highest court of that state would not hold that a common law marriage existed. Id. Warren focused specifically upon the fourth Gray criteria to find that the state court order did not bind the agency.
In Garcia v. Sullivan, 883 F.2d 18 (5th Cir. 1989), the Commissioner declined to accept a state court determination regarding paternity because parties with opposing interests did not genuinely contest the issue. Id. at 20. Thus, the agency relied upon the second Gray criteria to find that the state court order did not bind the agency. The Fifth Circuit stated in Garcia that because the agency is required to determine how the state courts would decide the matter, “where a state trial court has adjudicated the issue in an adversarial setting the [agency’s] inquiry is manifestly simplified: the [agency] should follow the decision of the state court, absent extraordinary reasons.” Id. (citing Warren, 868 F.2d 1444). The agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Id. In reversing the Commissioner’s decision to disregard the state court order, the Fifth Circuit again emphasized that the agency should disregard a state court order when the order did not meet the fourth Gray criteria. Notably, however, the Fifth Circuit also disagreed with the agency that the matter was not genuinely contested. See id. at 20 (“Despite the adversarial nature of the proceeding the Secretary refused to give effect to the state court judgment, concluding that the paternity issue was not genuinely contested by parties with opposing interests.”). Warren and Garcia appear to validate the agency’s application of the criteria of SSR 83-37c in determining whether a state court determination binds the agency, but suggest that the fourth Gray criteria may be the most significant.
The Adoption Decree meets the first Gray criteria as it declares D~ to be the NH’s adopted child, which is the determinative issue in D~’s claims for child’s benefits and the lump-sum death payment. The Adoption Decree also meets the third criteria as the issue of intrafamily adoption falls within the general category of domestic relations law and the District Court has jurisdiction to resolve issues relating to adoption. See La. Child. Code Ann. art. 1180 (stating that the juvenile court, which is part of the district court, has jurisdiction over adoption petitions).
As to the second criteria, the evidence suggests that parties with opposing interests did not genuinely contest the Adoption Decree before the District Court. Although the Fifth Circuit has not articulated what constitutes a “genuinely contested” issue, an ex parte judgment does not generally satisfy the “genuinely contested” criteria. See Warren, 868 F.2d at 1446-47 (noting the ex parte nature of the judgment); Dennis v. R.R. Ret. Bd., 585 F.2d 151, 155 n.2 (6th Cir. 1978) (noting that ex parte proceedings do not bind the federal government). However, when a judgment results from a suit, that judgment appears to satisfy the “genuinely contested” criteria, even when the opposing party consents to judgment. See Garcia, 883 F.2d at 20 (disagreeing with the agency’s genuinely contested finding because of the “adversarial nature” of a paternity suit); Dennis, 585 F.2d at 154 (finding that a suit filed in the Ohio Probate Court was a contested matter); but see George v. Sullivan, 909 F.2d 857, 861 (6th Cir. 1990) (holding that a nunc pro tunc divorce decree was not “genuinely contested” because, in part, there was no indication that any material controversy was resolved). In this case, the Adoption Decree falls between an ex parte proceeding and a suit with an “adversarial nature.” See Warren, 868 F.2d at 1446-47; Garcia, 883 F.2d at 20. Intrafamily adoptions are not adversarial unless a parent files an opposition to the adoption by filing a clear and written answer. La. Child. Code Ann. art. 1244.1(A); see also, e.g., In re B.L.M., 136 So. 3d 5, 7 (La. App. 1 Cir. 2013) (showing that the parent raised an objection to the adoption proceeding, which created the controversy in the adoption proceeding). Thus, because an intrafamily adoption is not adversarial when parents’ consent and because D~’s biological parents consented to the NH’s adoption of D~ , it does not satisfy the second Gray criteria.
Finally, as to the fourth Gray criteria, we look to Louisiana adoption law to determine whether the Adoption Decree is consistent with what the Louisiana Supreme Court has enunciated. Louisiana law allows three types of adoption: agency, private, and intrafamily adoption. See La. Child. Code Ann. art. 1170. In this matter, the District Court’s Adoption Decree granted the NH’s adoption of the child as an intrafamily adoption. See La. Child. Code Ann. arts. 1243– 1257.
Louisiana law governing intrafamily adoption provides that a petitioner may adopt a related child, 10 which would include a grandmother adopting her grandson, if:
(1) The petitioner is related to the child by blood, adoption, or affinity through a parent recognized as having parental rights;
(2) The petitioner is a single person over the age of eighteen or a married person whose spouse is a joint petitioner;
(3) The petitioner has had legal or physical custody of the child for at least six months prior to filing the petition for adoption.
See La. Child. Code Ann. art. 1243(A).
As to the third requirement of “legal or physical custody of the child for at least six months prior to filing the petition for adoption,” the Louisiana Children’s Code defines “legal custody” as the right to have physical custody of the child and to determine where and with whom the child shall reside; to exercise the rights and duty to protect, train, and discipline the child; the authority to consent to major medical, psychiatric, and surgical treatment; and to provide the child with food, shelter, education, and ordinary medical care, all subject to any residual rights possessed by the child’s parents. La. Child. Code Ann. art. 116(12). While the statutory sections pertaining to intrafamily adoptions do not specifically define physical custody, the Louisiana Children’s Code defines it elsewhere as “the duty and authority to provide care for a child in the home of the custodian.” La. Child. Code Ann. art. 1511(2) (definition found in the Chapter of the Louisiana Children’s Code regarding Voluntary Transfer of Custody). The Louisiana Supreme Court described physical custody as “actual” custody. Evans v. Lungrin, 708 So. 2d 731, 737 (La. 1998).
An intrafamily adoption petition must include the date and circumstances under which the child entered the petitioner’s home because the petitioning relative must have undertaken responsibility for the child’s caretaking in his or her home for at least six months prior to filing for the adoption. See La. Child. Code Ann. art. 1246; La. Child. Code Ann. art. 1243(A), Comment--1999.
