Stowers v. Finch, Civ. No. S-1330.

• Decision Date: 10 February 1971
• Docket Number: Civ. No. S-1330.
• Citation: 323 F. Supp. 863
• Court: U.S. District Court — Eastern District of California
• Parties: Winifred J. STOWERS, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant.

323 F. Supp. 863

Winifred J. STOWERS, Plaintiff, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant.

Civ. No. S-1330.

United States District Court, E. D. California.

February 10, 1971.

Edgar A. Kerry, Abascal, Kerry & Haberfield, California Rural Legal Assistance, Marysville, Cal., for plaintiff.

William B. Shubb, Asst. U. S. Atty., Sacramento, Cal., for defendant.

MEMORANDUM AND ORDER

WILKINS, District Judge.

This is an action brought to review the denial of mother's and child's survival insurance benefits under the Social Security Action the plaintiff and to plaintiff's adopted child (hereinafter referred to as the child-claimant).

This case is purely one of law. The facts of the case are not in dispute and there is no dispute as to whether there was substantial evidence for the decision of denial by the hearing examiner and the Appeals Board, acting on behalf of the Secretary. The only dispute is as to the constitutionality of a section of the Social Security Act which has the manifest effect of denying benefits to the child-claimant.

Child-claimant was born out of wedlock on December 4, 1952. She was placed by her natural mother with the plaintiff and her husband, who was the insured in this case, at the age of one year. For a long time the insured and his wife wanted to adopt the child-claimant, but were prevented from doing so because they could not get the consent of the natural mother. Only after the death of the insured was the child-claimant adopted by plaintiff, with permission of her natural mother.

At the time of the insured's death, and for some time prior thereto, the insured and his wife were receiving contributions for the child-claimant's support under the Aid for Dependent Children program. This amounted to $80 at the time of the insured's death. It is the receipt of these payments which gives rise to the present controversy.

A brief review of the statutes conferring the right to insurance benefits is in order.

Section 202(g) of the Act, 42 U.S.C.A. Sec. 402(g) provides in pertinent part:

(1) The widow and every surviving divorced mother of an individual who died a fully or currently insured individual, if such widow * * *

(E) at the time of filing such application has in her care a child of such individual entitled to a child's insurance benefit,

shall be entitled to a mother's insurance benefit * * *.

Thus the mother's eligibility for the benefit depends upon her having an eligible child under her care.

Section 202(d) of the Act, 42 U.S.C.A. Sec. 402(d) provides in pertinent part:

(1) Every child (as defined in section 416(e) of this title) * * * of an individual who dies a fully or currently insured individual, if such child—

(A) has filed application for child's insurance benefits,

(B) at the time such application was filed was unmarried and * * had not attained the age of 18 * * and

(C) was dependent upon such individual —

(ii) if such individual has died, at the time of such death * * *

shall be entitled to a child's insurance benefit * * *.

Plaintiff has fulfilled conditions (A), (B), (C) and (ii). The only question is whether she meets the definition of "child" given in Section 416(e), Title 42 U.S.C. As it is written she does not. The section provides in pertinent part:

The term "child" means (1) the child or legally adopted child of an individual * * * For purposes of clause (1), a person shall be deemed, as of the date of death of an individual, to be the legally adopted child of such an individual if such person was at the time of such individual's death living in such individual's household and was legally adopted by such individual's surviving spouse after such individual's death but only if * * * (B) such child was adopted by such individual's surviving spouse before the end of two years after * * * the day on

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