The Claimant was adopted in Ohio, therefore, we apply Ohio’s adoption laws to determine whether the Claimant was NH’s child for benefit purposes. Under the Ohio law, an adoption has the effect of terminating the parent-child relationship between the adopted person and her former legal parents. Additionally, when a child in Ohio is adopted twice, the second adoption entirely replaces the first adoption, thus cutting off the child’s right to inherit from the first adoptive parents. The Claimant’s second adoption by her natural father entirely replaced the first adoption by the NH and the NH’s spouse (natural grandparents). The Claimant was no longer the NH’s adopted child at the time she applied for child’s benefits. The Claimant is not entitled to child’s benefits on the NH’s record.

BACKGROUND AND QUESTION PRESENTED

On June XX, 2008, numberholder K~ and his wife R~ adopted their natural granddaughter K2~ in Franklin County, Ohio.

On December XX, 2011, K2~ was adopted by her natural father J~ in Franklin County, Ohio. J~ is the natural son of K~ and R~.

On February XX, 2014, K~ applied for retirement benefits. His wife R~ applied for child’s benefits on K2~’s behalf, claiming that K2~ is K~’s adopted child.

You asked whether K2~ is still K~’s child for benefit purposes, in light of her subsequent adoption by her natural father J~. We conclude that K2~ was no longer K~’s child at the time her application was filed, and thus cannot receive child’s benefits on K~’s record.

DISCUSSION

Section 202(d) of the Social Security Act (the Act) provides for the payment of child’s insurance benefits to a child of an insured individual. As relevant here, in order to grant K2~ benefits on K~’s earnings record, SSA must find, among other things, that K2~ is K~’s legally adopted child. See Sections 202(d)(1) and 216(e) of the Act; 20 C.F.R. §§ 404.350(a)(1), 404.354. To determine whether an applicant is an insured individual’s legally adopted child, SSA considers whether the applicant was legally adopted by the insured under the adoption laws of the state or country where the adoption took place. See 20 C.F.R. § 404.356; see also POMS GN 00306.135 (to be legal, adoption must be valid under law of state where it took place); POMS PR 01805.039A (PR 11-065) (citing the Act, regulations, and legislative history to show that the agency must apply state adoption laws, not inheritance laws, to determine whether an adopted child is a “child” for benefit purposes).

Given that K2~ was adopted by K~ in Ohio, Ohio’s adoption laws apply to determine whether K2~ was K~’s child for benefit purposes at the time she applied for child’s benefits. Assuming that the adoption was valid under Ohio law, K2~ would normally be entitled to child’s benefits on K~’s record. Here, however, in between her adoption by K~ and the filing of her application, K2~ was adopted by her natural father J~. Thus, the issue is how K2~’s second adoption by J~ affects her status as K~’s legally adopted child for benefit purposes. As noted above, an applicant’s status as a legally adopted child is determined solely by applying state adoption laws; the agency does not apply state inheritance laws, which are for natural children only. See 20 C.F.R. § 404.356; POMS PR 01805.039A (PR 11-065). We note that POMS GN 00306.165 instructs agency adjudicators to apply state inheritance laws to determine whether the adopted child of an insured individual who was adopted by another person is the insured’s child for benefit purposes. We believe that the POMS is incorrect in this regard, and recommend that the agency revise POMS GN 00306.165A by deleting the reference to a legally adopted child.

Under Ohio law, an adoption has the effect of terminating the parent-child relationship between the adopted person and her former legal parents. Ohio Rev. Code § 3107.15(A)(1). Additionally, when a child in Ohio is adopted twice, the second adoption entirely replaces the first adoption, thus cutting off the child’s right to inherit from the first adoptive parents’ estate. Evans v. Freter, 20 Ohio App. 2d 8, 11 (Ohio Ct. App. 1969) (“If John C. Freter could inherit from or through his first adopting parents after the second adoption . . . his estate would descend not just to his parents by the second adoption, who are his parents as of the time of his death, but also to those claiming to be parents under the previous adoption which has been terminated. We are unable to construe the statute in a manner which would require this conclusion. . . .”). Here, K2~s second adoption by her natural father entirely replaced the first adoption by her natural grandparents, which means that her natural grandparents K~ and R~ were no longer her legal parents under Ohio law as of the date of her second adoption. Thus, by the time R~ applied for child’s benefits on K2~’s behalf, K2~ was no longer K~’s child under Ohio law. Accordingly, K2~ is not entitled to benefits as a child of numberholder K~.

