QUESTION PRESENTED
On September, 29, 2004, you asked us to advise you whether a parent-child relationship
could be established between the Number Holder and Lukas, Caleb, Katherine, and Magdalena
S~ ("claimants/children") on the basis of adoption documents indicating that they
were adopted by the Number Holder on September 9, 2003, in Jaworzno, Poland, pursuant
to Polish law.
SUMMARY
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 claimants/children are not entitled
to child's benefits on the earnings record of the Number Holder. To be entitled to
child's benefits, the claimants/children must establish not only that they are the
Number Holder's legally adopted children but that they are dependent upon the Number
Holder as well. Because the claimants/children cannot establish that they are dependent
upon the Number Holder, they are not entitled to child's benefits regardless of whether
their adoptions were valid under Polish law.
BACKGROUND
Based on the information you provided to us, the following is a summary of the relevant
facts in this matter. Frank S~, the Number Holder, applied for Social Security Disability
benefits in April 1999, and became entitled to Social Security Disability benefits
in April 1998.
Frank S~ and his wife, Susan M. S~, provided an adoption certificate executed by Ewa
P~, Regional Judge, Family Department III, Jaworzno, Poland, as proof of their adoption
of four children, Magdalena J~ K~, Lukasz M~ K~, Przemyslaw P~ K~, and Katarzyna E~
K~, in Jaworzno, Poland, in September 2003. The adoption certificate shows that three
of the four children were given name changes. Lukasz M~ was given the name, Lukas
M~; Przemyslaw P~ was given the name, Caleb P~; and Katarzyna E~ was given the name,
Katherine E~.
The adoption certificate also provided that new acts of birth for the adopted children
would appear separately. A new birth certificate for Magdalena J~ S~ was issued and
recorded on September 10, 2003, indicating that she was born on March 19, 1988, in
Myslowice, Poland to Frank and Susan M~, n~ D~, S~. A new birth certificate for Lukas
M~ S~ was recorded and issued on September 10, 2003, indicating that he was born on
April 24, 1989, in Myslowice, Poland to Frank and Susan M~, n~ D~, S~. A new birth
certificate for Caleb P~ S~ was recorded and issued on September 9, 2003, indicating
that he was born on February 20, 1996, in Jaworzno, Poland to Frank and Susan M.,
n~ D~, S~. A new birth certificate for Katherine E~ S~ was recorded and issued on
September 9, 2003, indicating that she was born on January 20, 1999, in Jaworzno,
Poland to Frank and Susan M~, n~ D~, S~.
On November 5, 2003, Frank S~ filed an application for child's benefits for Magdalena
J~ S~, Lukas M~ S~, Caleb P~ S~, and Katherine E~ S~, based upon his Social Security
earnings record.
DISCUSSION
In general, an individual is entitled to child's benefits on the earnings record of
an insured person who is entitled to disability benefits if he or she:
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is the insured person's child, based upon a relationship described in §§ 404.355 through
404.359;
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is dependent on the insured, as defined in §§ 404.360 through 404.365;
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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).
The regulations further provide that if an individual was legally adopted by the insured
after the insured became entitled to disability 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 Holder became entitled to benefits in April 1998, and provided documentation
which indicates that the claimants/children were adopted in Jaworzno, Poland, in September
2003. Therefore, the claimants/children must meet the dependency requirements stated
in 20 C.F.R. § 404.362(b).
As proof of adoption, the Number Holder submitted an adoption certificate executed
by a judge in Jaworzno, Poland. Because the documentation submitted by the Number
Holder as proof of adoption was not executed by a court of competent jurisdiction
within the United States, the claimants/children do not meet the requirements for
dependency pursuant to 20 C.F.R. § 404.362(b). Because the claimants/ children cannot
establish that they are dependent upon the Number Holder and, thus, meet all of the
requirements of 20 C.F.R. § 404.350, they are not entitled to child's benefits. Therefore,
we need not address whether their adoptions were valid under the law of Poland, the
country where their adoptions took place.
CONCLUSION
For the foregoing reasons, we conclude that Magdalena J~ S~, Lukas M~ S~, Caleb P~
S~, and Katherine E~ S~ are not entitled to child's benefits based upon the earnings
record of the Number Holder, Frank S~.
Donna L. C~
Regional Chief Counsel
By:__________________________
Beverly H. Z~
Assistant Regional Counsel