The Louisiana Supreme Court has held that “adoption statutes are to be strictly complied with and that laws providing for adoption must be given a strict construction as they are in derogation of the natural right of a parent to his child.” In re Ackenhausen, 154 So.2d 380, 383 (La. 1963) (citations omitted). Thus, a procedural flaw in the entire adoption process will result in the reversal of an adoption. See In re Landry, 702 So. 2d 1092, 1096 (La. App. 3 Cir. 1997) (setting aside a judgment of adoption due to a procedural flaw regarding the petitioner’s custody of child); see also Stewart v. Goeb, 432 So. 2d 246 (La. 1983) (permitting an action to annul an adoption decree where adopting parents failed to serve biological father with notice of the adoption proceedings). We now examine the particular Adoption Decree to determine if it is consistent with the law the highest court in Louisiana enunciated and, as a consequence, whether it binds the agency.
After holding a private hearing on December 6, 2013, the District Court entered the Adoption Decree on December 11, 2013. The Adoption Decree, which the NH’s attorney submitted, states that the Judge considered the Adoption Petition and exhibits; considered the parties’ testimony concerning the adoption; and determined that “the requirements of law [had] been met.” Accordingly, the District Court granted the Adoption Petition and declared D~ to be the NH’s child “for all legal purposes” and “to the same extent as if the child had been born” to the NH.
However, despite the District Court’s statement that “the requirements of law [were] met,” the evidence presented does not show that the NH had legal or physical custody of D~ for at least six months prior to filing the Adoption Petition. See La. Child. Code Ann. art. 1243(A)(3); see also In re Ackenhausen, 154 So.2d at 383 (providing that adoption statutes are to be strictly complied with and given a strict construction); Garcia, 883 F.2d at 20 and Warren, 868 F.2d at 1447 (providing that state court orders must be consistent with state law as enunciated by the state’s highest court to bind the agency). To the contrary, the evidence showed that the biological father had physical and legal custody of D~ when the NH filed the Adoption Petition on June 6, 2013. As noted above, to adopt D~ under Louisiana’s law governing intrafamily adoption, the NH must have “had legal or physical custody of the child for at least six months prior to filing the petition for adoption.” La. Child. Code Ann. art. 1243(A)(3).
With regard to “physical custody,” although the evidence indicates that D~ lived with both his biological father and the NH, physical custody is more than living in the same household because it requires “the duty and authority to provide care for a child in the home of the custodian.” La. Child. Code Ann. art. 1511(2). The evidence indicates that the biological father had physical custody, i.e., “the duty and authority to provide care” for D~. As noted, the Adoption Petition identified the biological father as D~’s “custodial parent,” indicating that he had physical or actual custody of the child. See La. Child. Code Ann. art. 1511(2) (describing physical custody); Evans, 708 So. 2d at 737 (discussing physical custody). Additionally, the intrafamily adoption statute contemplates that the petitioning relative must have undertaken responsibility for the child’s caretaking in his or her home for at least six months prior to filing for the adoption. See La. Child. Code Ann. art. 1243(A), Comment--1999. The biological father claimed to be the NH’s caretaker and the NH granted him power of attorney over all her affairs in April 2013, indicating that the NH was incapable of caring for herself, and thus, suggesting she was unable to care for D~ . There is no evidence that the NH satisfied this requirement and undertook responsibility for D~ ’s caretaking in her home for at least six months prior to filing the Adoption Petition, and indeed, suggests otherwise. Id. Thus, the evidence suggests that the NH did not have “physical custody” of D~ for at least six months prior to filing the Adoption Petition.
With regard to “legal custody,” Exhibit No. 2 of the Adoption Petition provided that the biological father was D~’s legal custodian, i.e., “Legal custodian of child: D~.” The Adoption Petition provided that the biological father is D~’s custodial parent, i.e., the biological father “is currently the custodial parent of the minor child.” Moreover, as shown in the Father’s Voluntary Surrender executed on June 21, 2013, the biological father did not surrender legal custody of D~ to the NH until after she filed the Adoption Petition. Similarly, as shown in the Mother’s Voluntary Surrender executed on June 31, 2013, the biological mother did not surrender custody of D~ to the NH until after she filed the Adoption Petition. Thus, the evidence indicates that the NH did not have “legal custody” of D~ for at least six months prior to filing the Adoption Petition.
The Louisiana Supreme Court requires strict compliance with adoption statutes, and the evidence suggests that the NH failed to satisfy the six-month physical or legal custody requirement in the intrafamily adoption statute. See In re Ackenhausen, 154 So. 2d at 383; La. Child. Code Ann. art. 1243(A)(3); Garcia, 883 F.2d at 20 and Warren, 868 F.2d at 1447 (providing that state court orders must be consistent with state law as enunciated by the state’s highest court to bind the agency). Accordingly, we believe that if the Louisiana Supreme Court were to address the validity of the Adoption Decree, the Louisiana Supreme Court would find the order to be in conflict with Louisiana law. See Garcia, 883 F.2d at 20; Warren, 868 F.2d at 1447. This result is similar to In re Landry, 702 So. 2d 1092 (La. App. 3 Cir. 1997), where a Louisiana appellate court set aside an adoption order because the petitioner failed to satisfy the strict custody requirements in a different portion of Louisiana’s intrafamily adoption statute. See id. at 1096. Thus, the evidence shows that because the Adoption Decree is inconsistent with Louisiana’s requirements for a valid intrafamily adoption, the Adoption Decree does not bind the agency under the fourth criteria of Gray or applicable Fifth Circuit law. See Garcia, 883 F.2d 18; Warren, 868 F.2d 1444.
