This is in response to your request for an opinion regarding the validity of an adoption
of a person over the age of twenty-one in New Hampshire, for the purposes of establishing
entitlement to Childhood Disability Benefits on the record of the adoptive mother.
For the reasons discussed below, we believe that the adoption in this case likely
is valid, although further development of the claim may be required.
The applicant, Jeannine, was born on December. Her biological mother is Madelaine
and her biological father is Bernard. At some point, Bernard married Diane, and on
April 6, 1989, Bernard and Diane adopted Jeannine, who was twenty-six years-old on
that date. The adoption took place in New Hampshire, where all parties were residing
at the time.
Jeannine has been eligible for Childhood Disability Benefits on her biological mother’s
record since January 1986, with an onset date of November 30, 1984. She has been eligible
for Supplemental Security Income Benefits since October 11, 1985. Diane has been eligible
for Disability Insurance Benefits since October 1997. Jeannine has applied for Childhood
Disability Benefits on her adoptive mother, Diane’s, record.
Under the Social Security Act, a child is entitled to Childhood Disability Benefits
on the earnings record of an insured person who is entitled to disability benefits,
if the child meets five criteria. See Social Security Act, § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2009).
Specifically, the child must (1) be the insured person’s child, based upon a relationship
described in 20 C.F.R. sections 404.355 through 404.359; (2) be dependent on the insured
person, as defined in 20 C.F.R. sections 404.360 through 404.365; (3) apply; (4) be
unmarried; and, (5) be under age eighteen, have a disability that began before age
twenty-two, or qualify as a full-time student. See 20 C.F.R. § 404.350(a).
In this case, the applicant likely meets criterion (2), because she was adopted by
the numberholder before the numberholder became entitled to disability benefits. 20
C.F.R. section 404.362(a) provides that an applicant will be considered dependent
upon the numberholder if she was legally adopted by the numberholder before the numberholder
became entitled to disability benefits, and POMS RS 00203.080.A.4 clarifies that the same test for determining dependency is applied to disabled
children age eighteen or over as to children under age eighteen. Here, Diane adopted
Jeannine in April 1989, but did not become eligible for Disability Insurance Benefits
until December 1997. Thus, if the adoption is valid, the applicant satisfies the dependency
The applicant meets criterion (3), as she applied for Childhood Disability Benefits
on her adoptive mother’s record. She also meets criterion (5), as she previously has
established an onset date of disability of November 30, 1984, that is, prior to her
twenty-second birthday. The information provided does not specify whether the applicant
is married, so it is unclear whether she satisfies criterion (4).
The remaining issue is whether the applicant is a child of the numberholder and thus
satisfies criterion (1). 20 C.F.R. section 404.356 provides that a legally-adopted
child qualifies as the child of a numberholder. Section 404.356 further explains that,
in determining whether an applicant is the numberholder’s legally-adopted child, the
Commissioner applies the adoption laws of the state where the adoption took place.
The adoption in this case took place in New Hampshire, and thus the applicant’s adoption
must be analyzed under New Hampshire law. The adoption statute currently in effect
in New Hampshire provides that any individual may be adopted, provided that (1) if
the adoptee is fourteen years of age or older, she must assent to the adoption unless
the court determines that it is not in the best interests of the adoptee to require
assent; (2) if the adoptee is alleged to be incapacitated, incompetent, mentally ill,
developmentally disabled, or is in any other way emotionally or mentally deficient,
the court may appoint a guardian ad litem to protect the adoptee’s interests; and,
(3) if the adoptee, whether a minor or an adult, is married, the spouse of the adoptee
shall also assent to the adoption, unless the court waives this requirement for good
cause shown. See N.H. Rev. Stat. Ann. § 170-B:3 (2004). The statute further provides that any of the
following adults may adopt an individual: husband and wife together; an unmarried
adult; the unmarried parent of the adoptee; and, in limited circumstances, a married
person without that person’s spouse joining as a petitioner, if the adoptee is not
the petitioner’s spouse. See N.H. Rev. Stat. Ann. § 170-B:4. Once the final decree of adoption has been issued,
the adoptee is considered the child of the adopting parent or parents, entitled to
the same rights and privileges and subject to the same duties and obligations as if
such adoptee had been born of the adopting parent. See N.H. Rev. Stat. Ann. § 170-B:25(I).
When enacted, this most recent version of the New Hampshire adoption statute specified
that it applied only to adoption proceedings filed on or after the effective date
of the statute, January 2, 2005, and thus this version does not apply in the applicant’s
case. See 2004 N.H. Laws 255:7. Nevertheless, the version of the New Hampshire statute in effect
at the time of the applicant’s adoption required the adoptee to satisfy essentially
the same criteria as the most recent version. See N.H. Stat. Ann. §§ 170-B:3, 5, 6, 20 (1990). There are two potentially relevant differences:
(1) any court adjudicating an adoption petition was required, rather than permitted,
to appoint a guardian for a mentally-deficient adoptee; and, (2) there was no provision
for waiver of the consent of an adult’s spouse. See N.H. Stat. Ann. § 170-B:5(I)(h), (II).
In the applicant’s case, because Bernard and Diane appear to have been married when
they adopted Jeannine, see supra note 1, they satisfy N.H. Statutes Annotated section 170-B:4 as a “husband and
wife together.” However, it is not clear from the information provided whether Jeannine
otherwise satisfies all of the requirements of N.H. Statutes Annotated section 170-B:5.
First, she is an adult, and thus would have been required to consent to her own adoption.
See N.H. Stat. Ann. § 170-B:5(I)(a). Second, the information provided does not specify
the applicant’s disability. If she has a mental disability, the court may have been
required to appoint a guardian, and it is not clear if this was done. See N.H. Stat. Ann. § 170-B:5(II). Finally, if she were married at the time of her adoption,
she would have needed the consent of her spouse. See N.H. Stat. Ann. § 170-B:5(I)(h). Presumably, the court that issued the adoption decree
would not have done so if the applicant did not meet the requirements of the adoption
statute. See N.H. Stat. Ann. § 170-B:15 (providing that court may issue final adoption decree
once all required consents have been obtained or excused). Thus, it is likely that
the applicant’s adoption is valid, and if she consented to her own adoption, did not
require a guardian, and was unmarried at the time (or was married and obtained the
consent of her spouse), then her adoption conclusively is valid.
The applicant is entitled to Childhood Disability Benefits on the record of her adoptive
mother if the applicant is unmarried and her adoption is valid under the laws of the
state in which the adoption decree was issued, New Hampshire. Assuming that the applicant
consented to her own adoption, did not require a guardian, and was unmarried at the
time (or was married and obtained the consent of her spouse), her adoption is valid
and thus she is the legally-adopted child of the numberholder.
Robert J. Triba
Regional Chief Counsel
Nicole A. Liguori
Assistant Regional Counsel