To determine the legality of an adoption, the agency looks to the law of the state where the adoption took place. Because the claimant was adopted in Pennsylvania, the Pennsylvania law applies. Under the  Pennsylvania law, any individual may be adopted, regardless of age or residence and the consent to adopt is required. In this case, the Claimant provided the necessary consents required by the Pennsylvania  Law, therefore, the adoption is valid under Pennsylvania law. The Claimant’s adoption resulted in a parent-child relationship between the NH and the Claimant and the Claimant qualify for benefits as the stepchild of the NH. The claimant’s meets all of the stepchild requirements under SSA law and is entitled to Disabled Adult Child’s benefits on the NH’s account. 

QUESTION PRESENTED

This is in response to your request for an opinion as to the validity of the NH’s adoption of disabled adult N~ under Pennsylvania law, and whether a parent-child relationship exists.

CONCLUSION

Based on our review of the facts of this case and our research of the relevant statutes, regulations, and case law, it appears that N~’s adoption is valid under Pennsylvania law, and that it resulted in a parent-child relationship between the NH and N~ for purposes of N~’s entitlement to child’s benefits on the NH’s account. 

In the alternative, it also appears that N~ qualifies for a parent-child relationship with the NH due to their stepparent-stepchild relationship.

BACKGROUND

N~ is a disabled, thirty-year old adult. She was born on September **, 1984 in Lehigh County, Pennsylvania to P~ and N1~.  Her natural mother, P~, initially applied for Supplemental Security Insurance Benefits (“SSI”) on N~’s behalf in November 1984. That application was approved. N~’s benefits terminated for non-medical reasons in April 2002, but P~ reapplied for N~’s SSI benefits in October 2002. Upon reapplication, N~ was medically approved for benefits with an onset date of September **, 2002, based on the conditions of mental retardation and late effects of cerebrovascular disease. N~ has been receiving SSI benefits continuously since that time, with P~ as her representative payee.

P~ and N~’s natural father, N1~, divorced in 1998 in the Commonwealth of Pennsylvania.

On June **, 2005, N1~ filed an application for DIB. In his application, N1~ indicated that he married P~ in 1980, but that they divorced in 1998 in Pennsylvania.  N1~ did not list N~ as his disabled adult child. N1~ passed away on January **, 2009. 

In March 2009, P~ filed an application for surviving disabled adult child benefits’ on behalf of N~.  The field office also obtained an application for DIB based on N~’s own earnings record in May 2009. The field office approved both applications for surviving disabled child’s benefits and DIB under the rules of collateral estoppel.

The NH, D~, married P~ on July **, 2009, when N~ was twenty-four years old.  The NH filed an application for DIB on October **, 2009, where he listed N~ as his child. This application was made after his marriage to P~, but before his adoption of N~.  His DIB application was approved on February **, 2010, and the allowance was processed on April ** 2010.  The field office did not secure a disabled adult stepchild application at this time because N~ did not meet the durational requirement for a stepchild.

On July **, 2012, when N~ was twenty-seven years old, the Orphans’ Court Division of the Court of Common Pleas in the County of Northampton granted the adoption of N~ by the NH and her natural mother, P~, who joined in the petition.

On February **, 2013, N~’s natural mother, P~, filed an application on behalf of N~ for disabled adult child’s benefits on the NH’s record. The current request for a legal opinion arises out of N~’s February 2013 application for disabled adult child’s benefits on the NH’s account. The issues are whether N~’s adult adoption is valid under Pennsylvania Law, and whether a parent-child relationship exists.

DISCUSSION

Disabled adult child’s benefits may be granted based on the earnings record of an insured who is entitled to disability insurance benefits if the applicant:

(1) is the insured’s natural child, legally adopted child, stepchild, grandchild, stepchild, or equally adopted child;

(2) is dependent on the insured as defined in the regulations;

(3) has applied for benefits;

(4) is unmarried;

(5) is eighteen years old or older; and

(6) has a disability that began before reaching age twenty-two. 