The Agency Should Conduct Additional Factual Development to Determine Whether the Agency Can Disregard the Adoption Decree
Because of the conflict between the evidence submitted to the agency and the District Court’s conclusion that the NH satisfied the legal requirements to adopt D~ , we believe the facts presented are not sufficient to establish whether the agency should disregard the Adoption Decree and deny D~ ’s applications. The Fifth Circuit directs that the agency consider a state court determination as one part of a broader inquiry into both the facts and the applicable law. Warren, 868 F.2d at 1447. Because the District Court’s reasoning for its determination that the NH satisfied the legal requirements to adopt D~ is unclear, additional factual development appears necessary.
Specifically, the additional facts that need development concern whether the NH satisfied the six-month physical or legal custody requirement in the intrafamily adoption statute. Because the NH filed the Adoption Petition on June 6, 2013, the NH’s legal or physical custody of D~ for the six months prior must be established, i.e., from approximately December 6, 2012, through June 6, 2013, for the Adoption Decree to be consistent with Louisiana’s requirements for a valid intrafamily adoption.
Administrative Finality Does Not Prohibit Reopening
For administrative finality, the agency’s regulations restrict reopening prior determinations except under specific circumstances. 20 C.F.R. §§ 404.987, 404.988. However, the regulations provide that the agency may reopen a determination for any reason within 12 months of the date of the notice of the initial determination. 20 C.F.R. § 404.988(a).
The agency made its initial favorable determination regarding D~’s application for child’s benefits on December 17, 2013. The agency made its initial determination awarding D~ the lump-sum death payment in May 2014. Because it has been less than 12 months since the agency made its initial determinations on D~’s applications, the agency may reopen these applications.
We find that the Adoption Decree does not bind the agency. 11 However, we believe that additional factual development appears necessary, as detailed above, because although the Adoption Decree does not bind the agency, the facts presented are not sufficient to establish whether the agency should disregard the Adoption Decree and deny D~’s applications. Further, if warranted, the agency may reopen and revise D~’s applications because it has been less than 12 months since the agency made its initial determinations.
Finally, you also inquired whether you should submit all Louisiana intrafamily adoptions to the Office of the General Counsel (OGC) for a determination of validity. Please submit intrafamily adoption matters to OGC where you have concerns about the validity of the adoption or where you suspect fraud.
~~Michael McGaughranRegional Chief CounselBy: Michael J. Carey Assistant Regional Counsel~~
~~D. PR 11-102 POMS Revisions to Louisiana State Law Listing~~
E. PR 11-102 POMS Revisions to Louisiana State Law Listing
~~DATE: May 11, 2011~~
Date: May 11, 2011
~~1. SYLLABUS~~
1. Syllabus
Effective January 1, 2009, Louisiana statutory law no longer allows an individual to adopt an unemancipated minor over the age of seventeen by a notarial act of adoption. Louisiana statutory law now allows an individual to adopt a person under eighteen years of age (child or children) through: 1) an agency adoption, 2) a private adoption, or 3) an intrafamily adoption. La. Child. Code Ann. art. 1170.
~~2. OPINION~~
2. Opinion
The purpose of this memorandum is to respond to your request for suggested language to update POMS GN 00306.160 for the State of Louisiana regarding notarial acts of adoption. In accordance with the legal opinion we provided on March 9, 2011, we are providing suggested language to update POMS GN 00306.160. We also recommend that our office continue to review all notarial acts of adoption dated prior to January 1, 2009, to determine their validity. Notarial acts of adoption dated on or after January 1, 2009, are not valid.
We provided a legal opinion on March 9, 2011, regarding the validity under Louisiana law of an attempt by number holder Danny and his wife, Deborah, to adopt their seventeen year old grandson, Jacob M~, through a notarial act of adoption. On December 13, 2010, Jacob, the number holder, the number holder’s wife, and Jacob’s biological parents executed a document entitled “Notarial Adoption” in the presence of a notary public. The clerk of the court of the 42nd Judicial District Court, Desoto Parish, Mansfield, Louisiana recorded the document on December 15, 2010.
As we outlined in our March 9, 2011, opinion, the number holder’s attempt to adopt his grandson through execution and filing of a notarial act in December 2010 was not valid. Effective January 1, 2009, Louisiana statutory law no longer allows an individual to adopt an unemancipated minor over the age of seventeen by a notarial act of adoption. Louisiana statutory law now allows an individual to adopt a person under eighteen years of age (child or children) through: 1) an agency adoption, 2) a private adoption, or 3) an intrafamily adoption. La. Child. Code Ann. art. 1170. Due to the changes in Louisiana statutory law regarding the adoption of children, we suggest the following language to update POMS GN 00306.160:
Louisiana law allows an individual(s) to adopt a person under eighteen years of age (child or children) only through (1) an agency adoption, (2) a private adoption, or (3) an intrafamily adoption.
Agency Adoption
When an individual seeks to adopt a child through an agency, he or she petitions a court for an interlocutory decree, followed by a final decree in not less than one year after the child has lived with the adopting parent(s) and not less than six months after the court granted the interlocutory decree. A court M~ decline to enter an interlocutory decree and proceed to enter a final decree where an agency has placed the child in the adopting parent(s) home for at least six months prior to the hearing for adoption, or the rights of the child’s parents have been terminated and the child has lived in the adopting parent(s) home for at least one year.
For adoptions of a child through an agency prior to January 1, 1992, a court could decline to enter an interlocutory decree and proceed to enter a final decree only where an agency had placed the child in the adopting parent(s) home for at least six months prior to the filing of the petition for adoption.
Private Adoption
When an individual seeks to adopt a child through a private adoption, he or she petitions a court to enter an interlocutory decree, followed by a final decree in not less than one year after the child has lived with the adopting parent(s) and not less than six months after the court grants the interlocutory decree. A court M~ decline to enter an interlocutory decree and proceed to enter a final decree where the child’s parents’ rights have been terminated and the child has lived in the adopting parent(s) home for at least one year.
