PR 01320.019 Kansas

A. PR 90-006 Entitlement Of Children Involved In Multiple Adoptions Ronald D. H~, SSN:

August 24, 1990

1. SYLLABUS

When the natural child of an insured has been adopted by someone else during the insured's lifetime and applies for child"s benefits on the insured's earnings record, entitlement to benefits can only be established if the child can demonstrate that he was dependent upon the insured. The dependency requirement must still be met in a case where, after the child has been adopted by his mother's second husband, the husband consents to the child's adoption by the mother's third husband, and this second adoption is later annulled. At the time of the NH's death, the child had been adopted by the mother"s second husband and the adoption was valid and in effect at that time. (H~, Ronald D., ~, Region VII - (Smith) to Sladek, ARC, Progs. )

2. OPINION

Beverly B~ and Ronald H~ were married on June 7, "1975. They had two children: a daughter Christina D. H~ born on February 3, 1976, and a "son Brian E. H~ born on August 25, 1977. The H~'s were divorced on December 18, 1981. Beverly was awarded custody of the two children. Although Ronald was ordered to pay child support, he was adjudged to be an unfit parent and his parental rights were severed pursuant to the court order granting the divorce.

On July 19, 1983, Beverly married Steven C~. He adopted Christina and Brian on November 15, 1983. The C~s were divorced on April 8, 1988, but in the meantime, Beverly's first husband Ronald H~ died on April 6, 1988. The children were living with their mother, and Ronald was not contributing to their support at the time of his death.

The Court which granted the C~"$ divorce ordered Steven C~ to pay child support. Custody of the two children was awarded to Beverly, but was subject to Steven's visitation rights.

Beverly married Jack L. D~, Jr., on May 13, 1988. On August 9, 1988, Steven C~ signed a form consenting to Jack"s adoption of Christina and Brian. Jack adopted Christina and Brian on September 21,-1988. The children were entitled to benefits on Jack's Social Security account effective October 1988, as adopted children.

On December 12, 1989, Beverly and Jack were divorced. In a separate order issued on the same day, the court declared Jack"s adoption of Christina and Brian "invalid" and "set it aside." The children"s names were changed back to H~.

On February 12, 1990, Beverly filed applications for children"s benefits for Christina D. and Brian E.H~ on Ronald Social Security account." You have asked us to determine whether the court order of December 12, 1989, which set aside the .children"s adoption by Jack D~, resulted in the termination of the children"s benefits. effective December 1989. -You also asked whether the "setting aside" of the adoption has the same effect as an annulment. Finally, you inquired regarding what result the court"s order setting aside the adoption by Jack had on Steven C~"s rights and obligations and, in view of Steven" consent to Jack's adoption of the children which was subsequently found to be invalid, whether the children would still need to meet the "living with" or dependency test to be entitled to benefits on Ronald H~'s Social Security account.

"Setting aside" a judgment is synonymous in meaning to reversing, vacating, cancelling,. annulling or revoking a judgment. Black"s haw Dictionary, Fifth Edition, p. 713. To say the District Court of Barton County set aside Jack D~'s adoption of Christina and Brian is tantamount to saying that it ordered the annulment of the adoption. The rule regarding the effect of an annulment of an adoption on a child's entitlement to benefits derived from his relationship to the adoptive parent is stated at POMS RS 00203.035C.2.B.3. It reads: "Entitlement to a child"s benefit based on a legal adoption will terminate if the adoption is annulled. The effective date of the termination to benefits is the month in which the annulment becomes effective." The annulment of Jack D~'s adoption of Christina and Brian became effective on December 12, 1989, the date of the court order. Thus, their entitlement to children's benefits on his Social Security number terminated in December 1989.

When the Court ordered that Jack D~'s adoption of Christina and Brian be set aside it found: "that Steve Anthony C~, who previously adopted the above named minor children, has signed his consent to the adoption and has relinquished all rights to these minor children." Thus, the court recognized that by setting aside Jack D~~s adoption of the children it was not reinstating their adoption by Steven C~. Moreover, the Supreme Court of Kansas has held that consent to an adoption by a responsible parent which is in writing and has been filed of in the probate court is irrevocable, unless the consenting party or parties, prior to final decree of adoption, allege and prove that such- consent was not freely and voluntarily given. Jones v. Jones, 215 Kan.102, 523 P.2d 743 (1974). Thus, setting aside Jack D~'s adoption of the children did not affect the validity of Steven Cranston's consent to that adoption and corresponding relinquishment of parental rights and obligations.

Steven C~'s consent to Jack D~'s adoption of Christina and Brian and the subsequent order setting aside that adoption have no legal effect on the children's relationship to-their "natural father, Ronald H~." In the court order granting his -divorce from Beverly, Ronald was to be an unfit parent and his parental rights were severed Furthermore, when Steven C~ adopted Ronald's children, regardless of the fact that the adoption was later rescinded, the children's relationship to their natural-father in terms of rights and obligations ended. "Where the adoption of a child is regularly obtained, the status of the Child is changed and it no longer remains the child of its natural parents, but becomes the child of another, and its relationship to its natural parents ceases." Jones, 523 P.2d at 751.

While nothing can change" the fact that Ronald H~ was the biological father of Christina and Brian, this is just one step toward establishing their entitlement to benefits on his Social Security account. See 20 C.F.R 404.355(a). When the natural child of an insured has been adopted by someone else during the insured"s lifetime and after the .adoption applies for child's benefits on the insured's earnings records, entitlement to benefits can only be established if the child can demonstrate that he was dependent upon the insured. 20 C.F.R. §§ 404.360 and 404.361. There are three ways a child adopted by someone else can establish dependency on his or her natural parent:

...you will be considered dependent upon the insured (your natural parent) only if he or she was either living with you or contributing to your support at one of these times -

(a) When you applied; (b) When the insured died; or (c) If the insured had a period of disability that lasted until he or she died or became entitled to disability or old age benefits, at the beginning of the period of disability or at the time he or she became entitled to benefits.

20 C.F.R. § 404.361. By the time Beverly B~ applied for child's benefits on behalf of her children, Ronald H~ had already died. He died two days prior to the date when the C~'s divorce decree was entered. He was neither living with the children nor contributing to their support when he died. In fact, at the time of his death, Steven C~ was still the children"s adoptive father, responsible for their support. Thus, the children are not entitled to benefits on Ronald H~'s Social Security number because they do not meet the dependency requirement. Although this is an unusual situation, there is nothing about it which would result in excusing this requirement.


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PR 01320.019 - Kansas - 04/04/2002
Batch run: 01/27/2009
Rev:04/04/2002