TN 18 (01-13)

PR 01310.012 Georgia

A. PR 13-040 Validity of Adult Adoption of Claimant by Number Holder for Determining Claimant's Eligibility for Disabled Adult Child's Benefits on Number Holder's Earnings Record—Georgia Number Holder—Velma Claimant—Larry

DATE: January 8, 2013

1. SYLLABUS

The claimant is the number holder's child for determining the claimant's eligibility for DAC benefits on the number holder's earning record. Georgia allows the adoption of an adult person upon written consent to the adoption by the adult person to be adopted and the filing of a petition in the superior court in the county where either the petitioner or the adult to be adopted resides. Therefore, we look to Georgia law to determine the validity of NH's purported adoption of Claimant. In granting the petition, the court decreed that Claimant is the adult child of number holder and the number holder's adoption of the claimant was valid under Georgia law.

2. OPINION

QUESTION

You asked whether the adult adoption of the claimant after age eighteen by the number holder was a valid adoption under Georgia law for determining the claimant's eligibility for disabled adult child's (DAC) benefits on the number holder's earning record.

 OPINION

The number holder's adoption of the claimant was valid under Georgia law.  Therefore, the claimant is the number holder's child for determining the claimant's eligibility for DAC benefits on the number holder's earning record.  We express no opinion regarding whether the claimant meets the dependency and other requirements for establishing entitlement to DAC benefits.

BACKGROUND

According to the information provided, on November 13, 2012, Velma, the number holder (NH), filed an application on behalf of Larry (Claimant) for DAC benefits on NH's earning record.  Claimant was born on July, in Georgia, and Social Security Administration (SSA) records indicate he has resided in Hiawassee, Georgia, at least since December 2012.  Claimant currently receives DAC benefits on the earnings record of his biological father and Supplemental Security Income on his own record. NH has been receiving old-age benefits on her earnings record since October 1997.  SSA records also indicate NH has resided in Hiawassee, Georgia, which is located in Towns County, at least since June 1997. On September 20, 2012, the Superior Court of Towns County, Georgia, entered a Decree of Adoption granting NH's petition to adopt Claimant. In granting the petition, the court decreed that Claimant is the adult child of NH.

DISCUSSION

Under section 202(d) of the Social Security Act (Act), every "child" of an individual entitled to old-age benefits may be entitled to DAC benefits if the child is (1) unmarried at the time of the application; (2) eighteen years old or older and under a disability that began before he or she attained the age of twenty-two; and (3) dependent on the insured at the time of the application.  See Act § 202(d)(1)(B), (C)(i); 20 C.F.R. § 404.350(a) (2012).** All references to 20 C.F.R. are to the 2012 version unless otherwise noted. The Act defines "child" to include a legally adopted child. See Act § 216(e)(1); 20 C.F.R. § 404.354. The determination of whether a child is the legally adopted child of a wage earner is based on the adoption laws of the State where the adoption took place. See 20 C.F.R. § 404.356; Program Operations Manual (POMS) GN 00306.135(1). At least one party to the adoption, either the child or the adopting parent, must have been domiciled or actually residing in the State at the time of the adoption. See POMS GN 00306.135(1). 

The Superior Court of Towns County, Georgia issued the adoption decree in this case. Therefore, we look to Georgia law to determine the validity of NH's purported adoption of Claimant.  Georgia allows the adoption of an adult person upon written consent to the adoption by the adult person to be adopted and the filing of a petition in the superior court in the county where either the petitioner or the adult to be adopted resides. See Ga. Code Ann. § 19-8-21(a) (West 2012). NH complied with Georgia law and the POMS by filing the adoption petition in Towns County, where she resided at the time. See POMS GN 00306.135(1).  On September 20, 2012, a Georgia Superior court granted NH's petition to adopt Claimant. In granting the petition, the court decreed that Claimant was NH's adult child.  The adoption decree created the relationship of parent and child between NH and Claimant, giving Claimant every right and privilege as if Claimant was NH's biological child. See Ga. Code Ann. §§ 19-8-19(a)(2), 19-9-21(b) (West 2012).

