You asked whether Theodore R. S~ (Theodore) should be considered the equitably adopted
child of Marilou S~, M.D., (Dr. S~) for purposes of entitlement to child's insurance
benefits as her surviving minor child. We conclude that the materials provided are
not sufficient to establish that Theodore is Dr. S~'s equitably adopted child.
BACKGROUND
According to information provided by Dr. S~'s widower, Barry S~, a friend named Vivian
N~ contacted the S~s and offered to have someone look in the Marshall Islands for
a baby for the S~s. On July 10, 2001, the biological parents of a child named Theodore
R. K~ signed an affidavit, in the Republic of the Marshall Islands, designating the
S~s as Theodore's guardians. The affidavit states that the guardianship is for the
purpose of Theodore residing with the S~s in the United States and that, while living
in the United States, Theodore shall be called Theodore S~. The affidavit authorizes
the S~s to act on behalf of the biological parents "in all respects" so that the S~s
can provide for Theodore's "complete support, education, medical care, and all other
needs. . .." The affidavit further states, "This guardianship assignment shall be
in effect from the date of it being signed by the undersigned, until such time as
may later be terminated by mutual consent of the parents and guardians."
Mr. S~'s statement to the field office indicates that Ms. N~ "arranged" the guardianship
and brought Theodore, who was about three months old, from the Marshall Islands to
the S~s in the United States. The materials you provided indicate that Theodore was
issued a Marshall Islands passport, under the name of Theodore R. K~, on July 12,
2001 and was admitted to the United States on July 20, 2001.
Mr. S~ stated that Theodore had lived with him and his wife "as our child" ever since
Ms. N~ brought Theodore to the United States, that the S~s provided for all of Theodore's
needs, and that Dr. S~ supported Theodore until her death on April 26, 2003, although
Mr. S~ was Theodore's primary caretaker after Dr. S~ became ill in November of 2002.
Mr. S~ indicated that he and his wife were planning to wait until Theodore was four
years old before initiating adoption proceedings. He stated, "We thought this would
be best to let time go so biological parents' feelings wouldn't be as strong. We were
trying to avoid possible requests from (sic) money from his biological parents."
You also submitted the following materials:
* A family website page, printed on May 13, 2003, which contains a message thanking
those who attended Dr. S~'s funeral and stating "Your attendance meant so much to
Teddy and me, and to the rest of our family";
* A page from the same website, also printed on May 13, 2003, which contains biographical
information that appears to have been written before Dr. S~'s death and states, in
part, that she and her husband married in May 2000 and "[o]ne year later, they adopted
their beautiful son Teddy. Now in the throes of toddlerhood, Teddy takes on every
day the way all of us should - as a full-throttle, joyous adventure. His parents are
pleased to be taken along as passengers!"; the page has a photograph labeled "Teddy,
October 2002";
* A page from the website of the International Falls Daily Journal, containing the
April 29, 2003 obituary for Dr. S~, which states, in part, "Their family was complete
when Theodore R. S~ joined their lives on July 21, 2001, at the age of three months";
the obituary article also refers to Dr. S~ as a "caring mother" and states that she
is survived by her husband Barry S~ and son Teddy S~ of International Falls;
* A copy of Theodore R. K~'s birth certificate, registered July 10, 2001 and issued
by the Republic of the Marshall Islands, showing Theodore's date of birth as April
21, 2001, his place of birth as Arno, and his parents as Nela B~ and Elson K~ (Nela
B~ was the informant).
Your memorandum to our office also indicates that a friend of the family made a statement
that, when Marshallese families give children up for guardianship, they typically
go through a period of mourning for about a year and, after a time, the guardians
can attempt to obtain a release for adoption. The friend's statement was not included
in the materials provided to us.
DISCUSSION
A. General Provisions
For purposes of entitlement to child's insurance benefits (CIB), a "child" is the
wage earner's natural child, legally adopted child, stepchild, grandchild, or equitably
adopted child. 20 C.F.R. § 404.354. Although there were no formal adoption proceedings,
a child may be considered equitably adopted if the wage earner entered into a contract
to adopt the child and the contract would be recognized under State law so that, if
the wage earner died intestate, the child could inherit a child's share of the wage
earner's personal property. 20 C.F.R. § 404.359. Thus, the basis for equitable adoption
is an express or implied contract to legally adopt the child, generally a contract
between the adopting parents and the child's natural parents or the person or agency
having custody and control of the child. POMS GN 00306.180A.1.
