On February 6, 1984, Glenda T~ applied for Child's Insurance Benefits on behalf of
Sophia L. T~. In that application Ms. T~ listed Sophia as her adopted child. She indicated,
however, that Sophia's legal adoption was in process but had not been completed.
According to a Special Determination dated April 11, 1984, Sophia was placed in the
home of Glenda and Jesse T~ on March 16, 1973, by the United Catholic Social Services
(UCSS) of Omaha,. Nebraska, pursuant to a Placement Agreement dated March 16, 1973.
According to the Placement Agreement, which is signed by the T~, the T~ agreed with
UCSS that during the adjustment year they would provide Sophia with a home and full
family participation; they would receive a UCSS caseworker into their home to observe
the child and themselves; that during the adjustment year or until the child was adopted
by them either the agency or the T~ could terminate the placement; that until legal
adoption was accomplished they would take no other children into their home for foster
care unless approved by UCSS; and that consent to legal adoption must be signed and
sealed by the officer of UCSS authorized to do so.
According to the information you provided, neither party terminated the placement,
and Sophia has lived with the T~ in Kansas since March 1973. You also indicated that
the T~ had attempted to legally adopt Sophia several years ago, but were advised not
to do so based on their legal and financial entanglements. You stated that the T~
legally adopted Sophia in April 1984, and that the adoption would be final under Kansas
law in May 1984.
Because Glenda T~ was found to be entitled to disability benefits as of December 1,
1981, it was necessary for you to determine whether Sophia could be considered to
have been equitably adopted by the T~ prior to April 1984, in order to determine when
Sophia became entitled to child's insurance benefits.- Although you found that Sophia
had met all the requirements of an equitably adopted child, you stated that your finding
was contingent upon our determination as to the legality of the "adoption contract"
(which you are required to request under POMS GN 00306.375). We are presuming that the adoption contract you refer to is the March 16, 1973,
Placement Agreement. We have no reason to question the legality of the Placement Agreement,
however, we do not believe it constitutes an adoption contract.
The insured, Glenda T~ was domiciled in Kansas at the time she received benefits,
making Kansas law controlling in this case. See Section 216(h)(2)(A) of the Social
Security Act, 42 U.S.C. § 416(h)(2)(A). Because the placement agreement was entered
into in Nebraska, and because Sophia was placed in the T~ home under the Interstate
Compact for the Placement of Children, the Kansas courts would need to determine whether
Kansas or Nebraska law should be applied in this case. We did not believe it was necessary
for us to determine which law the Kansas courts would apply, however, since both Kansas
and Nebraska have enforced contracts to adopt children.[1]
Two General Counsel precedents imply that you may find a legally adopted person to
have been equitably adopted prior to the date of the legal adoption. See GC Opinion re Equitable Adoption, June 29, 1979; GC Opinion re Equitable Adoption
and Consent of Natural Parents, April 19, 1981. Nonetheless, for an individual to
be found to have been equitably adopted pursuant to a contract, the contract must
provide that the adopting parents agree to adopt the child and/or make the child their
heir. [2] The contract must be shown by clear, convincing, and satisfactory evidence.
We do not believe the Placement Agreement constitutes a contract to adopt Sophia or
to make her the T~ heir. The Placement Agreement states only that the T~ expected
to adopt Sophia. It did net, however, obligate them to do so. On the contrary, the
Placement Agreement provided that the T~ or UCSS could terminate the placement anytime
before Sophia was adopted by the T~ 's . Therefore, we believe that the Placement
Agreement does not constitute an adoption contract under Kansas or Nebraska law, and
would not support a finding that Sophia was equitably adopted by the T~'s.
Sophia may be found to have been equitably adopted under Kansas or Nebraska law, however,
under either an oral or implied contract to adopt. [3] Therefore, you may wish to develop the facts of this case to determine if there is
clear, convincing, and satisfactory evidence of an oral contract entered into between
United Catholic Social-Services and the T~, whereby the T~ agreed 'to adopt Sophia
and/or make her their heir. If you find that no such contract existed, you may wish
to determine whether the facts of this case would warrant a court in finding an implied
contract to adopt Sophia.
In our opinion the Placement Agreement tends to show that no oral contract to adopt
existed, and absent other evidence may also preclude a court from finding an implied
contract to-adopt in this case.