Georgia permits the adoption of adults, and we have found no basis for concluding the court did not comply with Georgia law in issuing its decree.  Thus, NH's adoption of Claimant is valid under Georgia law, and Claimant is NH's legally adopted child for determining Claimant's eligibility for DAC benefits on NH's earnings record.

We note that for Claimant to qualify for DAC benefits on NH's earning record, Claimant also must have been dependent on NH when NH filed the application on Claimant's behalf. See Act § 202(d)(1)(C)(i); 20 C.F.R. §§ 404.350(a)(2), 404.360, 404.362.  In pertinent part, if an adoption occurs during the insured's lifetime and after the insured became entitled to benefits, and the adopted child attained age eighteen before adoption proceedings started, the adopted child is dependent if:  (1) the adoption was issued by a court of competent jurisdiction in the United States, and (2) the child was living with or receiving at least half of his support from the insured for the year immediately preceding the month in which the adoption was issued. See 20 C.F.R. § 404.362(a), (b)(1)(ii); POMS GN 00306.137(C).  Although the adoption decree in this case was issued by a court of competent jurisdiction, we defer to the Agency to further develop the record and determine whether Claimant was living with or receiving at least half of his support from NH for the year immediately preceding the month of the adoption. See POMS GN 00306.155(A).

CONCLUSION

Based on the evidence provided, NH validly adopted Claimant in accordance with Georgia law.  Thus, Claimant is NH's child for determining Claimant's eligibility for DAC benefits on NH's earnings record. 

   Sincerely,

Mary Ann Sloan

 Regional Chief Counsel

 By: ____________         

        Brian C. Huberty

       Assistant Regional Counsel

B. PR 90-002 Adopted Disabled, Adult Child's Benefits - Jasper - NH -CL

DATE: February 2, 1990

1. SYLLABUS

An adult person may be adopted in the same manner as a minor under Georgia statutes. Where the adopted adult child of a retired individual is seeking benefits on that individual's account as a disabled adult child, absent any evidence to invalidate the adoption, the only question to be resolved is whether the claimant's disability began prior to age 22. See, 20 C.F.R. §404.350(e) (1989).

Jasper -C1 - CC [Adams] - to ARC, Progs., Atl., 02/02/90)

2. OPINION

Your office has presented a question with respect to the validity of the adoption of an adult pursuant to Georgia law. The question arose from the following factual scenario.

Jasper became entitled to retirement benefits effective June 1989. On April 13, 1989, the Social Security Administration received an application filed by Fanny for disabled adult child's benefits as an adopted child of Jasper . The number holder adopted Fanny November 30, 1967, in Muscogee County, Georgia. Fanny is currently entitled to disabled widow's benefits on the record of August. SSN~ Her date of birth was previously established on that record as October.

You note that procedure in POMS GN 00306.225 stipulates that when the adopted child is age 21 at the time of the adoption, the case should be submitted for an opinion regarding the validity of the adoption.

Georgia statutes have permitted the adoption of adults in the same manner as minors since the early 1900's. See, Ga. Civil Code, §3018; Crawford v. Wilson, 139 Ga. 654, 78 S.E.30 (1913). Current statutory provisions found at Section 74-415 of the Code of Georgia Annotated provides:

74-415 Adoption of adult persons. (a) Adult persons may be adopted on giving written consent to such adoption, In such cases, adoption shall be by a petition duly verified and filed, together with two conformed copies, in the superior court in the county in which either the petitioner(s) or the adult to be adopted resides, setting forth the name, age and residence of petitioner(s), and of the adult to be adopted, the name by which the said adult is to be known, and his written consent to the adoption. The court may at any time, whether at term time or in vacation, assign the said petition for hearing, and after examining the petitioner(s) and the adult sought to be adopted, the court, if satisfied that there is no reason why said adoption should not be granted, shall enter a decree of adoption and change the name of the adopted adult, if requested. Thereafter the relation between such petitioner(s) and the adopted adult shall be, as to their legal rights and liabilities, the relation of parent and child.

