20 CFR 404.1101 and 404.1109

SSR 66-22c

BENJAMIN V. CELEBREZZE, U.S.D.C., E.D. MICH., Civ. No. 26,100 (7/26/65)

Where, in a proceeding for adoption of a minor child by the worker and his wife, the Michigan Probate Court entered an order declaring the child a ward of the court for the purpose of adoption and placed the child in the custody of the worker and his wife under the supervision of the County Welfare Department, but the court neither waived nor shortened the statutory one-year waiting period, and where subsequently, after the deaths of the worker and his wife, the court entered an order of final adoption effective nunc pro tunc as of the date of the prior order of the court, held, such nunc pro tunc order is void since it sought to change the earlier judicial action rather than correct an inadvertence or mistake in the entry of the order describing the earlier judicial action. Accordingly, under sections 216(e) and 216(h)(2) of the Social Security Act, the child did not have the status of "child" of the worker at the time of his death.

McCREE, District Judge:

This is a proceeding under Title II of the Social Security Act (hereinafter the Act) as amended, 42 U.S.C. § 401 et seq. wherein Irving Benjamin, the plaintiff and guardian of Nancy N. Benjamin, a minor, seeks to have this court reverse the decision of the Appeals Council of the Social Security Administration and to grant Nancy N. Benjamin appropriate benefits of the Act.

The sole issue for determination here is whether or not Nancy N. Benjamin had the status of a child of the wage earner, her parental grandfather, on the date of his death. The Act defines "child" as "the child or legally adopted child of an individual". [42 U.S.C. 416(e)]. The Act further provides in pertinent part:

"In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the state in which such insured individual is domiciled at the time of his death . . ." [42 U.S.C. 416(h)(2)(A)].

Since there is no dispute as to the facts underlying the controversy and since the question presented is simply one of law, on review, the district court may inquire as to whether the Secretary correctly interpreted Michigan law and applied it to the facts. Carqueville v. Folsom, 170 F.Supp. 777 (N.D. Ill. 1958).

The facts appear as follows. Following the filing on March 16, 1961 of a petition by the wage earner and his wife for adoption of the minor, an order directing the Oakland County Welfare agent to make a full and complete investigation concerning the petition was signed on March 27 by the Honorable Arthur E. Moore, Judge of Probate of Oakland County. The County Agent filed the report as directed, March 30, 1961, recommending that the adoption be completed four months from the date of the order terminating parental rights. On the same day, Judge Moore entered an order terminating parental rights, and made the child a ward of the court for the purpose of adoption and placed the child in the custody of the petitioners under the supervision of the Oakland County Welfare Agent. The order did not refer to the recommendation that the usual one year supervisory period be shortened to four months.[1]

The wage earner died, domiciled in Michigan, on July 26, 1961 and his wife died on August 4, 1961. On November 16, 1961, plaintiff filed application for benefits on behalf of Nancy N. Benjamin, in her claimed status as the wage earner's adopted child. In support of the application, he submitted an "Order for Adoption -- Immediate Confirmation" signed by Judge Arthur E. Moore on November 6, 1961 ordering that petitioner and his wife "do henceforth stand in the place of parents to said child and that said child be the child of said petitioners. . . ." The order further provided that it be entered nunc pro tunc as of March 30, 1961.

Before reaching the ultimate issue of whether the minor is entitled to benefits under the Act the court must first decide whether under Michigan law the nunc pro tunc order of November 6, 1961 is void, and if so, whether it may be attacked in this collateral proceeding.

Proper use of an order nunc pro tunc is described in a Michigan case as, "A nunc pro tunc entry in practice, is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake." Freeman v. Wayne Probate Judge, 230 Mich. 455, 460 (1925) quoting from Perkins v. Hayward, 132 Ind. 95. See also Haray v. Haray, 274 Mich. 568 (1936). In accordance with the foregoing authority the Attorney General for the State of Michigan issued the following statement of the law.

"An order of adoption is effective on the date when it is entered by the court and cannot be retroactive to the date when the court made the child a ward of the court and the child entered the home of the adopting parents, unless a waiver of the one year period was ordered by the court, and through inadvertence or mistake, the order was never entered, and in that event the order of adoption can be entered nunc pro tunc." 1959 Op. Atty. Gen. 212.

In the case of In re Garlow's Estate, 313 Mich. 402 (1946), the Michigan Supreme Court affirmed a circuit court which had set aside a nunc pro tunc order of adoption by a probate court where there had never been any court proceedings prior to the issuance of the void order.

In the instant case it cannot be maintained that it was through inadvertence or neglect, or failure to transcribe an oral order, that an order of adoption was not entered on March 30, 1961. It was on that date that the probate court through its written order terminated the rights of the natural parents and made the child a ward of the court until its further order. On February 14, 1964, the probate judge wrote a letter to the applicant's attorney, subsequently introduced into evidence before the hearing examiner, in which he stated that it was his intention to enter an immediate order of adoption on March 30, 1961, but that this was not done because of the inadvertence of the adoption department. Although it may well have been the probate court's unexpressed intention to have issued an order of adoption o March 30, 1961, the court did in fact not do so even though it was empowered to waive the statutory one year waiting period. Its order providing for supervision of the child is clearly incompatible with a final order of adoption. It follows that the nunc pro tunc order did not subsequently record what had happened on the earlier date but sought to change the judicial action taken March 30, 1961.

* * * * * *

For the foregoing reasons the Appeals Council was correct in its determination that the minor was not the child of the wage earner at the time of the latter's death, and that the applicant was not entitled to benefits under the Social Security Act.

The determination appealed from is affirmed and an order may be entered in conformity with this opinion.

[1] M.S.A. § 27.3178 (547) provides: Order of adoption; time.] Sec. 7. One year after the entry of said order, unless circumstances have arisen that, in the opinion of the court, make adoption undesirable, the court may enter an order of adoption: Provided, however, That if the best interests of the child shall be served thereby, the court may waive the 1 year period, except where such waiver may be objected to in writing by the adopting parents. (CL '48, § 710.7.)

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