Under California law, an adult may adopt another adult as long as the adoptee is younger than the adopting parent(s). A married person must have the consent of his or her spouse to adopt an adult. A person cannot adopt more than one unrelated adult within one year unless the proposed adoptee is disabled. After the adoption, the adopted adult and his or her adopting parents have a relationship of parent and child, with all of the rights and duties arising from such a relationship.

Claimant’s adult adoption was valid under California law, claimant was unmarried at the time of his application, and he had a disability arising before age 22. As the DWE’s legally adopted child, we deem the claimant dependent on her at the time of her death. Therefore, claimant is entitled to child’s insurance benefits on the DWE’s account.

QUESTION

Whether Conrad (Claimant) is entitled to child survivors insurance benefits on the account of Frances (DWE), who adopted Claimant as an adult.

SHORT ANSWER

Yes. Claimant’s adult adoption was valid under California law. Although he was over age 18 when he applied for survivors benefits, he has a disability that began before age 22 and was unmarried at the time of application. As DWE’s legally adopted child, Claimant is deemed dependent on her at the time of death. Accordingly, Claimant is entitled to child’s insurance benefits on DWE’s account.

SUMMARY OF EVIDENCE

Claimant was born on June. According to information provided by the Feather River office, Claimant has received supplemental security income (SSI) payments as a disabled individual since age 15. When Claimant was 23 years old, a California Superior Court issued an adoption order and decree. The January 29, 1996 order approved Claimant’s adoption by DWE and her spouse, Jack, and declared that Claimant shall be treated as their child.

The Feather River office further noted that, in May 2003, DWE applied for Title II disability insurance benefits but denied adopting Claimant. Instead, she stated she was Claimant’s guardian. Additionally, DWE adopted a minor child, Michelle, in October 2003, and filed an application for auxiliary child benefits on Michelle’s behalf in February 2004. According to Claimant, DWE and Jack adopted four other disabled adult children.

DWE died in September 2005 in Butte, California. She received disability benefits until her death. Michelle continues to receive child’s insurance benefits on DWE’s account. Jack also receives survivor’s benefits.

Claimant’s amended birth certificate, issued in February 2009, provides that his parents are Frances and Jack. ^[1] According to the Feather River office, Plaintiff married in November 2011, but divorced in July 2013.

Claimant applied for child’s insurance benefits under DWE’s account on January 31, 2014. If approved, the Feather River office indicated his date of entitlement will be August 2013.

ANALYSIS

Federal Law

Under the Social Security Act (Act), an applicant may be eligible for child survivors insurance benefits if he or she is the “child” of the insured, as defined in section 216(e) of the Act. Social Security Act § 202(d)(1); 20 C.F.R. § 404.350. Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Section 216(e)(1) of the Act; see also 20 C.F.R. § 404.356 (“You may be eligible for benefits as the insured’s child if you were legally adopted by the insured”). For purposes of adopted children, the agency applies the adoption laws of the State where the adoption took place. ^[2] 20 C.F.R. § 404.356; Program Operations Manual System (POMS) GN 00306.135.

In addition to establishing he is the insured individual’s adopted child, the applicant must also: (1) apply for benefits, (2) be unmarried, (3) be dependent on the insured individual at the time of his or her death, and (3) be under age 18; or, if older than age 18, have a disability that began prior to age 22; or qualify as a full-time student. See Social Security Act § 202(d)(1); 20 C.F.R. § 404.350; POMS GN 00306.001(A). Pursuant to section 202(d)(1), an individual is entitled to child’s insurance benefits in the first month he meets the foregoing criteria. See Social Security Act § 202(d)(1); 20 C.F.R. § 404.352(a).

A legally adopted child is considered dependent on the insured if adopted prior to the insured’s entitlement to old age or disability benefits. 20 C.F.R. § 404.362(a); POMS GN 00306.136. “A child legally adopted by the NH before the NH’s death is deemed dependent on the adopting parent at the time of death.” POMS GN 00306.136.B (citing GN 00306.008); accord20 C.F.R. § 404.362(a).

California Law

Under California law, an adult may adopt another adult. Cal. Fam. Code § 9300(a). However, a married person cannot adopt an adult without the consent of his or her spouse. Cal. Fam. Code § 9301. Additionally, a person cannot adopt more than one unrelated adult within one year unless the proposed adoptee is disabled. Cal. Fam. Code § 9303(a). After the adoption, the adopted adult and his or her adopting parents have a relationship of parent and child, with all of the rights and duties arising from such a relationship. Cal. Fam. Code § 9305. The adopted person may take the family name of the adoptive parent. Cal. Fam. Code § 9304.

California permits parties may enter into an adult adoption agreement so long as the proposed adoptee is younger than the proposed adoptive parents. Cal. Fam. Code § 9320(a). The parties may then file a petition in the county court for approval of the adoption agreement. Cal. Fam. Code §§ 9320(a), 9321. If the court is satisfied that the adoption is in the best interests of the persons seeking adoption, and there is no reason why the petition should not be granted, the court will approve the adoption agreement and order the adoption. Cal. Fam. Code § 9328.

