TN 5 (09-06)

PR 01310.054 West Virginia

A. PR 06-289 Validity of Adoption between Number Holder (Reese T. R~) and John D. R~, SSN: ~

DATE: August 22, 2006

1. SYLLABUS

Under West Virginia law, any adult resident may petition the court for permission to adopt a person over eighteen years old, with the consent of the person to be adopted. In this case, the claimant had lived with the number holder and his wife since infancy and will meet the dependency requirement to be entitled and the number holder's child regardless of whether or not the adoption took place prior to the number holder's entitlement to benefits.

2. OPINION

QUESTIONS PRESENTED

This is in response to your request for an opinion as to the validity of the Number Holder's adoption of John D. R~ (John) under West Virginia law, and whether a parent-child relationship exists.

CONCLUSION

Based on our review of the facts of this case and our research of the relevant statutes, regulations, and case law, we have concluded that John's adoption is valid under state law, and that it resulted in a parent-child relationship between the Number Holder and John.

FACTUAL BACKGROUND

The following is a summary of the relevant facts in this matter. John is a mentally handicapped twenty-six year old adult who has lived with the Number Holder and his wife since he was an infant. The Number Holder is currently receiving retirement benefits. In July 2002, when John was twenty-two years old, the Number Holder, his wife, and John appeared for a hearing before Judge John R. F~ of the Circuit Court of Mercer County, West Virginia on a petition to adopt John. After hearing from all three parties, Judge F~ granted the petition and declared John the adopted son of the Number Holder and his wife.

On March 21, 2006, the Number Holder filed an application for supplemental security income on John's behalf. That application was granted, with a protective filing date of January 11, 2005. The current request for a legal opinion arises out of John's April 26, 2006 application for disabled adult child's benefits on the Number Holder's account. The issues are whether John's adoption as an adult is valid under West Virginia law, and whether a parent-child relationship exists.

ANALYSIS

Disabled adult child's benefits may be granted based on the earnings record of an insured who is entitled to old-age benefits if the applicant is (1) the insured's child, (2) dependent on the insured, (3) eighteen years old or older, and (4) has a disability that began before he reached age twenty-two. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2005). Under the Act and the implementing regulations, a "child" includes a legally adopted child. 42 U.S.C. § 416(e); 20 C.F.R. § 404.356 (2005). To determine the legality of an adoption, the Agency looks to the law of the state where the adoption took place. 20 C.F.R. § 404.356 (2005). John was adopted in West Virginia. Accordingly, West Virginia law applies.

Based on our research, we have concluded that John is the insured's legally adopted child. Under West Virginia law, any adult resident may petition the court for permission to adopt a person over eighteen years old, with the consent of the person to be adopted. W. Va. Code § 48-22-801. In this case, a hearing was held in July 2002 on a petition filed by the Number Holder and his wife to adopt twenty-two year old John. The court noted that John had continuously lived with the Number Holder and his wife since January 1980; that John relied on the Number Holder and his wife for support; that the Number Holder and his wife were fit to adopt John and provide for his maintenance, support, and education; and that John's best interests would be promoted by the adoption. After hearing from all three parties to the adoption, the judge granted the petition and declared John adopted by the Number Holder and his wife. Accordingly, John's adoption satisfies the requirements of West Virginia law, and confers upon him child status under the Commissioner's regulations. 20 C.F.R. §§ 404.350(a)(1), 404.356 (2005).

In addition to demonstrating that he is the Number Holder's child, John must also demonstrate that he is dependent on the Number Holder and that his disability began before he reached age twenty-two. 20 C.F.R. § 404.350(a) (2005). A legally adopted child is presumed dependent on the insured if he was adopted before the insured became eligible for old-age benefits. 20 C.F.R. § 404.362(a) (2005). If the adoption occurred after the insured became entitled to old-age benefits, and the claimant was over eighteen years old at the time of the adoption, the claimant must demonstrate that he was living with or receiving at least one-half of his support from the insured for the year immediately preceding the month in which the adoption occurred. 20 C.F.R. § 404.362(b) (2005).

I cannot dete