For private adoptions of a child prior to January 1, 1992, a court could decline to enter an interlocutory decree and proceed to enter a final decree where the child lived in the home of the adopting parent(s) for at least one year, and the child had been declared abandoned.
Intrafamily Adoption
When an individual seeks to adopt a child through an intrafamily adoption, he or she petitions a court to enter a final decree if the child has been in the legal or physical custody of the adopting parent(s) for at least six months prior to the filing of the petition for adoption.
Prior to January 1, 1992, where a grandparent sought to adopt a grandchild, he or she petitioned a court to enter an interlocutory decree, followed by a final decree in not less than one year after the child had lived with the adopting parent(s) and not less than six months after the court granted the interlocutory decree. Prior to January 1, 1992, a court could also decline to enter an interlocutory decree and proceed to enter a final decree where the child had lived in the home of the adopting parent(s) for at least six months prior to the filing of the petition for adoption.
Child age 17 years or over prior to January 1, 2009
Prior to January 1, 2009, any person 18 years or older could adopt a child over the age of 17 years by a notarial act of adoption registered with the clerk of the court of the parish where the adoptive parent(s) and the child being adopted were domiciled, or with the Register of Conveyances in Orleans Parish. Submit a copy of the notarial act of adoption to RCC under GN01010.815 ff. for opinion as to its validity as a deed of adoption.
~~Michael McGaughranRegional Chief CounselBy: Martin W. LongAssistant Regional Counsel~~
~~E. PR 11-068 Louisiana Law – Validity of Notarial Act of Adoption (NH D~)~~
F. PR 11-068 Louisiana Law – Validity of Notarial Act of Adoption (NH D)
~~DATE: March 9, 2011~~
Date: March 9, 2011
~~1. SYLLABUS~~
1. Syllabus
The number holder and his wife adopted Jacob by a notarial act of adoption in December 2010, but after January 1, 2009, the Louisiana law no longer provided for this option. It is our opinion that the number holder and his wife did not validly adopt Jacob. Additionally, at the time of the notarial act of adoption, Jacob was 17 years of age, and he had not been emancipated by marriage. Therefore, the number holder’s adoption of Jacob was not governed by the provisions of Article 212, but rather was governed by the Louisiana Children’s Code.
The number holder and his wife adopted Jacob by a notarial act of adoption in December 2010, but after January 1, 2009, the Louisiana law no longer provided for this option. It is our opinion that the number holder and his wife did not validly adopt Jacob. Additionally, at the time of the notarial act of adoption, Jacob was 17 years of age, and he had not been emancipated by marriage. Therefore, the number holder’s adoption of Jacob was not governed by the provisions of Article 212, but rather was governed by the Louisiana Children’s Code.
The number holder and his wife may attempt to adopt Jacob by an intrafamily adoption after Jacob has been in the number holders’ legal or physical custody for six months, or proceed with a private adoption, as the Louisiana Children’s Code allows.
~~2. OPINION~~
2. Opinion
However, effective January 1, 2009, Article 212 of the Louisiana Civil Code changed the provisions of section 9:461 of the Louisiana Revised Statues, which had previously authorized a person to adopt an unemancipated minor such as Jacob. The amended law no longer provides for the adoption of a person “over the age seventeen years” by a notarial act. La. Rev. Ann. § 9:461 (amended 2009). The amended section 9:461 now addresses the effect of an adult adoption by a stepparent. La. Rev Stat. § 9:461. Article 212 of the Louisiana Civil Code now governs the adoption of a person who has “attained the age of majority,” and requires judicial authorization of such an adoption, obtained during a hearing initiated by a joint petition of the person to be adopted and the adoptive parent(s). La. Civ. Code Ann. art. 212. A person has “attained the age of majority” when he has reached the age of eighteen years. La. Civ. Code Ann. art. 29. Additionally, Article 1169 of the Louisiana Children’s Code provides that with regard to adoptions, “child” means a person under eighteen years of age and not emancipated by marriage. Jacob, born on September XX, 1993, was, at the time of the notarial act of adoption, 17 years of age, and he had not been emancipated by marriage. Therefore, the number holder’s adoption of Jacob was not governed by the provisions of Article 212, but rather was governed by the Louisiana Children’s Code.
However, effective January 1, 2009, Article 212 of the Louisiana Civil Code changed the provisions of section 9:461 of the Louisiana Revised Statues, which had previously authorized a person to adopt an unemancipated minor such as Jacob. The amended law no longer provides for the adoption of a person “over the age seventeen years” by a notarial act. La. Rev. Ann. § 9:461 (amended 2009). The amended section 9:461 now addresses the effect of an adult adoption by a stepparent. La. Rev Stat. § 9:461. Article 212 of the Louisiana Civil Code now governs the adoption of a person who has “attained the age of majority,” and requires judicial authorization of such an adoption, obtained during a hearing initiated by a joint petition of the person to be adopted and the adoptive parent(s). La. Civ. Code Ann. art. 212. A person has “attained the age of majority” when he has reached the age of eighteen years. La. Civ. Code Ann. art. 29. Additionally, Article 1169 of the Louisiana Children’s Code provides that with regard to adoptions, “child” means a person under eighteen years of age and not emancipated by marriage. Jacob, born on September XX, 1993, was, at the time of the notarial act of adoption, 17 years of age, and he had not been emancipated by marriage. Therefore, the number holder’s adoption of Jacob was not governed by the provisions of Article 212, but rather was governed by the Louisiana Children’s Code.
