TN 46 (01-18)

PR 01310.004 Arizona

A. PR 18-034 Whether Claimant is entitled to child’s insurance benefits on the earnings record of her stepfather

Date: December 19, 2017

1. Syllabus

Under Arizona law, an adult may adopt another adult who is either 18 to 21 years old and consents to the adoption or is the adopting adult’s stepchild, niece, nephew, cousin, or grandchild. On entry of the decree of adoption, the parent-child relationship and all legal rights, privileges, and other legal consequences of a natural parent-child relationship exist thereafter as though the child were born to the adoptive parent in lawful wedlock.

The claimant’s adult adoption was valid under Arizona law, she was unmarried, had a disability arising before age 22, and is dependent on the NH because the NH adopted her prior to his entitlement to retirement insurance benefits. Therefore, the claimant is entitled to child’s insurance benefits on the NH’s record.

2. Opinion

QUESTION

Whether M~ (Claimant) is entitled to child’s insurance benefits on the earnings record of her stepfather, J~ (NH), who adopted Claimant in Arizona when she was an adult.

SHORT ANSWER

Yes, Claimant is entitled to child’s insurance benefits on NH’s earnings record because NH’s adoption of Claimant was valid under Arizona law. Additionally, although Claimant was over 18 years old when she applied for child’s insurance benefits, she was unmarried, had a disability that began before age 22 and, as NH’s legally adopted child, was deemed dependent on NH at the time of application.

SUMMARY OF EVIDENCE

Claimant was born on November XX, 1972. According to information provided by the T~, Arizona Field Office (FO XXX908), she receives Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on her own earnings record, with an established disability onset date of May 1, 1991. Her mother, A~, acts as Claimant’s representative payee.

Claimant’s birth certificate identifies her parents as A~ and G~. A~ reported that she married NH on January XX, 1990. She stated they divorced in approximately June of 2006 but remarried on November XX, 2009. She further stated that she and NH did not live separately after their 2006 divorce and instead continued to live together with Claimant as a single family unit through their 2009 remarriage.

On June XX, 2005, when Claimant was 32 years old, an Arizona State court issued an Order of Adoption establishing a parent-child relationship between Claimant and NH. On March XX, 2017, NH filed for retirement insurance benefits (RIB). The agency granted NH’s RIB application with an entitlement month of March of 2017. On April XX, 2017, Claimant filed an application for child’s insurance benefits on NH’s earnings record. If granted, the T~, Arizona Field Office indicated Claimant’s month of entitlement would be March 2017.

ANALYSIS

Federal Law

Under the Social Security Act (Act), an applicant may be eligible for child’s insurance benefits on the earnings record of an insured individual if the applicant is the insured individual’s “child,” as defined in section 216(e) of the Act. Social Security Act § 202(d)(1); 20 C.F.R. § 404.350. Section 216(e)(1) of the Act defines “child” as “the child or legally adopted child of an individual.” Section 216(e)(1) of the Act; see also 20 C.F.R. § 404.356 (“You may be eligible for benefits as the insured’s child if you were legally adopted by the insured”). For purposes of adopted children, the agency applies the adoption laws of the State where the adoption took place. 20 C.F.R. § 404.356; Program Operations Manual System (POMS) GN 00306.135.

In addition to applying for benefits, the applicant must establish that she is: (1) the insured individual’s child; (2) unmarried; (3) under the age of 18 or, if older than age 18, have a disability that began prior to age 22 or qualify as a full-time student; and (4) dependent on the insured individual at the time the application is filed. See Social Security Act § 202(d)(1)(C)(i); 20 C.F.R. § 404.350; POMS GN 00306.001.A. A legally adopted child is considered dependent on the insured individual if adopted prior to the insured individual’s entitlement to old age or disability benefits. 20 C.F.R. § 404.362(a); POMS GN 00306.136. The applicant is entitled to child’s insurance benefits in the first month she meets the foregoing criteria. See Social Security Act § 202(d)(1); 20 C.F.R. § 404.352(a).

