SSR 67-3: SECTION 202(d). -- CHILD'S INSURANCE BENEFITS -- DEPENDENCY OF CHILD ADOPTED BY OLD-AGE INSURANCE BENEFICIARY

SSR 67-3

Where a worker filed for and became entitled to old-age insurance benefits in February 1962, and in September 1964 took his wife's niece, age 5, into his home and began contributing to her support, and in 1965 began proceedings to adopt the child which resulted in a decree of final adoption being entered on July 31, 1965, and where an application for child's insurance benefits was filed on the child's behalf on September 23, 1965, held, under the provisions of section 202(d)(10) of the Social Security Act as amended in 1965, the child must be deemed not dependent on the worker at the time her application was filed, and consequently she is not entitled to child's insurance benefits on the worker's earnings record.

On February 1, 1962, a retired worker, R, who had been living in New York, filed application for old-age insurance benefits under section 202(a) of the Social Security Act. He became entitled to such benefits beginning with February 1962.

In November 1962, R left the United States and returned to the Philippines, the place of his birth, where in October 1963 he married W. In September 1964, W's niece, C, then age 5, began living with R and W. In 1965 R and W began adoption proceedings to adopt C, and on July 31, 1965, a final order of adoption was issued.

On September 23, 1965, W filed an application on behalf of C for child's insurance benefits on R's earnings record. This claim was denied on October 27, 1965, on the ground that C was not dependent upon her adopting father, R, under the provisions of section 202(d) of the Social Security Act as amended in 1965.

W appealed from this decision on behalf of C, contending that C qualified for child's insurance benefits under the Act in effect prior to the Social Security Amendments of 1965, and that the provisions of the Social Security Amendments of 1965 which precluded C from entitlement to benefits were not intended to be applied retroactively.

Under section 202(d)(1) of the Social Security Act, as pertinent here, a legally adopted child of a worker entitled to old-age insurance benefits can upon the filing of an application become entitled to child's insurance benefits if (in addition to other requirements not here at issue) such child:

(C) was dependent upon such individual --

(i) if such individual is living, at the time such application was filed * * *.

Section 202(d)(3) of the Act provides that:

A child shall be deemed dependent upon his father or adopting father at the time specified in paragraph (1)(C) [section 202(d)(1)(C)] unless, at such time, such individual was not living with or contributing to the support of such child and --

(A) such child is neither the legitimate nor adopted child of such individual, or

(B) such child has been adopted by some other individual.

In order to meet the dependency requirement at the time specified in section 202(d)(1)(C)(i), i.e., at the time when the child's application was filed, the necessary parent-child relationship must have existed at such point of time. Since the adoption decree was entered on July 31, 1965, and C's application was filed on September 23, 1965, it is clear that a legal parent-child relationship existed between R and C when her application was filed. Further, at the time C's application was filed, R was living with C and contributing to her support. Consequently, C was actually dependent upon R and, in addition, she satisfies the conditions in section 202(d)(3) under which a child may be deemed dependent upon his adopting father.

However, the Social Security Amendments of 1965 (P.L. 89-97, enacted July 30, 1965) added section 202(d)(10) to the Act, which limits the use of the time a child's application is filed as a point for determining child dependency. The Congress recognized that, under the Act in effect prior to the Social Security Amendments of 1965, a child adopted by a worker already retired and entitled to old-age insurance benefits could become entitled to child's insurance benefits even though he was not dependent on the worker at the time the latter retired. The purpose of section 202(d)(10) was to make the provisions relating to adoptions by retired workers comparable to those relating to adoptions by disabled workers and surviving spouses of deceased workers, and this assure that benefits would be paid to adopted children only when there is a basis for assuming that the child lost a source of support when the worker retired. (See Senate Report No. 404, Part I, 89th Cong., 1st Sess., p. 108.)

Section 202(d)(10) provides, as pertinent to this case:

(10) If an individual entitled to old-age insurance benefits * * * adopts a child after such individual becomes entitled to such benefits, such child shall be deemed not to meet the requirements of clause (i) of paragraph (1)(C) [section 202(d)(1)(C)(i), quoted above] unless such child --

* * * * * * *

(B) 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 became entitled to old-age insurance benefits, but only if --

(i) such child had been receiving at least one-half of his support from such individual for the year before such individual filed his application for old-age insurance benefits * * * and

(ii) either proceedings for such adoption of the child had been instituted by such individual in or before the month in which the individual filed his application for old-age insurance benefits or such adopted child was living with such individual in such month.

Section 323(b) of P.L. 89-97 provides that the 24-month time limit in section 202(d)(10)(B) for legally adopting a child shall not apply in the case of any child who is adopted before August 1, 1966.

R became entitled to old-age insurance benefits in February 1962. Since C was adopted before August 1966, the 24-month time limit for adoption in section 202(d)(10)(B) is not applicable here. However, under the provisions of section 202(d)(10)(B)(i) and (ii), in order to be found dependent upon R at the time her application was filed, C must have been receiving one-half her support from R for the year before he filed application for old-age insurance benefits (February 1, 1962), and either C must have been living with R in the month he filed his application (February 1962) or the proceedings for adoption of C must have been instituted in or before that month. If C cannot satisfy these requirements, she must be deemed not dependent upon R at the time her application was filed.

It is clear from the evidence that C neither received one-half her support from R during the year February 1961-January 1962, nor was she living with him in February 1962. The adoption proceedings were begun sometime in 1965; they were not begun in or before the month in which R filed his application (February 1962). Therefore, the provisions of section 202(d)(10)(B)(i) and (ii) are not met.

The contention that the amendments to the Act made by P.L. 89-97 were not intended to be retroactive cannot be sustained. Under section 323(b) of P.L. 89-97, the provisions of section 202(d)(10) "* * * shall be applicable to persons who file applications, or on whose behalf applications are filed, for benefits under section 202(d) of the Social Security Act on or after the date this section is enacted [July 30, 1965, the date of enactment of P.L. 89-97]." Thus, the requirements of section 202(d)(10) are applicable to all months for which child's insurance benefits are claimed on the basis of an application filed on or after July 30, 1965; this includes July 1965 and any months prior to July 1965 which are within the effective retroactive life of such application. In any event, C could not have become entitled to child's insurance benefits for any month before July 1965, the month in which a parent-child relationship between R and C first existed by reason of the adoption.

Since C's application was not filed until September 23, 1965, the provisions of section 202(d)(10) are clearly applicable in this case. While it is true that, had her application been filed prior to July 30, 1965, C would have been found dependent upon R and therefore entitled to child's insurance benefits beginning with July 1965 under the Act in effect prior to the enactment of P.L. 89-97, there is no provision in P.L. 89-97 or in the amended Act under which C may now be relieved of the necessity of satisfying the requirements of section 202(d)(10).

Accordingly, it is held that C must be deemed not dependent upon R at the time her application for benefits was filed, and therefore she is not entitled to child's insurance benefits on R's earnings record.