TN 11 (07-08)
PR 01310.028 Missouri
A. PR 08-144 Validity of Adoption in Missouri of Disabled Person Age 21 or Over
DATE: June 25, 2008
According to Missouri case law, persons may, by complying with the statutory adoption laws of Missouri, adopt both adults and minors as their heirs.
a. Issues Presented
You have asked for legal advice on the following two issues:
Whether the adoption of Darlene B~ by Harold B~ and Johon B~ was valid under the law of the State of Missouri; and
Whether Darlene B~, now Darlene B~, can be entitled to Social Security benefits on the record of Harold B~?
According to the documentation submitted to this office, Darlene F. B~ was born to Francis W. B~ and his wife Dolores B. T~ B~ on December 31, 1961. Her birth was premature with multiple congenital abnormalities of the fingers of both hands, deformity of the spine, and both feet.
On May 7, 1985, a medical certificate was filed with the Probate Division of the Circuit Court of Jasper County, Missouri in the Matter of Darlene B~, Respondent, Estate No. CV382-219P. In the opinion of the doctor who signed the certificate, Darlene was disabled and incapacitated. She was diagnosed with moderate mental retardation, borderline personality disorder, and scoliosis, among other things. At some point thereafter, Janice T~, Public Administrator of Jasper County, Missouri, was appointed Guardian of the Person and Conservator of the Estate of Darlene B~. The Guardian and Conservator consented to the adoption of Darlene B~ by Harold and Johon B~. On September 12, 1986, the Circuit Court for the County of Cedar, Missouri, entered a Decree of Adoption approving the adoption as being in the best interests of Darlene B~. The decree indicated that Delores and Francis B~ were both deceased. The decree declared that “for all legal intents and purposes [Darlene should] be the adopted daughter of Harold B~ and Johon B~, and that the name of the said Darlene F. B~ be and hereby [was] changed from: Darlene F. B~ to Darlene J. B~.” Darlene was 24 years of age on that date.
Upon our request, you provided us with additional information. You indicated that Harold B~ was an insured person entitled to benefits effective March 1980. He died in October 1999. A Master Beneficiary Record query shows that Johon B~ died in April 2007. You also indicated that Darlene lived with the B~s prior to September 1986, but it is not known for how long. The Joplin Regional Center informed you that they estimated she was in the custody of the B~s for about two years, but they were unsure if this was prior to or after the adoption, or both.
On or about April 21, 2008, Darlene contacted the Nevada, Missouri Field Office to file for surviving child benefits on the record of Harold B~. Darlene currently receives disabled adult child benefits on the record of her deceased natural father, Francis W~ B~.
Whether the adoption of Darlene F. B~ by Harold and Johon B~ was a valid adoption in the State of Missouri?
The Social Security regulations at 20 C.F.R. § 404.356 (2007) and section GN 00306.135 of the Program Operations Manual Systems (POMS) provides that, to be legal, an adoption must be valid under the law of the State or foreign country where it took place. In this case, the adult adoption of Darlene F. B~ took place in Missouri. According to Missouri case law, persons may, by complying with the statutory adoption laws of Missouri, adopt both adults and minors as their heirs. See Gamache v. Doering et al., 189 S.W. 2d 999, 1001 (Mo. 1945); State ex rel. Burek v. Calhoun, 52 S.W. 2d 742, 743 (Mo. 1932). Missouri statutes further provide that, if the court determines that a petition for adoption should be finalized, a decree shall be issued setting forth the facts and ordering that from the date of the decree, the adoptee shall be for all legal intents and purposes the child of the petitioner. See Mo. Ann. Stat. § 453.080 (3). In this case, such decree was issued on September 12, 1986. Because adults can be adopted in Missouri, and because a final decree of adoption was filed on September 12, 1986, the adoption of Darlene F. B~ by Harold and Johon B~ was valid and effective on the date of the decree.
Whether Darlene B~ can be entitled to Social Security benefits on the record of Harold B~?