(b) The provisions of Section 74-413, relating to the effect of a decree of adoption, and the provisions of Section 74-414, relating to notice of adoption, shall also apply to the adoption of adults. (Acts 1977, pp. 201,221, eff. Jan. 1, 1978.)

See, also, In Re C~, 249 S.E.2d 343 (Ga. 1978).

We have reviewed the legal documents in the file regarding the adoption and can find no reason to question the validity of the adoption. The individual was adopted in 1967 and the wage earner did not become entitled to benefits until 1989, more than twenty (20) years later. Therefore, no question of fraud or manipulation is presented here.

Given the apparent validity of the adoption, the only question remaining is whether Fanny is entitled to disabled adult child's benefits. Further development of this case is necessary to determine whether Fanny became disabled prior to age 22. Fanny is the "child" of the wage earner pursuant to 20 C.F.R. §404.356 (1989) which provides that:

404.356 Who is the insured's legally adopted child. You may be eligible for benefits as the insured's child if you were legally adopted by the insured. If you were legally adopted after the insured's death by his or her surviving spouse you may also be considered the insured's legally adopted child.

Consequently, she may be entitled to child's benefits pursuant to 20 C.F.R. §404.350 {1989) which states:

404.350 Who is entitled to child's benefits. You are entitled to child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or who has died if —

(a) You are the insured person's child, based upon a relationship described in §§404.355 through 404.359:

(b) You are dependent on the insured, as defined in §§404.360 through 404.365:

(c) You apply:

(d) You are unmarried: and

(e) You are under age 18, you are 18 years old or older and have a disability that began before you became 22 years old, or you are 18 years or older and qualify for benefits as a full-time student .....

While Fannie was already twenty-nine (29) years old when adopted, the regulations do not require that the adoption take place prior to any disabling condition. Therefore, it is our opinion that Fannie can be entitled to disabled adult child's benefits if it can be established that her disability began prior to age 22.

C. PR 82-030 Validity Of Hindu Religious Adoption Under Georgia Law

DATE: July 26, 1982

1. SYLLABUS

ADOPTION —. Legal Requirements — GEORGIA — INDIA

Where an adoption occurred in India under a Hindu religious custom and there were no formal adoption documents filed in India, and the law of India (Hindu Adoptions and Maintenance Act (1956)) provided for adoption in this manner — if the adopting party had the capacity to adopt and there is evidence the adoption ceremony did occur — we held that the adoption was valid in India and would be recognized by the state of Georgia.

( Ram S~ — ~ — RA IV (Adams) to Dir., IPS 7/26/82)

2. OPINION

You have requested our advice as to whether an adoption which occurred in India under a Hindu religious custom would be recognized in the state of Georgia. The specific facts are as follows.

Rakesh was born in India on December. His natural father is Rajendra and his natural mother is Leela . From birth, Rakesh lived in the household of his grandfather, Ram , who is the number holder on this claim.

Although Rakesh has been treated as the number holder's son since birth, this relationship was formalized in a religious ceremony on June 27, 1966. At the ceremony, the natural parents offered their child for adoption and the adopting parents accepted the child as their own. The proceedings were solemnized by a Hindu priest. No governmental registration was made; however, according to Ram, these religious ceremonies are always recognized as legal and valid by the civil government. This description and explanation was given by Ram.

An affidavit, certified by an "advocate" in India as prepared by Rajendra on December 22, 1970, acknowledges Rajendra's paternity of Rakesh and also indicates that Rakesh was given in adoption to Ram on June 27, 1966 at Muzaf- farpur according to Hindu custom. The affidavit also indicates that Rakesh "has ceased to be my family member and has become a family member of Dr. Ram . " It continues, "Sri Rakesh’ s an adopted son of Sri Dr. Ram aforesaid for all practical and legal purposes and I have no legal connection whatsoever with him after the date of aforesaid adoption."

This affidavit was effected four years after the event and signed only by the father. (The affidavit as presented to Social Security Administration appears to be a transcription of the original since the "signatures" are typewritten.) At the time this document was prepared the adopting parents were in the United States and apparently were not parties in the drafting of this instrument.