B. Choice of Law
Theodore's CIB application was filed after Dr. S~'s death, and Dr. S~'s place of domicile
at death was Minnesota. Therefore, we must ascertain whether a court of the State
of Minnesota, applying the Minnesota intestate succession statutes, would find Theodore
entitled to a child's share of Dr. S~'s intestate estate based on the status of equitably
adopted child. See 20 C.F.R. § 404.359 ("If you apply for child's benefits after the insured's 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").
Although Minnesota's intestacy laws clearly apply to the question of whether an equitably
adopted child can inherit from Dr. S~'s intestate estate, that does not necessarily
mean that Minnesota law applies to determine whether Theodore has the status of equitably
adopted child. Rather, a Minnesota court would apply Minnesota's choice of law rules
in determining whether to look to Minnesota law or Marshall Islands law to determine
Theodore's status. To determine rights under a contract, Minnesota courts generally
apply the law of the place where the contract was "made." See Heflebower v. Sand, 71 F.Supp. 607,609-10 (D. Minn. 1947). Under Minnesota case law, a child's status
as an individual's adopted or equitably adopted child is determined under the law
of the State where the contract to adopt was made. See In re Youman's Estate, 15 N.W.2d 537, 541 (Minn. 1944); In re Herrick's Estate, 144 N.W. 455, 457 (Minn. 1913) ("We hold the contract [to adopt] valid where made
. . .). See also POMS GN 00306.180A.5.
Where a contract is "made" is not entirely clear. In all of the Minnesota adoption
or equitable adoption cases we found where more than one jurisdiction was involved,
all parties were in the same jurisdiction when they executed the contract and the
child lived with the "adoptive parents" for a time in that same jurisdiction before
moving to Minnesota. In those cases, the Minnesota courts applied the law of the foreign
jurisdiction to determine whether the child was an equitably adopted child and the
law of Minnesota to determine whether an equitably adopted child could inherit from
the adoptive parent who died domiciled in Minnesota. See In re Will of Patrick, 106 N.W.2d 888 (Minn. 1960); In re Frederick's Estate, 62 N.W.2d 361 (Minn. 1954); In re Youmans’ Estate, 15 N.W.2d 537 (Minn. 1944); In re Herrick's Estate, 144 N.W. 455, 456-57 (Minn. 1913)
We were unable to locate any Minnesota cases, however, where the biological parents
and child lived in a foreign jurisdiction and the biological parents entered into
a contract to adopt with prospective adoptive parents who lived in Minnesota and intended
to raise the child in Minnesota. Where the promises of the contracting parties were
made and were to be performed in more than one jurisdiction, the determination of
where a contract is "made" and, thus, which jurisdiction's law applies, can be difficult.
We did not locate any Minnesota statutory choice of law rules regarding equitable
adoption. We did, however, locate cases that led us to conclude that Minnesota would
likely follow the Restatement 2d Conflict of Laws (Rest. 2d. Conf.) to determine whether
Minnesota law or Marshall Islands law should apply to the issues of whether there
was a valid contract to adopt and whether Theodore should be considered Dr. S~'s equitably
adopted child based on substantial performance of that contract. See Northern States Power Co. v. International Telephone and Telegraph Corp., 550 F. Supp. 108, 113 (D. Minn. 1982) (relying on Rest. 2d Conf. § 187 in finding
Minnesota law applied where New York choice of law provision in contract was not knowingly
negotiated as an expression of the parties intent and a significant portion of contract
performance occurred in Minnesota); Heflebower v. Sand, 71 F. Supp. 607, 609-10 (D. Minn. 1947) (relying on the Rest. 1st to determine state
law applicable to contract rights). In addition, Minnesota statutes dealing with child
custody cases contain choice of law rules which, similar to the Restatements, require
consideration of factors such as where the child lives and whether the child and a
person acting as a parent have a significant connection to the state. Minnesota Statutes
Annotated (M.S.A.) § 518D.201
Under general choice of law principles, where a state does not have a choice of law
statute directing which state's law applies in a particular area, the court considers
the following factors:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum, in determination of the particular issues,
(c) the relevant policies of other interested states and the relative interests of
those states
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result,
(g) ease in the determination and application of the law to be applied.
