Under New Hampshire’s adoption statute, any individual may be adopted provided that if the adoptee is fourteen years of age or older, the adoptee consents to his or her own adoption, is appointed a guardian if the court determines one is necessary, and was unmarried at the time (or was married and consent is obtained from his or her spouse). In this case, the adoptee’s legal guardian (one of the individuals petitioning to adopt the adult “child”) signed for consent to the adoption on behalf of the adoptee. The court did not decide a guardian was necessary and the adoptee was not married at the time of the adoption. The adoption (for the purpose of establishing entitlement to child’s disability benefits) was determined to be valid and the adoptee is considered the child of the adopting parents. Therefore, the adoptee is entitled to child’s benefits on her adoptive parent’s record provided the requirements for child’s benefits under the Social Security Act are met.

Issue

This memorandum is in response to your question whether the adoption of a person over the age of twenty-one in New Hampshire was legally valid for the purpose of establishing entitlement to child’s disability benefits on the records of the adoptive parents.

Short Answer

We believe the applicant’s adoption was valid under New Hampshire law, she meets the requirements for child’s benefits under the Social Security Act, and she is entitled to child’s benefits on the records of her adoptive parents.

Background

The applicant, Jennifer, was born on October in Worcester, Massachusetts. Jennifer’s biological mother is M~, whose whereabouts were not provided. Her biological father is R~, who is deceased. In July 1998, Jennifer began residing with E~ and A~, who have been married since May 1965. In November 2006, E~ and A~ were appointed as Jennifer’s legal guardians by the New Hampshire Probate Court. E~ and A~ each became entitled to old-age benefits in 2010. On May 8, 2014, they adopted Jennifer. The adoption took place in New Hampshire, where the parties reside. Jennifer was age twenty-five at the time of the adoption, and has never been married. She is currently receiving Supplemental Security Income benefits, with an onset date of May 1, 1990.

Applicable Law & Analysis

Under the Social Security Act, a child is entitled to benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or who has died if the child meets five criteria. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1) (2013); 20 C.F.R. § 404.350(a) (2014). Specifically, the child must (1) be the insured person’s child, based on a relationship defined in 20 C.F.R. sections 404.355 through 404.359; (2) be dependent upon the insured person, as defined in 20 C.F.R. sections 404.360 through 404.365; (3) apply; (4) be unmarried; and (5) be under age eighteen, have a disability that began before age twenty-two, or qualify as a full-time student. 20 C.F.R. § 404.350(a) (2014).

In this case, the applicant meets criterion (3) because she has applied for child’s benefits on the records of her adoptive parents. She is also unmarried, and thus meets criterion (4). She satisfies criterion (5) because she has previously established that she has been disabled since May 1, 1990, prior to her twenty-second birthday.

As an adopted child, the requirements for the applicant to meet criterion (2) depend on whether she was legally adopted by the number holder before or after the number holder became entitled to benefits. See 20 C.F.R. § 404.362(a) (2014) (setting forth requirements for a legally adopted child to be deemed dependent); POMS RS 00203.080.A.4 (2013) (clarifying that the same test for determining dependency applies to disabled children age eighteen or over as to children under age eighteen). A child adopted before the number holder became entitled to benefits is automatically deemed dependent on the number holder, while a child adopted afterward must meet additional requirements to establish dependency. See 20 C.F.R. § 404.362(a)&(b) (2014). Relevant here, an adopted child will be deemed dependent on the insured if she lived with the insured for the year immediately preceding the month in which her adoption was issued. See 20 C.F.R. § 404.362(b)(ii) (2014). ^[1] Jennifer was adopted in 2014, after both of her adoptive parents became entitled to benefits in 2010. However, Jennifer has lived with them since July 1998, indicating that she lived with them for the year preceding the month in which her adoption was issued. Therefore, as long as her adoption was legally valid, she is dependent on the number holders and meets criterion (2).

The validity of Jennifer’s adoption also determines whether she is the child of the number holders as required by criterion (1). The regulations provide that a legally adopted child qualifies as the child of the number holder. 20 C.F.R. § 404.356 (2014). In determining whether a child was legally adopted, the Commissioner applies the adoption laws of the state where the adoption took place. 20 C.F.R. § 404.356 (2014).

Jennifer’s adoption took place in New Hampshire, and must be analyzed under New Hampshire law. New Hampshire’s adoption statute provides that any individual may be adopted, provided that (1) if the adoptee is fourteen years of age or older, she must assent to the adoption unless the court determines that it is not in the best interests of the adoptee to require assent; ^[2] (2) if the adoptee is alleged to be incapacitated, incompetent, mentally ill, developmentally disabled, or is in any other way emotionally or mentally deficient, the court may appoint a guardian ad litem to protect the adoptee’s interests; and, (3) if the adoptee, whether a minor or an adult, is married, the spouse of the adoptee must also assent to the adoption, unless the court waives this requirement for good cause shown. N.H. Rev. Stat. Ann. § 170-B:3 (2004).