In 1968 or 1969, Ram and his wife came to the United States; Rakesh joined them in 1970. (It should be noted that his "father" on an Indian passport issued April 3, 1970 was shown as "Rajendra " - that is, his natural, not adopting, father.) Rakesh continued to live in the number holder's household under the care of the number holder's brother until his reunion with his "adopting" parents. Since entering the United States, Rakesh has continuously lived with the number holder and his wife.

The number holder filed a claim for child's benefits on behalf of Rakesh on September 4, 1980. At that time they were both residents of Georgia. The number holder claims Rakesh is his adopted son based on the Hindu custom adoption ceremony outlined above.

Your initial inquiry is whether the adoption pursuant to a religious ceremony is valid, absent official records of the adoption. Attached hereto is a copy of a previous opinion regarding the validity of an adoption pursuant to a religious ceremony in India. See, — GC (E~) to BRSI, 2/19/75. This opinion essentially provides that under the applicable Indian law, the basic requirements are that the adopting party has the capacity to adopt and that there is a ceremony of "giving and taking." We note that the Hindu Adoptions and Maintenance Act (1956) provides as pertinent herein that:

No adoption shall be valid unless - (i) the person adopting has the capacity, and also the right, to take in adoption; (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and (iv) The adoption is made in compliance with the other conditions mentioned in this Chapter.

7. Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption ... 9. No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

11. (i) if the adoption is of a son the adoptive father or mother by whom the adoption is made must not have a Hindu son ...

In addition, an analysis of the law in India provided by. the Library of Congress (copy attached) also states that a ceremony of actual giving and taking in adoption is absolutely necessary to the validity of an adoption and there is no other mandatory ceremony prescribed.

Absent a formal registration of the adoption, there is no way to verify that the adoption did take place other than through the statements of persons present at the ceremony and the actions of all parties subsequent thereto. The affidavit of the child's natural father and the fact that the child's parents came to the United States without Rakesh is some evidence that the adoption had taken place. Also, the evidence shows that Rakesh lived with his grandfather prior to and subsequent to the adoption ceremony. While it appears that the giving and taking ceremony did occur, a question of whether the grandfather had the legal capacity to adopt the child could not be answered from the information in the file. If the grandfather had a living son at the time of the adoption ceremony, the adoption would not be valid in that he would have lacked the capacity to adopt under the Indian law. 1 Assuming however, that he did have the capacity to adopt, then the adoption is valid under the law of India, but further development to determine his capacity to adopt is necessary.

As for the recognition of this adoption in Georgia, the general rule is that a status of adoption when legally created pursuant to the laws of the forum of the adoption proceedings will be recognized and given effect in other states. This is, at least to the extent that the status created is not repugnant to the policy of such other state. That is so even if the procedure was different from that required by such other state. See, 2 Am. Jr. 2d, Adoption ~ 12. We were unable to find any Georgia cases with respect to an adoption in a foreign country; however, there is a Virginia court case where a Greek decree of adoption was honored. See, Doudgeris v. Bambacus, 127 S.E. 2d 145 (Va. 1962). The Virginia court held that adoption decrees of a foreign country would be recognized and given effect if the foreign court had jurisdiction with respect to the status of the child. Moreover, in a Georgia case involving an Alabama adoption the Supreme Court of Georgia held that the status acquired by adoption and its validity is conclusively determined by the law of the state creating it and if validly created there, will be recognized and given effect in Georgia, even though the procedure by which it was created under foreign law is different from the law of Georgia. See, Watson v. Watson, 67 S.E. 2d 704 (Ga. 1951).

As a result, we are of the opinion that Georgia would recognize the validity of the religious adoption ceremony done pursuant to Indian law, if the requirements of the law were complied with. If you determine the adoption is valid under Indian law, it is our opinion it would be recognized by the state of Georgia.


Footnotes:

[1]

It appears that the grandfather is the father of the natural father of Rakesh and therefore had a living son at the time of the adoption. As a result, the adoption would not be valid.


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PR 01310.012 - Georgia - 01/25/2013
Batch run: 01/25/2013