Rest. 2d Conf. § 6. With regard to contracts, the applicable law will be the law of
the state which has the most significant relationship to the transaction and the parties
under these principles. Rest. 2d Conf. § 189. Specifically, in the absence of an explicit
choice of law provision in the contract itself, the court considers the place of contracting,
the place the contract was negotiated, the place of performance, the location of the
subject matter of the contract, and the domicile, residence, nationality, place of
incorporation, and place of business of the parties. Rest. 2d Conf. § 188. The "place
of contracting" is the place where the last act occurred which, under the rules of
offer and acceptance, was necessary to give the contract binding effect. Id. at comment e. The place of contracting, standing alone, is relatively insignificant.
Id. Here, if a contract to adopt exists, it is unclear which party made the offer and
which party accepted, so it is difficult to ascertain the place of contracting. If
we assume that the consent to guardianship was executed in response to an offer by
the S~s, or their agent, then the place of contracting would appear to be the Marshall
Islands. Similarly, if there was a contract to adopt, it is unclear from the facts
provided to us where the contract was negotiated. It may be that the negotiations
took place entirely in the Marshall Islands, between the biological parents and the
S~s' friend acting as their agent. It may be, however, that the negotiations took
place over the telephone between the S~s in the U.S. and Theodore's parents in the
Marshall Islands. Where there is no single place of negotiation, such as when negotiations
take place by mail or on the telephone, the place of negotiation is of lesser importance
than other factors. Rest. 2d Conf. § 188, commente.
While application of the first two factors, the place of contracting and the place
of negotiation, does not direct a result based on the facts available to us, we believe
that application of the remaining two factors weighs in favor of applying Minnesota
law. With regard to the place of performance, local law of the place of performance
is applied to govern all questions relating to details of performance. Rest. 2d Conf.
§ 188, comment e. Rest. 2d Conf. § 206 states, "Issues relating to details of performance
of a contract are determined by the local law of the place of performance." The rationale
behind this section is that details about the manner and time of performance are of
primary concern to the state where those acts are done. Rest. 2d Conf. § 206, Comment
a. In addition, under Rest. 2d Conf. § 196, in determining the validity of a contract
for the rendition of services, the law of the state where the contract requires a
major portion of the services to be rendered applies, unless another state has a more
significant relationship under the general choice of law principles in Rest. 2d Conf.
§ 6. If, in fact the S~s and Theodore's biological parents intended to enter into
a contract for Theodore's adoption, it seems clear that the intent was for the adoption
to take place in Minnesota, since the consent to guardianship was explicitly given
for the purpose of Theodore residing in the United States rather than in the Marshall
Islands, and the child was brought to the S~s in Minnesota. The expectation of the
parties, thus, was for the adoption to take place in Minnesota, under Minnesota law.
The issue to be decided is whether there was sufficient performance such that the
court, under the principles of equity, should find that there was, in effect, an adoption,
despite the lack of formal adoption proceedings. This issue goes to whether the S~s
sufficiently performed their obligations under the contract to adopt, obligations
which were intended to be met in Minnesota. Therefore, if the Minnesota court were
to look to the Rest. 2d Conf. § 206, Minnesota law would apply to determine Theodore's
status as an equitably adopted child.
Consideration of the fourth relevant factor also points to application of Minnesota
law in determining whether an equitable adoption exists. Here, although Theodore's
biological parents are domiciled in the Marshall Islands, the place of domicile for
Theodore and the S~s is Minnesota. As such, the state of Minnesota has a significant
interest in determining the best interests of a child domiciled in Minnesota. See, e.g., Huynh Thi Anh v. Levi, 586 F.2d 625, 630 (6th Cir. 1978) (where Vietnamese children were placed with foster
parents in Michigan, court stated that no rule or principle of international or federal
domestic law required the child to be returned to their biological family without
determining their eligibility for adoption and their best interests under the law
of the state of their residence).[1]
The Restatement 2d of Conflicts does contain choice of law rules regarding adoptions.
Under Rest. 2d Conf § 262, the courts of the state where the decedent was domiciled
at death is generally the court to determine whether an adoption affecting intestate
succession is valid, but the court would use the law selected by application of Rest.
2d § 289. Rest. 2d. § 289, however, merely states that a court applies its own local
law in deciding whether to grant an adoption. Although there was no adoption petition
filed anywhere in the present case, again, it seems fairly certain that, if there
was a contract to adopt, the understanding would have been that the adoption was to
take place in Minnesota under Minnesota law. Thus, these portions of the Restatement
2d also suggest that the application of Minnesota law is appropriate to determine
Theodore's status. We conclude that a Minnesota court, applying general choice of
law principles, would most likely find that, under the facts in the present case,
the law of Minnesota should apply to determine whether there was a valid contract
to adopt and whether performance was such that an equitable adoption should be found.