Here, DWE and her spouse petitioned the Sacramento, California, Superior Court to approve their adult adoption of Claimant. The Court determined that the adoption was in the best interest of the parties and in the public interest, and found no reason to deny the petition. The adoption decree listed the required provisions of California law and explained that the DWE and her husband were simultaneously adopting Claimant’s biological sibling. Accordingly, the Court ordered the adoption and decreed that DWE and her spouse were the legal parents of Claimant. ^[3] The adoption was valid under California law despite Claimant attaining age 23 at the time of the adoption. See Cal. Fam. Code § 9300(a).

Also relevant to the validity of a California adoption was whether DWE adopted more than one adult child within the same year. Claimant reported that DWE and her spouse adopted four other adult children. However, as Claimant was disabled (and alleges that the other children are also disabled), the limitations on the number of adults adopted within the same year does not apply.^[4] See Cal. Fam. Code § 9303(a).

Based on the foregoing, DWE’s adult adoption of Claimant was valid under California law. Still, Claimant must meet the other criteria for child’s insurance benefits.

Although Claimant was 42 years of age when he filed his application for benefits, agency SSI records show that he had a disability that began before age 22. Accordingly, his age did not preclude his eligibility for child’s insurance benefits. See 20 C.F.R. § 404.350(a)(5).

Furthermore, although he married in November 2011, he divorced in July 2013, and thus was unmarried at the time of application. See 20 C.F.R. § 404.350(a)(4). ^[5] Finally, Claimant must show he was dependent on DWE at the time of her death. See 20 C.F.R. § 404.350(a)(2). As DWE’s legally adopted child, he meets this requirement. See 20 C.F.R. § 404.362(a); POMS GN 00306.136.B. DWE adopted Claimant in 1996, prior to her DIB entitlement in 2003. See 20 C.F.R. § 404.362(a) (“If you were legally adopted by the insured before he or she became entitled to old-age or disability benefits, you are considered dependent upon him or her.”). Furthermore, Claimant did not apply for benefits on DWE’s account until after her death. See 20 C.F.R. § 404.362(a); POMS GN 00306.136.B (“A child legally adopted by the NH before the NH's death is deemed dependent on the adopting parent at the time of death”). Claimant is therefore deemed dependent on DWE at the time of her death. See id.

CONCLUSION

Claimant’s adult adoption was valid under California law, Claimant was unmarried, and he had a disability arising before age 22. Because DWE adopted him prior to her death, he is deemed dependent on her. Claimant is therefore entitled to child’s insurance benefits.

The NH consented to his wife's adoption of the child claimant when she was still married to him. They were later divorced, and he subsequently he died. Since there is no evidence that the NH was an adoptive parent of the child, the child has not established a legal parent-child relationship on the basis of adoption by the NH. Since the child was legally adopted by the NH's wife several years prior to his death, the child cannot qualify on the basis of a legal adoption by the NH's surviving spouse after his death. There is no evidence that an equitable adoption occurred.

ISSUE

You asked for a legal opinion as to whether Bowen (hereinafter, Claimant) qualifies for child's insurance benefits (survivor) on the account of Anthony (hereinafter, WE) based on Claimant's adoption by WE's former spouse.

SUMMARY

No. Under the Commissioner's regulations and California state law, the evidence currently in the file does not establish a parent-child relationship between Claimant and WE because WE did not legally or equitably adopt Claimant. Hence, Claimant is not entitled to survivor's insurance benefits on WE's account.

SUMMARY OF EVIDENCE

Claimant was born on January. His birth certificate, which was filed with the Registrar-Recorder for Alameda County on February 6, 1995, lists his mother as Laureen [DOB February ]. The father of the Claimant is not named. The certificate is not signed, but the names Laureen and James, M.D. are typewritten.

On March 27, 2000, WE died domiciled in California. He was 43 years old. According to the death certificate, WE did not leave a surviving spouse.

A certified copy of the WE's License and Certificate of Marriage is contained in the file. WE was married to Laureen [DOB February ] on September 9, 1989. Subsequently, on March 21, 1995, Laureen’s petition for Dissolution of Marriage was granted and judgment was entered by the Superior Court of California, County of Alameda. Termination of marital status was to be effective June 19, 1995. On May 17, 1995, entry of judgment was stayed until November 1, 1995 by stipulation of the parties, WE and Laureen. As explained in the Court's "Stipulation and Order of Stay for Entry of Judgment of Dissolution," petitioner B~ was in the process of adopting Claimant and both Claimant and Laureen were being carried under WE's health insurance. WE had consented to the adoption of Claimant (previously named Dwight ) by Laureen on May 12, 1995.

On August 25, 1995, Laureen petition for adoption was granted by the Court and Claimant was her legally adopted child.

ANALYSIS

A. Social Security Regulations

The Commissioner's regulations, effective November 27, 1998, govern this claim. See 20 C.F.R. §§ 404.354, 404.356 (2000). Under these regulations, Claimant is entitled to benefits as WE's child if he was legally adopted by WE, or if he was legally adopted by WE's surviving spouse after WE's death. See id. § 404.356. SSA applies the adoption laws of the state where Claimant's adoption took place to make this determination.