CONCLUSION

For the above reasons, we find that K2~ was no longer K~’s adopted child at the time she applied for child’s benefits. Accordingly, K2~ is not entitled to child’s benefits on K~’s record.

 

Kathryn Caldwell

Acting Regional Chief Counsel, Region V

By: Assistant Regional Counsel

Under Ohio law, a child who is adopted by another person may not inherit from the natural parents, except when the natural parent is the spouse of the adoptive parent. Since our claimants were previously adopted in Indiana, they cannot inherit from the number holder and cannot be entitled as his children under Section 216(h)(2) of the Social Security Act.

The evidence presented in this case however, is sufficient for the claimants to be deemed to be children of the number holder under Section 216(h)(3).

You asked whether the minor claimants, B~ and T2~, can be entitled to benefits as children of the number holder (NH), T~, under either section 216(h)(2) or 216(h)(3) of the Social Security Act (Act). For the reasons discussed below, we conclude that the claimants meet all of the requirements for entitlement to children’s insurance benefits, including establishing their status as the NH’s “children” under section 216(h)(3) of the Act and their dependency upon the NH under section 202(d)(3) of the Act.

BACKGROUND

The NH and K~ were married and had two children, the claimants, B~ (born in 1993) and T~ (born in 1995). According to their birth certificates, the claimants were the natural legitimate children of the NH and K~.

The NH and K~ were subsequently divorced, and K~ (now K~) married M~. M~ adopted B~ and T2~ on May XX, 2002, in Indiana.

On November XX, 2006, the NH filed an application for disability benefits. On his application, he stated that B~ and T2~ were his children. The NH was domiciled in Ohio at the time the application was filed.

In June 2007, the Court of Common Pleas in Hamilton County, Ohio, entered an order enforcing a court order issued by the Circuit Court in Dearborn County, Indiana, for collection of an arrearage in child support of $108.33 per month from the NH that was due prior to the claimants’ adoptions.

With respect to his disability application, the NH was found to be disabled with an onset date of January XX, 2007, and he was awarded disability benefits effective July 2007. He died on July XX, 2009.

DISCUSSION

Section 202(d) of the Act provides for the payment of child’s insurance benefits to a child (as defined in section 216(e) of the Act) of a NH, if certain requirements for entitlement are met. The applicant must show, among other things, that he is the NH’s child based on a recognized relationship, and that he was dependent on the NH at one of the relevant points in time. See Section 202(d)(1) of the Act; 20 C.F.R. § 404.350. ^[1]

1. Relationship Requirement

Under section 216(e) of the Act, the term “child” is defined as the child, the legally adopted child, or under certain circumstances, the stepchild of the NH. As relevant to this case, the Agency must further consider whether a claimant has the requisite status as a child under the Act by determining whether he could inherit the NH’s intestate personal property as the NH’s child under state law. See Section 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(a)(1). Alternatively, if the claimant could not inherit from the NH under state law, he may nevertheless be able to establish his status as a child by meeting the requirements of section 216(h)(3) of the Act.

Section 216(h)(2)

Section 216(h)(2)(A) of the Act provides, in relevant part:

In determining whether an applicant is the child…of a fully or currently insured individual for purposes of this title, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application…. Applicants who according to such law would have the same status relative to taking intestate personal property as a child…shall be deemed such.

See also 20 C.F.R. § 404.355(a)(1). The issue is whether B~ and T2~ have the status required by section 216(h)(2)(A), and are thus considered the NH’s “children” under section 216(e).

Here, B~ and T2~ were adopted by their stepfather, M~, in Indiana in 2002. Under Indiana law, the adoptions terminated the parent-child relationship between the NH and the claimants. See Ind. Code §§ 31-19-15-1, 31-19-15-2. The NH filed his disability application in 2006; he was domiciled in Ohio at the time. Under section 216(h)(2)(A), B~’s and T2~’s status as the NH’s children for purposes of determining eligibility for child’s insurance benefits must be determined by applying the laws which the courts of the state of Ohio would apply in determining the devolution of the NH’s intestate personal property. Pursuant to Ohio’s adoption statute, an adoptive status created in another jurisdiction generally will be recognized in Ohio, but the right of the person so adopted to inherit in Ohio is governed by Ohio law. See Ohio Rev. Code § 3107.18(A). Under Ohio law, a child who is adopted by another person may not inherit from the natural parents, except when the natural parent is the spouse of the adoptive parent. See Ohio Rev. Code § 3107.15(A)(1). The claimants do not meet the exception because the NH was not M~’s spouse. Thus, the claimants may not inherit from the NH.