C. Sufficiency of the Evidence
Having concluded that a Minnesota court would likely apply Minnesota law to determine
Theodore's status as an equitably adopted child, we turn to the question of whether
the information provided thus far would suffice for a Minnesota court to conclude
that there was either an express or implied contract to adopt, that the contract was
valid, and that there was sufficient performance of the contract to require, in accordance
with the principles of equity, that Theodore be considered the S~s' equitably adopted
child. In Minnesota, an adopted child has the same inheritance rights as a biological
child. Minnesota Statutes Annotated (MSA) § 524.2-109. In re Will of Patrick, 106 N.W.2d 888, 890 (Minn. 1960). An equitably adopted child has the same inheritance
rights as adopted children and biological children. In re Will of Patrick, 106 N.W.2d at 892 (child who would have been considered "de facto" adopted child
under Scottish law was entitled to inherit as child of adoptive parent who died domiciled
in Minnesota, even if he might not have had inheritance rights under Scottish law);
In re Firle's Estate, 265 N.W. 818, 818 (Minn. 1936) (contract to adopt will, when executed, give rise
to same obligations as full compliance with the adoption statute) (citing Odenbreit v. Utheim, 154 N.W. 741 (Minn. 1915). Thus, if a Minnesota court would find that Theodore has
the status of an equitably adopted child, he has inheritance rights and, therefore,
meets the definition of "child" for CIB entitlement purposes.
In Minnesota, the existence of a contract to adopt must be established by clear and
convincing evidence. In re Berge's Estate, 47 N.W.2d 428, 430 (Minn. 1951) (citing In re Herrick's Estate, 144 N.W. 455, 457 (Minn. 1913) and In re Norman's Estate, 295 N.W. 63 (Minn. 1940)). In re Berge's Estate, the court found that a contract to adopt was not established because there was no
evidence to prove (1) who the parties to the alleged contract to adopt were, (2) when
or where the alleged contract was made, or (3) that anyone acted "in such a manner
that the existence of such an agreement should be implied." The court stated, "The
mere fact that a child is received into a home, supported and educated, is not sufficient
to show an implied agreement to adopt such child." Id. at 431.
1. Was there an Express Written Contract to Adopt?
In the present case, we have an affidavit, signed by the biological parents in the
Marshall Islands, in which they designate the S~s as Theodore's guardians. We need
to consider whether this document constitutes an express written contract to adopt.
If it does, nothing outside the four corners of the contract can be used to add to
the terms of the contract. See POMS GN 00306.180 (if there is an express contract, no other terms can be implied). The affidavit signed
by Theodore's biological parents appoints the S~s as Theodore's guardian. Although
a contract would generally be signed by both parties, and the S~s did not sign the
affidavit, it appears clear from the language appointing them as guardians and providing
for termination by the mutual consent of the parents and guardians that, if the document
is a contract, the parties are the S~s and Theodore's biological parents.
Although a contract need not specifically mention adoption, it must be clear from
the language that the intent of the parties was that the S~s would adopt Theodore
and that Theodore would have the same rights and obligations that an adopted child
would have. See In re Berge's Estate, 47 N.W.2d at 430 (contract to adopt must be established by clear and convincing
evidence). The affidavit specifies that Theodore take the S~s' last name, which would
also be the case if there were an adoption. Rather than stating an intent that the
S~s adopt Theodore, or an intent that they treat Theodore as their child in all respects
and give him all of the rights a child of theirs would have (including inheritance
rights), however, the document merely assigns "guardianship" and recites that its
purpose is for Theodore to "reside" with the S~s in the United States. See In re Norman's Estate, 295 N.W. at 66 (court stated, in finding no equitable adoption where alleged adoptive
father referred to "my foster daughter" in his will, "Technical words which have a
definite and well-understood meaning will be presumed to have been used in that sense
in the absence of surrounding circumstances or context which show that a different
meaning was intended" (citing In re Holden's Trust, 291 N.W. 104, 107 (Minn. 1940). See also Memorandum from OGC, Region VIII to ARC, Programs, Region VII, Validity of Adoption
Contract (June 1, 1984) (placement agreement did not constitute contract to adopt
where it stated that couple expected to adopt child but also stated that the couple
or the agency could terminate the placement at anytime before such an adoption). The
affidavit gives the S~s "complete authority" necessary for them to "provide for complete
support, education and medical care, and all other needs. . ." While the S~s would
permanently have such authority, and the biological parents would permanently give
up such authority, if the S~s adopted Theodore, the document signed by Theodore's
biological parents clearly limits the authority given to the S~s. The document states
that such authority continues only while Theodore is living with the S~s in the United
States and, even then, only so long as the guardianship assignment is not terminated
by mutual consent. Rather than permanently terminating their parental rights, the
biological parents merely authorized the S~s "to act on our behalf" for a period of
time. Because the language of the affidavit expresses intentions that are not consistent
with an intention that the S~s adopt Theodore, we conclude that the affidavit does
not constitute an express written contract to adopt.