The Louisiana Children’s Code provides for three types of adoptions of a child (a person under 18 years of age): (1) an agency adoption, (2) a private adoption, and (3) an intrafamily adoption. La. Child. Code Ann. art. 1170. As the grandparents of Jacob, the number holder’s and his wife’s adoption of Jacob would be governed by either the provisions for a private adoption or an intrafamily adoption. Article 1243 of the Louisiana Children’s Code sets forth the conditions that must be met for grandparents to be eligible to adopt a child by intrafamily adoption. The conditions are as follows:
(1) The petitioner Implicitly, petitioner to a court of competent jurisdiction. La. Child Code Ann. art. 1247 (service of process). is related to the child by blood, adoption, or affinity through a parent recognized as having parental rights.
(1) The petitioner Implicitly, petitioner to a court of competent jurisdiction. La. Child Code Ann. art. 1247 (service of process). is related to the child by blood, adoption, or affinity through a parent recognized as having parental rights.
(2) The petitioner is a single person over the age of eighteen or a married person whose spouse is a joint petitioner.
(3) The petitioner has had legal or physical custody of the child for at least six months prior to filing the petition for adoption.
La. Child. Code Ann. art. 1243. Consent of the parent(s) of the child being adopted must also be obtained by the execution of an “authentic act” of consent. See La. Child. Code Ann. art. 1244.
The number holder and his wife met the first two conditions for an intrafamily adoption; however, at the time of the notarial act of adoption, and as of the writing of this opinion, the third condition that Jacob must have been in the legal or physical custody of the number holder and his wife for six months had not been met. As of April 2011, Jacob will have been in the physical custody of the number holder and his wife for six months and therefore they could proceed with an intrafamily adoption. As an alternative, the number holder and his wife could proceed with a private adoption of Jacob pursuant to Article 1221 of the Louisiana Children’s Code if they did not wish to wait to begin proper adoption proceedings until Jacob has been in their legal or physical custody for a period of six months. La. Child. Code Ann. art. 1221, et seq. (a single person, 18 years or older, or a married couple jointly, may petition to privately adopt a child).
The number holder and his wife met the first two conditions for an intrafamily adoption; however, at the time of the notarial act of adoption, and as of the writing of this opinion, the third condition that Jacob must have been in the legal or physical custody of the number holder and his wife for six months had not been met. As of April 2011, Jacob will have been in the physical custody of the number holder and his wife for six months and therefore they could proceed with an intrafamily adoption. As an alternative, the number holder and his wife could proceed with a private adoption of Jacob pursuant to Article 1221 of the Louisiana Children’s Code if they did not wish to wait to begin proper adoption proceedings until Jacob has been in their legal or physical custody for a period of six months. La. Child. Code Ann. art. 1221, et seq. (a single person, 18 years or older, or a married couple jointly, may petition to privately adopt a child).
Since the number holder and his wife adopted Jacob by a notarial act of adoption in December 2010, when Louisiana law no longer provided for this option, it is our opinion that the number holder and his wife did not validly adopt Jacob. The number holder and his wife may attempt to adopt Jacob by an intrafamily adoption after Jacob has been in the number holders’ legal or physical custody for six months, or proceed with a private adoption, as the Lousiana Children’s Code allows.
Michael McGaughran Regional Chief CounselBy: Martin W. LongAssistant Regional Counsel
~~F. PR 08-001 Louisiana Law - Validity of Notarial Affidavit of Adoption (NH E~)~~
G. PR 08-001 Louisiana Law - Validity of Notarial Affidavit of Adoption (NH E~)
~~DATE: September 28, 2007~~
Date: September 28, 2007
~~1. SYLLABUS~~
1. Syllabus
In Louisiana, in a case where the notarial affidavit of adoption was not signed by the claimant's mother and there is no evidence that a court of competent jurisdiction granted the number holder custody of the claimant, that the mother refused or failed to comply with a court order of support, or that she refused or failed to visit or communicate with the claimant for at least six months, the requirements for notarial adoption have not been met
~~2. OPINION~~
2. Opinion
This is in response to your request for our opinion regarding the validity of Everette's (Michael's) notarial affidavit of adoption of Michael (Michael). After reviewing the facts and relevant law, we do not believe that the adoption is valid under Louisiana law.
As we understand the facts from the materials you provided, Michael is the number holder and Michael's grandfather. Michael was born on June. His birth mother is Samanthia (Samanthia). His birth father is Marcus, who died on February XX, 1990. Michael has lived with his grandfather, Marcus, since 2005. Marcus filed an application for auxiliary benefits for Michael on May 15, 2007. Michael has received disability benefits since August 1996.
On March XX, 2007, Marcus, Michael, and two witnesses signed a document entitled "Affidavit of Adoption" in the presence of a notary public. Samanthia did not sign the document. The Louisiana Vernon Parish court clerk recorded the document on April 16, 2007.
A person who a number holder legally adopts can receive child's benefits on the number holder's record. 20 C.F.R. § 404.356. Under Louisiana law, any person eighteen years old may adopt any person over the age of seventeen. La. Rev. Stat. Ann. § 9:461(A) (2007). If the adoptee is an unemancipated minor over the age of seventeen, the adoptive parent or parents and the living parent or parents, guardian, tutor, or "tutor ad hoc appointed for the purpose" must sign the notarial act. La. Rev. Stat. Ann. § 9:461(A)(1)(c). The notarial act must be registered with the clerk of court in the parish in which the adoptee and adoptive parent or parents are domiciled or with the register of conveyances in Orleans Parish. La. Rev. Stat. Ann. § 9:461(B).
