QUESTION PRESENTED
On March 15, 2005, you asked us to advise you whether a parent child relationship
could be established between the Number Holders and Leana L. P~, ("claimant") on the
basis of adoption documents indicating that she was adopted by the Number Holders
on March 5, 2004, in Odesa, Ukraine, pursuant to Ukrainian law. You also asked us
to determine the effective date of the parent-child relationship and whether retroactive
benefits should be paid to the claimant.
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 claimant is not entitled to
child's benefits on the earnings record of the Number Holders. To be entitled to child's
benefits, the claimant must establish not only that she is the Number Holders' legally
adopted child but that she is dependent upon the Number Holders as well. Because the
claimant cannot establish that she is dependent upon the Number Holders, she is not
entitled to child's benefits regardless of whether her adoption was valid under Ukrainian
law. For this reason, the effective date of the parent-child relationship is not an
issue.
BACKGROUND
Based on the information you provided to us, the following is a summary of the relevant
facts in this matter. Taylor P~, the Number Holder, applied for Social Security Retirement
benefits in January 2004. He became eligible for Social Security Retirement benefits
in February 2001. Louise P. P~, the Number Holder, applied for Social Security Retirement
benefits in February 2002. She became eligible for Social Security Retirement benefits
in September 2000.
Taylor P~ and his wife, Louise P~, provided a "Court Decree of Child Adoption" executed
by Justice O.V. D~, Malynovsky District Court, City of Odesa, Ukraine, and an amended
birth certificate as proof of their adoption of Olena V~ G~ (also known as Yelena
V~ G~) in Odesa, Ukraine, in March 2004. The Court Decree shows that Yelena V~ was
given the name, Leana L. P~. Taylor and Louise P~ petitioned the Court to allow immediate
execution of the Court Decree.
The Court Decree also provided that an amended birth certificate for the adopted child
would be issued separately. A new birth certificate for Olena V~ was issued on March
5, 2004, and recorded on March 5, 1991, which is the same date that Olena's original
birth certificate was recorded. The new birth certificate indicated that she was born
on September 15, 1990, in Odesa, Ukraine, to Taylor and Louise, n~ P~, P~.
On June 1, 2004, Taylor and Louise P~ filed an application for child benefits for
claimant on their individual Social Security retirement records.
DISCUSSION
In general, an individual is entitled to child's benefits on the earnings record of
an insured person who is entitled to retirement benefits if he or she:
-
(a)
is the insured person's child, based upon a relationship described in §§ 404.355 through
404.359;
-
(b)
is dependent on the insured, as defined in §§ 404.360 through 404.365;
-
-
-
(e)
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) (2004).
The regulations further provide that if an individual was legally adopted by the insured
after the insured became entitled to retirement 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 Holders applied for retirement benefits in February 2002, and January 2004,
respectively. They provided documentation which indicates that the claimant was adopted
in Odesa, Ukraine, in March 2004. Therefore, the claimant must meet the dependency
requirements stated in 20 C.F.R. § 404.362(b).
As proof of adoption, the Number Holders submitted a Court Decree of Adoption executed
by a judge in Odesa, Ukraine, and an amended birth certificate. Because the documentation
submitted by the Number Holders as proof of adoption was not executed by a court of
competent jurisdiction within the United States, the claimant does not meet the requirements
for dependency pursuant to 20 C.F.R. § 404.362(b). Because the claimant cannot establish
that she is dependent upon the Number Holders and, thus, meets all of the requirements
of 20 C.F.R. § 404.350, she is not entitled to child's benefits. Therefore, we need
not address whether her adoption was valid under the law of the Ukraine, the country
where her adoption took place.
It should be noted that there appears to be an issue regarding the date of the claimant's
adoption, as your memorandum states that the amended birth certificate indicates the
adoption took place on March 5, 1991. The March 5, 1991, date actually references
the date that the claimant's original birth certificate was recorded and this date
was not changed on the amended birth certificate. The March 5, 1991, date, therefore,
is not the date that the adoption took place. This is supported by the Court Decree,
which indicates that the claimant was not even available for adoption until January
4, 2003. Furthermore, Article 225(1) of the Family and Marriage Code of Ukraine provides
that an adoption shall be considered completed the day on which the court's decision
on granting the adoption has become res judicata. The Court Decree states that Tyler
and Louise P~ requested immediate execution of the Court Decree and the adoption,
therefore, was completed on March 5, 2004, the date of the issuance of the Court Decree.
CONCLUSION
For the foregoing reasons, we conclude that Leana L. P~ is not entitled to child's
benefits based upon the earnings record of the Number Holders, Taylor and Louise P~.
Donna L. C~
Regional Chief Counsel
By:__________________________
Kathleen H~
Assistant Regional Counsel