When a child is adopted by an individual after that individual became entitled to
Social Security benefits, section 202(d) (8) of the Social Security Act will operate
to deem the child not to have been dependent at the relevant time, and thus not to
be entitled to child's benefits, unless the child
(C) is the natural child or stepchild of such individual (including such a child who
was legally adopted by such individual), or
(D) (i) was legally adopted by such individual in an adoption decreed by a court of
competent jurisdiction within the United States, and
(ii) in the case of a child who attained the age of 18 prior to the commencement of
proceedings for adoption, the child was living with or receiving at least one-half
of the child's support from such individual for the year immediately preceding the
month in which the adoption is decreed.
42 U.S.C. ~ 402(d)(8) (emphasis added).
In the case you sent to us, Donato was adopted by Bert C~ after Bert became entitled
to benefits. The adoption decree was issued by a Regional Trial Court in the Philippines
on April 6, 1993. Subsequently, the Philippine decree of adoption was filed with the
Superior Court of the State of Washington pursuant to RCW Chapter 6.40, that State's
Uniform Foreign Money-Judgments
Recognition Act.1/ Following its inquiry into the validity of the Philippine proceedings,
the Washington State court found that the decree of the Philippine court was "entitled
to comity"2/ and would be "recognized by the [Washington State] court." Order on Petition
for Recognition of Foreign Judgment of Adoption (November 22, 1994) (copy in claims
file). An administrative law judge (ALJ) then ruled that the "recognition order is
equivalent to an adoption decree issued by a court of competent jurisdiction within
the United States" and awarded child's benefits to Donato.
You have asked whether there is any intent in the Social Security Act or the Agency's
procedures to allow something which might be viewed as the equivalent of an adoption
decreed by a court of competent jurisdiction within the United States to suffice for
purposes of section 202(d) (8) (D) (i). The requirement that the child be adopted
in an "adoption decreed by a court of competent jurisdiction within the United States"
is, for children under age 18, the only surviving requirement of a combination of
requirements enacted by Congress for after-adopted children. The intent behind those
requirements was twofold: to ensure that benefits were paid only when the child had
lost a source of support because his parent had retired or become disabled, and to
safeguard against abuse through adoption of children solely to qualify them for benefits.
See H. Rep. No. 231, 92nd Cong. 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin.
News, pp. 4989, 5039; Rundle v. Califano, 639 F.2d 542, 544 (9th Cir. 1981). The requirement
that the adoption be decreed by a United States court apparently was directed at the
prevention of abuse. While there is little legislative history explaining the exclusion
of foreign-decreed adoptions, there is some indication that Congress may have believed
the extensive procedural protections afforded by State adoption procedures and the
fact that in the United States "adoption of children is not taken lightly by the courts"
would be sufficient to screen out adoptions done solely to qualify the child for benefits.
113 Cong. Rec. 33197 (Nov. 20, 1967) (remarks of Mr. Curtis). It appears that Congress
was not willing to place such trust in adoption decrees issued by foreign courts.
The intent may also have been simply to limit benefits to children adopted by individuals
residing in the United States. 113 Cong. Rec. 33196 (remarks of Mr. Allott). We have
found no reported judicial decisions specifically addressing the requirement in section
202(d) (8) (D) (i) that the adoption be decreed by a court within the United States,
or considering whether foreign decrees might be viewed as equivalent to domestic decrees
in certain circumstances.
In view of its intent to preclude benefits to children adopted solely to qualify them
for-benefits, Congress might have chosen to require individualized determinations
of the "good faith" nature of foreign (or all) adoptions, or of the "equivalence"
of the foreign adoption to a domestic one, rather than adopting a rule precluding
entitlement for after-adopted children unless the adoption decree is issued by a court
within the United States. Indeed, numerous courts have suggested that Congressional
reconsideration of the objective criteria in section 202(d) (8) might be desirable.
See, e.g., Lindley v. Sullivan, 889 F.2d 24, 134 (7th Cir. 1988); Brehm v. Harris,
619 F.2d 1016, 1021 (3rd Cir. 1980) (concurring opinion); Hagler v. Finch, 451 F.2d
45, 48 (9th Cir. 1971). Notwithstanding the appeal of more flexible rules, however,
the courts have upheld the use of broad, prophylactic rules in section 202(d) (8)
as a valid exercise of Congress' power to place limits on eligibility for benefits.
Despite relaxing the other requirements of section 208(d) (8) several times over the
years, Congress has not eliminated the statutory requirement that the decree of adoption
be issued by a court within the United States, and has not enacted any "equivalence"
exception for foreign decrees of adoption.
Therefore, SSA is bound by the statute to require, for purposes of section 202(d)
(8) (D) (i), that an actual decree of adoption be issued by a court within the United
States, acting pursuant to the laws and procedures governing adoption in that jurisdiction.
The mere registration or recognition of a foreign judgment by a domestic court, as
occurred in this case, is not the issuance of a decree of adoption by the State court
and, in our opinion, is not sufficient to satisfy the statutory requirement. See our
June 4, 1998 memorandum to the Office of Program Benefits Policy, entitled Status
of Russian Adoption Confirmed by a State Court, p.2 (copy attached).
1/ The Superior Court is the court with jurisdiction over adoption proceedings in
the State of Washington. RCW 26.33.020(5), 26.33.030. However, adoption proceedings
are governed by RCW Chapter 26.33. Such a proceeding would be initiated by filing
a petition for adoption pursuant to RCW 26.33.150, and would result in an adoption
decree as described in RCW 26.33.250. The adoption procedures under State law were
not followed here, as the claimant's counsel candidly admitted in his brief to the
2/ "Comity" refers to the principle in accordance with which the courts of one state
or jurisdiction will give effect to the laws and judicial decisions of another, not
as a matter of obligation, but out of deference and respect. Black's Law Dictionary,