Federal Law
To be entitled to child’s insurance benefits under the Act, a claimant must show,
among other things, that he or she is the “child” of the insured as defined in section
216(e) of the Act. 42 U.S.C. § 402(d)(1).[1] 20 C.F.R. § 404.350. As relevant here, Section 216(e) defines “child” as the “child
or legally adopted child of an individual.” 42 U.S.C. § 416(e). In order to determine
whether the applicant is the insured’s legally adopted child, the agency applies the
adoption laws of the State or foreign country where the adoption took place (not the
State’s inheritance laws). 20 C.F.R. § 404.356, POMS GN 00306.155.C. The agency will ask for a copy of the birth certificate made following the adoption,
or if that is unavailable, other evidence of the adoption. 20 C.F.R. § 404.733. In
cases of foreign adoptions, POMS GN 00307.220.B provides that an adoption decree is
sufficient evidence of a legal adoption.
Validity of Adoption Under Laws of Thailand[2]
The NH’s adoption of the claimant took place in Thailand, thus the agency looks to
the laws of Thailand to determine the validity of the adoption. 20 C.F.R. § 404.356
(“We apply the adoption laws of the State or foreign country where the adoption took
place . . . to determine whether you are the insured’s legally adopted child.”). The
Civil and Commercial Code (Code), the Child Adoption Act, and the Family Registration
Act governed adoptions in Thailand in 2017. See LOC Report, p. 2.
1. The Civil and Commercial Code
Under Title 2, Chapter 4, Book V of the Code, the adoptive parents must be 25 years
of age or older, and more than fifteen years older than the adoptee. See LOC Report, p. 2. If the person to be adopted is a minor, the consent of his or her
parents is required. Id. However, if a parent has died or been deprived of his parental powers, the consent
of the remaining parent who has parental powers must be obtained. Id. If the parents are unable to consent or do not give consent without an appropriate
reason, the prospective adoptive parent or a public prosecutor may request a court
order of consent. Id. The Code provides that “adoption is valid upon registration being effected according
to law. If the person to be adopted is a minor, it has to comply firstly with the
law on the adoption of the child.” Id.
2. The Child Adoption Act
The Child Adoption Act requires a probationary placement of the adoptee into the home
of the person seeking to adopt the child, unless the adoptive parent is a member of
the extended family or lawful guardian of the child. See LOC Report, p. 3. The Child Adoption Act also requires approval of the adoption by
the Child Adoption Board. Id. at p. 3. To obtain approval, the adoptive parent must submit an application for
adoption to the provincial governor, along with a statement of consent from the person
who has the power to give consent to the adoption. Id. The governor will investigate the applicant, child, and living conditions, and will
permit or decline a probationary placement of the child for at least six months. Id. After the probationary period, the Board decides whether the adoption should be approved,
and if approved, the adoptive parent must register the adoption within six months.
Id.
3. The Family Registration Act
In order to register an adoption, the adoptive parent(s) and adopted child submit
an application form to a registration office. LOC Report, p. 4. Registration requires
the signature of the applicant and at least two witnesses. Id. The interested parties may request a certified copy of the registry to prove the
formation of a legal adoption. Id.
Here, the claimant submitted a Notification of the Resolution of the Child Adoption
Committee indicating that the Committee approved the NH’s adoption of the claimant.
See 11/XX/17 Letter. Although the file does not contain details of an investigation,
probationary period, or consent of the biological father, the Committee’s approval
indicates that the NH satisfied all of the substantive requirements to obtain a legal
adoption. Id. The NH registered the adoption and submitted a form signed by two witnesses, as
required. See 11/XX/17 Registration. The NH later obtained a certified copy of the registry showing
a legal adoption, indicating a valid adoption under the Code. See 1/XX/18 Registration, LOC Report, p. 2.
The certified Child Adoption Registration therefore confirmed that the parties met
the requirements for obtaining a valid adoption under Thailand law. Accordingly, the
agency could reasonably determine that the claimant is the NH’s legally adopted child
under the criteria of the Act, for purposes of entitlement to child’s insurance benefits.[3]