In the case at hand, when Mr. R~ filed the notarial affidavit of adoption with the court clerk on April XX, 2007, Michael was over the age of seventeen. Because Michael did not turn eighteen until June XX, 2007, he was a "minor" according to Louisiana law. See La. Stat. Rev. Ann. § 751(10). In addition, Michael was an "unemancipated" minor because at the time Mr. R~ filed the notarial affidavit of adoption, Michael had not been conferred the power of administration, he was not married, and he had not been relieved from the time the law prescribed for attaining the age of majority. See La. Civ. Code Ann. art. 365 (2007) (describing emancipation as conferring the power of administration, emancipation by marriage, and emancipation relieving the minor from the time prescribed by law for attaining the age of majority). Thus, Michael was an unemancipated minor over the age of seventeen. As such, for Michael's notarial affidavit of adoption to be valid, Michael's adoptive parent or parents and his living parent or parents or guardian or tutor, or a tutor ad hoc appointed for the purpose must have signed the notarial affidavit of adoption. See La. Rev. Stat. Ann. § 9:461(A)(1)(c). As previously discussed, Michael's adoptive parent (Marcus) signed the affidavit, but neither his living parent (Samanthia), nor any guardian, tutor, or tutor ad hoc signed the affidavit. Consequently, the notarial affidavit of adoption does not bear the proper signatures to meet the statutory requirements for an unemancipated minor over the age of seventeen.
Louisiana law provides that unless a mother's parental rights have been terminated, the mother of the child must consent to the adoption of her child. La. Child. Code Ann. art. 1193 (2007). Here, Samanthia did not sign the notarial adoption, and we do not have any other evidence that Samanthia consented to Michael's adoption. See id. at 1195 (with additional provisions, a parent may give consent to the adoption of his or her child in open court). Louisiana law provides that for intrafamily adoptions, consent of the biological parent is not necessary in certain circumstances. Id. at 1245. In particular, the consent of a biological parent is not necessary when a court of competent jurisdiction has granted custody of a child to a petitioner and (1) the parent has refused or failed to comply with a court order of support without just cause for a period of at least six months; or (2) the parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months. Id. at 1245(B). Here, we do not have evidence that a court of competent jurisdiction granted Marucs custody of Michael, that Samanthia refused or failed to comply with a court order of support, or that Samanthia refused or failed to visit or communicate with Michael for at least six months. Thus, Louisiana law required Samanthia to sign and consent to the notarial act, and her signature does not appear on the notarial affidavit of adoption.
On August 29, 2005, Samanthia signed a "Special Power of Attorney" appointing her father, Marucs, as her "attorney in fact" to "care for, educate, support and authorize medical care and treatment" for Michael. Samanthia completed and notarized the Special Power of Attorney in Alaska, where she resided. Alaska law provides that a parent of a minor, "by a properly executed power of attorney, may delegate to another person, for a period not exceeding one year, any powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward." See Alaska Stat. § 13.26.020 (2007). Thus, the Special Power of Attorney was only valid until August 29, 2006. The Special Power of Attorney was not valid when Michael and the witnesses signed the notarial affidavit of adoption on March XX, 2007. Additionally, the Special Power of Attorney did not and could not delegate to Marcus the power to consent to Michael's adoption. We do not have any evidence that either Marcus or the two witnesses were designated as Michael's guardian, tutor, or tutor ad hoc. Thus, Michael's living parent or parents, guardian, tutor, or tutor ad hoc did not sign the notarial adoption.
On August 29, 2005, Samanthia signed a "Special Power of Attorney" appointing her father, Marucs, as her "attorney in fact" to "care for, educate, support and authorize medical care and treatment" for Michael. Samanthia completed and notarized the Special Power of Attorney in Alaska, where she resided. Alaska law provides that a parent of a minor, "by a properly executed power of attorney, may delegate to another person, for a period not exceeding one year, any powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward." See Alaska Stat. § 13.26.020 (2007). Thus, the Special Power of Attorney was only valid until August 29, 2006. The Special Power of Attorney was not valid when Michael and the witnesses signed the notarial affidavit of adoption on March XX, 2007. Additionally, the Special Power of Attorney did not and could not delegate to Marcus the power to consent to Michael's adoption. We do not have any evidence that either Marcus or the two witnesses were designated as Michael's guardian, tutor, or tutor ad hoc. Thus, Michael's living parent or parents, guardian, tutor, or tutor ad hoc did not sign the notarial adoption.
Finally, Louisiana law requires that "[m]arried persons must concur in the adoption of another person." La. Civ. Code Ann. art. 214(A). Our records show that Michael was married in 1996, but we do not know if Michael was married at the time he signed the notarial affidavit. If Michael was married at the time he signed the notarial affidavit, Louisiana statutes required his spouse to concur in the notarial affidavit of adoption. We do not have evidence showing either that Michael did not have a spouse at the time he signed the notarial adoption or that Michael's spouse concurred in the notarial adoption. Thus, we cannot determine whether Michael complied with Louisiana law relative to spousal concurrence for adoption.
We cannot approve Michael's notarial affidavit of adoption because Michael's living parent (Samanthia) or a guardian, tutor, or tutor ad hoc did not sign the affidavit. In addition, we do not have evidence showing that Michael was not married at the time of the adoption or that Michael's spouse concurred in the adoption.
For the above reasons, we do not believe that the parties have satisfied the requirements for a notarial affidavit of adoption under Louisiana law.
~~Tina M. WaddellRegional Chief CounselBy: Anne L. HamiltonAssistant Regional Counsel~~
Footnotes:
[1]
. As you have asked only whether the Claimant has a parent-child relationship with the NH as a legally adopted child, we do not address the remaining criteria for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350.
As you have asked only whether the Claimant has a parent-child relationship with the NH as a legally adopted child, we do not address the remaining criteria for entitlement to child’s insurance benefits. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350.
[2]
. Relatives who may petition for an intrafamily adoption are: stepparents, step grandparents, great-grandparents, grandparents, or collaterals within the twelfth degree. See La. Child. Code Ann. art. 1243(A). A 1999 comment to Article 1243 explained that the trend was to broaden the category of relatives who may seek an intrafamily adoption. La. Child. Code Ann. art. 1243(A), Comment--1999.