42 U.S.C. § 402(d) (2013); 20 C.F.R. § 404.350(a) (2014); 20 C.F.R. §§ 404.355 to 359. This memorandum will address each of the requirements in turn.

1. I.  

   N~ is Both the Legally Adopted Child and the Stepchild of NH.

   Under the Act and the implementing regulations, a “child” includes a legally adopted child or a stepchild. 42 U.S.C. § 416(e) (2004); 20 C.F.R. §§ 404.356, 404.357.  

   1. A. 

      N~ is the Legally Adopted Child of the NH.

      The first consideration is whether N~ qualifies as the NH’s legally adopted child. To determine the legality of an adoption, the agency looks to the law of the state where the adoption took place. 20 C.F.R. § 404.356. Because N~ was adopted in Pennsylvania, Pennsylvania law applies. 

      Under Pennsylvania law, any individual may be adopted, regardless of age or residence. 23 Pa. Cons. Stat. Ann. § 2311 (1981). Consent to the adoption is required of (1) the adoptee, if over 12 years of age; (2) the spouse of the adopting parent, unless they join in the adoption petition; (3) the parents or surviving parent of an adoptee who has not reached the age of 18 years; (4) the guardian of an incapacitated adoptee; or (5) the guardian of the person of an adoptee under the age of 18 years, if one, or of the person(s) having custody of the adoptee (if any such person can be found), whenever the adoptee has no parent whose consent is required. 23 Pa. Cons. Stat. Ann. § 2711(a)(1-5) (2004). 

      Additionally, “the consent of a former husband of the natural mother shall be required if he was the husband of the natural mother at any time within one year prior to the birth of the adoptee” unless there is proof that the husband is not the natural father of the child. 23 Pa. Cons. Stat. Ann. § 2711(b). In its discretion, the court may dispense with other consents other than that of the adoptee when the adoptee is over 18 years of age, or when the adoptee is under 18 years of age and has no living parent whose consent is required. 23 Pa. Cons. Stat. Ann. § 2713 (1981). 

      The statutory requirements for consent to an adoption can be fulfilled if N~ herself provided consent, as she is over the age of 12. The other provisions regarding consent would not apply, as the spouse of the NH (N~’s natural mother) joined in the adoption petition, N~ is older than 18 years of age, and the adoption petition indicates that N~ does not have a guardian. 23 Pa. Cons. Stat. Ann. § 2711(a)(2), (3), (4), & (5). Likewise, P~’s former husband and N~’s natural father, N1~, is deceased, and, therefore, his consent could not be obtained. 23 Pa. Cons. Stat. Ann. § 2711(b).

      Here, N~ has explicitly provided proof of consent in Exhibit “C” of the Petition for Adoption, which states that “I, N~, an adult individual, being of sound mind, . . . do hereby consent to the attached Petition for Adoption . . . .” N~ also provided consents by NH and her natural mother at Exhibits “B” and “C” of the Petition for Adoption. 

      A Pennsylvania court has no authority to decree an adoption in the absence of the statutorily required consents. In re Adoption of D., 769 A.2d 508, 509 (Pa. Super. 2001). As the Pennsylvania court decreed the adoption of N~ on July 24, 2012 based on the consents from N~, P~, and the NH, we believe that the adoption satisfies the requirements of Pennsylvania law.  Accordingly, we conclude that N~ is the legally adopted child of the NH for purposes of entitlement to benefits on his record.

   2. B. 

      N~ is the Stepchild of the NH.

      In addition to qualifying for benefits as the legally adopted child of the NH, N~ may also qualify for benefits as the stepchild of the NH. 20 C.F.R. §§ 404.350(a)(1), 404.357. To determine if N~ is the NH’s stepchild, N~’s natural mother must have married the NH after N~’s birth, and this marriage must be either (1) a valid marriage under state law or (2) a marriage which would be valid except for a legal impediment. 20 C.F.R. § 404.357. Additionally, if the NH were alive at the time N~ applied for benefits, she must have been a stepchild for at least one year immediately preceding the date of her application for benefits. Id.

