TN 15 (06-18)

A. PR 18-059 Date of Birth Change for Foreign Born Adopted Child

Date: February 28, 2018

1. Syllabus

Tennessee law provides that any item on a certificate filed with the state registrar may be corrected by an order of a court of record with the exception of the date of filing, the signature of the certifier, and changing the date of birth to a date that is after the date of filing. Further, an item that was established by court order on a certificate can only be amended by an order of a court of competent jurisdiction, preferably the court that granted the original order. The State of Tennessee’s Chancery Court’s amended final order for re-adoption and resulting U.S. foreign birth certificate, issued to the foreign born adopted female child (M~), met the evidence requirements for changing the date of birth under Tennessee State law.”

2. Opinion

QUESTION

You asked whether the Tennessee Chancery Court’s Amended Final Order for Re-Adoption and the Tennessee Report of Foreign Birth constitute sufficient evidence to support revision of the date of birth of M~, the number holder (NH), in her Numident.

OPINION

Tennessee law allows a state court to change a child’s date of birth on a Report of Foreign Birth. Therefore, the agency may rely on the Tennessee Chancery Court’s Amended Final Order for Re-Adoption and the Tennessee Report of Foreign Birth to establish a different date of birth in NH’s Numident.

BACKGROUND

According to the information provided, the Chancery Court for W~ County, Tennessee (Court), issued an Amended Final Order for Re-adoption (Order) on February XX, 2015, granting the adoptive parents’ petition to re-adopt NH. The Order indicated NH’s adoptive parents acquired physical custody of NH in December 2007 from the Republic of Guatemala. NH’s adopted parents were residents of Tennessee for at least six months before the issuance of the original order for re-adoption. The Order indicated the original order granting the re-adoption was entered July XX, 2010, after a hearing before the Court. The Order stated that at the time of the filing of the original petition, all appropriate filings had been made with Immigration and Naturalization Service, and copies of the adoption documents from the Republic of Guatemala had been submitted.

The Order gave full faith and credit as a matter of comity to the adoption documents from the Republic of Guatemala other than to NH’s date of birth. Based on medical evidence,_/1 the Court changed NH’s date of birth from January XX, 2003, to October XX, 1999. The Court ordered that October XX, 1999, be entered as the date of birth on an amended Report of Foreign Birth.

The State of Tennessee issued a Report of Foreign Birth on March XX, 2016, indicating NH was born on October XX, 1999, in Santa Barbara, Guatemala. The Report of Foreign Birth indicates that all documents establishing the facts in the report are on file.

NH’s Numident shows a date of birth of January XX, 2003. On some unknown date, NH’s adoptive mother requested that the agency update NH’s Numident to reflect October XX, 1999, as her date of birth.

DISCUSSION

Social Security regulations provide that an individual may request a change in the personal identifying information previously submitted in connection with a Social Security Number (SSN) application. See 20 C.F.R. § 422.110 (2017)._/2

An applicant requesting a change in his or her date of birth must submit documentary evidence that the Commissioner of Social Security regards as convincing. See 20 C.F.R. § 422.107(a), (b); Program Operations Manual System (POMS) RM 10210.010A. Examples of the types of evidence that an applicant may submit to establish age are a birth certificate, a religious record showing age or date of birth, or a passport. See 20 C.F.R § 422.107(b); see also 20 C.F.R. § 404.716(a) (stating the best evidence of age is a birth certificate or hospital birth record recorded before age five or a religious record that shows date of birth and was recorded before age five); POMS RM 10210.265 (listing kinds of documents that establish age for an SSN card). A delayed birth certificate (recorded after age five) may constitute convincing evidence. See 20 C.F.R. § 404.716(b); POMS RM 10210.265C. A final adoption decree that shows the child’s name and date of birth may also constitute convincing evidence. See POMS RM 10210.265C.

The Accuracy for Adoptees Act requires federal agencies to accept U.S. issued documents as evidence of date of birth for foreign-born adoptees who are adopted by a U.S. citizen parent. See Pub. L. No. 113-74, 127 Stat. 1212, amending § 320 of the Immigration & Nationality Act, 8 U.S.C. § 1431. Acceptable documents include a state court order, birth certificate, certificate of foreign birth, certificate of birth abroad, or similar state vital records document issued by the child’s state of residence in the United States after the child has been adopted. See id.; 8 U.S.C. § 1431(c).

The agency has issued instructions for processing SSN applications affected by the Accuracy of Adoptees Act. See EM-14023 – Enumeration: Processing Name and Date of Birth Determinations for Foreign-Born Adopted Children under the Accuracy for Adoptees Act – One Time Only Instructions. These instructions also apply where an individual is requesting to change his or her date of birth in agency records. See EM-14023.F. If the individual presents a document issued by a state as evidence to establish a date of birth different from what is shown on the child’s foreign adoption documentation or foreign birth certificate, the following determinations must be made:

• whether the state has the authority under state law to change a foreign-born individual’s date of birth through a court order;

• the state legal requirements to change a date of birth;

• whether the court order needs to list the supporting documentation of the change of date of birth on the state court order;

• if the state has the authority to change a date of birth, the documents the state issues as proof of the change of date of birth; and

• whether the state issues a Certificate of Foreign Birth, Certificate of Birth Abroad, or other Bureau of Vital Statistics (BVS) document as proof of change of date of birth. If the state issues the document under a different title, identify the name of the document.