Relatives who may petition for an intrafamily adoption are: stepparents, step grandparents, great-grandparents, grandparents, or collaterals within the twelfth degree. See La. Child. Code Ann. art. 1243(A). A 1999 comment to Article 1243 explained that the trend was to broaden the category of relatives who may seek an intrafamily adoption. La. Child. Code Ann. art. 1243(A), Comment--1999.
[3]
. In Warren, the agency declined to accept the Texas state court’s determination that there was a common-law marriage. See Warren 868 F.2d at 1446-47. In Warren, the Fifth Circuit upheld the Commissioner’s decision that there was no common-law marriage, despite a state court order to the contrary, because substantial evidence supported the Administrative Law Judge’s conclusion that the highest court of that state would not hold that a common-law marriage existed. Id. Warren focused specifically upon the fourth Gray criteria to find that the state court order did not bind the agency.
In Warren, the agency declined to accept the Texas state court’s determination that there was a common-law marriage. See Warren 868 F.2d at 1446-47. In Warren, the Fifth Circuit upheld the Commissioner’s decision that there was no common-law marriage, despite a state court order to the contrary, because substantial evidence supported the Administrative Law Judge’s conclusion that the highest court of that state would not hold that a common-law marriage existed. Id. Warren focused specifically upon the fourth Gray criteria to find that the state court order did not bind the agency.
[4]
. In Garcia, the Commissioner declined to accept a state court determination regarding paternity because parties with opposing interests did not genuinely contest the issue. Garcia, 883 F.2d at 20. Thus, the agency relied upon the second Gray criteria to find that the state court order did not bind the agency. The Fifth Circuit stated in Garcia that because the agency is required to determine how the state courts would decide the matter, “where a state trial court has adjudicated the issue in an adversarial setting the [agency’s] inquiry is manifestly simplified: the [agency] should follow the decision of the state court, absent extraordinary reasons.” Id. (citing Warren, 868 F.2d 1444). The agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Id. In reversing the Commissioner’s decision to disregard the state court order, the Fifth Circuit again emphasized that the agency should disregard a state court order when the order did not meet the fourth Gray criteria.
In Garcia, the Commissioner declined to accept a state court determination regarding paternity because parties with opposing interests did not genuinely contest the issue. Garcia, 883 F.2d at 20. Thus, the agency relied upon the second Gray criteria to find that the state court order did not bind the agency. The Fifth Circuit stated in Garcia that because the agency is required to determine how the state courts would decide the matter, “where a state trial court has adjudicated the issue in an adversarial setting the [agency’s] inquiry is manifestly simplified: the [agency] should follow the decision of the state court, absent extraordinary reasons.” Id. (citing Warren, 868 F.2d 1444). The agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Id. In reversing the Commissioner’s decision to disregard the state court order, the Fifth Circuit again emphasized that the agency should disregard a state court order when the order did not meet the fourth Gray criteria.
[5]
. This intrafamily adoption proceeding was not ex parte because all of the parties required to be present under Louisiana law were present at the hearing. However, the proceeding was not adversarial because the biological mother did not file an objection and instead, provided her consent to the adoption.
This intrafamily adoption proceeding was not ex parte because all of the parties required to be present under Louisiana law were present at the hearing. However, the proceeding was not adversarial because the biological mother did not file an objection and instead, provided her consent to the adoption.
[6]
. . According to the Louisiana Supreme Court website, the 11th Judicial District of the Louisiana District Courts covers the same geographical boundaries as Sabine Parish. http://www.lasc.org/links.asp (last visited April 6, 2015).
According to the Louisiana Supreme Court website, the 11th Judicial District of the Louisiana District Courts covers the same geographical boundaries as Sabine Parish. http://www.lasc.org/links.asp (last visited April 6, 2015).
[7]
. . In order to verify B~’s marital status, the undersigned conducted a people search on Lexis.com on April 8, 2015, which likewise indicated that B~ is not married.
In order to verify B~’s marital status, the undersigned conducted a people search on Lexis.com on April 8, 2015, which likewise indicated that B~ is not married.
[8]
. . The adult adoption proceeding was not an ex parte proceeding because all of the parties required to be present under Louisiana law were present at the hearing. However, the proceeding was not adversarial because neither of B~’s natural parents filed an objection to the adoption.
The adult adoption proceeding was not an ex parte proceeding because all of the parties required to be present under Louisiana law were present at the hearing. However, the proceeding was not adversarial because neither of B~’s natural parents filed an objection to the adoption.
[9]
. . In considering a claim for child’s benefits, Program Operations Manual System (POMS) GN 00306.001D explains that the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” In this case, although there is no evidence to suggest that D~ is the NH’s natural child, stepchild, step grandchild, or equitably adopted child, D~ is also the biological grandchild of the NH. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354–404.359. However, to be eligible for child’s benefits as the NH’s grandchild, the child’s natural or adoptive parents must have been either deceased or under a disability. See 20 C.F.R. § 404.358. Because the D~’s biological parents were alive at the time of the application and there is no evidence that his biological parents were under a disability, D~ does not appear to be eligible for child’s benefits as the NH’s grandchild.
In considering a claim for child’s benefits, Program Operations Manual System (POMS) GN 00306.001D explains that the agency “must explore all possibilities of entitlement before disallowing a child’s claim because the relationship requirements are not met.” In this case, although there is no evidence to suggest that D~ is the NH’s natural child, stepchild, step grandchild, or equitably adopted child, D~ is also the biological grandchild of the NH. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354–404.359. However, to be eligible for child’s benefits as the NH’s grandchild, the child’s natural or adoptive parents must have been either deceased or under a disability. See 20 C.F.R. § 404.358. Because the D~’s biological parents were alive at the time of the application and there is no evidence that his biological parents were under a disability, D~ does not appear to be eligible for child’s benefits as the NH’s grandchild.