      According to the information provided, N~’s natural mother married the NH in July 2009 in Pennsylvania, which occurred after N~’s birth in 1984. This satisfies the first requirement to qualify as a stepchild under the regulations. 

      The second requirement to qualify as a stepchild under the regulations is a valid marriage or a marriage which would be valid except for a legal impediment. The marriage between NH and N~’s natural mother appears to be valid under Pennsylvania law codified at 23 Pa. Con. Stat. Ann. §§ 1102, 1301, 1503(b). ^[1] The NH and N~’s mother are members of the opposite sex, and obtained license number 2009-000712, according to the documentation provided from the Marriage License Bureau.  The ceremony was performed in the County of Northampton, Pennsylvania by Minister Gracher L. Selby. Under Pennsylvania law, this appears to be a legally valid marriage, as NH and N~’s natural mother have met the enumerated requirements.  23 Pa. Con. Stat. Ann. §§ 1102, 1301, 1503(b).

      Finally, because the NH was alive at the time N~ applied for benefits, the regulations specify that N~ must have been a stepchild for at least one year immediately preceding the date of application for benefits. N~ applied for benefits on February 23, 2013, which was more than one year after the July 31, 2009 marriage of the NH to N~’s natural mother. The marriage occurred after N~’s birth in 1984, which satisfies the regulation at 20 C.F.R. § 357. It therefore appears that N~ has met this portion of the regulatory criteria to qualify as a stepchild as well.

      Accordingly, it is likely that N~ also qualifies as a stepchild of the NH for purposes of entitlement to benefits on his record.

2. II.  

   N~ is Dependent on the NH Per the Regulations.

   In addition to demonstrating that she is the NH’s legally adopted child or stepchild, N~ must also demonstrate that she is dependent on the NH as defined in the regulations. 20 C.F.R. §§ 404.350(a)(2), 404.362. For the foregoing reasons, N~ likely meets the dependency requirements as both a legally adopted child and a stepchild.

   1. A. 

      N~ Meets the Dependency Requirement as a Legally Adopted Child.

      Under the regulations, a legally adopted child is presumed dependent on the insured if she was adopted before the insured became eligible for disability benefits. 20 C.F.R. § 404.362(a).  If the adoption occurred after the insured became entitled to disability benefits, and the claimant was over eighteen years old at the time of the adoption, the claimant must demonstrate that she was living with or receiving at least one-half of her support from the insured for the year immediately preceding the month in which the adoption occurred. 20 C.F.R.§ 404.362(b)(1)(ii). 

      According to the information provided, the NH filed an application for DIB on October **, 2009; the application was approved on February **, 2010; and the allowance was processed on April **, 2010. Because N~ was adopted on July **, 2012, a date well after the NH became entitled to disability insurance benefits, it cannot be presumed that she was dependent on the NH. 

      However, N~ can meet the dependency requirement by showing that she was living with or receiving at least one-half of her support from the NH for the year immediately preceding the month in which the adoption occurred. N~ indicated in her statement that she has been living with the NH since December 1998 and that the NH has provided support for N~ and her natural mother since December 1998. As N~ has lived with the NH for more than one year proceeding the month in which the adoption occurred in July 2012, and has provided evidence that she was receiving support from the NH, she likely satisfies the dependency requirement as a legally adopted child.

   2. B. 

      N~ Meets the Dependency Requirement as a Legally Adopted Stepchild.

