PR 01310.053 Washington

A. PR 09-047 Validity of Adoption of Person over Age 21, Number Holders: Wallace D~, SSN ~ and Perceal D~, SSN ~ -- REPLY

DATE: January 2, 2008

1. SYLLABUS

In the State of Washington any person may be adopted, regardless of his or her age or residence. While the consent of the person to be adopted is required, the requirement can be waived by the court if the adoption is found to be in the best interest of the potential adoptee.

2. OPINION

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.

QUESTION PRESENTED

You have asked for a legal opinion on the validity of the adoption of Jodi L. N~ and Lori A. F~, who have applied for disabled adult child benefits on the Social Security records of Wallace and Perceal D~.

ANSWER

The adoption of Jodi L. N~ and Lori A. F~ in Washington by Wallace D~ and his wife Perceal D~ appears to be valid and legal because the adoption complied with the adoption laws of the State of Washington.

SUMMARY OF EVIDENCE

Jodi L. N~ was 38 years old and Lori A. F~ was 39 years old when they were adopted on May 15, 2007, in Tacoma, Washington, by Wallace and Perceal D~. Each claimant has submitted a certified copy of the Decree of Adoption issued by the Superior Court of the State of Washington for the County of Pierce, filed on May 15, 2007. Each claimant has also submitted a certified copy of Certificate of Live Birth. Jodi L. N~'s was issued by the State of Washington, showing that Jodi L. N~-D~ was born on September 12, 1968, father, Wallace A. D~, and mother, Perceal A. H~. Lori A. F~'s was issued by the State of Washington, showing that Lori A. F~-D~ was born on January 22, 1968, father, Wallace A. D~, and mother, Perceal A. H~.

ANALYSIS

An individual may be entitled to child's benefits on the earnings record of an insured person who is entitled to old-age or disability benefits, or who has died, if she is the insured person's child. To be eligible for benefits, the individual must (1) apply; (2) establish relationship; (3) be dependent on the insured; (4) be unmarried; and (5) be under age 18, age 18 years old or older and have a disability that began before age 22 years old, or be 18 years or older and qualify for benefits as a full-time student. See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. A child may be eligible for benefits as the insured's child if she was legally adopted by the insured. See 42 U.S.C. § 416(e); 20 C.F.R. § 404.356. SSA applies the adoption laws of the State or foreign country where the adoption took place, to determine whether the child is the legally adopted child of the insured. See 20 C.F.R. § 404.356; POMS GN 00306.135. Further, at least one party to the adoption (either the child or adopting parent) must have been domiciled or actually residing in that jurisdiction at the time of the adoption. POMS GN 00306.135.

In the State of Washington, where the adoption took place, any person may be adopted, regardless of his or her age or residence. WASH. REV. CODE § 26.33.140 (2007). Adoption proceedings are initiated by filing with the court a petition for adoption by the prospective adoptive parent. WASH. REV. CODE § 26.33.150(1). Normally, consent is required by the person to be adopted, however a court can waive this requirement if the adoption is shown to be in the best interests of the adoptee. WASH. REV. CODE §§ 26.33.150(3), 26.33.170(1). Here, in both Lori A. F~'s and Jodi L. N~'s cases, the court elected to waive the requirement of consent. In the adoption of a person eighteen years or older, the requirement for a preplacement and postplacement reports are waived. WASH. REV. CODE §§ 26.33.150(5), 26.33.190, 26.33.200, 26.33.220. If the court is satisfied that the adoption would be in the best interests of the persons seeking adoption, the court will approve the adoption and will enter a decree of adoption. WASH. REV. CODE §§ 26.33.240, 26.33.250. The Decree(s) of Adoption in this case included all relevant information required by law; e.g., birth dates, complete names, etc. WASH. REV. CODE § 26.33.250. The court, having found all requirements to be met, granted the adoption petitions of Wallace and Perceal D~ and issued decree(s) of adoption. After the court grants the adoption, the adoptee and legal parents sustain the legal relationship of parent and child and have all the rights and are subject to all the duties of that relationship. WASH. REV. CODE § 26.33.260.

CONCLUSION

It appears that all requirements under the laws of the State of Washington concerning adoption of an adult were met, and that Jodi L. N~ and Lori A. F~ are therefore considered the children of Wallace and Perceal D~ by relationship. As long as other eligibility conditions are met, Jodi L. N~ and Lori A. F~ would be entitled to child's benefits on the accounts of Wallace and Perceal D~.

B. PR 01-223 Same Sex Adoption Case; Claim No. ~

DATE: October 26, 2001

1. SYLLABUS

The child claimant was legally adopted in the State of Washington by the NH and her same-sex partner, as co-petitioners. The NH later became entitled to DIB. Under Washington law, any legally competent person, 18 years of age or older, may adopt. The Decree of Adoption made the NH an adoptive parent, with all of the rights and duties that status entails. Although Washington prohibits marriage when the parties are persons other than male and female, this is not an issue with respect to the validity of the child claimant's adoption by the NH. Therefore, the child may be entitled to child's benefits on the NH's record as her legally adopted child.

2. OPINION

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.

FACTUAL BACKGROUND

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 claim.

DISCUSSION

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. § 404.362(a)

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 Sta