20 CFR 404.1101 and 404.1109
The worker, F, and his wife were divorced in 1955. Custody of their minor child, C, was granted to R and G, C's maternal grandparents, with whom he had always lived. R and G, residents of Alabama, adopted C in 1960 and he subsequently qualified for child's insurance benefits on the earnings record of his adopting father, R. The sole contributions made toward C's support by his natural father, F, were cash gifts of $5 to $10 at Easter and Christmas. F died fully insured on September 10, 1964, domiciled in Alabama. On September 20, 1964, C's adopting mother, G, filed an application on behalf of C for child's insurance benefits on F's earnings record.
Section 202(d) of the Social Security Act provides for the payment of child's insurance benefits to a child (as defined in section 216(e)) of a worker who dies fully or currently insured, if, among other requirements, the child was dependent upon the worker at the time of the worker's death. Under section 216(e), the term "child" means the child, the legally adopted child, and, under certain circumstances, the stepchild of a worker. Section 216(h)(2)(A) of the Act provides, as pertinent here:
The first question to be decided is whether C has the status required by the above provision of section 216(h)(2)(A), and is thus F's "child" under section 216(e).
Section 5, title 27, Code of Alabama, provides that an adopted child retains the right to inherit intestate personal property from his natural parents. C thus qualifies as F's child under section 216(h)(2)(A) of the Act and is F's "child" within the meaning of 216(e) and 202(d).
However, under section 202(d), in addition to having status as F's child C must, among other requirements, have been dependent upon him at the time he died. A legitimate child is considered to be dependent upon his father except in the case where his father was not living with or contributing to the support of such child at the time of the father's death and such child has been adopted by another individual. (Section 202(d)(3) of the Act.)
The evidence shows that C had lived in R and G's household from birth, was legally adopted by them in 1960, and was still living in their home and not with F when F died in 1964. The amounts C received from F were too irregular and insubstantial to constitute contributions toward his support. C thus was neither living with nor receiving contributions toward his support from F at the time of F's death.
Accordingly, it is held that C qualifies as F's child under section 216(h)(2)(A) of the Act but that he is not entitled to child's insurance benefits on F's earnings record because he was not dependent on F at the time of F's death.
[See Rowe v. Celebrezze, CCH U.I.R. Fed. Para. 16,408 (U.S.D.C., N.D. Ala., W.D., 10/29/64) affirming the Secretary's decision in this case without discussing all of the issues above.]