Whether Colorado State law precludes equitable adoption if the prospective adoptive
parent is ineligible to legally adopt a child because of a legal impediment, and whether
an equitable adoption occurred in this instance.
CONCLUSION
As discussed below, we do not believe Colorado State law requires the absence of an
impediment to a legal adoption for a valid equitable adoption to occur. However, in
light of the fact that the NH did not intend to have the claimant's surname changed
to his, the paucity of documentary evidence to support the claimant's mother's statements
as to the nature of the relationship of Phillip C~, the Number Holder (NH), with the
claimant, and the fact that the NH did not designate the claimant as an insurance
beneficiary or provide for him specifically at the time of his death, we recommend
further development regarding the NH's relationship with and financial responsibility
for the claimant before a determination is made as to whether an equitable adoption
occurred.
STATEMENT OF FACTS
The claimant's mother reported that she and the NH began residing together in February
or June 1998. The claimant's mother also reported that the claimant treated the NH
as his father, that the NH was involved in raising the claimant, that the NH and the
claimant had a "genuine father/son relationship," and that she and the NH shared all
financial and child rearing responsibilities. The claimant's mother further reported
that a number of family members knew of the NH's intention to adopt the claimant,
including the claimant's biological father, the NH's mother, the claimant's mother's
cousin, a friend of the NH's, and the claimant's mother's niece. The claimant's mother
additionally reported that the NH did not intend to have the claimant's surname changed
to his, that the NH did not designate the claimant as an insurance beneficiary, and
that the NH did not specifically "name[ ]" the claimant at the time of his death,
presumably in the NH's Last Will and Testament.
The NH and the claimant's mother purchased a home together in February 2001, where
they resided with the claimant. Also in February 2001, the NH filed an application
for Title II benefits based on disability. The NH and the claimant's mother were married
in March 2001.
The following adoption documents were completed in approximately April 2001: "Consent
To Adoption - Non-Custodial Parent," "Consent of Adoption - Custodial Parent," "Petition
For Stepparent Adoption," a proposed "Finding of Fact and Decree - (Voluntary Consent),"
a proposed "Final Decree of Adoption," and a proposed "State of Colorado Report of
Adoption." The claimant's mother reported that the adoption documents were not filed
only because legal counsel advised her and the NH that he would not be allowed to
legally adopt the claimant because the NH was terminally ill. Thus, these documents
were never filed, and a legal adoption did not occur.
The NH, in fact, died on July 10, 2001. An unattributed eulogy apparently delivered
by someone other than the claimant's mother indicated that the NH, the claimant's
mother, and the claimant spent a lot it time together, that the NH was involved in
the claimant's sports and school activities, that the NH taught the claimant to play
hockey and was "there for [the claimant] when he fell of his bike to fix the scratched
knees," that the claimant always knew the NH as his dad, and that the NH and the claimant
had a very close relationship.
The claimant's mother filed an application for Title II benefits on the claimant's
behalf as the NH's stepchild on September 12, 2001. This application was denied because
the claimant was not related to the NH for nine months, pursuant to Program Operations
Manual System (POMS) § GN 306.230(A)(2)(a).
ANALYSIS
As you know, Social Security regulations provide that 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. The agreement to adopt 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 leaving a will. 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 after the insured death, the law of the
State where the insured had his or her permanent home at the time of his or her death
will be followed. See 20 C.F.R. § 404.359 (2003); see also, 42 U.S.C. § 216(h); POMS § GN 00306.175, et. seq.
We have previously advised that Colorado recognizes the doctrine of equitable adoption
for purposes of intestacy. Memorandum, Equitable Adoption in Colorado, CC VIII (L~/P~),
to ARC/SSA, August 9, 1991; Memorandum, Equitable Adoption - Colorado, CC VIII (E~-B~),
to RC/SSA, April 21, 1989; Memorandum, Equitable Adoption in Colorado, RA VIII (B~),
to RC/SSA, August 7, 1984. Where there exists "an oral contract to adopt a child,
fully performed except that there was no statutory adoption," the child may be considered
equitably adopted for the limited purpose of determining the devolution of intestate
property. Garcia v. Weinberger, (Jan 1975 - Jan. 1976 Transfer Binder) Unempl. Ins. Rep. (CCH) 14,327 (D. Colo.
