You have asked whether a child adopted in the State of Washington by a same-sex couple
is eligible for dependent child's benefits as a disability insurance benefits (DIB)
auxiliary on the account of one of the adoptive parents. The short answer is yes.
Raven E. L~ P~ (Raven), was born in Olympia (Thurston County), Washington, on December
2, 1992. Patricia B~ (the NH) and her same sex partner, "Von," adopted Raven on October
11, 1993, by decree of the Superior Court of Thurston County. The NH and Von applied
for the adoption as co-petitioners. A birth certificate was issued for Raven on September
2, 1998, listing the NH and Von as her parents.
The NH was awarded DIB on June 6, 2001, with October 1999 as the month of entitlement.
The NH named Raven on the original DIB claim and thus protected Raven's auxiliary
Under Title II of the Social Security Act, a child is entitled to DIB auxiliary benefits
on the account of a beneficiary number holder if: 1) the child is under 18 years old;
2) the child is unmarried; and, 3) the child is dependent upon the number holder.
42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. A child may establish a parent-child relationship
with a number holder by showing that the number holder legally adopted the child.
20 C.F.R. § 404.354. The adoption law of the State where the adoption took place applies
to determine whether a number holder has legally adopted a child. 20 C.F.R. § 404.356.
An adopted child is considered dependent upon a number holder if the child was legally
adopted before the number holder became entitled to Title II benefits. 20 C.F.R. §
In the instant case, the NH adopted Raven by decree of the Superior Court of Thurston
County, Washington, on October 11, 1993, making Washington's adoption laws applicable.
20 C.F.R. § 404.362(a). Under Washington law, any legally competent person, 18 years
of age or older, may adopt. Revised Code of Washington (RCW) § 26.33.140(2). There
is no evidence that the NH was not legally competent on October 11, 1993, the date
of the adoption, and Raven's birth certificate indicates that the NH was born in 1946,
making her 47 years old as of the date of adoption. Adding these points together,
the NH, as a legally competent adult, over 18 years old, was entitled to adopt Raven.
RCW § 26.33.140(2). The Decree of Adoption made the NH an adoptive parent, with all
of the rights and duties that status entails. RCW 26.33.260(1). Moreover, because
the adoption was completed in October 1993, six years before the NH became entitled
to DIB (in October 1999), Raven is considered dependent upon the NH and therefore
entitled to auxiliary benefits. 20 C.F.R. § 404.362(a).
One issue to consider, however, is whether the same-sex union of the NH and Von might
compromise the validity of the adoption or Raven's dependency upon either of her adoptive
parents. Washington prohibits marriage when the parties are persons other than male
and female. RCW § 26.04.020(1)(c). Washington does not recognize even "meretricious
relationships" between members of the same sex. Vasquez v. Hawthorne, 994 P.2d 240, 242-43 (Wash. App. 2000). A "meretricious relationship" is defined
as a stable, marriage-like relationship where both parties cohabit with knowledge
that a lawful marriage between them does not exist. Id. The union between the NH and Von, then, is not recognized under pertinent State law
as a marriage or meretricious relationship, making their union a legal nullity. See Id.
Despite problems with the legal validity of the same-sex union, it is not an issue.
The Washington adoption code does not specify that an adoption requires a married
or meretricious couple. Rather, the adoption code outlines the requirements of adoption
in the singular person:
[A]ny person who is legally competent and who is eighteen years of age or older may
be an adoptive parent.
(emphases added) RCW 26.33.140(2); see also RCW 26.33.250(c) (single parent may adopt on the same terms as a married person).
Moreover, nothing in Washington law prohibits homosexuals from adopting. Indeed, the
Superior Court judge who issued the adoption decree in the case at hand knew that
the adoptive parents were of the same sex (they appeared before him) and were not
married, yet this judge authorized the adoption. The legal status of their union might
have been a consideration for this judge in granting NH and Von the adoption, as opposed
to granting it to some competing couple, but the legal status of the same sex union
would not undo the adoption once granted. See generally RCW 26.33.240 (considerations court must give in fashioning adoption decree).
Although the same-sex union here is a legal nullity, nothing changes Raven's dependency
upon each adoptive parent individually, absent a proceeding to change the rights of
one or both of the adoptive parents. See RCW 26.33.140, RCW 26.33.260(1). Therefore, because Raven is under 18 years old, unmarried,
and dependent upon the NH (by force of the 1993 adoption decree), Raven is entitled
to dependent child's benefits as an auxiliary beneficiary on the DIB account of the
NH. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350.
This result is consistent with the primary consideration of the Washington adoption
code, "the best interest of the child." RCW 26.33.010. General principles in Washington
case law suggest that a court would not undo an adoption or change the dependency
status of a child because of a possible mischaracterization on the adoption petition
not material to the best interest of the child. See In re the Interest of Infant Child J, 994 P.2d 279, 282 (Wash. App. 2000); see also In re Adoption of Reinius, 346 P.2d 672, 676-77 (Wash. 1959) (welfare of the child is the prime and controlling
consideration in adoption proceeding); see generally Knight v. Galloway, 85 P. 21, 22 (Wash. 1906) (welfare of the child is the primary, if not the sole,
consideration in an adoption proceeding). With adoption, the courts strive to promote
stability, predictability, and continuity in established parent-child relationships.
See In re the Interest of Infant Child Skinner, 982 P2d 670, 675 ((Wash. App. 1999) (best interest of the child requires continuity
of care and integration into a permanent home); see also In re Dependency of G.C.B., 870 P.2d 1037 (Wash. App. 1994) (stability, predictability, and continuity of care).
In keeping with these principles, Washington courts would undoubtedly support stability,
predictability, and continuity of Raven's relationship with the NH by finding Raven
to be legally adopted by the NH, legally dependent upon the NH, and entitled to any
benefits that might accrue as the NH's legally adopted child.
In sum, the State of Washington does not recognize same-sex marriage or meretricious
relationships, but does not require any particular marital or quasi-marital status
for purposes of adoption. Rather, the adoption code is expressed in the first person,
contemplating the validity of individual adults adopting children. Because the NH,
in her capacity as a legally competent, individual adult, adopted Raven, then later
became entitled to DIB, Raven is considered dependent upon the NH and entitled to
auxiliary benefits. This result is consistent with the State's primary consideration
of serving the best interest of the child.