This memorandum is in response to your request for our legal opinion on the question:
Is a child adopted in Kazakhstan, after the adoptive parent began receiving disability
insurance benefits, eligible for auxiliary child benefits?
SSA regulations require that there be evidence of the child's dependence on the number
holder to be eligible for Title II benefits. After consideration of the relevant facts
and law, we conclude that the Adoption Decree entered in Oregon adequately establishes
a legal adoption, thereby entitling the child to benefits.
Garri was born on October, in the city of Almata in the republic of Kazakhstan. On
March 31, 2003, Garri was declared adopted in the Bostandyk District Court by United
States citizens, David and Cynthia. An adoption certificate was issued from the Bostandyk
District Office of Vital Statistics on April 1, 2003. On August 11, 2003, Cynthia
filed for auxiliary child's benefits based on her receipt of disability insurance
benefits (DIB) beginning in August 2000.
The D~ residents of the State of Oregon, filed a Petition for Decree of Adoption in
the Jackson County Circuit Court of Oregon on September 22, 2003. A Decree of Adoption
was entered by the Court on December 31, 2003. Concurrently, Garri's name was changed
to Garrick . A Certificate of Foreign Birth was issued by the State of Oregon on January
23, 2004, declaring Cynthia and David as the parents of Garrick.
A. Statutory and Regulatory Background
Garrick is entitled to Title II child's insurance benefits on Cynthia's account only
if he is Cynthia's "child" under a relationship defined in 20 C.F.R. §§ 404.355 through
404.359. See 20 C.F.R. 404.350(a)(1). Garrick does not meet the definitions of a natural child,
stepchild, grandchild, or equitably legally adopted child under 20 C.F.R. §§ 404.355,
404.357, 404.358, or 404.359. The relevant question is whether Garrick is recognized
as a legally adopted child under 20 C.F.R. § 404.356. Under that section, the adoption
laws of the State or the foreign adoption laws where the adoption took place apply,
and not the State inheritance laws. However, as explained below, we do not need to
evaluate the Kazakhstani adoption laws for DIB benefits where an adoption decree has
also been entered in a State Court, as in this case.
Under 42 U.S.C. § 402 (d)(1)(C)(i), a child is entitled to auxiliary benefits if the
child was dependent upon the number holder at the time of the application for child's
benefits. However, in the case of DIB, a child adopted after DIB entitlement is not
considered dependent unless the child was legally adopted in an adoption decreed by
a court of competent jurisdiction within the United States. 42 U.S.C. §§ 402 (d)(8)(B),
402(d)(8)(D)(i). See also POMS GN 00306.137. This section overrides the necessity to consider the adoption laws of Kazakhstan,
pursuant to 20 C.F.R. § 404.356, because of the statutory requirement that there be
an adoption decree entered in a United States Court. A regulation cannot be interpreted
independently of the statute under which it was promulgated. Hunsaker v. Contra Costa County, 149 F.3d 1041, 1043 (9th Cir. 1998). Therefore, we need only inquire if there was
an adoption decree entered in any State court. In this case, we have been provided
with a copy of the Decree of Adoption entered on December 31, 2003, in the Jackson
B. Oregon Statutes
The parent-child relationship is established when the adoption is effective under
State law. See POMS GN 00306.135. In Oregon State, an adoption is effective on the date of the decree. See OR. REV. STAT. § 109.350; see also POMS GN 00306.160.
C. Case Law
There are no Ninth Circuit federal cases or Oregon State cases that address this issue
or these statutes and regulations.
Garrick is entitled to benefits as the legally adopted child of Cynthia, based on
the Decree of Adoption entered in Oregon State court. His entitlement begins on the
date of entry of the Decree, December 31, 2003.
Lucille G. Meis
Regional Chief Counsel
Joanne E. Dantonio
Assistant Regional Counsel