B. California State Law

Under California state law, a parent-child relationship is established between a child and an adoptive parent by proof of adoption. See Cal. Fam. Code Ann. § 7610 (West 2000). After adoption, the adoptee and the adoptive parent or parents sustain the legal relationship of parent and child. See id. § 8616. By definition, an "adoptive parent" is a person who has obtained a court order of adoption. See id. § 8503.

While there is evidence in the case file to show that Laureen obtained a court order of adoption and, therefore, was Claimant's adoptive parent, there is no evidence in the file that WE was an adoptive parent of Claimant. Laureen is the only person named in court documents related to Claimant's adoption other than the consent decree signed by WE. The consent decree, dated May 12, 1995, is the only evidence of WE's involvement in the adoption proceedings. See id. § 8603 (married adoptive parent may not adopt a child without consent of spouse). Thus, Claimant has not established a legal parent-child relationship on the basis of adoption by WE.

As previously noted, Claimant could also establish survivor benefit entitlement if he was legally adopted by WE's surviving spouse after WE's death. Since Claimant was legally adopted by Laureen several years prior to WE's death, he cannot meet this threshold requirement either.

Other than the adoption laws discussed above, the only other way Claimant can establish his entitlement to benefits is under the equitable adoption provision of the Commissioner's regulations. Under this provision, found at 20 C.F.R. § 404.359, if WE had agreed to adopt

Claimant but the adoption failed to occur, Claimant may be eligible for benefits as an equitably adopted child of WE. Here again, however, there is no evidence of an agreement to adopt, either oral or written, or that WE petitioned the court to adopt Claimant. See Estate of W~, 111 Cal. App. 3d 242, 168 Cal. Rptr. 533 (1980). Presumably, since WE consented to Claimant's adoption by Laureen when she was still married to him, but did not join her petition for adoption, WE did not agree to adopt Claimant. Also, Claimant did not take WE's surname, only Laureen.

CONCLUSION

Based on the evidence currently in the file, Claimant has not established that he is WE's adopted child or equitably adopted child. Thus, he does not qualify for child's insurance benefits on the account of WE.

In California, where the adoption at issue took place, an unmarried adult may be adopted by another adult if the adoptee is younger than the adoptive parents, all of the parties consent, and there is a written adoption agreement.

The Medford, Oregon Field Office has asked whether an adoption of an individual, which occurred at age 26, would be considered valid and thus entitle that individual as a disabled child on the adopting father's account.

FACTUAL BACKGROUND

You informed us that Mary, on behalf of Roxanne, filed a claim for disabled child's benefits on the account of Lyle on November 10, 1999. Roxanne's birth date is February.

Mary and Lyle adopted Roxanne in Los Angeles, California on September 2, 1993, when Roxanne was 26 years old. The California Adoption Decree and Roxanne's amended birth certificate are in the record. You also indicated that Roxanne was Mary and Lyle's foster child for many years prior to the adoption.

A protective filing date of November 1993 was established based on the SSI record. Roxanne was 26 years old when her application was protectively filed. She has been receiving SSI since November 1982 when she was 15 years old. Lyle has been receiving disability insurance benefits since August 1987.

DISCUSSION

Roxanne is entitled to Title II child's benefits on Lyle's account so long as (1) she is his child; (2) she is dependent on him; (3) she applies; (4) she is unmarried; and (5) as an individual over the age of 18, she was under a disability that began prior to age 22. See 42 U.S.C.A. § 402(d)(1); 20 C.F.R. §§ 404.350 et. seq.

A child may be defined as the legally adopted child of an individual. See 42 U.S.C.A. § 416(e); 20 C.F.R. § 404.356. An adoption is legal if it complies with the adoption laws of the State where it took place and at least one party to the adoption was domiciled or residing in that jurisdiction at the time of the adoption. See 20 C.F.R. § 404.356; POMS GN 00306.135. In the State of California, where the adoption at issue took place, an unmarried adult may be adopted by another adult, if the adoptee is younger than the adoptive parents, all of the parties consent, and there is a written adoption agreement. See California Family Code, Division 13, Part 3, §§ 9300 et. seq. Here, all of the requirements were met. The adoption decree indicates that Lyle and Mary were residents of California, Roxanne is younger than Lyle and Mary, there was a written adoption agreement, and all of the parties consented to the adoption.

Because Roxanne was adopted by Lyle after he became eligible for benefits and she was over age 18 when the adoption proceedings were started, she is only dependent on Lyle if she lived with him or she was receiving more than half of her support from him for the year immediately preceding the month the adoption was issued.

See 20 C.F.R. § 404.362(b)(ii). If it has not done so already, the field office should perform further development to confirm that this was the case.

All other requirements for Title II child's benefits have been met; Roxanne has filed an application, is not married, and has been disabled since age 15. So long as Roxanne was Lyle's dependent for a year prior to the adoption, she is entitled to Title II child's benefits based on his account.