QUESTION
You asked whether the claimant, Spencer Y~ K~, (hereinafter, "the claimant"), qualifies
for child's insurance benefits as the equitably adopted child of wage earner Debra
Y~ (hereinafter, "the wage earner") under California law.
ANSWER
Yes. The claimant is the equitably adopted child of the wage earner under California
law and is dependent on the wage earner for purposes of entitlement to child's insurance
benefits on the wage earner's account.
SUMMARY OF EVIDENCE
The wage earner applied for Title II disability insurance benefits in January 1997,
alleging that she became mentally disabled in 1996. On her disability application,
she named two children with possible eligibility for benefits on her account. The
Social Security Administration (SSA) found the wage earner disabled as of November
1996 and awarded disability insurance benefits beginning in April 1997.
On April 30, 1997, the wage earner applied for child's insurance benefits on the claimant's
behalf. SSA denied the claim based on a finding that the claimant is neither the wage
earner's natural child nor her adopted child. The wage earner filed a request for
reconsideration, asserting that the claimant is her equitably adopted child.[1]
According to the wage earner, she and her partner, Kathleen K~, (the claimant's natural
mother), have lived together in California since approximately 1984. In 1989, Kathleen
K~ petitioned to adopt her own nephew, Andrew. The Superior Court for Santa Barbara
County (California) filed the decree of adoption in December 1989.
In 1994, Kathleen K~ became pregnant through artificial insemination. On November
XX, 1994, Kathleen gave birth to the claimant. The claimant's birth certificate, registered
on November 28, 1994, stated the claimant's full name as "Spencer Y~ K~." Kathleen
K~ was named as his mother, and the father was "unknown."
The wage earner stated that she, Kathleen, Andrew and the claimant live together as
a family. The wage earner has reportedly named Andrew and the claimant as her dependents
on her tax returns.
According to an April 1996 hospital record submitted to SSA for the wage earner's
disability claim, the wage earner told treating sources that "she and her lover are
raising two sons together." Kathleen stayed at home, and the wage earner worked as
an attorney. The wage earner reported that her partner had artificial insemination
and "out of that process they are now raising a 17-month-old son." At the time of
her hospitalization on April 9, 1996, the wage earner was acting bizarre and manic;
she told hospital sources that she was "seeking absolution from her 17-month-old adopted
son." The wage earner felt that she and her partner were relatively unaccepted by
the community and school officials. The April 16, 1996 hospital discharge summary
stated that up until her psychotic episode, the wage earner had a "very high level
of functioning in that she is involved in a relationship and is raising two sons with
her lover."
According to a report of the wage earner's outpatient psychiatric treatment with psychiatrist
John C~, M.D., the wage earner was devoted to the "children" but complained that the
"world doesn't want us to raise our children." In April 1997, Dr. C~ reported that
the wage earner was easily overwhelmed and needed assistance in "taking care of her
2 children." He also explained that the wage earner was "mistrustful of the teachers
of her children."
When the wage earner applied for her own Social Security disability insurance benefits
in January 1997, she named Andrew and the claimant as her two children. On a "Work
History Report" submitted to the state agency's disability evaluation division in
January 1997, the wage earner explained that because of her mental illness, "I can't
even attend to my children." On a review of the wage earner's record in February 1997,
a state agency psychiatric consultant noted that the wage earner previously had a
"very high functioning, supporting herself and family."
The record also documented that the wage earner visited the Santa Barbara Hospital
emergency department in December 1998 due to an emerging manic episode. She said that
increasing her medication caused sedation and that she was concerned about "taking
care of her 4-year-old."
During SSA's continuing disability review of the wage earner's mental condition in
late 1998 and early 1999, the wage earner reported that her "2 young children," ages
4 and 10, were dependent on her for care. Her average days included eating breakfast
with her four-year-old son (the claimant), taking him to swim at the YMCA, and picking
up her ten-year-old son from school. Kathleen K~ also reported that the wage earner
lived with her and "our children," and that the four-year-old claimant "depends" on
the wage earner during the day when Kathleen worked.
In February 1999, the wage earner's psychiatrist, John C~, M.D., reported that the
wage earner required assistance with household tasks and in "raising her two kids."
The record also contains an undated, typewritten statement signed by Kathleen K~ consenting
to the wage earner's adoption of the claimant and acknowledging that the wage earner
has acted as a parent to the claimant since his birth.
There is also a pre-printed form entitled "Petition for Adoption," completed by the
wage earner, in which she seeks adoption of the claimant. The wage earner signed and
dated the form April 7, 2001. However, there is no indication that the form was filed
with a California court.
ANALYSIS
Equitable Adoption
The Social Security Act provides that, in determining whether a claimant is the "child"
of an insured wage earner for purposes of child's insurance benefits, SSA "shall apply
such law as would be applied in determining the devolution of intestate personal property
by the courts of the State in which such insured individual is domiciled at the time
such applicant files [an] application." 42 U.S.C. § 416(h)(2)(A). "Applicants who
according to such law would have the same status relative to taking intestate personal
property as a child or parent shall be deemed such." 42 U.S.C. § 416(h)(2)(A).
