BACKGROUND AND QUESTION PRESENTED
On June XX, 2008, numberholder K~ and his wife R~ adopted their natural granddaughter
K2~ in Franklin County, Ohio.
On December XX, 2011, K2~ was adopted by her natural father J~ in Franklin County,
Ohio. J~ is the natural son of K~ and R~.
On February XX, 2014, K~ applied for retirement benefits. His wife R~ applied for
child’s benefits on K2~’s behalf, claiming that K2~ is K~’s adopted child.
You asked whether K2~ is still K~’s child for benefit purposes, in light of her subsequent
adoption by her natural father J~. We conclude that K2~ was no longer K~’s child at
the time her application was filed, and thus cannot receive child’s benefits on K~’s
Section 202(d) of the Social Security Act (the Act) provides for the payment of child’s
insurance benefits to a child of an insured individual. As relevant here, in order
to grant K2~ benefits on K~’s earnings record, SSA must find, among other things,
that K2~ is K~’s legally adopted child. See Sections 202(d)(1) and 216(e) of the Act; 20 C.F.R. §§ 404.350(a)(1), 404.354. To
determine whether an applicant is an insured individual’s legally adopted child, SSA
considers whether the applicant was legally adopted by the insured under the adoption
laws of the state or country where the adoption took place. See 20 C.F.R. § 404.356; see also POMS GN 00306.135 (to be legal, adoption must be valid under law of state where it took place); POMS
PR 01805.039A (PR 11-065) (citing the Act, regulations, and legislative history to show that the
agency must apply state adoption laws, not inheritance laws, to determine whether
an adopted child is a “child” for benefit purposes).
Given that K2~ was adopted by K~ in Ohio, Ohio’s adoption laws apply to determine
whether K2~ was K~’s child for benefit purposes at the time she applied for child’s
benefits. Assuming that the adoption was valid under Ohio law, K2~ would normally
be entitled to child’s benefits on K~’s record. Here, however, in between her adoption
by K~ and the filing of her application, K2~ was adopted by her natural father J~.
Thus, the issue is how K2~’s second adoption by J~ affects her status as K~’s legally
adopted child for benefit purposes. As noted above, an applicant’s status as a legally
adopted child is determined solely by applying state adoption laws; the agency does
not apply state inheritance laws, which are for natural children only. See 20 C.F.R. § 404.356; POMS PR 01805.039A (PR 11-065). We note that POMS GN 00306.165 instructs agency adjudicators to apply state inheritance laws to determine whether
the adopted child of an insured individual who was adopted by another person is the
insured’s child for benefit purposes. We believe that the POMS is incorrect in this
regard, and recommend that the agency revise POMS GN 00306.165A by deleting the reference to a legally adopted child.
Under Ohio law, an adoption has the effect of terminating the parent-child relationship
between the adopted person and her former legal parents. Ohio Rev. Code § 3107.15(A)(1).
Additionally, when a child in Ohio is adopted twice, the second adoption entirely
replaces the first adoption, thus cutting off the child’s right to inherit from the
first adoptive parents’ estate. Evans v. Freter, 20 Ohio App. 2d 8, 11 (Ohio Ct. App. 1969) (“If John C. Freter could inherit from
or through his first adopting parents after the second adoption . . . his estate would
descend not just to his parents by the second adoption, who are his parents as of
the time of his death, but also to those claiming to be parents under the previous
adoption which has been terminated. We are unable to construe the statute in a manner
which would require this conclusion. . . .”). Here, K2~’s second adoption by her natural
father entirely replaced the first adoption by her natural grandparents, which means
that her natural grandparents K~ and R~ were no longer her legal parents under Ohio
law as of the date of her second adoption. Thus, by the time R~ applied for child’s
benefits on K2~’s behalf, K2~ was no longer K~’s child under Ohio law. Accordingly,
K2~ is not entitled to benefits as a child of numberholder K~.
For the above reasons, we find that K2~ was no longer K~’s adopted child at the time
she applied for child’s benefits. Accordingly, K2~ is not entitled to child’s benefits
on K~’s record.
Acting Regional Chief Counsel, Region V
By: Assistant Regional Counsel