TN 7 (04-06)
PR 01325.384 Ukraine
A. PR 05-018 Entitlement to Child's Benefits on Behalf of Claimant: Leana L. P~, on the Basis of Documentation Indicating that She Was Adopted in the Ukraine by the Number Holders: Taylor P~, SSN: ~, and Louise P. P~, SSN: ~, after the Number Holders Became Entitled to Retirement Benefits.
DATE: March 29, 2005
Children adopted in Ukraine after the number holder's entitlement to benefits cannot be entitled for child's benefits as they cannot be deemed dependent on the number holder. Dependency can only be deemed for a child not the number holder's child or stepchild adopted after the entitlement of the number holder if the child is adopted in a court of competent jurisdiction within the United States.
On March 15, 2005, you asked us to advise you whether a parent child relationship could be established between the Number Holders and Leana L. P~, ("claimant") on the basis of adoption documents indicating that she was adopted by the Number Holders on March 5, 2004, in Odesa, Ukraine, pursuant to Ukrainian law. You also asked us to determine the effective date of the parent-child relationship and whether retroactive benefits should be paid to the claimant.
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 claimant is not entitled to child's benefits on the earnings record of the Number Holders. To be entitled to child's benefits, the claimant must establish not only that she is the Number Holders' legally adopted child but that she is dependent upon the Number Holders as well. Because the claimant cannot establish that she is dependent upon the Number Holders, she is not entitled to child's benefits regardless of whether her adoption was valid under Ukrainian law. For this reason, the effective date of the parent-child relationship is not an issue.
Based on the information you provided to us, the following is a summary of the relevant facts in this matter. Taylor P~, the Number Holder, applied for Social Security Retirement benefits in January 2004. He became eligible for Social Security Retirement benefits in February 2001. Louise P. P~, the Number Holder, applied for Social Security Retirement benefits in February 2002. She became eligible for Social Security Retirement benefits in September 2000.
Taylor P~ and his wife, Louise P~, provided a "Court Decree of Child Adoption" executed by Justice O.V. D~, Malynovsky District Court, City of Odesa, Ukraine, and an amended birth certificate as proof of their adoption of Olena V~ G~ (also known as Yelena V~ G~) in Odesa, Ukraine, in March 2004. The Court Decree shows that Yelena V~ was given the name, Leana L. P~. Taylor and Louise P~ petitioned the Court to allow immediate execution of the Court Decree.
The Court Decree also provided that an amended birth certificate for the adopted child would be issued separately. A new birth certificate for Olena V~ was issued on March 5, 2004, and recorded on March 5, 1991, which is the same date that Olena's original birth certificate was recorded. The new birth certificate indicated that she was born on September 15, 1990, in Odesa, Ukraine, to Taylor and Louise, n~ P~, P~.
On June 1, 2004, Taylor and Louise P~ filed an application for child benefits for claimant on their individual Social Security retirement records.
In general, an individual is entitled to child's benefits on the earnings record of an insured person who is entitled to retirement 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;
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) (2004).
The regulations further provide that if an individual was legally adopted by the insured after the insured became entitled to retirement 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 the individual's adoption was issued by a court of competent jurisdiction within the United States. 20 C.F.R. § 404.362(b); see also POMS GN 00306.137.
The Number Holders applied for retirement benefits in February 2002, and January 2004, respectively. They provided documentation which indicates that the claimant was adopted in Odesa, Ukraine, in March 2004. Therefore, the claimant must meet the dependency requirements stated in 20 C.F.R. § 404.362(b).
As proof of adoption, the Number Holders submitted a Court Decree of Adoption executed by a judge in Odesa, Ukraine, and an amended birth certificate. Because the documentation submitted by the Number Holders as proof of adoption was not executed by a court of competent jurisdiction within the United States, the claimant does not meet the requirements for dependency pursuant to 20 C.F.R. § 404.362(b). Because the claimant cannot establish that she is dependent upon the Number Holders and, thus, meets all of the requirements of 20 C.F.R. § 404.350, she is not entitled to child's benefits. Therefore, we need not address whether her adoption was valid under the law of the Ukraine, the country where her adoption took place.
It should be noted that there appears to be an issue regarding the date of the claimant's adoption, as your memorandum states that the amended birth certificate indicates the adoption took place on March 5, 1991. The March 5, 1991, date actually references the date that the claimant's original birth certificate was recorded and this date was not changed on the amended birth certificate. The March 5, 1991, date, therefore, is not the date that the adoption took place. This is supported by the Court Decree, which indicates that the claimant was not even available for adoption until January 4, 2003. Furthermore, Article 225(1) of the Family and Marriage Code of Ukraine provides that an adoption shall be considered completed the day on which the court's decision on granting the adoption has become res judicata. The Court Decree states that Tyler and Louise P~ requested immediate execution of the Court Decree and the adoption, therefore, was completed on March 5, 2004, the date of the issuance of the Court Decree.
For the foregoing reasons, we conclude that Leana L. P~ is not entitled to child's benefits based upon the earnings record of the Number Holders, Taylor and Louise P~.
Donna L. C~
Regional Chief Counsel
Assistant Regional Counsel