In the instant case, B~ and T2~, by reason of their adoptions in Indiana, could not share as children in the NH’s intestate personal property in Ohio. Accordingly, they are not the NH’s children for purposes of entitlement to child’s insurance benefits under section 216(h)(2)(A).

B. Section 216(h)(3)

Under Section 216(h)(3)(B) of the Act, the biological son or daughter of a NH may be deemed to be his or her child for benefit purposes regardless of the child’s status under state law, if certain requirements are met. This provision states, in relevant part:

An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under [section 216(h)(2)], shall nevertheless be deemed to be the child of such insured individual if:

(B) in the case of an insured individual entitled to disability insurance benefits…—

(i) such insured individual—

(I) has acknowledged in writing that the applicant is his or her son or daughter….

See also POMS GN 00306.100.

Here, B~ and T2~ are the biological sons of the NH, as shown by their birth certificates. Additionally, the NH stated in his disability application that the claimants were his children. This constitutes an “acknowledgment in writing” within the meaning of section 216(h)(3)(B)(i)(I). See POMS GN 00306.103(A)(1) (application for Social Security benefits filed by NH listing child as his is a written acknowledgment). Therefore, the claimants are deemed to be the NH’s children for purposes of entitlement to child’s insurance benefits under section 216(h)(3)(B).

II. Dependency Requirement

In order to be entitled to benefits, in addition to satisfying the relationship requirement under the Act, the claimants must show that they were dependent upon the NH at one of the following points in time: at the beginning of the NH’s period of disability, when he became entitled to disability insurance benefits, or when the application was filed. See Section 202(d)(1)(C) of the Act; POMS GN 00306.007(A)(1). For purposes of determining the time that the application was filed, the POMS clarifies that dependency should be developed as of the first month of potential entitlement, and if not met then, as of any later month within the life of the application. See POMS GN 00306.007(B).

Under section 202(d)(3) of the Act, B~ and T2~, who were adopted by their stepfather, would be deemed dependent on the NH only if he had been living with them or contributing to their support at one of the above points in time. See also 20 C.F.R. § 404.361(b); POMS GN 00306.100(A)(2).

POMS GN 00306.165 further addresses the issue of entitlement to benefits when a natural child of a NH is adopted by another person during the NH’s lifetime. Where, as here, a child has lost inheritance rights in the NH’s estate under applicable state law because he was adopted by another person, he may still be entitled to benefits if he can meet the requirements of section 216(h)(3) and also the dependency requirement, i.e., the NH was living with him or contributing to his support at one of the above points in time. See POMS GN 00306.165(A), (C).

Here, the claimants are considered the NH’s children for benefit purposes under section 216(h)(3)(B), and thus satisfy the relationship requirement. With respect to the dependency requirement, there is no allegation or evidence that the NH lived with the claimants at any of the relevant points in time. Thus, the issue is whether the NH contributed to their support at one of the relevant points in time. In this case, the first month of potential entitlement is November 2006, when the application was filed. Consequently, the claimants would be considered dependent on the NH if he had been contributing to their support in November 2006, or any month thereafter within the life of the application.

“Contributions for support” is defined at 20 C.F.R. § 404.366(a). To meet this definition, the insured must give some of his own cash or goods to help support the child. See 20 C.F.R. § 404.366(a)(1). The contributions must be made regularly and be large enough to meet an important part of the child’s ordinary living costs, i.e., food, shelter, routine medical care, and similar necessities. See id.§ 404.366(a)(2).

As you indicated, the submitted materials include a court order from Hamilton County, Ohio, enforcing a court order issued by the Circuit Court in Dearborn County, Indiana, for collection of an arrearage in child support from the NH that was due prior to the claimants’ adoptions. In addition, there are documents showing that the NH was making payments to his former spouse for the claimants from July to December 2002, apparently by check, and then again from September 2007 up to the time of his death, apparently by garnishment from his workers’ compensation payments.