Arizona Law

Under Arizona law, an adult may adopt another adult who is either 18 to 21 years old and consents to the adoption or is the adopting adult’s stepchild, niece, nephew, cousin, or grandchild. Ariz. Rev. Stat. § 14-8101(A). Where consent is required, such consent must be in writing. Ariz. Rev. Stat. § 14-8101(A). An Arizona State court in the county in which either the adopting adult or the adoptee reside must approve an agreement of adoption between the parties by issuing a judicial decree of adoption. Ariz. Rev. Stat. § 14-8101(A).

The agreement of adoption between the proposed adopting parent and adoptee must be in writing and executed by the proposed adopting parent. Ariz. Rev. Stat. § 14-8101(B). The agreement of adoption must state that the parties agree to assume toward each other the legal relation of parent and child, with all attendant rights, duties, and responsibilities. Ariz. Rev. Stat. § 14-8101(B). If the proposed adoptive parent and/or adoptee are legally married at the time of adoption, their spouses must consent to the adoption if capable of giving such consent. Ariz. Rev. Stat. § 14-8101(C). Arizona law does not require that the proposed adoptee’s natural parent(s) consent to the adult adoption. Ariz. Rev. Stat. § 14-8101(C).

The proposed adoptive parent must file a petition for adoption in an Arizona State court in the county where the proposed adoptive parent or adoptee reside. Ariz. Rev. Stat. § 14-8101(D). The petition must state: (1) the length and nature of the parties’ relationship; (2) the degree of kinship, if any; (3) the reason for the adoption, together with a statement as to why the adoption is in the best interests of the parties and the public; (4) the names and addresses of any living parents or adult children of the proposed adoptee; and (5) whether the proposed adoptive parent and/or his or her spouse has previously adopted other adult persons and, if so, the name of such person(s) and the date and place of the adoption. Ariz. Rev. Stat. §§ 14-8101(F)(1)–(5). If the court determines the adoption is in the best interests of the parties and the public, the court will approve the agreement of adoption and make a decree of adoption declaring that the adoptee is the adoptive parent’s child. Ariz. Rev. Stat. § 14-8101(D).

Legal Analysis

On April XX18, 2005, NH filed a Petition for Adult Adoption (petition) in the Arizona Superior Court, P~ima County. The court granted the petition in an Order of Adoption dated June XX15, 2005 (order).1 In its order, the court confirmed that all Arizona-state law requirements had been met and found that: NH was a resident of P~ima county at the time he filed the petition; According to the order, Claimant was a “special needs adult” who had been in her mother’s custody since approximately August XX25, 1990; Claimant consented to and expressly desired the adoption; NH was aware of his responsibilities and obligations to Claimant; NH and his spouse had not previously adopted an adult; and the adoption was in the best interests of the parties and the public. Accordingly, the court ordered, adjudged, and decreed the existence of a parent-child relationship between NH and Claimant. Based on the foregoing, NH’s adult adoption of Claimant appears to meet the criteria of Arizona Revised Statute, section 14-8101, subsections (B) through (F).2 Furthermore, the adoption met the requirements of subsection (A) because, although Claimant was older than 22 years of age at the time of the adoption, NH was marred to Claimant’s natural mother and thus, he was adopting her as a stepparent.

Neither the 2006 divorce between NH and A~ nor their subsequent remarriage on November XX, 2009 affected NH and Claimant’s parent-child relationship or Claimant’s eligibility for child’s insurance benefits on NH’s earnings record. Under Arizona law, on entry of the decree of adoption, the parent-child relationship and all legal rights, privileges, and other legal consequences of a natural parent-child relationship exist thereafter as though the child were born to the adoptive parent in lawful wedlock. Ariz. Rev. Stat. § 8-117(A). Because NH and Claimant had already established a legal parent-child relationship in June of 2005, NH and A~’s June 2006 divorce did not impact NH and Claimant’s parent-child relationship.

