20 CFR 40.1101, 404.1102, and 404.1109

SSR 64-27

Shortly after the birth of a child, the natural mother of the child left her in the care of the worker and his wife and agreed never to take her away unless the worker and his wife changed their minds about caring for her. The identity and whereabouts of the father are not known. The workers has always been domiciled in Pennsylvania. There was no express promise by the worker to raise and treat the child as his own and he did not obligate himself to adopt the child. Held, the child does not qualify as the worker's "child" for purposes of child's insurance benefits under the Social Security Act.

A worker, X, domiciled in Pennsylvania, filed application for and became entitled to old-age insurance benefits effective August 1961. In that same month, X filed application to receive child's insurance benefits on behalf of C as his adopted daughter.

C's natural mother had been living in the same building as the worker, X, and his wife at the time C was born on August 20, 1955. C was an illegitimate child whose paternity has never been established. Shortly after C was born, her mother left her with X and his wife and moved away to seek employment. She orally agreed to let X and his wife have permanent custody of C and raise her as their own and not to reclaim her unless X and his wife changed their minds about wanting to keep and raise the child.

C continued to live with X and his wife and was still living with them when X filed application for child's insurance benefits on her behalf as his adopted child. C does not know that X and his wife are not her natural parents and treats them as if they were her mother and father. Proceedings were instituted by X and his wife in 1959 to legally adopt C but they were abandoned. X did have C's surname changed to conform to his with the consent of C's natural mother.

The requirements for child's insurance benefits are met if C is a child of X as defined in section 216(e) of the Act. C meets that requirement if she qualifies as X's child under section 216(h)(2)(A) of the Act.

Section 216(h)(2)(A) provides, in pertinent part, that in determining whether an applicant is the child of an insured individual, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time such applicant files an application. An applicant who, according to such law, would have the same status as a child of the insured individual for the purpose of sharing in his interstate personal property shall be deemed to be his child.

It is, therefore, necessary to determine whether, under the law of Pennsylvania, C would be entitled to share as a child in the distribution of X's interstate personal property.

Under Pennsylvania law, where a foster parent has been given permanent custody of a child in return for a promise to adopt the child and give the child inheritance rights but fails to do so, such promise may, after the foster parent's death, be enforced to the extent of permitting the child to share in the foster parent's estate.

However, in the instant case, the evidence does not show (either directly or inferentially) that such a promise was made by X. In fact,t he terms of the agreement between the child's mother and X show that X was not obligated to adopt the child, but rather than he could have returned the child to its mother if he so chose.

Accordingly, it is held that C does not qualify as the child of X, a requirement for entitlement to child's insurance benefits on X's earnings record.

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