      The regulations also provide that if a stepchild is adopted after the insured became entitled to benefits, she is considered to be dependent on the insured. 20 C.F.R.§ 404.362(b)(2). As discussed above, N~ is the stepchild of the NH.  Therefore, under 20 C.F.R.§ 404.362(b)(2), N~ most likely would be considered dependent on the insured because she was legally adopted by the NH and was also his stepchild. ^[2]

3. III.  

   N~ Meets the Remaining Requirements for Disabled Adult Child’s Benefits.

   Finally, N~ meets the remaining requirements to be eligible for Disabled Adult Child’s benefits. The remaining requirements for disabled adult child benefits are that the disabled adult child: has applied for benefits; is unmarried; is eighteen years old or older, and has a disability that began before she reached age twenty-two. 20 C.F.R. § 404.350(a)(3), (4), & (5).

   These remaining requirements have been met: (1) N~’s mother applied for child’s insurance benefits on N~’s behalf on February **, 2013; (2) according to the Application Summary for Child’s Insurance Benefits filed by N~’s mother on her behalf on February **, 2013, N~ is unmarried; and (3) based on N~’s birth certificate, she is currently 30 years old.

   With regard to the requirement that the adult child has a disability that began before age 22, it appears that N~ has been disabled since September **, 2002, when she was eighteen years old. This is derived from the onset date established by N~’s October 2002 approval for SSI benefits based on the conditions of mental retardation and late effects of cerebrovascular disease. Therefore, N~ satisfies the requirement of having a disability that began before she reached age twenty-two.

CONCLUSION

For the above reasons, we conclude that N~’s adult adoption is valid under Pennsylvania law and confers upon her parent-child relationship status. In the alternative, it appears that N~ qualifies as the NH’s stepchild, which also confers parent-child relationship status.

In addition, N~ meets the other regulatory requirements for entitlement to Disabled Adult Child benefits, as it appears that N~ is dependent on the NH, has applied for benefits, is unmarried, is over the age of eighteen, and her disability began before she turned twenty-two years old.

Accordingly, based on the foregoing reasons, we conclude that N~ is entitled to Disabled Adult Child’s benefits on the NH’s account. 

Nora Koch
Acting Regional Chief Counsel

By: ___________________________
Evelyn Rose Marie Protano
Assistant Regional Counsel

The Pennsylvania Adoption Act mandates a strict procedure to be followed in the adoption of a child. Although Pennsylvania requires a married adopting parent to obtain the consent of his or her spouse before an adoption can take place, the Adoption Act does not require that both spouses join in the adoption petition.

In this case, the deceased number holder did not take part in the legal adoption nor did he ever promise to adopt the child. As a result, the child cannot be considered to be either a legally or equitably adopted child of the deceased.

QUESTION PRESENTED

On April 26, 2007, you requested our opinion as to whether a parent-child relationship can be established under Pennsylvania law between Number Holder C~, and T~ A'M. P~-S~ (T~) based upon T~' adoption by the Number Holder's wife.

CONCLUSION

We have reviewed the material you provided and have researched the relevant provisions of the Code of Federal Regulations and Pennsylvania law as it pertains to adoption. We believe that, under the facts presented, there is insufficient evidence to establish a parent-child relationship between the Number Holder and T~. Accordingly, we believe that T~ is not entitled to receive child's benefits on the Number Holder's account.

BACKGROUND

According to the information you provided, on May 2, 1996, the Number Holder married A~ P~-S~ (A~) in Bellefonte, PA. On January 26, 2000, the Commonwealth of Pennsylvania, Court of Common Pleas of Allegheny County, Orphans' Court Division issued a Certificate of Adoption to A~ as the adopting parent of T~. At the time of the adoption, A~ and the Number Holder were living together as husband and wife. According to A~, the Number Holder wanted nothing to do with the adoption. The Certificate of Adoption does not list the Number Holder as an adoptive parent. An amended birth certificate, dated May, lists "A~ R. P~" as T~'s mother. T~ was born on July. No father is listed in the amended birth certificate.

