20 CFR 404.323(a)
The worker, R, and his wife, D, separated in 1950. During the separation R fathered two illegitimate children who have lived with and been supported by him from birth. D returned to R's household in 1959 and lived with him as his wife. R filed application in February 1960 for disability insurance benefits which were awarded to him effective May 1960. R and D subsequently filed a petition in Ohio, their State of domicile, for the adoption of R's two children. A decree of adoption was granted September 26, 1964, and applications were filed October 15, 1965, for child's and wife's insurance benefits.
Two questions are thus presented in connection with whether the claimants are entitled to benefits: (1) Whether under Ohio law a person may adopt his own illegitimate child, thus conferring upon him the status of "child" under the Social Security Act, and (2) whether the time of filing an application for child's insurance benefits can be used as the point of time for determining whether such child may be considered dependent upon his natural father who legally adopted him after the father became a disability insurance beneficiary.
With respect to the first question, adoption statutes of Ohio (Chapter 3107, Ohio Revised Code) neither provide for nor prohibit an individual's adoption of his own illegitimate child and there appear to be no Ohio court decisions on the matter. The Ohio adoption statutes merely define a child as any person under age 21. Under comparably broad statutes other States have held such adoptions are not precluded. There is no reason to believe that the courts of Ohio would reach a different conclusion. Accordingly, it is found that an individual may legally adopt his own illegitimate child in that State.
As to the second question, the relevant portion of the Social Security Act, section 202(d)(1) provides, in pertinent part, that the child (including the legally adopted child of a worker entitled to old-age or disability insurance benefits can, upon the filing of an application, be entitled to child's insurance benefits if the child is unmarried, and is either under age 18, under a disability which began before age 18, or a full- time student and has not attained age 22, provided the child:
However, section 202(d)(9) further provides, as pertinent to this case, that:
The children's entitlement in this case thus depends upon whether they had the status of "child" of R (as used in section 216(e) of the Act and under the tests set forth in sections 216(h)(2) or 216(h)(3)), and, if they had such status of "child" at one of the times specified in section 202(d)(1)(C), whether at such time they met one of the requirements of section 202(d)(9), quoted above. All other requirements are met. (The 1965 amendments to the Social Security Act added a new provision (section 216(h)(3)) under which each of these children could also qualify as a "child" of the worker, even if not adopted by him. In this case, benefits would not be payable to the children before September, 1965, the effective date of the new provision; as adopted children, however, benefits would be payable to the children for months before September, 1965.)
In section 202(d)(9), the Congress set up certain requirements for determining dependency of a child adopted by a disability insurance beneficiary. It clearly intended to permit dependency to be found more readily in the case of a claimant who is the "natural child" (legitimate or illegitimate) of the disability beneficiary or is related to him through the beneficiary's marriage to the child-claimant's natural parent than in the case of the child-claimant who is not related to the beneficiary in either such way.
Under applicable Ohio law no legal parent-child relationship existed between R and his children until September 26, 1964, when the children were adopted. Since the adoption had only prospective effect and since it was the adoption which gave each of the child-claimants the required status of "child," they had such status only at one of the times specified in section 202(d)(1)(C) i.e., at the time of their application for child's benefits. The remaining question is whether, under the requirements of section 202(d)(9), that time may be used as a point of time for determining the children's dependency.
Section 202(d)(9) of the Act does not require that the beneficiary have legally adopted his "natural child" before the end of the 24-month period specified therein in order that the time of the application for child insurance benefits be utilized as a point of time for determining dependency. Such a requirement pertains only with respect to a disability insurance beneficiary's "child" who was not already related to the beneficiary either through natural paternity or a steprelationship, i.e., as a "natural child" or "stepchild."
Thus, the purpose of Congress in enacting the parenthesized phrase in section 202(d)(9)(C), "(including such a child who was legally adopted by such individual)," was to specify that the requirement that adoption occur before the end of the specified 24-month period was not applicable in the case of the "natural child" or "stepchild" of the disability insurance beneficiary, even when the beneficiary legally adopted such child. As a practical matter, where the "natural child" of a disability insurance beneficiary acquires status as a "child" only by reason of his legal adoption and the adoption occurs before the child applies for benefits, the date of the child's application may be used in determining his dependency on the worker. Since the children had lived with the worker and been supported by him from their birth, they were clearly dependent on him at that time.
Accordingly, it is held that R's children are entitled to child's insurance benefits since their legal adoption gave each of them status as R's "child" and enabled them to meet the dependency requirements as of the time the children's application was filed; also, his wife, D, is entitled to wife's insurance benefits since, though she is under age 62, she has in her care a child entitled to child's insurance benefits on R's earnings record.