QUESTION
You have asked whether the Claimant is the adopted child of the number holder for
the purposes of disabled adult child's benefits where the number holder adopted the
claimant after she attained age eighteen.
ANSWER
For the reasons stated below, we conclude that the claimant is the adopted child of
the number holder because the adoption was valid under then-existing North Carolina
law and the August 3, 1990, order of adoption remains in force, unless challenged
by the claimant's mother or the claimant's biological father.
BACKGROUND
Karen T. T~ (Claimant), currently receives child's insurance benefits (CIB) on the
earnings record of her biological father, William T~ (biological father). She also
receives Supplemental Security Income under her own account. On May 11, 1982, Claimant's
mother, Lorraine L. T~ M~, married Claude A. M~, the number holder (NH). They divorced
on June 13, 1990. Two months later on August 3, 1990, NH adopted Claimant, then age
27, as an adult in Craven County, North Carolina. NH died, but the date of his death
is not given. We presume that Claimant applied for benefits as NH's child after NH's
death, however, the application date was also not provided.
DISCUSSION
To qualify for CIB on the earnings record of an insured individual who has died, a
claimant must be the insured individual's child. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1)
(2007). "Child" includes the adopted child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354. To qualify as an adopted child
of an insured individual, a claimant must qualify as the insured individual's adopted
child under the adoption laws of the state or foreign country where the adoption took
place. See 20 C.F.R. § 404.356. A claimant claiming to be the adopted child of an insured individual
must also show that he or she was dependent upon the insured individual. See Act § 202(d)(1)(C); 20 C.F.R. § 404.350(a)(2). A claimant who (1) was legally adopted
by the insured individual before the insured became entitled to old-age or disability
benefits or (2) applies for child's benefits after the death of the insured individual
is considered dependant upon the insured individual. See 20 C.F.R. § 404.362(a).
The information provided indicates NH adopted Claimant in North Carolina in 1990.
Thus, to determine whether this adoption is valid, North Carolina law controls. See 20 C.F.R. § 404.356. Presently, North Carolina law allows for the adoption of an
adult. See N.C. GEN STAT. ANN. § 48-5-101 to 103 (2007) (containing provisions outlining adoption
of an adult); see also N.C. GEN STAT. ANN. §§ 48-1-103 (2007) (indicating broadly that "an individual" may
be adopted); 48-2-304(e) (2007) (indicating notice provisions for petitions to adopt
an adult); 48 2 605 (2007) (indicating procedures for a hearing on a petition to adopt
an adult). These provisions were first enacted by N.C. SESSION LAWS OF 1995, c. 457
(effective July 1, 1996). Prior to that time, the North Carolina statutes contained
a similar provision allowing for adoption of persons who are more than 18 years old.
See N.C. GEN STAT. ANN. § 48-36 (1990). The only requirements for such an adoption were
that the person being adopted file written consent to the adoption and that the petition
be posted for ten days. See id. at (a). The August 3, 1990, order indicates the court complied with these requirements.
Thus, once the final order of adoption was signed, it had the "force and effect" of
all the presumptions attached to a judgment of a court of general jurisdiction. N.C.
GEN STAT. ANN. § 48-28(b) (1990). Therefore, the order of adoption is valid.
Once it determines Claimant is NH's adoptive daughter, the Agency must determine whether
she meets the remaining requirements for benefits as NH's surviving adopted daughter.
First, Claimant must prove a disability that existed on or before she became age 22.
See Act at § 202(d)(1)(B), 42 U.S.C. § 402(d)(1)(B); 20 C.F.R. § 404.350(a)(5). The evidence
on which she was previously granted benefits under her biological father's earnings
record can probably establish this requirement. Second, Claimant must also have been
dependant on NH at the time of his death. See Act at § 202(d)(1)(C); 20 C.F.R. § 404.350(a)(2). It appears that Claimant applied
for benefits after the death of NH. In such a case, the Claimant was dependent on
NH. See Act at § 202(d)(1)(C); 20 C.F.R. § 404.362(a). Finally, Claimant must have been unmarried
at the time the application is filed. See Act at § 223(d)(1)(B); 20 C.F.R. § 404.350(a)(4). The material you provided did not
indicate whether Claimant was married when she filed for benefits under NH's earnings
record.
CONCLUSION
Based on the above, Claimant is the adopted child of NH and thus would be eligible
for child's benefits on the earnings record of NH, if she was unmarried.
Very truly yours,
Mary A. S~
Regional Chief Counsel
By:_____________
Jerome M. A~
Assistant Regional Counsel