An adoption decree is considered valid under Philippine law unless and until it is invalidated by the appropriate Philippine court, A child validly adopted under Philippine law would be considered the child of the wage earner for purposes of intestate succession. Thus, the child could be entitled to surviving child's insurance benefits on his adoptive father's account. (B~, William E. -~~ '- RAV [W~] to ARC,Progs.10/04/88

This is in response to your request for our opinion.

ISSUE

Is Buck B~ the legally adopted child of the wage earner and Mrs. B~ for purposes of the child's entitlement to surviving child's insurance benefits?

Facts

On August 7, 1986 while residing in the Philippines, the wage earner and his wife petitioned the Regional Trial Court, Third Judicial Region, Angeles City, Philippines to adopt the claimant. The claimant is the illegitimate child of the niece of the wage earner's wife.

The claimant's natural mother, a minor at the time, and the claimant's maternal grandmother both consented to the adoption in writing. The identity of the claimant's natural father is unknown. There is no evidence that the written consent to the adoption of this father was obtained.

The wage earner had five natural children from a previous marriage. Three of the children consented in writing to the adoption. The wage earner had lost contact with his other two children and no consent was obtained from them. The wage earner's wife had a child out of wedlock by another man. There is no evidence that written consent to the adoption of this child was obtained.

An adoption decree was issued by the Philippines court on November 28, 1986. A birth certificate was subsequently issued showing the wage earner and his wife as the child's parents. The family moved to the United States on March 13, 1987. The wage earner died March l, 1988. At the time of his death, he and his wife and the claimant resided in Michigan.

Discussion

Under the Social Security Act the minor child of a currently insured individual is entitled to Social Security benefits, if the child was dependent upon the individual at the time of such individual's death and if the child meets the definition of "child" under the Act. Title II of the Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1).

The Act defines a child as "the child or legally adopted child of an individual." 42 U.S.C. § 416(e)(1).

In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property ..., if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, .... Applicants who according to such law would have the same status relative to taking in estate personal property as a child or parent shall be deemed such.

42 U.S.C. § 416(h)(2)(A).

Under the law of Michigan an "adopted person is an heir of the adopting parents .... " MICH. COMP. LAWS §700.110 (1987-1988). Michigan recognizes an adoption of an alien child completed according to the law of the foreign country by the court of the country of the child's nationality. MICH. ATT'Y GEN. lg55-56, No. 1842 at 341 as reported in MICH. COMP. LAWS § 710.1 note 17 (1968). It therefore becomes necessary to determine the validity of claimant's adoption under Philippine Law.

We referred the question of the validity of claimant's adoption in the Philippines to the Library of Congress. The communications with the Library of Congress, including the Library's response, are attached hereto.

Generally under Philippine law the written consent of both natural parents is required for a child to be adopted. However, in the case of an illegitimate and unrecognized child, the consent of the father who abandons the child is not necessary.

Philippine law also requires the written consent to the adoption of natural children of the adopting parents fourteen years of age and older.

Although the written consent of the wage earner's children was necessary and such consent was not obtained from two of his five children, the Library of Congress concluded that Philippine law would excuse such consent where the children had "abandoned" their natural parent.

The consent of the mother's illegitimate child would not be necessary if the child's parents had been disqualified from marrying one another at the time of the child's birth by an impediment. The claims folder does not contain enough information to determine whether this is true.

Regardless, however, of whether all of the legal requirements for adoption in the Philippines were met, the adoption decree is considered valid under Philippine law, unless and until it is invalidated by the appropriate court in the Philippines. Since we have no information that it has been invalidated, the adoption is valid under Philippine law.

Conclusion

Claimant, being validly adopted under Philippine law, is considered the child of the wage earner for purposes of intestate succession in Michigan. He is therefore the child of the wage earner under Title II of the Social Security Act.

Where a decree of adoption is issued and is later challenged, Philippine courts would consider the decree vacated when the appeal is filed thus rendering it ineffective throughout the pendency of the appeal even though as the result of a later appeal the initial adoption decree is affirmed. The court judgment specifically states when the judgment is to become "final and executory." (N~, Hermogenes S. — RAIX (T~), to RC, 10/24/83.)