On September 15, 2002 and February 25, 2004, the Number Holder applied for disability benefits. He was paid benefits from June 2000 through September 2001, and he became re-entitled to benefits effective January 2004. In June 2005, A~ and the Number Holder separated and the Number Holder moved to New York State.

On March 7, 2007, A~ filed a disability claim for herself. A~ told the Technical Expert at the Social Security field office that she had an adopted child under the age of 18, and the Technical Expert asked why the child was not receiving benefits under the Number Holder's record. A~ responded that she had not applied for child's benefits as the Number Holder had wanted nothing to do with T~' adoption. The Technical Expert informed A~ that it still might be possible for T~ to obtain benefits on the Number Holder's account and, on March 28, 2007, A~ filed an application for child's benefits on T~' behalf. The relationship of the Number Holder and T~ indicated on the application is "adopted child".

DISCUSSION

I. T~ Would Not Be Entitled to Child's Benefits as the Number Holder's Legally Adopted Child.

According to the Code of Federal Regulations, a claimant may be eligible for benefits as an insured's child if the claimant was legally adopted by the insured. 20 C.F.R. § 404.356 (2006). SSA applies the adoption laws of the state where the adoption took place to determine if the claimant is the insured's legally adopted child. Id. In this case, as T~ was adopted in Pennsylvania, Pennsylvania adoption law controls.

There is no common law adoption in Pennsylvania. See Kilby v. Folsom, 238 F.2d 699, 700 (3d Cir. 1956). Rather, adoption of children is governed by a strict application of the Adoption Act. 23 Pa. C.S.A. §§ 2101-2901; Gibbs v. Ernst, 538 Pa. 193, 206 (1994). Exceptions to the Adoption Act may not be judicially created. Id.

The Pennsylvania Adoption Act mandates a strict procedure to be followed in the adoption of a child. Although Pennsylvania requires a married adopting parent to obtain the consent of his or her spouse before an adoption can take place, the Adoption Act does not require that both spouses join in the adoption petition. 23 Pa. C.S.A. § 2711.

In this case, although the Number Holder may have given A~ consent to adopt T~, it is clear from the information provided that he did not join in the adoption petition as his name does not appear on T~'s Certificate of Adoption. Accordingly, the Number Holder did not legally adopt T~ under Pennsylvania law. Therefore, T~ would not be entitled to child's benefits as the Number Holder's legally adopted child. 20 C.F.R. § 404.356.

II. T~ Would Not Be Entitled to Child's Benefits as the Number Holder's Equitably Adopted Child.

Under the Code of Federal Regulations, a claimant may also be eligible for benefits as an equitably adopted child. 20 C.F.R. § 404.359 (2006). In order to be eligible for benefits as an equitably adopted child of the insured, the insured must have agreed to adopt the claimant as his child but the adoption did not occur. Id. The agreement to adopt must be one that would be recognized under state law so that the claimant would be able to inherit a child's share of the insured's personal property if he were to die without leaving a will. Id. The agreement must be in whatever form, and the clamant must meet whatever requirements for performance under the agreement that state law directs. Id. If a claimant applies for benefits during the insured's life, the law of the state where the insured had his permanent home at the time of the claimant's application will be followed. Id.

Based on the facts provided, it does not appear that T~ meets the requirements to be considered an equitably adopted child of the Number Holder. Although the number holder may have consented to A~'s adoption of T~, there is no evidence that the Number Holder himself ever agreed to adopt T~. To the contrary, A~ indicated that the Number Holder wanted nothing to do with T~' adoption. If additional facts are developed indicating that the Number Holder had, at some point, agreed to adopt T~, it may still be possible to analyze T~' claim for benefits under an equitable adoption theory. If evidence of such an agreement is found, it should be analyzed under New York law as the Number Holder had his permanent home in New York at the time of T~' application for child's benefits on the Number Holder's account.

Michael Mc Gaughran,
Regional Chief Counsel

By: ___________________________
Heather Benderson
Assistant Regional Counsel