The Claimant was adopted in Ohio, therefore, we apply Ohio’s adoption laws to determine whether the Claimant was NH’s child for benefit purposes. Under the Ohio law, an adoption has the effect of terminating the parent-child relationship between the adopted person and her former legal parents. Additionally, when a child in Ohio is adopted twice, the second adoption entirely replaces the first adoption, thus cutting off the child’s right to inherit from the first adoptive parents. The Claimant’s second adoption by her natural father entirely replaced the first adoption by the NH and the NH’s spouse (natural grandparents). The Claimant was no longer the NH’s adopted child at the time she applied for child’s benefits. The Claimant is not entitled to child’s benefits on the NH’s record.

BACKGROUND AND QUESTION PRESENTED

On June XX, 2008, numberholder K~ and his wife R~ adopted their natural granddaughter K2~ in Franklin County, Ohio.

On December XX, 2011, K2~ was adopted by her natural father J~ in Franklin County, Ohio. J~ is the natural son of K~ and R~.

On February XX, 2014, K~ applied for retirement benefits. His wife R~ applied for child’s benefits on K2~’s behalf, claiming that K2~ is K~’s adopted child.

You asked whether K2~ is still K~’s child for benefit purposes, in light of her subsequent adoption by her natural father J~. We conclude that K2~ was no longer K~’s child at the time her application was filed, and thus cannot receive child’s benefits on K~’s record.

DISCUSSION

Section 202(d) of the Social Security Act (the Act) provides for the payment of child’s insurance benefits to a child of an insured individual. As relevant here, in order to grant K2~ benefits on K~’s earnings record, SSA must find, among other things, that K2~ is K~’s legally adopted child. See Sections 202(d)(1) and 216(e) of the Act; 20 C.F.R. §§ 404.350(a)(1), 404.354. To determine whether an applicant is an insured individual’s legally adopted child, SSA considers whether the applicant was legally adopted by the insured under the adoption laws of the state or country where the adoption took place. See 20 C.F.R. § 404.356; see also POMS GN 00306.135 (to be legal, adoption must be valid under law of state where it took place); POMS PR 01805.039A (PR 11-065) (citing the Act, regulations, and legislative history to show that the agency must apply state adoption laws, not inheritance laws, to determine whether an adopted child is a “child” for benefit purposes).

Given that K2~ was adopted by K~ in Ohio, Ohio’s adoption laws apply to determine whether K2~ was K~’s child for benefit purposes at the time she applied for child’s benefits. Assuming that the adoption was valid under Ohio law, K2~ would normally be entitled to child’s benefits on K~’s record. Here, however, in between her adoption by K~ and the filing of her application, K2~ was adopted by her natural father J~. Thus, the issue is how K2~’s second adoption by J~ affects her status as K~’s legally adopted child for benefit purposes. As noted above, an applicant’s status as a legally adopted child is determined solely by applying state adoption laws; the agency does not apply state inheritance laws, which are for natural children only. See 20 C.F.R. § 404.356; POMS PR 01805.039A (PR 11-065). We note that POMS GN 00306.165 instructs agency adjudicators to apply state inheritance laws to determine whether the adopted child of an insured individual who was adopted by another person is the insured’s child for benefit purposes. We believe that the POMS is incorrect in this regard, and recommend that the agency revise POMS GN 00306.165A by deleting the reference to a legally adopted child.

Under Ohio law, an adoption has the effect of terminating the parent-child relationship between the adopted person and her former legal parents. Ohio Rev. Code § 3107.15(A)(1). Additionally, when a child in Ohio is adopted twice, the second adoption entirely replaces the first adoption, thus cutting off the child’s right to inherit from the first adoptive parents’ estate. Evans v. Freter, 20 Ohio App. 2d 8, 11 (Ohio Ct. App. 1969) (“If John C. Freter could inherit from or through his first adopting parents after the second adoption . . . his estate would descend not just to his parents by the second adoption, who are his parents as of the time of his death, but also to those claiming to be parents under the previous adoption which has been terminated. We are unable to construe the statute in a manner which would require this conclusion. . . .”). Here, K2~’s second adoption by her natural father entirely replaced the first adoption by her natural grandparents, which means that her natural grandparents K~ and R~ were no longer her legal parents under Ohio law as of the date of her second adoption. Thus, by the time R~ applied for child’s benefits on K2~’s behalf, K2~ was no longer K~’s child under Ohio law. Accordingly, K2~ is not entitled to benefits as a child of numberholder K~.