Michael L. N~ was born in the Philippines on April 4, 1972. In June 1975 the wage earner, Hermogenes sought to adopt Michael by filing a petition in a municipal court in the Philippines. A hearing was held and the court issued a decree of adoption in November 1975. This decree was challenged in the Court of Appeals. On November 16, 1977, the appellate court set aside the decree and dismissed the petition. A motion for reheating or reconsideration was then made on behalf of the wage earner, appellee. On June 20, 1978, the appellate court reversed its November 1977 decision and affirmed the initial adoption decree. By its terms, the judgment was to become final and executory on July 7, 1978.

On November 7, 1978, an application was filed seeking child's insurance benefits for Michael on the wage earner's account. The application was denied, based upon SSA's determination that Michael had not bean adopted until after the date of the wage earner's entitlement and that the adoption decree was not issued by a court of competent jurisdiction in the United States. A second application was filed on Michael's behalf on June 15, 1982. benefits were awarded by the district office effective December 1981. You have requested our assistance in determining the effective date of Michael's adoption so that you can decide when, if at all, Michael became entitled to benefits on the wage earner's account. In order to respond to your questions, we found it necessary to consult the Library of Congress' Law Library. The discussion which follows is based primarily on information and analysis provided to us by the Law Library staff.

The November 1975 municipal court decree was, in effect, vacated when the appeal challenging the decree was filed. ^[1] Rule 39, section 1, and Rule 26, section 2, of the Philippine Rules of Court. ^[2] Thus, the decree was ineffective throughout the pendency of the appeal. Although the appellate court ultimately granted the adoption—a result consistent with the original Municipal Court decree—that lower court decree had been vacated by the filing of the appeal. Thus, there does not appear to be any basis' for giving retroactive effect to the 'final appellate court decision granting the adoption. Consequently, the adoption did not become effective until it was rendered "final and executory" on July 7, 1978, by order of the court of appeals.

LEGAL ADOPTION — EFFECTIVE DATE — PHILIPPINES

Adoption decrees are effective as of the date of the filing of the petition in the Philippine Islands. (R~, Estanislao — ~ — GC (Ghory) to SSA 6/20/83)

In the Philippine Islands, the adopted child is given the same rights and duties as if he were a legitimate child of the adopter, and becomes the legal heir of the adopter. (R~, Estanislao — ~ — GC (Ghory) to SSA 6/20/83)

Philippines, adoption decrees are effective as of the date of the filing of the petition. Therefore, it is our view that Lelebeth R~ was the legally adopted child of the wage earner on March 8, 1980.

The relevant facts of the case are as follows. The wage earner, Estanislao R~, and his wife, Bituen R~, filed a petition to adopt Lelebeth R~, 1980. ^[3] Two days later, the wage earner died. A hearing was held August 11, 1980 and, on August 11, 1981, the court granted the adoption. According to the court's decision, the decree effective as of the date of the filing of the petition.

The attached report from the Law Library of the Library of Congress provides the following information regarding adoptions in the Philippines

The substantive laws on adoption in the Philippines are found in the Child and Youth Welfare Code (the Code), articles 27-42, while the procedural rules are found in the Rules of Court, Rules 99 and 100, not in conflict with the provisions of the Code.

Article 36 of the Code states that a decree of adoption shall be effective as of the date the original petition was filed. In accordance with this article, the decree of the court in this case granted Lelebeth R~ adoption as of the date the petition was filed - March 7, 1980. Further- more, under article 39 of the Code, the adopted child is given the same rights and duties as if he were a legitimate child of the adopter, and the adopted child becomes a legal heir of the adopter. The court decree specifically states that the decree "entitles said child to all the rights of a child of the petitioner Bituen R~ and her deceased husband, Estanislao R~ as specified in Article 39." (Emphasis added). Consequently, as of March 7, 1980, Lelebeth R~ was given the same rights and duties as if she was the legitimate child of the adopter, husband and wife, and she became the legal heir of both husband and wife.