See id.

We looked to Tennessee law to address the questions above because NH presented a Tennessee Court order and a Tennessee Certificate of Foreign Birth as evidence to change her date of birth. Tennessee’s adoption statutes give jurisdiction to its circuit and chancery courts to enter new orders of adoptions for children who were adopted in foreign countries. Tenn. Code Ann. § 36-1-106(c)(1) (West 2018)._/3

The petition to adopt must include, in relevant part, the birth date, state, and county or country of birth of the child, if known; evidence showing approval of the foreign country’s government; evidence the child has proper authorization to enter the United States; and a statement that it is necessary for the child to be legally adopted in the United States. Tenn. Code Ann. § 36-1-116(b)(3), (b)(15). Upon the filing of the petition, the court shall have exclusive jurisdiction of all matters pertaining to the child. Tenn. Code Ann. § 36-1-116(f)(1).

When the adoption occurred in a foreign country in accordance with the laws of the foreign country, the petition for re-adoption should include a copy of the foreign adoption decree, a certified translation of the decree, and proof of full and final adoption from the federal government. Tenn. Code Ann. § 36-1-106(c)(2)(A). When such documents are filed, the court may enter an order recognizing the foreign adoption without the necessity of a hearing. Tenn. Code Ann. § 36-1-106(c)(2)(B). Tennessee law does not require an adoption order to list supporting documentation used to determine the date of birth for an adoptee born outside the United States. See Tenn. Code Ann. § 36-1-120(a), (f).

For an adoptee born outside the United States, the state registrar prepares a Report of Foreign Birth upon receipt of a certified copy of the final order of adoption and an application for a report. Tenn. Code Ann. §§ 36-1-106(c)(2)(C), 68-3-310; Tenn. Comp. R. & Regs. 1200-07-01-.04(11) (2018)._/4

The report reflects the date of birth indicated in the court’s order and the information provided by the clerk of court. Tenn. Code Ann. § 36-1-120(f)(1), (f)(2)(B); Tenn. Comp. R. & Regs. 1200-07-01-.04(11). All documents in support of the report are placed in an envelope and sealed. Tenn. Comp. R. & Regs. 1200-07-01-.04(12).

Tennessee regulations provide Tennessee’s legal requirements to change a date of birth on a vital record, including a Report of Foreign Birth. See Tenn. Code Ann. § 68-3-203 (governing the amendment and correction of vital records). Tennessee regulations indicate that any item on a certificate filed with the state registrar may be corrected by an order of a court of record with the exception of the date of filing, the signature of the certifier, and changing the date of birth to a date which is after the date of filing. Tenn. Comp. R. & Regs. 1200-07-01-.10(2)(a)(5); see Wilson v. Wilson, No. 01-A-01-9802-CV00100, 1999 WL 74786, at *2 (Tenn. Ct. App. Feb. 18, 1999) (noting a court’s authority to amend a vital record). Further, an item that was established by court order on a certificate can only be amended by an order of a court of competent jurisdiction, preferably the court that granted the original order. Tenn. Comp. R. & Regs. 1200-07-01-.10(2)(a)(6). The only supporting evidence required to change the date of birth is a certified copy of the court order. See Tenn. Comp. R. & Regs. 1200-07-01-.10(2)(a)(5), (6). The regulations do not state the kinds of supporting evidence required for the court to change a date of birth. See Tenn. Comp. R. & Regs. 1200-07-01-.10(2)(a)(5), (6).

NH’s adoptive mother presented NH’s Report of Foreign Birth and the Order as evidence in support of her request to change NH’s date of birth in agency records. The chancery court had exclusive jurisdiction over all matters pertaining to NH due to the filing of the adoption petition. See Tenn. Code Ann. § 36-1-116(f)(1). NH’s date of birth in the original Report of Foreign Birth was established by the Court’s original order of re-adoption. Therefore, NH’s date of birth could only be amended based on a finding from the Court. See Tenn. Comp. R. & Regs. 1200-07-01-.10(2)(a)(6). Although Tennessee law does not specify whether the court must list the supporting documentation, in this case, the Court’s Order indicates that NH provided the necessary medical evidence establishing her date of birth. NH’s Report of Foreign Birth and the Order comply with all requirements of Tennessee law and constitute convincing evidence of NH’s correct date of birth. Pursuant to EM-14023, the agency should accept these documents as evidence of NH’s correct date of birth.

CONCLUSION

Tennessee law allows a state court to change a child’s date of birth on a Report of Foreign Birth. Based on this information, the agency may rely on the Tennessee Chancery Court’s Amended Final Order for Re-Adoption and the Tennessee Report of Foreign Birth to establish a different date of birth for NH.

Footnotes:

1 Although we do not have a copy of the medical evidence, the Order indicated that a physician’s letter was attached to the Order.

² All citations to the Code of Federal Regulations refer to the 2017 version.

³ All citations to West’s Tennessee Annotated Code refer to the 2018 version.

⁴ All citations to the Tennessee Rules and Regulations refer to the 2018 version.