CONCLUSION

For the above reasons, we find that K2~ was no longer K~’s adopted child at the time she applied for child’s benefits. Accordingly, K2~ is not entitled to child’s benefits on K~’s record.

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Assistant Regional Counsel

In Ohio, an adult may be adopted if she is (1) totally and permanently disabled or (2) determined to be mentally retarded. The child claimant in this case satisfies these statutory provisions. Additionally, because the Final Order of Adoption was signed by a probate judge in Ohio, it can be assumed that at least one of the adoptive parents was domiciled in Ohio at the time of the adoption. Accordingly, the child meets the relationship requirement for entitlement to child's benefits on the account of the NH, her adoptive father.

You have requested our assistance in determining whether under Ohio law, W~ and C~'s adoption of their mentally retarded adult foster child is a valid adoption. For the reasons established below, we conclude that W~ and C~'s adoption of J~ was valid under Ohio law and J~ can be considered W~'s child for purposes of entitlement to child's benefits on his account.

FACTS

In 1980, J~, who is mentally retarded, was placed as a foster child in the home of W~ and C~, who at the time resided in Michigan. J~'s date of birth is September XX, 1962. In 1981, J~ became entitled to Surviving Disabled Child's benefits on the record of her natural father, P~. J~ lived continuously in the W~ and C~ home, and in 1991 they decided to move to Ohio. The State of Michigan informed them that they would have to adopt J~ in order to take her with them. On September XX, 1991, they legally adopted J~ in Perry County Ohio; she was 29 years old at that time. With the adoption, J~'s surname was changed to theirs.

W~ died on August XX, 2001, while domiciled in Ohio, and C~~ applied for Child's Insurance Benefits on behalf of J~ with herself as a representative payee.

ANALYSIS

J~ would be entitled to Title II child's benefits on W~'s account so long as (1) she was his child; (2) she has filed an application for benefits; (3) she is unmarried; (4) as an individual over the age of eighteen, she was under a disability that began prior to age twenty-two; and (5) she was dependent on him at the time of his death. 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350-404.368. You have indicated that J~ meets the requirements of "unmarried" and "disabled," thus, the only issue is whether she had the requisite relationship with W~. The statutory definition of "child" includes a legally adopted child. 42 U.S.C. § 416(e); 20 C.F.R. § 404.356. An adoption is legal if it complies with the adoption laws of the state where it took place and at least one party to the adoption was domiciled or residing in that state at the time of the adoption. POMS GN 00306.135; 20 C.F.R. § 404.356. It is our conclusion that J~ was W~'s adopted "child" pursuant to Ohio law.

In Ohio, an adult may be adopted if she is (1) totally and permanently disabled or (2) determined to be mentally retarded. Ohio Revised Code (ORC) Ann. § 3107.02 (B)(1), (2) (2001). J~ satisfies these statutory provisions; she had already been identified as a disabled child on her natural father's account, and she is mentally retarded. Indeed, in the Final Order of Adoption of Adult Perry County Ohio probate judge L~ specifically noted that J~ "is a mentally retarded person." Additionally, because the Final Order of Adoption was signed by a probate judge in Ohio, we can assume that at least one of the F’s~ was domiciled in Ohio at the time of the adoption. Accordingly, J~ meets the relationship requirement for entitlement to Child's Benefits on the account of W~.

CONCLUSION

For the foregoing reasons, we conclude that J~ was a legally adopted adult under Ohio law and can establish entitlement to child's benefits on the account of W~.

Thomas W. C~

Regional Chief Counsel

By: Elizabeth F~

Assistant Regional Counsel