TN 6 (03-06)

PR 01325.294 Poland

A. PR 05-053 Entitlement to Child's Benefits on Behalf of Claimants: Lukas M~ S~, Caleb P~ S~, Katherine E~ S~, and Magdalena J~ S~, on the Basis of Documentation Indicating That They Were Adopted In Poland by the Number Holder: Frank S~, SSN: ~, after the Number Holder Became Entitled to Disability Benefits

DATE: December 16, 2004

1. SYLLABUS

Children adopted in Poland after the number holder's entitlement to benefits cannot be entitled for child's benefits as they cannot be deemed dependent of the number holder.

2. OPINION

QUESTION PRESENTED

On September, 29, 2004, you asked us to advise you whether a parent-child relationship could be established between the Number Holder and Lukas, Caleb, Katherine, and Magdalena S~ ("claimants/children") on the basis of adoption documents indicating that they were adopted by the Number Holder on September 9, 2003, in Jaworzno, Poland, pursuant to Polish law.

SUMMARY

Based on our review of the facts of this case and our research of the relevant regulations and sections of the POMS, we have determined that the claimants/children are not entitled to child's benefits on the earnings record of the Number Holder. To be entitled to child's benefits, the claimants/children must establish not only that they are the Number Holder's legally adopted children but that they are dependent upon the Number Holder as well. Because the claimants/children cannot establish that they are dependent upon the Number Holder, they are not entitled to child's benefits regardless of whether their adoptions were valid under Polish law.

BACKGROUND

Based on the information you provided to us, the following is a summary of the relevant facts in this matter. Frank S~, the Number Holder, applied for Social Security Disability benefits in April 1999, and became entitled to Social Security Disability benefits in April 1998.

Frank S~ and his wife, Susan M. S~, provided an adoption certificate executed by Ewa P~, Regional Judge, Family Department III, Jaworzno, Poland, as proof of their adoption of four children, Magdalena J~ K~, Lukasz M~ K~, Przemyslaw P~ K~, and Katarzyna E~ K~, in Jaworzno, Poland, in September 2003. The adoption certificate shows that three of the four children were given name changes. Lukasz M~ was given the name, Lukas M~; Przemyslaw P~ was given the name, Caleb P~; and Katarzyna E~ was given the name, Katherine E~.

The adoption certificate also provided that new acts of birth for the adopted children would appear separately. A new birth certificate for Magdalena J~ S~ was issued and recorded on September 10, 2003, indicating that she was born on March 19, 1988, in Myslowice, Poland to Frank and Susan M~, n~ D~, S~. A new birth certificate for Lukas M~ S~ was recorded and issued on September 10, 2003, indicating that he was born on April 24, 1989, in Myslowice, Poland to Frank and Susan M~, n~ D~, S~. A new birth certificate for Caleb P~ S~ was recorded and issued on September 9, 2003, indicating that he was born on February 20, 1996, in Jaworzno, Poland to Frank and Susan M., n~ D~, S~. A new birth certificate for Katherine E~ S~ was recorded and issued on September 9, 2003, indicating that she was born on January 20, 1999, in Jaworzno, Poland to Frank and Susan M~, n~ D~, S~.

On November 5, 2003, Frank S~ filed an application for child's benefits for Magdalena J~ S~, Lukas M~ S~, Caleb P~ S~, and Katherine E~ S~, based upon his Social Security earnings record.

DISCUSSION

In general, an individual is entitled to child's benefits on the earnings record of an insured person who is entitled to disability benefits if he or she:

  • is the insured person's child, based upon a relationship described in §§ 404.355 through 404.359;

  • is dependent on the insured, as defined in §§ 404.360 through 404.365;

  • applies;

  • is unmarried; and

  • is under age 18; 18 years old or older and has a disability that began before the individual became 22 years old; or 18 years or older and qualifies for benefits as a full-time student as described in § 404.367.

20 C.F.R. § 404.350(a).

The regulations further provide that if an individual was legally adopted by the insured after the insured became entitled to disability benefits and applies for child's benefits during the life of the insured, the individual must meet the dependency requirements stated in 20 C.F.R. § 404.362(b). 20 C.F.R. § 404.362(a); see also POMS GN 00306.135, GN 00306.137.

If an individual was legally adopted by the insured after the insured became entitled to benefits, and the individual is not the insured's natural child or stepchild, the individual is considered dependent on the insured during the insured's lifetime only if t