2. Was there an express oral contract to adopt?
Having concluded that the affidavit signed by Theodore's biological parents cannot
be considered an express written contract to adopt, we need to consider whether there
was an express oral contract to adopt and, if not, whether a contract to adopt can
nevertheless be implied from the totality of the circumstances. See Odenbreit v. Utheim, 154 N.W., 741 (Minn. 1915) (finding that child would have same right to inherit
as a biological child upon proof of alleged oral contract to adopt). The information
you provided to us indicates only that Ms. N~ spoke with the S~s, at which time she
offered to have someone find a baby and set up guardianship for them. Mr. S~ also
stated that Ms. N~ "arranged" the guardianship. Even if we assume that, during this
conversation, the S~s authorized Ms. N~ to act as their agent, the extent of the agency
appears to have been merely to arrange guardianship. We have no evidence of any oral
agreement between Theodore's biological parents and either the S~s or Ms. N~. Thus,
based on the information provided to us, we must conclude that there was no express
oral agreement to adopt.
3. Was there an implied contract to adopt?
Minnesota recognizes the existence of an equitable adoption based on a valid implied
contract to adopt. See, e.g., In re Estate of Rowe, 132 N.W.2d 180, 183 (Minn. 1964) (citing cases in which a valid contract to adopt
was recognized and stating that there must be an express or implied promise by the
adoptive parents to the biological parents, or the child's legal custodian, that the
child was to be taken by the adoptive parents for adoption). Therefore, we look to
whether a contract to adopt can be implied from the actions of the parties, both before
and after Theodore came to live with the S~s. Certain facts tend to support the existence
of an implied contract to adopt. For example, Mr. S~ told SSA that Theodore lived
with him and his wife "as our child" continuously from the time Ms. N~ delivered Theodore
to them in the U.S., that his wife supported Theodore until her death, and that the
couple cared for all of Theodore's needs. While this conduct is consistent with an
intent to adopt the child, standing alone it is not dispositive. In In re Berge's Estate, the court wrote, "The mere fact that a child is received into a home, supported
and educated is not sufficient to show an implied agreement to adopt such child."
47 N.W.2d at 431. Moreover, no statements have been provided from other persons who
might corroborate Mr. S~'s statement. See POMS GN 00301.305C (in evaluating weight to give a statement, consider if the person has a personal
interest in the outcome).
There is also the family website page, dated May 13, 2003, which was obviously written
after Dr. S~'s death and refers to "Teddy" as part of the family. This can be of little
probative value with regard Dr. S~'s intent or her actions toward Theodore during
her lifetime. The April 29, 2003 obituary from the International Falls Daily Journal
which refers to Dr. S~ as a "caring mother" and lists her survivors as her husband
and her son Teddy S~, likewise, is of little probative value for the same reason.
The family website page, dated May 13, 2003, appears to have been written during Dr.
S~'s lifetime and refers to her "son Teddy." The authenticity of this webpage article
is not entirely established, however, since the webpage is dated May 13, 2003, the
same day that the CIB application was filed. No proof was provided that the article
was posted to the website prior to Ms. S~'s death.
Mr. S~ stated that Ms. N~ offered to set up "guardianship" if a baby was found. Nothing
in Mr. S~'s statement indicates that there was any mention of any intention to adopt.
In the absence of information to the contrary, we presume that the S~s understood
that they were agreeing only to guardianship, which is not the same as adoption. In
In re Norman's Estate, the child was given the alleged adoptive parents' last name at baptism and the church
baptismal record showed her as "adopted" by them. The child lived with them until
adulthood and was treated, and regarded by all, as their daughter. The alleged adoptive
father, however, referred to the child as his "foster daughter" in a will prepared
by his attorney. 295 N.W. at 64-65. The court wrote, "Technical words which have a
definite and well-understood meaning will be presumed to have been used in that sense
in the absence of surrounding circumstances or context which show that a different
meaning was intended." 295 N.W. at 66 (citation omitted). The court concluded that
there had been no contract to adopt. 295 N.W. at 67. Thus, Mr. S~'s statement that
Ms. N~ offered to set up "guardianship" tends to support the conclusion that there
was no implied contract to adopt.