The statute further provides that any of the following adults may adopt an individual: husband and wife together; an unmarried adult; the unmarried parent of the adoptee; and, in limited circumstances, a married person without that person’s spouse joining as a petitioner, if the adoptee is not the petitioner’s spouse. N.H. Rev. Stat. Ann. § 170-B:4 (2004). Once the final decree of adoption has been issued, the adoptee is considered the child of the adopting parent or parents, entitled to the same rights and privileges and subject to the same duties and obligations as if such adoptee had been born of the adopting parent or parents. N.H. Rev. Stat. Ann. § 170-B:25(I) (2006).

In this case, Jennifer was adopted as an adult, and was required to assent to her own adoption. See N.H. Rev. Stat. Ann. § 170-B:3(I) (2004). The petition of adoption shows that Aid signed the section designated for the adoptee’s assent as Jennifer’s legal guardian. The court granted the petition, indicating that this satisfied the requirement for the adoptee’s assent. See N.H. Rev. Stat. Ann. § 170-B:19(III) (2004) (providing that in the case of an adult adoptee, the court may issue the final adoption decree once “the required assents . . . have been obtained”). There is no indication that the court chose to appoint a guardian ad litem, and as Jennifer was not married at the time of her adoption, she did not need assent from a spouse. See N.H. Rev. Stat. Ann. § 170-B:3(II)&(III) (2004). Finally, E~ and A~ married in 1965, before the adoption, and thus permissibly adopted Jennifer as a “husband and wife together.” See N.H. Rev. Stat. Ann. 170-B:4 (2004). Therefore, it appears that Jennifer’s adoption was valid.

Conclusion

Based on the above analysis, we conclude that the applicant’s adoption was legally valid, and she is entitled to child’s benefits on the records of each of her adoptive parents.

Karen Burzycki

Supervisory Attorney

By: ______________

Gwendolyn Russell

Assistant Regional Counsel

Assuming that the applicant consented to her own adoption, did not require a guardian, and was unmarried at the time (or was married and obtained the consent of her spouse), the adoption of the adult claimant is valid in New Hampshire and she is the legally-adopted child of the number holder, enitled to any benefits for which she might be eligible.

This is in response to your request for an opinion regarding the validity of an adoption of a person over the age of twenty-one in New Hampshire, for the purposes of establishing entitlement to Childhood Disability Benefits on the record of the adoptive mother. For the reasons discussed below, we believe that the adoption in this case likely is valid, although further development of the claim may be required.

Background

The applicant, Jeannine, was born on December. Her biological mother is Madelaine and her biological father is Bernard. At some point, Bernard married Diane, and on April 6, 1989, Bernard and Diane adopted Jeannine, who was twenty-six years-old on that date. The adoption took place in New Hampshire, where all parties were residing at the time.

Jeannine has been eligible for Childhood Disability Benefits on her biological mother’s record since January 1986, with an onset date of November 30, 1984. She has been eligible for Supplemental Security Income Benefits since October 11, 1985. Diane has been eligible for Disability Insurance Benefits since October 1997. Jeannine has applied for Childhood Disability Benefits on her adoptive mother, Diane’s, record.

Analysis

Under the Social Security Act, a child is entitled to Childhood Disability Benefits on the earnings record of an insured person who is entitled to disability benefits, if the child meets five criteria. See Social Security Act, § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2009). Specifically, the child must (1) be the insured person’s child, based upon a relationship described in 20 C.F.R. sections 404.355 through 404.359; (2) be dependent on the insured person, as defined in 20 C.F.R. sections 404.360 through 404.365; (3) apply; (4) be unmarried; and, (5) be under age eighteen, have a disability that began before age twenty-two, or qualify as a full-time student. See 20 C.F.R. § 404.350(a).

In this case, the applicant likely meets criterion (2), because she was adopted by the numberholder before the numberholder became entitled to disability benefits. 20 C.F.R. section 404.362(a) provides that an applicant will be considered dependent upon the numberholder if she was legally adopted by the numberholder before the numberholder became entitled to disability benefits, and POMS RS 00203.080.A.4 clarifies that the same test for determining dependency is applied to disabled children age eighteen or over as to children under age eighteen. Here, Diane adopted Jeannine in April 1989, but did not become eligible for Disability Insurance Benefits until December 1997. Thus, if the adoption is valid, the applicant satisfies the dependency requirement.

