TN 42 (10-16)

PR 01310.001 Alabama

A. PR 16-189 Validity of Adoption of an Adult Grandchild under Alabama Law

Date: September 7, 2016

1. Syllabus

To determine whether the insured individual legally adopted the claimant, the Agency applies the adoption laws of the State where the adoption took place. In this case, the adoption took place in Alabama; therefore, we look to the Alabama law to determine if the adoption of the claimant is valid. Under the Alabama law, any adult may petition to adopt another adult. However, the adopted adult must be totally and permanently disabled, have an intellectual disability, consent in writing to the adoption and be related to the adopting individual(s), or consent in writing to be adopted by an adult man and woman who are husband and wife. The claimant’s adoption decree states that he has lived with number holders (NH) since birth. The decree also declares that due and proper notice of these proceedings have been perfected, all required consents to the adoption have been placed of record, and all other requisites of law have been met. Therefore, the Court Ordered that the claimant is hereby legally adopted by NHs and shall be, as to all legal intents and purposes, the child of NHs. The claimant’s adoption is valid under the Alabama law and the claimant would qualify as his adopting grandmother’s or and grandfather’s child for CIB purposes.

2. Opinion

QUESTION

You asked whether an adoption of an adult claimant by his grandparents in Alabama qualifies him as the grandparents’ child for determining the claimant’s entitlement to child insurance benefits (CIB) on the grandparents’ earnings records.1

OPINION

The claimant’s adoption is valid under Alabama law and, therefore, the claimant would qualify as his adopting grandmother’s or and grandfather’s child for CIB purposes.

BACKGROUND

According to the information provided, C~ (Claimant) has been receiving Supplemental Security Income (SSI) disability payments since he was 7 years old.2 Claimant’s grandparents, K~ and J~, the number holders (NHs), adopted Claimant on March XX, 2016, when Claimant was 28 years old. The adoption decree states Claimant has lived with NHs since birth. Moreover, the decree declares that, “due and proper notice of these proceedings has been perfected,” “all required consents to the adoption have been placed of record,” and “all other requisites of law have been met.” Specifically, the court noted clear and convincing evidence established that Claimant had “been in the actual physical custody of [NHs] for a period of sixty (60) days or more (in fact, 28 years); that there has been no contest or objections brought in this cause; that [NHs] are suitable to be the parents of [Claimant] and they desire[] to establish a parent/child relationship with [Claimant]; that the best interests of [Claimant] will be served by granting the petition; and a change of guardianship to [NHs] is proper.” The Court Ordered that Claimant “is hereby legally adopted by [NHs] and from [March XX, 2016, Claimant] shall be, as to all legal intents and purposes, the child of [NHs]. . . .”

DISCUSSION

To be eligible for CIB on the earnings record of a living individual who is entitled to old-age or disability insurance benefits, a claimant must be the individual’s “child.” See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2016).3 “Child” includes the legally adopted child of an insured individual. Act § 216(e)(1); 20 C.F.R. § 404.356. To determine whether the insured individual legally adopted the claimant, the Social Security Administration applies “the adoption laws of the State . . . where the adoption took place . . . .” 20 C.F.R. § 404.356.4

Under Alabama law, “[a]ny adult may petition to adopt another adult.” Ala. Code § 26-10A-5(b). However, the adopted adult must be totally and permanently disabled, have an intellectual disability, consent in writing to the adoption and be related to the adopting individual(s), or consent in writing to be adopted by an adult man and woman who are husband and wife. See Ala. Code § 26-10A-6(2). A probate court in Alabama may grant a final decree of adoption after finding by clear and convincing evidence that: (1) the adoptee has been in the actual physical custody of the petitioners for a period of sixty days; (2) all necessary consents, relinquishments, terminations or waivers have been obtained; (3) service has been made upon all persons entitled to receive notice of pending adoption proceedings; (4) all contests of the adoption have been resolved in favor of the petitioner; (5) each petitioner is a suitable adoptive parent and desires to establish a parent and child relationship with the adoptee; (6) the best interests of the child are served by the adoption; and (7) all other requirements of Alabama adoption law have been met. See Ala. Code §§ 26-10A-3, 26-10A-25(b). The findings and conclusions of an Alabama probate court in an adoption proceeding are presumed to be correct. Alabama Dep’t of Human Res. v. B.V., 59 So. 3d 700, 707 (Ala. Civ. App. 2010) (citation omitted).

In this case, the court declared that “due and proper notice of these proceedings has been perfected,” “all required consents to the adoption have been placed of record,” and “all other requisites of law have been met.” The court also made factual conclusions that addressed the other requirements of Alabama adoption law in Alabama Code § 26-10A-25(b), i.e., Claimant had been in physical custody of NHs for at least sixty days; no one contested or objected to the adoption; NHs were suitable parents and desired to establish a parent/child relationship with Claimant; and granting the petition would serve Claimant’s best interests. As noted above, SSA has determined Claimant is disabled. Nothing in the adoption decree or in the other information provided undermines the validity of the adoption under Alabama law. See B.V., 59 So. 3d at 707. Therefore, we conclude the adoption is valid under Alabama law.

CONCLUSION

Claimant’s adoption by NHs is valid under Alabama law and, therefore, Claimant would qualify as NH’s child for CIB purposes.