Having established that she is NH’s child under the Act, Claimant must meet the other criteria for child’s insurance benefits. First, because NH legally adopted her, she qualifies as NH’s child under the Act. See Social Security Act § 216(e)(1); 20 C.F.R. § 404.356. Second, Claimant was unmarried when she filed her application for child’s benefits on NH’s earnings record. See 20 C.F.R. § 404.350(a)(4). Third, although Claimant was over age 18 when she filed her application, her age does not render her ineligible because the agency previously determined that she had a disability that began before age 22 when it granted her DIB and SSI benefits with an onset date of March XX, 1991. See 20 C.F.R. § 404.350(a)(5). Fourth, as NH’s legally adopted child, Claimant is deemed dependent on NH, because the adoption took place in 2005, prior to NH becoming entitled for RIB in 2017. See 20 C.F.R. § 404.362(a) (“If you were legally adopted by the insured before he or she became entitled to old-age or disability benefits, you are considered dependent upon him or her.”); POMS GN 00306.136.

CONCLUSION

Claimant is entitled to child’s insurance benefits on NH’s record. Her adult adoption was valid under Arizona law, she was unmarried, had a disability arising before age 22, and is dependent on NH because NH adopted her prior to his RIB entitlement date.

B. PR 81-014 Effect of Arizona Decree of Adoption After Mexican Decree

Date: December 22, 1981

1. Syllabus

A child adopted after the wage earner's entitlement to Old Age Insurance benefits shall be deemed not to meet certain requirements for entitlement to child's insurance benefits unless the child among other things "was legally adopted by such individual in an adoption decreed by a court of competent jurisdiction within the United States." Where a valid adoption decree was first obtained in Mexico and subsequently a decree was obtained in Arizona, which had no legal consequence other than that brought about by the Mexican adoption decree, the Arizona adoption proceedings may not be used to satisfy the requirement that the adoption be decreed by a court of competent jurisdiction within the United States.

2. Opinion

The wage earner, John B~, filed an application for retirement insurance benefits on April 5, 1972. He was awarded benefits effective January 1972. Based on an application filed on June 27, 1975, 3 the wage earner's wife, Maria d~ B~, 4 was awarded wife's benefits at age 62. On July 12, 1972, Mrs. B~ filed for children's benefits on behalf of Guadalupe, Hector, and Ana C~. These children are the children of Mrs. B~ son by a prior marriage. This application was denied because they were not the wage earner's children. 5

On January 26, 1973, Mr. and M~s. B~ filed for benefits on behalf of the children, alleging they were Mr. B~ adopted children. An adoption decree, issued on January 11, 1973, by the Third Civil Court of the District of B1~, Chihuahua, Mexico, was submitted in conjunction with this application. The decree approved the adoption of Mrs. B~ grandchildren by herself and the wage earner. According to the WNPSC memorandum (dated January 8, 1981) requesting our legal opinion in this case, the applications were disallowed because the children's relationship to the number holder was not established; this initial determination was subsequently affirmed by the Reconsideration Branch on May 15, 1974. Its decision (in the claims file) mentions the January 11, 1973, adoption decree, but does not discuss the validity of that decree. 6 For purposes of this opinion, we will assume that the Mexican adoption was valid. 7 You should reconfirm this point, because it directly relates to the children's entitlement to benefits.

Mr. B~ subsequently submitted copies of adoption decrees issued on March XX, 1980, by the Superior Court of Y~ County, Arizona, which approve the adoption of Mrs. B~ grandchildren by Mr. and Mrs. B~. Relying on these decrees, Mr. B~ filed another application for child's benefits for his adopted children on August 6, 1980. 8 You sought our advice regarding the effect of the Arizona adoptions of the three above-named children, in light of the "apparently valid" Mexican adoption. In particular, you asked that we consider two GC precedent opinions in the cases of Clifford T~, D-15193, December 5, 1972, and Oneal M~, D-10838, January 26, 1965.

We believe that the conclusion in the M~ opinion is controlling here (although the fact situation in M~ was different). In M~, the wage earner's spouse, after his death, purported to adopt her own legitimate children by a prior marriage. The adoption was without legal consequence under prevailing state. law, because the children were her natural children and the parental relationship had not been severed. Therefore, the adoption was not considered to be one contemplated by the second sentence of section 216(e) of Social Security Act. The same reasoning was held to apply in T~, where two adoption decrees were issued (two years apart) by the same court: because the second decree was of no legal consequence (the adoption under the first decree remaining fully effective), it could not form the basis for awarding child's benefits under the Act.