Still other facts, while cutting both ways to some extent, point more to the conclusion
that there was no implied contract to adopt. The affidavit of guardianship states
that Theodore will be known as Theodore S~, but it also states that he will be known
by that name "while he is living with the Guardians in the United States of America."
The affidavit gives the S~s complete authority to act in order to provide Theodore's
support, education, medical care and "all other needs," but it states that such actions
are on behalf of the biological parents and provides for termination of the guardianship
upon mutual consent of the S~s and the biological parents. These limitations tend
to indicate that the biological parents did not absolutely relinquish custody and
control in exchange for the S~s' promise to adopt Theodore. See POMS GN 00306.180C.2 (contract to adopt may be implied where there is a clear indication that there was
a promise to absolutely relinquish custody and control in exchange for a promise to
adopt and give the child the same rights and considerations he would have had if he
were a biological child). In addition, Mr. S~ told SSA that he and Dr. S~ planned
to initiate adoption proceedings but intended to wait until Theodore was four years
old. The reason he gave for the delay was that the biological parents' feelings likely
wouldn't be as strong and, therefore, they would not ask the S~s for money. The statement
expresses an intent to adopt at some point in time. The reason given for waiting,
however, tends to demonstrate that the understanding at the time was that the biological
parents had not agreed to permanently give up their parental rights in exchange for a promise from
the S~s that they would adopt Theodore and give him all the rights he would have if
he were their child. See POMS GN 00306.180C.2 (subsequent conduct and statements must clearly reflect the mutual exchange of promises,
and no other inference can reasonably be drawn). The friend's statement that Marshallese
parents generally go through a period of mourning after assigning guardianship and
that, after a time, the guardians can attempt to obtain a "release for adoption" also
cuts both ways but, on balance, favors the absence of an implied contract to adopt.
While such a period of mourning would occur if the biological parents had assigned
the guardianship with the understanding that their child would be adopted, it is also
possible that there might be a period of sadness or mourning at the loss of a child
even temporarily, if the intent was for the child to live in the United States for
a significant period of time. Also, while the friend indicated that a period of mourning
was customary, there is no evidence in the record that Theodore's parents went through
a period of mourning in anticipation of a permanent adoption. Moreover, the fact that,
in order to adopt, the S~s would have to "attempt" to secure a release from the biological
parents tends to show that there was no more than the possibility of a future contract
to adopt, rather than an existing contract to adopt.
After considering all of the materials submitted, we conclude that a Minnesota court,
applying Minnesota law, would likely find that the evidence is insufficient to establish
the existence of a valid contract to adopt. The court, therefore, would likely find
that Theodore was not Dr. S~'s equitably adopted child.
It may be that more information could be obtained which would change the outcome.
For example, statements might be secured from the biological parents as to their understanding
of the situation or from the intermediary as to what transpired in the Marshall Islands
and what was said by the S~s when she delivered Teddy. See 20 C.F.R. § 404.734 (written statements from biological parents and adoptive parents
will be requested, in addition to other evidence of the child's relationship to the
adopting parents). See also POMS GN 00306.220 ("Wherever possible, obtain statements from the natural and adopting parents and
any other parties to the contract.") Perhaps statements could be obtained from disinterested
persons who have firsthand knowledge about the S~s relationship with Theodore or about
statements made by the S~s as to the existence of a contract to adopt. See POMS GN 00301.305C (in evaluating a statement, consider whether it can be independently corroborated
by other evidence). If an adoption agency was involved, a statement from an agency
official might be helpful. See e.g., In re Firle's Estate, 265 N.W. 818 (Minn. 1936) (implied contract to adopt found where adoptive parents
took custody of the child from Bethany Home and raised the child as their own and
a Bethany Home official testified that it was Bethany Home's custom to require couples
to adopt).
CONCLUSION
We conclude that a Minnesota court, applying Minnesota law, would find that the evidence
submitted is insufficient to find the existence of a contract to adopt. Therefore,
based on the evidence submitted, Theodore cannot qualify for CIB as Dr. S~'s equitably
adopted child.