The applicant meets criterion (3), as she applied for Childhood Disability Benefits on her adoptive mother’s record. She also meets criterion (5), as she previously has established an onset date of disability of November 30, 1984, that is, prior to her twenty-second birthday. The information provided does not specify whether the applicant is married, so it is unclear whether she satisfies criterion (4).

The remaining issue is whether the applicant is a child of the numberholder and thus satisfies criterion (1). 20 C.F.R. section 404.356 provides that a legally-adopted child qualifies as the child of a numberholder. Section 404.356 further explains that, in determining whether an applicant is the numberholder’s legally-adopted child, the Commissioner applies the adoption laws of the state where the adoption took place.

The adoption in this case took place in New Hampshire, and thus the applicant’s adoption must be analyzed under New Hampshire law. The adoption statute currently in effect in New Hampshire provides that any individual may be adopted, provided that (1) if the adoptee is fourteen years of age or older, she must assent to the adoption unless the court determines that it is not in the best interests of the adoptee to require assent; (2) if the adoptee is alleged to be incapacitated, incompetent, mentally ill, developmentally disabled, or is in any other way emotionally or mentally deficient, the court may appoint a guardian ad litem to protect the adoptee’s interests; and, (3) if the adoptee, whether a minor or an adult, is married, the spouse of the adoptee shall also assent to the adoption, unless the court waives this requirement for good cause shown. See N.H. Rev. Stat. Ann. § 170-B:3 (2004). The statute further provides that any of the following adults may adopt an individual: husband and wife together; an unmarried adult; the unmarried parent of the adoptee; and, in limited circumstances, a married person without that person’s spouse joining as a petitioner, if the adoptee is not the petitioner’s spouse. See N.H. Rev. Stat. Ann. § 170-B:4. Once the final decree of adoption has been issued, the adoptee is considered the child of the adopting parent or parents, entitled to the same rights and privileges and subject to the same duties and obligations as if such adoptee had been born of the adopting parent. See N.H. Rev. Stat. Ann. § 170-B:25(I).

When enacted, this most recent version of the New Hampshire adoption statute specified that it applied only to adoption proceedings filed on or after the effective date of the statute, January 2, 2005, and thus this version does not apply in the applicant’s case. See 2004 N.H. Laws 255:7. Nevertheless, the version of the New Hampshire statute in effect at the time of the applicant’s adoption required the adoptee to satisfy essentially the same criteria as the most recent version. See N.H. Stat. Ann. §§ 170-B:3, 5, 6, 20 (1990). There are two potentially relevant differences: (1) any court adjudicating an adoption petition was required, rather than permitted, to appoint a guardian for a mentally-deficient adoptee; and, (2) there was no provision for waiver of the consent of an adult’s spouse. See N.H. Stat. Ann. § 170-B:5(I)(h), (II).

In the applicant’s case, because Bernard and Diane appear to have been married when they adopted Jeannine, see supra note 1, they satisfy N.H. Statutes Annotated section 170-B:4 as a “husband and wife together.” However, it is not clear from the information provided whether Jeannine otherwise satisfies all of the requirements of N.H. Statutes Annotated section 170-B:5. First, she is an adult, and thus would have been required to consent to her own adoption. See N.H. Stat. Ann. § 170-B:5(I)(a). Second, the information provided does not specify the applicant’s disability. If she has a mental disability, the court may have been required to appoint a guardian, and it is not clear if this was done. See N.H. Stat. Ann. § 170-B:5(II). Finally, if she were married at the time of her adoption, she would have needed the consent of her spouse. See N.H. Stat. Ann. § 170-B:5(I)(h). Presumably, the court that issued the adoption decree would not have done so if the applicant did not meet the requirements of the adoption statute. See N.H. Stat. Ann. § 170-B:15 (providing that court may issue final adoption decree once all required consents have been obtained or excused). Thus, it is likely that the applicant’s adoption is valid, and if she consented to her own adoption, did not require a guardian, and was unmarried at the time (or was married and obtained the consent of her spouse), then her adoption conclusively is valid.

Conclusion

The applicant is entitled to Childhood Disability Benefits on the record of her adoptive mother if the applicant is unmarried and her adoption is valid under the laws of the state in which the adoption decree was issued, New Hampshire. Assuming that the applicant consented to her own adoption, did not require a guardian, and was unmarried at the time (or was married and obtained the consent of her spouse), her adoption is valid and thus she is the legally-adopted child of the numberholder.

Robert J. Triba

Regional Chief Counsel

By: ______________

Nicole A. Liguori

Assistant Regional Counsel