In the situation under consideration here, Mr. and Mrs. B~ adopted her grandchildren first in Mexico, then in Arizona. The Civil Code of Chihuahua, Mexico provides that "[t]he adopted person shall have toward the person or persons adopting them the same rights and duties as a son or daughter. 9 Section 8-117 of the Arizona Revised Statutes (A.R.S.) provides (with greater specificity) rights and duties between the adopted person and the adoptive parent which include those set forth in the Civil Code of Chihuahua, Mexico. Section 8-125 of the A.R.S. provides that adoptions judicially decreed by a court in another state shall have the same force and effect as though the adoption had been granted by an Arizona court. In the absence of any case law to the contrary, we will assume that the substance of this section would also apply (through the judicial doctrine of "comity") to adoptions which are judicially decreed in foreign countries. Thus, the Arizona adoption decree, as in M~, was without legal consequence; that is, it did not confer upon the children any different rights, duties, or other legal consequences than they already had by virtue of their Mexican adoption. Threfore, the children cannot rely on that Arizona decree for purposes of entitlement to child's benefits under section 202(d) (8) (D) (i) of the Act. 10


Footnotes:

[1]

. Social Security Ruling (SSR) 83-37c, citing Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973), holds that the agency must accept a State-court adjudication if: (1) a State court of competent jurisdiction previously determined an issue arising in a claim for Social Security benefits; (2) the issue was genuinely contested by parties with opposing interests; (3) the issue falls within domestic relations law; and (4) the resolution is consistent with the law of the highest court of the state. Here, the agency is not bound by the State Court’s ruling under SSR 83-37c because the issue was not genuinely contested by opposing parties. Nevertheless, the Court’s order constitutes strong evidence supporting the validity of the adoption under Arizona law.

[2]

. We did not receive a copy of the petition NH filed with the Superior Court on April XX18, 2005, or any accompanying agreement of adoption. However, the Court’s June XX, 2005 order, indicating all requirements of Arizona law have been complied with, suggests that both the petition and adoption agreement met the requirements of Arizona Revised Statute section 14-8101, subsections (B) through (F).

[3]

. Mrs. B~ filed previous applications for wife's benefits on July 12, 1972, and January 26, 1973. These applications were denied because she did not have entitled children in her care.

[4]

. Records in the claims file indicate that John and Maria were married in California on August 3, 1971

[5]

. A notarized agreement was submitted as an adoption decree see SSA 5002 dated 7/14/72 and signed by G. F..~); it stated-" that Mrs.son turned over his guardianship and parental—4 rights for his three children in anticipation of their adoption by Mrs. B~ ( see Translation by G. F~ dated 7/14/ 72).In a letter dated August 29, 1972 (remailed January 10, 1973), Martha J. K~ indicated that the "adoption papers" (presumably referring to this notarized agreement) submitted by Mrs. B~ did not establish a valid adoption.

[6]

. We note that this reconsideration determination does discuss several inapplicable subsections of the act, ( e.g., post- entitlement adoptions where the wage earner has died, and provisions not applicable to a stepgrandchild). This determination also inaccurately states that the wage earner married Mrs. B~ October 3, 1971 (the correct date is August 3, 1971) and that they were married in Yuma, Arizona (the marriage certificate shows they were married in California, although they were residing in Yuma, Arizona).

[7]

. A December 12, 1977, letter from Walter B~ to the wage earner indicates that the papers submitted by Mr. B~ did not establish a valid adoption under Mexican law. No explanation of any purported defect was given. The wage earner pointed out in his June 18, 1980 letter to Mr. B~ that INS had considered the Mexican adoptions to be valid.

[8]

. A February 15, 1977, application for child's benefits was denied on July 15, 1977, because no new and material evidence had been presented to permit reopening of the prior determination.

[9]

. See GC opinion re Rito M, March 20, 1958. The code section number has been changed, but its content remains the same.

[10]

. Should you determine that the Mexican adoption decree was not valid, however, the Arizona decree would be the sole valid adoption decree and hence the requirement of this subsection would be satisfied.


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PR 01310.004 - Arizona - 01/26/2018
Batch run: 01/26/2018
Rev:01/26/2018