PR 01320.041 Oregon

PR 03-179 Adoption after Age 21 - Ricky J. C~, SSN ~ CONFIDENTIAL COMMUNICATION

DATE: August 29, 2003

1. SYLLABUS

The claimant for disabled adult child benefits based on his natural mother's and father's records was adopted by someone else during his natural parents' lifetimes. Although the claimant has asserted that he changed his surname back to his natural father's, and assumed that this annulled the adoption, he has presented no evidence relating to the name change or supporting his assertion that the adoption was annulled. Absent evidence that the adoption was set aside within a year of the adoption decree, the adoption is legally binding. Under Oregon law, adoption terminates a child's inheritance rights with respect to his natural parent. Ricky was not living with or receiving contributions from his natural parents at the applicable time. Therefore, he is not entitled to child's benefits on their records.

2. OPINION

You have asked whether a claimant has been legally adopted.

Factual Background

On May 29, 2003, Ricky J. C~ applied for child's insurance benefits on Fleta M. C~'s and Clarence J. C~'s earnings records (Fleta's account number is ~ and Clarence's account number is ~). Ricky's Certificate of Birth shows Fleta as the natural mother, and Clarence as the natural father. Ricky is 44 years old (his date of birth is June 24, 1959), and he alleges that he became disabled on June 1, 1977. Fleta and Clarence are both receiving disability benefits.

On August 28, 1984, Ricky was adopted by William R. J~ and his name was changed to Ricky J. J~. The adoption was approved by the Circuit Court of the State of Washington for the County of Multnomah. William is now deceased.

Ricky has asserted that he petitioned a court in the State of Illinois to change his name back to Ricky J. C~, and he assumed this annulled the adoption. Ricky has not produced any evidence relating to the name change or supporting his assertion that the adoption was annulled.

DISCUSSION

A child age 18 or older may receive benefits based on disability if: (1) he has an impairment or combination of impairments that meets the definition of disability for adults; (2) the disability began before age 22; and (3) the adult child's natural parent worked long enough to be insured and is receiving retirement or disability benefits or is deceased. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. § 404.350(a).

When the natural child of the insured has been legally adopted by someone else during the insured's lifetime and after the adoption applies for child's insurance 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:

[Y]ou are considered dependent upon the insured only if the insured was either living with you or contributing to your support at one of the following times: (i) When you applied; (ii) When the insured died; or (iii) If the insured had a period of disability that lasted until he or she became entitled to disability or old-age benefits or died, at the beginning of the period of disability or at the time he or she became entitled to disability or old-age benefits.

20 C.F.R. § 404.361(b).

Program Operations Manual System GN 00306.165 states:

A natural or legally adopted child of the NH [number holder] who was adopted by another person during the NH's lifetime (see GN 00306.165B.) is the NH's child for benefit purposes only if:

o The adoption did not cut off the child's inheritance rights in the NH's estate under applicable State law; and

o The NH was living with or contributing to the child's support at one of the points set forth in GN 00306.007 [life cases] _11 or GN 00306.008 [death cases].

NOTE: Adoption by someone other than the NH does not terminate a child's entitlement. If the adoption occurred before the child's application is filed, but the application has retroactivity to a point before adoption at which all entitlement requirements are met, the adoption has no effect on determining the child's entitlement.

GN 00306.165B. states: "The provision in GN 00306.165A. does not apply if the adoption occurred after an applicable point at which the child could be deemed dependent on the NH."

Oregon Adoption Laws

Ricky's adoption took place in the State of Oregon, so we look to Oregon law to see if the adoption was valid.

Consent when person to be adopted has reach age of majority.

If the person to be adopted is legally married or is 18 years of age or older, the written consent of the person to be adopted may be held by the court to be sufficient without the necessity for the consent of any other person to the adoption.

Because of Ricky's age at the time of the adoption (age 25), he did not need his natural parents' consent to the adoption.

ORS 109.381 provides, in pertinent part:

(2) Except for such right of appeal as may be provided by law, decrees of adoption shall be binding and conclusive upon all parties to the proceeding. No party nor anyone claiming by, through or under a party to the adoption proceeding, may for any reason, either by collateral or direct proceedings, question the validity of a decree of adoption entered by a court of competent jurisdiction of this or any other state.

(3) After the expiration of one year from the entry of a decree of adoption in this state the validity of the adoption shall be binding on all persons, and it shall be conclusively presumed that the child's natural parents and all other persons who might claim to have any right to, or over the child, have abandoned the child and consented to the entry of such decree of adoption, and that the child became the lawful child of the adoptive parents or parent at the time when the decree of adoption was rendered, all irrespective of jurisdictional or other defects in the adoption proceeding; after the expiration of such one-year period no one may questions the validity of the adoption for any reasons, either through collateral or direct proceedings, and all persons shall be bound thereby; provided, however, the provisions of this subsection shall not affect such right of appeal from a decree of adoption as may be provided by law.

We have no evidence that the adoption was set aside within a year of the adoption decree, so the adoption is legally binding.

The Oregon statutes explain the effect of a legally binding adoption. ORS 109.050 provides:

An adopted child bears the same relation to adoptive parents and their kindred in every respect pertaining to the relation of parent and child as the adopted child would if the adopted child were the natural child of such parents.

ORS 109.041, under the chapter heading of "Rights and Relationships of Parent and Child," states:

(1) The effect of a decree of adoption heretofore or hereafter granted by a court of this state shall be that the relationship, rights and obligations between an adopted person and descendents of the adopted person and

  1. The adoptive parents of the adopted person, their descendants and kindred,

  2. The natural parents of the adopted person, their descendants and kindred

shall be the same to all legal intents and purposes after the entry of such decree as if the adopted person had been born in lawful wedlock to the adoptive parents and had not been born to the natural parents.

This statute is supplemented by ORS 112.175, under the chapter heading of "Intestate Succession and Wills Status of Adopted Persons," which states:

  1. An adopted person, the issue and kindred of the adopted person shall take by intestate succession from the adoptive parents, their issue and kindred, and the adoptive parents, their issue and kindred shall take by intestate succession from the adopted person, the issue and kindred of the adopted person, as though the adopted person were the natural child of the adoptive parents

  2. An adopted person shall cease to be treated as the child of the person's natural parents for all purposes of intestate succession by the adopted person, the issue and kindred of the adopted person and the natural parents, their issue and kindred._22

    Based on these statutes, Ricky has been legally adopted by William, and is treated as if he is William's natural child and can inherit William's estate. He ceased to be treated as Fleta and Clarence's natural child and the adoption cut off his inheritance rights to Fleta and Clarence's estate. See POMS GN 00306.165.

    Finally, it does not appear that Fleta or Clarence was living with or contributing to Ricky's support at one of the points specified in 20 C.F.R. § 404.361(b), POMS GN 00306.007. Ricky's application has a Portland, Oregon mailing address. SSA's computer records show that Fleta lives in Phoenix, Arizona, and that Clarence lives in Tulsa, Oklahoma.

    CONCLUSION

Based on the evidence, you would be justified in denying Ricky's claim for child insurance benefits on Fleta's and Clarence's earnings records.

_11 GN 00306.007 states that dependency may be met: * At the beginning of the period of disability (if the NH had several periods of disability, only the beginning of the last period can be used);* At the time the NH last became entitled to a DIB; or* At the time the child's application is filed.

_22 There are two exceptions to paragraph (2), but there are not applicable here.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501320041
PR 01320.041 - Oregon - 02/13/2008
Batch run: 01/17/2014
Rev:01/17/2014