Sincerely,

Mary Ann Sloan

Regional Chief Counsel

By: Douglas G. Wilson

Assistant Regional Counsel

B. PR 84-030 Child's Insurance Benefits (Bobbie N. A~ For J~ -And Herself) A/N~ (Walter E. A~ - W/E)

DATE: June 19, 1984

1. SYLLABUS

LEGAL ADOPTION — EFFECT OF SUBSEQUENT ADOPTION — ALABAMA

Where a wage earner adopted an adult with a minor child and subsequently adopted the minor child of the adult, the adopted minor child could be considered a legally adopted child who is also a grandchild, and, therefore, subject to the more liberal dependency requirements of Section 202(d)(8)(D)(ii)(III) of the Social Security Act. (A~, Walter E., ~ — RAIV (Adams), to Staff Attorney, 0HA, 06/19/84.)

2. OPINION

You have asked for our advice as to whether J, the adopted child of the wage earner and his spouse, can be considered a legally adopted child who is also a grandchild, and, therefore, subject to the dependency requirements of Section 202(d)(8)(D)(ii)(III) of the Social Security Act. The facts of the case are as follows:

An application for child's insurance benefits was filed on the account of a wage earner receiving old-age insurance benefits. The wage earner has been entitled to benefits since January 1980.

J, a minor child, was born to C, an unmarried woman, on October XX, 1982. C was adopted by the wage earner and his spouse on October XX, 1982, pursuant to the Alabama statute governing the adoption of an adult. A petition was filed by the wage earner and his spouse on October XX, 1982, to adopt J. (This petition to adopt was filed one day after the adoption of C became final.) The adoption of J by the wage earner and his spouse became final on October XX, 1983.

The adoption of C was apparently done pursuant to Section 43-4-1 of the Alabama Code which provides a mechanism for the adoption of an adult through the filing of a petition for an order of adoption in the probate court. J became a grandchild of the wage earner and his spouse through the adoption of J in that he was vested with rights of inheritance pursuant to Section 43-4-3 of the Alabama Code which provides in pertinent part that:

For the purposes of inheritance of property under the laws of descent and distribution, an adopted person shall bear the same relation to his adopter and the natural and adopted children of the adopter as if he were the natural child of such adopting person. It is intended hereby to give an adopted person all right of inheritance from the person who adopts him and through him from his natural and adopted children, and to give to the adopting person and his natural and adopted kindred all rights of inheritance from the adopted person and his descendants, including adopted children, the same as if such adopted person were born to the adopting person as a legitimate child ....

J's eligibility for child's benefits as an adopted grandchild of the wage earner is governed by 42 U.S.C. §202(d)(8)(D)(ii)(III) which provides as pertinent herein that:

(8)

In the case of (A)An individual entitled to old-age insurance benefits ...,

a child of such individual adopted after such individual became entitled to such old-age or disability insurance benefits shall be deemed not to meet the requirements of clause (i) or (iii) of paragraph (1)

(C)unless such child —

(D) (i) was legally adopted by such individual in an adoption decreed by a court of competent jurisdiction within the United States,

(ii) was living with such individual in the United States and receiving at least one-half of his support from such individual ....

(I)if he is an individual referred to in subparagraph (A) for the year immediately before the month in which such individual became entitled to old-age benefits ....

(III) if he is an individual referred to in either subparagraph (A) or subparagraph (B) and the child is the grandchild of such individual or his or her spouse, for the year immediately before the month in which such child files his or her application for child's insurance benefits, and

(iii) had not attained the age of 18 before he began living with such individual.

You were particularly concerned about the applicability of the above provisions and 20 C.F.R. §404.362(b)(2) which provides that:

(2) Grandchild of the insured or the insured's spouse. If you are legally adopted by the insured after he or she became entitled to benefits and you are the insured's grandchild or the grandchild of the insured's spouse, you are considered dependent upon the insured during his or her lifetime only if —

(i)

Your adoption took place in the United States;

(ii)

You began living with the insured before you became 18 years old; and

(iii)You were living with the insured in the United States and receiving at least one-half of your support from him or her for either the one-year period before the month you applied or for one of the periods described in paragraph (b)(1)(iii) of this section. If you were born within this one-year period, the insured must have lived with you and provided one-half of your support for "substantially all" of the period that begins on the date of your birth. The term "substantially all" is defined in paragraph (b)(1)(iii) of this section.

Subparagraph (ii)(III) of the statute and paragraph (b)(2) of the regulations require one year of support for the period before the month of the application for child's benefits. However, a legally adopted individual who is not the natural child, stepchild, grandchild or stepgrandchild of the wage earner must have received the year of support for the year before the wage earner became entitled to benefits which is a more stringent support test. Since the wage earner began receiving benefits in 1980, J would not have been entitled to benefits under Section 202(d)(8)(D)(ii)(I) if the wage earner had adopted him first because he was born in 1982. See, Section 202(d)(8)(D)(ii)(I) and 42 C.F.R. §404.362(b)(1). Consequently, by adopting C and then adopting J, the wage earner was able to establish eligibility for J under subparagraph (ii)(III) and §404.362(b)(2) by adopting J after J had become a grandchild.

We could find no prohibition under Alabama statutes or any Social Security Administration policy which would affect the validity of these multiple adoptions. This entire matter has also been reviewed by our G