To be entitled to child's benefits on the earnings record of an insured person who is entitled old-age or disability benefits, or who has died, the individual must meet the following requirements:
be the insured person's natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child;
be dependent on the insured, as defined in the regulations;
apply for benefits;
be unmarried; and
either be under age 18; be 18 years old or older and have a disability that began before she became 22 years old; or be 18 years or older and qualify for benefits as a full-time student. See 20 C.F.R. § 404.350. It should be noted that an individual must satisfy all five criteria to receive benefits.
Each of the above five requirements will be addressed separately. First, as discussed above, Darlene is the legally adopted child of Harold and Johon B~ under the laws of the State of Missouri.
Second, because Darlene was legally adopted by Harold after he became entitled to benefits in March 1980, and she was not Harold's natural child or stepchild, she can be considered dependent on Harold during his lifetime only if -
she had not attained age 18 when adoption proceedings were started, and the adoption was issued by a court of competent jurisdiction within the United States; or
she attained age 18 before adoption proceedings were started; the adoption was issued by a court of competent jurisdiction within the United States; and she was living with or receiving at least one-half support from Harold for the year immediately preceding the month in which the adoption was issued, September 1986.
See 20 C.F.R. § 404.362(b).
Based on the facts presented, dependency in this case should be analyzed under option number two. Given that the adoption of Darlene was not finalized until 1986, when she was over the age of 18 (24 years old), this opinion assumes that Darlene attained 18 before the adoption proceedings were started (the adoption decree does not indicate the date on which the proceedings were started). The Circuit Court of Cedar County, Missouri, is a court of competent jurisdiction within the United States.
Next, it has to be determined whether Darlene was living with or receiving at least one-half support from Harold B~ during the year immediately preceding September 1986, when the court issued the decree of adoption. The regulations indicate that an individual is living with the insured if she ordinarily lives in the same home with the insured and the insured is exercising, or has the right to exercise, parental control and authority over the individual's activities. See 20 C.F.R. § 403.366(c). Consequently, further development is needed as to whether Harold exercised, or had the right to exercise, parental control and authority over Darlene's activities. Assuming Harold had such authority over Darlene, the dependency requirement would be met.
As noted above, Darlene can also establish the dependency requirement by showing that she was receiving at least one-half support from Harold for the year immediately preceding the month the adoption decree was issued. According to the regulations, the insured person provides one-half of support if he makes regular contributions for the person's ordinary living costs; the amount of these contributions equals or exceeds one-half of the person's ordinary living costs; and any income (from sources other than the insured person) the person has available for support purposes is one-half or less of the person's ordinary living costs. See 20 C.F.R. § 403.366 (b). The facts presented do not indicate how much Harold contributed to Darlene's living costs in the year immediately preceding adoption. Thus, further development is needed on this issue also.
With respect to requirement three of 20 C.F.R. § 404.350, Darlene applied for child's benefits on April 10, 2008. With respect to requirement four, given that Darlene currently receives child benefits on the record of her deceased natural father, as noted above, we assume that she is unmarried because that is a prerequisite to her receipt of benefits on the record of her natural father, just as it is a requirement for her to receive benefits on the record of her adopted father. See 20 C.F.R. § 404.350. Darlene meets the fifth requirement because she is older than 18, and the record suggests that she was disabled from birth.
On the basis of the facts presented, Darlene appears to meet four of the five requirements of 20 C.F.R. § 404.350. Further development is necessary, however, to determine whether Darlene lived with or received at least one-half of her support from Harold B~ during the year immediately preceding her adoption. If Darlene meets the dependency requirement, the facts presented indicate that she would meet all five of the above criteria, and be entitled to benefits on Harold's record. If further development demonstrates that Darlene cannot meet the dependency requirement, then she would not be entitled to benefits on Harold's record, even though she satisfied the other four requirements.
If Darlene is found to be entitled to benefits on Harold's record, it must also be determined which record has the highest primary insurance amount, that of her natural father or Harold. According to the regulations, if an individual is entitled to child's benefits on more than one person's earnings record, she will ordinarily receive only the benefit payable on the record with the highest primary insurance amount. See 20 C.F.R. § 404.353.
We hope this memorandum answers your questions.
Kristi A. S~
Acting Chief Counsel, Region VII
Teresa J. S~
Assistant Regional Counsel