20 CFR 404.331 and 404.726

SSR 64-3

A worker's disabled adult son, entitled to child's insurance benefits, was enrolled in a private school for the mentally retarded and emotionally disturbed. After the worker's death, the widow continued to pay for the child's board; provided his clothing and other essentials; visited him 3 or 4 times yearly; took him home for vacations and holidays and on other occasions; consulted with the school authorities on his progress; and gave specific instruction as to his training. Held, the widow has the child "in her care" as required for entitlement to mother's insurance benefits, even while the child is away at school.

M, the 60-year-old widow of a worker who died fully insured, filed application for mother's insurance benefits for herself and child's insurance benefits on behalf of the worker's mentally retarded son, C, age 39. On the basis of the application filed by M, C was found to be entitled to child's insurance benefits (as a disabled adult child) on the worker's earnings record.

To be entitled to mother's insurance benefits under section 202(g) of the Act (besides other requirements all of which M met) the widow must have in her care a child of the deceased worker entitled to a child's insurance benefit. Therefore, if M is found to have C "in her care" she can be entitled to mother's insurance benefits.

C, born in 1924, is enrolled in a private school for the mentally retarded and emotionally disturbed. He has been enrolled in the school for many years as a resident but he spends about 6 months a year living at home with M, his mother. M arranges for C's vacations from school and on these occasions C lives at home with M and receives the constant care and supervision he requires. C also becomes homesick frequently and will ask M to take him home for a while. When he feels ready to return, C is taken back to the school by M. M visits the school three or four times yearly, these visits lasting for periods from one day to one week.

M has the right to withdraw C from the school at any time and she has requested and received regular reports from the school regarding C's progress and behavior. She also gives the school officials instructions as to C's medical and dental needs; the case of his person; any special foods he is to have; the reading matter he is to have; and any extra instruction she believes C should receive. M also provides all of C's clothing. The school plan does not call for exclusive control of the child's development and training; and all of M's wishes are complied with by the school authorities.

Section 404.331(a) of the Social Security Administration Regulations No. 4 provides that:

* * * a mother * * * has a child in her care if she exercises parental responsibility for the welfare and care of the child, even though she and the child may be physically separated, provided their separation is for a good reason and does not interfere with the exercise of such parental responsibility.

The sole issue is, therefore, whether under the above circumstances M can be considered to have C "in her care" while he is residing at the school.

Where a mother and child are not living together continuously, but the child is mentally incompetent, as is the situation in this case, the mother has the child in her care during the period of separation if she exercises parental control and responsibility for the welfare and care of such child. The mother exercises parental control and responsibility when she supervises the activities of the child, participates in the important decisions about the child's physical needs and mental development, and measurable controls the child's upbringing and development. Such responsibility and control may be exercised indirectly, e.g., by giving instructions to the child's custodian and ensuring that the instructions are carried out.

In this case, M participates in the important decisions about C's physical needs and mental development, supervises his activities, and measurably influences his upbringing and development by her frequent contact with the school authorities, the instructions given as to his medical care, diet, and type of training, and by her close contact with C on visits. M is well known to those in charge of the school and has discussed C's progress may times over the long period of years during which he has attended the school. C's development and training are not exclusively controlled by the school. Rather there is a joint sharing of responsibility for his upbringing and training.

M clearly demonstrates by her activities that she retains and exercises parental control and responsibility for the welfare and care of C while he is at school as well as at home. Accordingly, it is held that M has C in her care even during those months when they are separated by C's attendance at school and she is, therefore, entitled to mother's insurance benefits (all other requirements for entitlement having been met).

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