[10]
. . Relatives who may petition for an intrafamily adoption are: stepparents, step grandparents, great-grandparents, grandparents, or collaterals within the twelfth degree. See La. Child. Code Ann. art. 1243(A). A 1999 comment to Article 1243 explained that the trend was to broaden the category of relatives who may seek an intrafamily adoption. La. Child. Code Ann. art. 1243(A), Comment--1999. While the 1997 legislature included aunts and uncles, it excluded cousins and siblings. The comments noted that “[i]t is difficult to justify this arbitrary line of demarcation as long as the requirement is retained that the petitioner relative must also have undertaken responsibility for the child’s caretaking in his or her home for at least six months prior to filing for the adoption.” Id.
Relatives who may petition for an intrafamily adoption are: stepparents, step grandparents, great-grandparents, grandparents, or collaterals within the twelfth degree. See La. Child. Code Ann. art. 1243(A). A 1999 comment to Article 1243 explained that the trend was to broaden the category of relatives who may seek an intrafamily adoption. La. Child. Code Ann. art. 1243(A), Comment--1999. While the 1997 legislature included aunts and uncles, it excluded cousins and siblings. The comments noted that “[i]t is difficult to justify this arbitrary line of demarcation as long as the requirement is retained that the petitioner relative must also have undertaken responsibility for the child’s caretaking in his or her home for at least six months prior to filing for the adoption.” Id.
[11]
. . Your legal opinion request also seems to ask whether the agency may disregard the Adoption Decree simply because the biological father indicated that the NH’s adoption of D~ was solely to create entitlement to Social Security benefits for D~ . The United States Supreme Court stated that the “core purpose” of the Act is to provide dependent members of a wage earners family with protection against the hardship occasioned by the loss of the insured’s earnings, and the aim was not to create a program generally benefiting needy persons. Astrue v. Capato, 132 S. Ct. 2021, 2032 (2012) (citing Califano v. Jobst, 434 U.S. 47, 52 (1977)). While this particular circumstance could be construed as not consistent with the core purpose of the Act, the purpose behind the NH’s adoption of D~ is not relevant to the question of whether the Adoption Decree binds the agency under SSR 83-37c, Gray, or Fifth Circuit precedent. Moreover, because the regulations contemplate adoptions by individuals who are currently entitled to retirement or disability benefits, we decline to address this question. See, e.g., 20 C.F.R. § 404.362.
Your legal opinion request also seems to ask whether the agency may disregard the Adoption Decree simply because the biological father indicated that the NH’s adoption of D~ was solely to create entitlement to Social Security benefits for D~ . The United States Supreme Court stated that the “core purpose” of the Act is to provide dependent members of a wage earners family with protection against the hardship occasioned by the loss of the insured’s earnings, and the aim was not to create a program generally benefiting needy persons. Astrue v. Capato, 132 S. Ct. 2021, 2032 (2012) (citing Califano v. Jobst, 434 U.S. 47, 52 (1977)). While this particular circumstance could be construed as not consistent with the core purpose of the Act, the purpose behind the NH’s adoption of D~ is not relevant to the question of whether the Adoption Decree binds the agency under SSR 83-37c, Gray, or Fifth Circuit precedent. Moreover, because the regulations contemplate adoptions by individuals who are currently entitled to retirement or disability benefits, we decline to address this question. See, e.g., 20 C.F.R. § 404.362.
Footnotes:
[1]
. You advised that the Claimant is not eligible for dependent grandchild benefits on the NH’s account because both of the Claimant’s biological parents are still alive and neither is disabled.
[2]
. The court case is entitled In re: C~, J~, and P~, No. X-XXX, Division C, 40th Judicial District Court, Parish of St. John the Baptist, State of Louisiana.
[3]
. Consistent with the scope of the legal opinion request, we consider only whether the Claimant is the NH’s legally adopted child. We do not consider whether the Claimant satisfies the other criteria for entitlement to child’s insurance benefits as a full-time student and as a legally adopted child. As noted in our Answer, we caution the agency to carefully consider whether the Claimant meets the dependency requirement for a legally adopted child. See 20 C.F.R. § 404.362.
[4]
. The current article 212 was effective January 1, 2009, and changed the prior law, which permitted any adult to adopt another person age 17 or older by simply executing an authentic act of adoption. See La. Civ. Code Ann. art 212, Revision Comments-2008 (a).
[5]
. In Warren, the agency declined to accept the Texas state court’s determination that there was a common-law marriage. See Warren 868 F.2d at 1446-47. In Warren, the Fifth Circuit upheld the Commissioner’s decision that there was no common-law marriage, despite a state court order to the contrary, because substantial evidence supported the Administrative Law Judge’s conclusion that the highest court of that state would not hold that a common-law marriage existed. Id. Warren focused specifically upon the fourth Gray criteria to find that the state court order did not bind the agency.
[6]
. In Garcia, the Commissioner declined to accept a state court determination regarding paternity because parties with opposing interests did not genuinely contest the issue. Garcia, 883 F.2d at 20. Thus, the agency relied upon the second Gray criteria to find that the state court order did not bind the agency. The Fifth Circuit stated in Garcia that because the agency is required to determine how the state courts would decide the matter, “where a state trial court has adjudicated the issue in an adversarial setting the [agency’s] inquiry is manifestly simplified: the [agency] should follow the decision of the state court, absent extraordinary reasons.” Id., citing Warren, 868 F.2d 1444). The agency should only disregard a state court’s decision when the agency is convinced that the decision is in conflict with what the state supreme court has held or would hold were it presented with the issue. Id. In reversing the Commissioner’s decision to disregard the state court order, the Fifth Circuit again emphasized that the agency should disregard a state court order when the order did not meet the fourth Gray criteria.

POMS Reference

PR 01310.021: Louisiana