1975) quoting Barlow v. Barlow, 170 Colo. 465, 472, 463 P.2d. 305, 309 (1969); Chavez v. Shea, 185 Colo. 400, 403-04, 525 P.2d 1148, 1149-50 (1974) (declining to apply the doctrine
of equitable adoption in a situation where the putative adoptive parent was still
alive). Indeed, POMS § GN 00306.225B indicates that Colorado recognizes equitable adoptions. The Colorado Supreme Court
in Barlow "accepted" the following standard for establishing the existence of an agreement
to adopt: One claiming benefit of an alleged oral contract for an adoption, and to
share in the estate of an adoptive parent by virtue of such contract, has the burden
of establishing the contract by evidence so clear, cogent, and convincing as to leave
no reasonable doubt as to the fact that such agreement was made. See Barlow, 170 Colo. at 472-73, 463 P.2d. at 309.
We find no provision under Colorado State law that a valid equitable adoption requires
the absence of an impediment (in this case the prospective adoptive parent's terminal
illness) to a legal adoption. The POMS, in fact, provides that the concept of equitable
adoption may apply if adoption proceedings were defective and invalid under State
law. See POMS § GN 00306.215.[5]
"There is no list of exact rules as to the evidence required to establish equitable
adoption. Because State laws very and development may be complex, handle each case
on an individual basis. If there is a written agreement, the agreement or copy thereof
that you have obtained, together with answers to the questions in GN 00306.220A.2 [6] . . . should provide sufficient evidence for a determination." POMS § GN 00306.220B. Probate courts in Colorado have found an equitable adoption occurred where biological
parents consented to custody of their child by adoptive parents, which constituted
a contract to adopt between the biological mother and the adoptive parents; the biological
parents had no contact with the child; the child was known by the adoptive parents'
last name; the adoptive mother obtained a birth certificate for the child with the
adoptive parents' last name; the practical relationship between the deceased adoptive
father and the child was that of father and son throughout the child's life; the father
furnished all support for the family, including the child's clothing, spending money,
and medical attention; the child visited the father and was with him at the time of
his death; and the adoption was not attacked by either the natural or the adoptive
parents. See Barlow, 170 Colo. at 307-08, 463 P.2d. at 468-71. On the other hand, Colorado courts have
determined that equitable adoption occurred where stepchildren resided with and were
supported by a deceased adoptive parent. See Herrera v. Glau, 772 P.2d 682, 683 (Colo. Ct. App. 1989). However, the courts have declined to find
evidence of an equitable adoption where a deceased stepparent assumed maternal duties
for a stepchild but there was no evidence in the record that she intended to adopt
the stepchild. See First National Bank Of Denver, as Executor of the will of Ruth K. Shwayder, Deceased
v. The People Of the State of Colorado, 183 Colo. 320, 321, 516 P.2d 639, 640 (1973).
Facts which weigh in favor of a finding that an equitable adoption occurred are that
adoption documents were completed, including consents to adoption by both biological
parents. While the claimant's mother reported that a number of family members knew
of the NH's intention to adopt the claimant, including the claimant's biological father,
the NH's mother, the claimant's mother's cousin, a friend of the NH's, and the claimant's
mother's niece; that the claimant treated the NH as his father; that the NH was involved
in raising the claimant; that the NH and she shared all financial and child rearing
responsibilities; and that the NH and the claimant had a "genuine father/son relationship,"
no independent documentation of these individuals' knowledge of such intention to
adopt is included in the material provided this office. The POMS directs you to "[o]btain
answers to the questions listed in GN 00306.220A.2 from at least two persons who know the facts, including the person filing or inquiring
for the child." POMS § GN 00306.220A.1.a. The unattributed eulogy also indicated that the NH, the claimant's mother, and the
claimant spent a lot of time together, that the NH was involved in the claimant's
sports and school activities, that the NH taught the claimant to play hockey and was
"there for [the claimant] when he fell of his bike to fix the scratched knees," that
the claimant always knew the NH as his dad, and that the NH and the claimant had a
very close relationship. Since the source is unattributed, however, it is unknown
whether this information was simply reported to the eulogist, possibly by the claimant's
mother, or whether it actually constitutes independent corroboration of a parent/child
relationship.
Facts which weigh against a finding that an equitable adoption occurred include that
the NH did not intend to have the claimant's surname changed to his, that the NH did
not designate the claimant as an insurance beneficiary, and that the NH did not specifically
"name" the claimant at the time of his death.
In light of the fact that the NH did not intend to have the claimant's surname changed
to his, the paucity of documentary evidence to corroborate the claimant's mother's
statements as to the nature of the NH's relationship with the claimant, and the fact
that the NH did not designate the claimant as an insurance beneficiary or provide
for him specifically at the time of his death, we recommend further development regarding
the NH's relationship with the claimant and the NH's financial responsibility for
the claimant, before a determination is made as to whether an equitable adoption occurred.
Deana R. E~ -L~
Regional Chief Counsel, Region VIII
________________________________________
Pamela M. W~
Assistant Regional Counsel