SSR 61-18. EFFECTIVE DATE OF ADOPTION WHERE ADOPTING PARENT DIES AFTER INTERLOCUTORY DECREE BUT BEFORE FINAL DECREE

Where, under Arkansas law, an interlocutory order for adoption of a child is issued but the adopting parent dies before the final decree is entered; held the adoption is effective from the date of the interlocutory decree, and the child has the status of a legally adopted child for social security purposes.

C was born in Arkansas on January 12, 1954. After his birth his mother was confined in a State hospital because of a mental condition. On July 21, 1954, C's father gave him to D and E "to raise and care for" because the father was unable to care for him properly. From that date until D died on November 2, 1958, although no action was taken to legally adopt him, C lived with D and E, was known by their surname, and was treated in all ways as their child. After D's death, E instituted proceedings for the legal adoption of C, and on April 27, 1959, an interlocutory decree of adoption was granted, which stated in part:

It is, therefore, hereby ordered, considered, adjudged and decreed that this decree shall be temporary and that from this date this child shall to all legal intend and purpose be the child of said petitioner, E, and that his name be changed and he shall henceforth be known as C and that said child's birth certificate shall show said child to have been born January 12, 1954, and shall show said child's adopting parent to be E.

This cause is continued and this decree shall be temporary for a period of six months after which the petitioner may apply for final decree and during which said six months period proper persons and agencies may file objections to this adoption.

E died, fully and currently insured, on September 4, 1959, less than six months after the interlocutory decree was issued. Shortly thereafter, an application for child's insurance benefits based on E's earnings record was filed on C's behalf.

Section 202(d) of the Social Security Act provides, in pertinent part, for the payment of child's insurance benefits to a child (as defined in section 216(e) of a fully or currently insured individual. Section 216(e) defines the term "child" as including the legally adopted child of an individual.

The interlocutory decree of adoption which was issued to E provided for a six months' waiting period before a final decree could be entered. However, E died before such final decree could be entered. Therefore, the question to be resolved is whether C qualifies as the legally adopted child of E and, if so, the effective date of adoption.

Section 56-108(e) of the 1947 Arkansas Statutes provides, in pertinent part:

* * * a temporary decree shall be entered * * * ordering that from the date of the decree the child shall to all legal intents and purposes be the child of the petitioner.

* * * After six (6) months from the entry of said temporary decree the petitioner may apply for a final decree and if no objections be made thereto by any person or agency, the same shall be granted. * * *

In reference to the effective date of an adoption, the Arkansas Supreme Court in the case of A. v. B., 297 Ark. 844, 233 S.W. (2d) 629 (1950) said:

* * * the adoption is effective as of the date of the interlocutory order, unless later set aside at the final hearing for good reason, * * *.

It is held, therefore, that C has the status of a legally adopted child of E even though E died within six months of the interlocutory decree and no final decree will be entered, and thus C is the child of E within the meaning of section 216(e) of the Social Security Act.