SSR 72-60: SECTION 216(e)(1) (42 U.S.C. 416(e)(1)) RELATIONSHIP -- LEGAL ADOPTION -- CHANGE OF DOMICILE PRIOR TO FINAL DECREE OF ADOPTION

20 CFR 404.1109(a)

SSR 72-60

Where a worker and wife, long time residents of North Carolina, petitioned for adoption of a child in that State, statutes of which require only that petitioners be residents for 6 months prior to filing of petition, and where prior to granting of interlocutory and final decrees, parties become domiciled in Tennessee, a State which recognizes by comity a court decree affecting status of individuals, valid under law of sister State where entered if not contrary to policies of Tennessee, held, change of State of residence by petitioners after filing of petition did not invalidate under law of North Carolina decrees subsequently entered in the proceeding, and child so adopted may become entitled to child's insurance benefits provided other requirements satisfied.

C, the child-claimant, born November 9, 1966, was placed at birth in the home of R, the worker, and his wife, longtime residents of North Carolina. In August 1967, R filed a petition with the court to adopt C. However, on September 24, 1967, he and his family moved to Tennessee where a new residence was established prior to completion of the action for adoption. The North Carolina court entered an interlocutory order in August 1969 and granted the final decree of adoption in August 1971, the same month in which an application for child's insurance benefits was filed on behalf of C.

The question presented is whether the validity of the North Carolina decree of adoption is affected by the fact that the parties changed their State of residence to Tennessee after filing the petition for adoption. This, in turn, depends on whether, under the laws of Tennessee, the adoption would be recognized as valid in establishing the relationship of parent and child between the worker and the child.

Section 216(e) of the Social Security Act defines the term "child," as pertinent here, as the child or legally adopted child of an individual.

The statutes relating to adoption in North Carolina (N.C. Gen. Stat., §§ 48-1, et seq.) provide with respect to "residence" (which, when used in the adoption statutes of that State, may actually pertain to "domicile," 40 N.C.L.R. 691 (1962), Interstate Adoption in North Carolina):

§§ 48-3. What minor child may be adopted. -- Any minor child, irrespective of place of birth or place of residence, and whether or not a citizen of the United States, may be adopted in accordance with the provisions of this chapter.

§§ 48-4. Who may adopt children. -- * * *

(c) Provided further, that the petitioner or petitioners shall have resided in North Carolina, or on Federal territory within the boundaries of North Carolina, for 6 months next preceding the filing of the petition . . . (Emphasis added).

Regardless of whether the term "resident," as employed in the General Statutes, is equated with "domicile," there is no reason to conclude other than that the requirements of the statute, supra, were complied with by the worker and the child at the time the petition was filed. The statutes do not specifically require the parties to continue to reside in the State of North Carolina after the petition is filed. The only related provisions are contained in §§ 48-17(b)(1) and 48-22, N.C.G.S., which require the interlocutory and final decrees to show that all necessary parties were properly before the Court.

Section 48-28, N.C.G.S., further provides:

§ 48-28. Questioning validity of adoption proceeding. --

(a) After the final order of adoption is signed, no party to an adoption proceeding nor anyone claiming under such a party may later question the validity of the adoption proceeding by reason of any defect or irregularity therein, jurisdictional or otherwise, but shall be fully bound thereby, save for such appeal as may be allowed by law. No adoption may be questioned by reason of any procedural or other defect by anyone not injured by such defect, nor may any adoption proceeding be attacked either directly or collaterally by any person other than a natural parent or guardian of the person of the child. The failure on the part of the clerk of the superior court, the county director of public welfare, or the executive head of a licensed child placing agency to perform any of the duties or acts within the time required by the provisions of this section shall not affect the validity of any adoption proceeding.

(b) The final order of adoption shall have the force and effect of, and shall be entitled to, all the presumptions attached to a judgment rendered by a court of general jurisdiction. (Emphasis added)

Although there have been no cases in North Carolina dealing with the question here involved, it appears there would be no basis under the law of that State on which anyone could collaterally attack the adoption decree, insofar as the State courts are concerned. However, the Secretary is not bound by a State court order on the issue of an individual's status in an action to which he was not a party. C.F.R. v. Bosch, 387 U.S. 456 (1967); Rocker v. Celebrezze, 358 F.2d 119 (2 Cir. 1966); Dowell v. Gardner, 386 F.2d 809 (6th Cir. 1967); Cain v. Secretary of H.E.W., 377 F.2d 55 (4 Cir. 1967). Nevertheless, the decision of a State court must be considered and given appropriate probative weight in the administrative determination of status of the worker and the child. Collins v. Celebrezze, 250 F.Supp. 37 (S.D., N.Y., 1966); Kersey v. Gardner, 264 F.Supp. 887 (M.D., Ga., 1967).

Tennessee, the current State of domicile, follows the general rule that it will recognize by comity a court decree, affecting the status of individuals, valid under the law of a sister State where entered if not contrary to some policy of Tennessee. Finley v. Brown, 122 Tenn. 316, 123 S.W. 359 (1909).

Accordingly, since the adoption decree would be considered valid and the child would have the status of a legally adopted child of the worker under Tennessee law, held, the child is entitled to benefits on the earnings record of his adopting father.

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