The NH’s child support payments appear to meet the definition of “contributions for support” as of September 2007. Beginning that month, the payments were made regularly, about every two weeks. Most of the payments were for $50.00; we believe this amount was large enough to meet an important part of the claimants’ ordinary living costs. See, e.g., Childress v. Sec’y of Health & Human Servs., 679 F.2d 623, 630 (6th Cir. 1982) (payments of $15-20 per month satisfied support requirement). Notably, the payments were made in compliance with a court order for arrearages in child support that were due prior to the claimants’ adoptions in 2002. This raises the question whether, in making these past-due payments, the NH was contributing to the claimants’ support at the time the payments were due or at the time they were actually made. This issue was addressed in SSR 73-27. Similar to this case, in that ruling the worker was ordered by a state court to continue paying his past-due child support obligation after his natural children were adopted by their stepfather, and the worker, in fact, made regular payments until the onset of his disability. The Agency held that such payments constituted contributions for support within the meaning of section 202(d)(3) of the Act; the fact that such payments were ordered by a court solely to satisfy a pre-existing support obligation was immaterial. See SSR 73-27. Based on this ruling, we believe that the NH’s regular child support payments, made after the claimants’ adoptions but for support due before the adoptions, constituted contributions for support within the meaning of section 202(d)(3) of the Act.

Accordingly, beginning September 2007, the claimants met the dependency requirements of section 202(d)(1)(C) of the Act, because the NH had been contributing to their support at one of the relevant points in time.

CONCLUSION

In sum, based on the information and evidence provided, we believe that the claimants meet all of the requirements for entitlement to child’s insurance benefits as of September 2007. In particular, they are considered to be the NH’s children under section 216(h)(3)(B) of the Act, based on the NH’s acknowledgment in writing. Moreover, the claimants are considered dependent on the NH as of September 2007, the first month after the application filing date that the NH contributed to their support.

Donna L. C~

Regional Chief Counsel, Region V

By: Cristine B~

Assistant Regional Counsel

INHERITANCE RIGHTS — By An Adopted Child — Illinois SYLLABUS

Barring any evidence of relinquishment or forfeiture of rights by a natural parent, adoption of a child by a stepparent who is the spouse of the natural parent neither affects or terminates the rights and obligations of the natural parent to the child, nor extinguishes the inheritance rights as between the natural parent and child. (V~, M~ - RA V (E~) OGC to ARC - 7/9/s2)

You have inquired in your memorandum concerning the above captioned matter as to whether R~ (hereafter R~) has retained "inheritance rights from his natural mother" despite his adoption by R2~, his mother's husband (i.e., R~'s stepfather). The pertinent facts as we understand them, based on our review of the three documents with which you have provided us (i.e., memorandum dated 3/18/81 from District Office, Lima, Ohio; Application for Child's Insurance Benefits; and R~'s birth certificate), are as follows: R~ was born to M~~ (n~ E~ ) on October XX, 1964. We have no information whatsoever concerning the natural father. Sometime following R~'s birth, his mother (M~) married R2~, who subsequently allegedly adopted R~. 1^[2]

Adoption is a legal proceeding by means of which the relationship of parent and child is created between persons who are not so related by nature. In re Adoption of G~, 63 Ohio Misc. 22, 409 N.E.2d 1067 (1980). Pursuant to Ohio law, the effect of adoption is:

(A) * * * (1) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological or other legal parents of the adopted person of all parental rights and responsibilities, and to terminate all legal relationships between the adopted person and his relatives, including his biological or other legal parents, so that the adopted person thereafter is a stranger to his former relatives for all purposes including inheritance. Ohio Rev. Code Ann. section 3107.15 (Page) (emphasis added).

This statutory language clearly indicates, barring any evidence of the relinquishment or forfeiture of the rights of a natural parent, that adoption of a child by a stepparent (i.e., the spouse of a natural parent) neither affects or terminates the rights and obligations of the natural parent to the child, nor extinguishes the inheritance rights as between the natural parent (i.e., the spouse of the adopting parent) and the child. See Mancino v. Smith, 201N.E.2d 93 (1964). Thus, in the present case, there being no evidence or indication that M~ either relinquished or forfeited her rights as R~'s natural parent, we have concluded that R~'s right to inherit from and through his mother has not been affected by his adoption by R2~ .

Furthermore, in light of the aforementioned statutory language, we do not believe it is necessary to submit for our consideration and review cases which simply involve adoption of a child by a stepparent (i.e., the spouse of the natural parent). (See POMS section GN 00306.300, formerly CM section 2435.5.) You should, however, continue to submit matters involving more complicated factual situations or those in which there is reason to believe that the natural parent's rights may have been terminated.