According to the regulations, a claimant "may be eligible for benefits as an equitably
adopted child if the insured had agreed to adopt [the claimant] as his or her child
but the adoption did not occur." 20 C.F.R. § 404.359 (2001). "The agreement to adopt
[the claimant] must be one that would be recognized under State law so that [the claimant]
would be able to inherit a child's share of the insured's personal property if he
or she were to die without a will." Ibid. "The agreement must be in whatever form, and [the claimant] must meet whatever requirements
for performance under the agreement, that State law directs." If the claimant applies
for child's benefits "during the insured's life, the law of the State where the insured
has his or her permanent home at the time of [the] application will be followed."
Id.
In California, where the wage earner has her permanent home, an equitably adopted
child may inherit by intestate succession from a parent. Cal. Prob. Code § 6455 (West
2000); Estate of Wilson, 111 Cal.App.3d 242, 247 (1st Dist. 1980). An equitable adoption is established when
there is an agreement to adopt and there is subsequent objective conduct indicating
mutual recognition of an adoptive parent and child relationship to such an extent
that in equity and good conscience an adoption should be deemed to have taken place.
Mingo v. Heckler, 745 F.2d 537, 539 (9th Cir. 1984); Estate of Bauer, 111 Cal.App. 3d 554, 560 (3rd Dist. 1980).
It makes no difference whether the agreement to adopt is with the child or with someone
for the child's benefit, so long as the agreement is for the benefit of the child,
not the parents or the persons making the agreement. Mingo v. Heckler, 745 F.2d at 539; Estate of Wilson, 111 Cal.App.3d at 254. There is no requirement that the agreement to adopt be in writing.
"It is well-established that equity will specifically enforce an oral contract to
adopt or a contract of inheritance and that part performance will take the contract
out of the statute of frauds." Estate of Wilson, 111 Cal.App. at 245.
It makes no difference whether the agreement to adopt is with the child or with someone
for the child's benefit, so long as the agreement is for the benefit of the child,
not the parents or the persons making the agreement. Mingo v. Heckler, 745 F.2d at 539; Estate of Wilson, 111 Cal.App.3d at 254. There is no requirement that the agreement to adopt be in writing.
"It is well-established that equity will specifically enforce an oral contract to
adopt or a contract of inheritance and that part performance will take the contract
out of the statute of frauds." Estate of Wilson, 111 Cal.App. at 245.
With respect to the "subsequent objective conduct" indicating mutual recognition of
an adoptive relationship, courts examine the following factors: whether the adoptee
lived with the adoptive parent for a number of years; whether the adoptee assumed
the adoptive parent's surname; whether the adoptive parent told the adoptee that he
was adopted; whether the adoptive parent publicly acknowledged the adoptee as his
or her child; whether the adoptee considered and conducted himself or herself as a
natural child; whether the adoptee worked or performed services for the adoptive parent;
and whether the adoptive parent attempted legally to adopt or obtained guardianship
papers for the child. Mingo v. Heckler, 745 F.2d at 539. The child need not satisfy every factor. Id.
Here, the evidence supports a finding of an agreement between the wage earner and
her partner Kathleen, claimant's biological mother, that the wage earner will act
as the adoptive parent of the claimant.[2][2] The claimant is the beneficiary of this
agreement to adopt. The wage earner's intent and agreement to adopt the claimant can
be inferred from the most probative evidence, records from 1996 showing that the wage
earner has acted as a parent to the claimant since his birth. Before the wage earner
became mentally disabled and entitled to benefits, her conduct and statements to third
parties (e.g., hospital authorities) evince an intent to adopt the claimant and act
as his parent.
In addition, Kathleen considers the wage earner the claimant's parent; she signed
a statement consenting to the wage earner's adoption of the claimant and acknowledging
that the wage earner has acted as a parent to the claimant since his birth.
The wage earner's conduct is consistent with an intent to adopt. Since the claimant's
birth in November 1994, the wage earner, Kathleen, the claimant and Andrew have lived
together as a family. The claimant's middle name is the wage earner's surname. Before
she became disabled, the wage earner financially supported the claimant (and Andrew)
when she worked as an attorney. She publicly referred to the claimant as her son.
She has told hospital authorities and her treating doctor that the claimant is her
son. She reportedly has named the claimant as a dependent on her tax returns. Since
she became disabled, she has continued to act as a parent to the claimant.
Furthermore, the claimant's "equitable adoption" occurred before the wage earner became
disabled in November 1996 and entitled to disability insurance benefits in April 1997.
The wage earner and the claimant have been living together as parent and child since
his birth in November 1994.
Dependency of the Equitably Adopted Child
If a claimant's equitable adoption is found to have occurred before the insured became
entitled to old-age or disability benefits, he is considered "dependent" upon the
insured if he was either living with or receiving contributions for his support from
the insured at either the time of the application filing or, if the wage earner had
a period of disability that lasted until he or she became entitled to old-age or disability
benefits, at the beginning of the period of disability or at the time the wage earner
became entitled to benefits. 20 C.F.R. § 404.365 (2001).
Here, the claimant is "dependent" on the wage earner. The wage earner supported her
partner and the children (the claimant and Andrew) until she became disabled in November
1996. The wage earner and the claimant continue to live together in a parent-child
relationship.
CONCLUSION
Based on the present record, the claimant qualifies for child's insurance benefits
as the wage earner's equitably adopted child under California intestacy law.
Janice L. W~
Regional Chief Counsel
By: Dennis J. M~
Assistant Regional Counsel