SSR 71-1a: SECTIONS 202(d)(1) and 202(d)(8) -- CHILD'S INSURANCE BENEFITS -- CHILD LEGALLY ADOPTED AFTER WORKER'S ENTITLEMENT TO DISABILITY INSURANCE BENEFITS -- DEPENDENCY REQUIREMENTS

20 CFR 404.323(a)(5)

SSR 71-1a

A claimant who became entitled in June 1966 to disability insurance benefits, legally adopted in August 1968 (without the participation of a child- placement agency) a child neither his natural child nor his stepchild. In September 1968 he filed an application for child's insurance benefits on behalf of the child alleging "equitable adoption" of the child in August 1967. Held, since the alleged "equitable adoption" did not occur in or prior to June 1966, and since the legal adoption (consummated without the participation of a child-placement agency) occurred more than 24 months after the claimant became entitled to disability benefits, the child cannot meet the deem dependency requirements, and accordingly, is not entitled to child's benefits.

R, the insured worker, filed an application and became entitled to disability insurance benefits in June 1966, on the basis of his period of disability which began in November 1965. A child, C, born to R's daughter in November 1960, lived with his mother in R's household from December 1961 until July 1967, when the daughter remarried and left home with C. The child returned in August 1967 and was legally adopted by R and his wife in August 1968. No child-placement agency was involved in the adoption proceedings. R and C were domiciled at all relevant times in West Virginia. In September 1968, R filed an application for child's insurance benefits on behalf of C, as his legally adopted son.

Applicable statutory provisions in determining C's status are as follows. Section 202(d)(1) of the Act, as pertinent, provides that a child, including a stepchild or a legally adopted child, of an individual entitled to disability insurance benefits may, upon filing application, become entitled to a child's insurance benefit, provided certain requirements are first met. One such requirement (section 202(d)(1)(C) of the Act) is that the child must have been dependent upon the insured disabled worker when the application for a child's insurance benefit was filed, or when the period of disability of the worker began, or when he became entitled to disability insurance benefits.

Section 202(d)(3) of the Act provides in pertinent part:

A child shall be deemed dependent upon his father or adopting father * * * at the time specified in paragraph (1)(C) unless, at such time, such individual was not living with or contributing to the support of such child and * * * such child is neither the legitimate nor adopted child of such individual * * *.

However, section 202(d)(8) of the Act, further provides:

In the case of --
(A) an individual entitled to disability insurance benefits * * * a child of such individual adopted after such individual became entitled to such disability insurance benefits shall be deemed not to meet the requirements of * * * paragraph (1)(C) unless such child --
(C) is the natural child or stepchild of such individual * * *, or
(D) was legally adopted by such individual before the end of the 24-month period beginning with the month after the month in which such individual most recently became entitled to disability insurance benefits, but only if --
(i) proceedings for such adoption of the child had been instituted by such individual in or before the month in which began the period of disability of such individual * * * or,
(ii) such adopted child was living with such individual in such month; or,
(E) was legally adopted by such individual --
(i) in an adoption which took place under the supervision of a public or private child-placement agency,
(ii) in an adoption decreed by a court of competent jurisdiction within the United States * * * (Emphasis supplied)

In connection with his application for child's benefits, R contended that at the time of C's return to his household in August 1967, the child's mother and the grandparents had mutually agreed to C's legal adoption by the grandparents. Formal adoption, however, was deferred for one year for lack of funds for the attorney's fee. Despite this delay, R alleged that an "equitable adoption" of C commenced in August 1967, which satisfied the requirements of section 202(d)(8)(D) of the Act.

The issue in this case, therefore, as to whether C may qualify for child's insurance benefits on R's earnings record depends upon whether C meets the dependency requirements of section 202(d)(1) of the Social Security Act at the pertinent time. This, in turn, depends upon whether the alleged "equitable adoption" may be recognized as satisfying the requirement for a legal adoption within the required 24-month period after R became entitled to disability insurance benefits, as prescribed by section 202(d)(8)(D) of the Act.

In the present case, the prescribed 24-month period within which the adoption must have been completed ended in June 1968. R's legal adoption of C occurred in August 1968, more than 24 months after R's entitlement to disability benefits. The express language of section 202(d)(8) of the Act makes it clear that only a judicially decreed adoption, consummated in accordance with the applicable State law within the required 24-month period (where a child-placement agency has not supervised such adoption), is the type of adoption qualifying a child for benefits on the earnings record of an individual entitled to disability insurance benefits prior to the adoption, provided that other conditions set forth in the Act are also met.

The words "legally adopted" in section 202(d)(8) of the Act are to be interpreted literally. They do not include the concept of "equitable adoption."[1] The use of such language in this section as "proceeding for such adoption of the child had been instituted" and "in an adoption decreed by a court of competent jurisdiction * * *," with reference to "legally adopted," indicates strongly that this term means an adoption by legal decree in accordance with the statutory requirements of the State. Therefore, it is the Appeals Council's view that a child may not qualify for benefits as an insured individual's child on the basis of an "equitable adoption" which occurred after the insured became last entitled to disability insurance benefits.

The Appeals Council, after careful consideration of the evidence of record and the applicable law, found that although R became entitled to disability insurance benefits in June 1966, there was no "equitable adoption" of C, who was neither his natural child nor his stepchild, at any time in or before June 1966. Further, R did not legally adopt C until August 1968, well beyond the 24-month period provided by the statute. In view of the specific provisions of section 202 (d)(8) of the Act, C is deemed not to have been dependent upon R when C's application for child's insurance benefits was filed, or at any other relevant time.

Accordingly, the Appeals Council held that C is not entitled to a child's insurance benefit.

[1] See Craig v. Finch, 425 F.2d 1005 (5th Cir., 1970); SSR 70-53c, C.B. 1970, p.3 [Ed.]

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