You asked whether a child may be eligible for benefits based upon her prospective
adoptive father's record, under the theory of equitable adoption; whether the nine-month
waiting period refers to legal custody or actual custody; and whether the nine-month
waiting period may be waived. Based upon Missouri state law, the child and prospective
adoptive father's state of residence, and the Commissioner's regulations, we do not
believe that equitable adoption is appropriate in this case.
FACTS
The facts as relayed to our office are as follows: Satomi S~, the child at issue,
was born in Miyoshi City, Hiroshima Pref. Japan on June 8, 1991, during the lawful
marriage of Antonette M~ A~ and Kazushi S~. That marriage was subsequently dissolved
at an unknown date. Thereafter, Ms. A~ married number holder Gary C~ on September
26, 2000. You advised that the child came to live with Mr. C~ on November 31, 2001,
and that Ms. A~ came to live with Mr. C~ later, in April 2002. Ms. A~ and Mr. C~ divorced
on June 26, 2007, but the child remained with Mr. C~ in Missouri. Formal adoption
proceedings were initiated in January 2008. Mr. C~, whose date of birth is January
10, 1946, filed for Social Security retirement benefits in January 2008, and became
entitled to benefits beginning February 2008. On August 15, 2008, the Circuit Court
of Camden County, Missouri, Juvenile Division, terminated the natural father's parental
rights, acknowledged Ms. A~'s written consent to Mr. C~'s petition for transfer of
custody and legal adoption, and transferred legal custody to Mr. C~. The adoption
will not be final until six months from August 2008, i.e. February 2009. Having been
presented with no evidence to the contrary, for purposes of this opinion, it is assumed
that Ms. A~ is a United States citizen.
ANALYSIS
We first address your question concerning the applicability of the equitable adoption
doctrine to the facts of this case. The Commissioner's regulations provide that benefits
may be available for an equitably adopted child if the insured had agreed to adopt
that child, but the adoption did not occur. See 20 C.F.R. § 404.359 (2008). The agreement to adopt the child must be one which would
be recognized under laws of the state where the insured had his permanent home, and
which would enable the child to inherit his or her share of the insured's personal
property if the insured dies without leaving a will, i.e. intestate succession laws.
Id. The Program Operations Manual System (POMS) GN 00306.175.A also provides that a child who cannot qualify for benefits as a legally adopted
child because the contemplated adoption was never completed may be eligible for benefits
as an equitably adopted child. The POMS further provides that most states grant inheritance
rights in the number holder's personal property to a child who has been the subject
of a contract to adopt and who has performed as a child for such a length of time
that failure to grant such rights would operate as a fraud upon the child. Id. In addition, the POMS recognizes that several factors must exist to find an equitable
adoption, the last of which is that "[s]ufficient lapse of time so that the child
could have been legally adopted under applicable State law before the [number holders]
death." See POMS GN 00306.175.C. In Missouri, adoptions may not be finalized for six months after the petition
for adoption is filed. See Mo. Rev. Stat. § 453.080.1(1) (West, Westlaw through 2008). Thus, six months would
be a "sufficient lapse of time" for the child to be legally adopted in Missouri.
We were unable to find any case law where an equitable adoption was found while the
prospective parent was still living. There is case law in Missouri which states that
the "need for the [equitable adoption] doctrine arises when a proposed adoptive parent
dies without having conducted a formal adoption." See Coon v. American Compressed Steel, Inc., 207 S.W.3rd 629, 634 (Mo. App. 2006). It is an equitable remedy "invoked by the
court to allow the 'supposed-to-have-been adopted child' to take an intestate share"
of the parent's estate. Id. In this case, Mr. C~ is still alive and there is no reason to believe that the formal
adoption will not be finalized in February 2009.
Furthermore, because Missouri has a six-month waiting period, there has not been a
sufficient lapse of time before the adoption may become final. If the fact pattern
involved a foster parent, the outcome may well be different because, in those situations,
a formal adoption may be finalized at an earlier time which could change the "sufficient
lapse in time" factor as described in POMS GN 00306.175.C.
You also asked about the length and type of custody required and whether the required
period of custody preceding the finalization of an adoption could be waived. Missouri
law requires that the child must be in the "lawful and actual custody" of the individual petitioning to adopt the child for a period of
at least six months prior to an adoption being finalized. See Mo. Rev. Stat. § 453.080.1(1) (West, Westlaw through 2008). Thus, both lawful and
actual custody are required. As stated above, the court found that the child was in
the "lawful and actual custody" of Mr. C~ since on or before August 2000. Therefore, custody is not
an issue in this case. The only provision under Missouri law which allows waiving
the six-month period involves situations in which the child at issue has been under
the "prior and continuing" jurisdiction of the juvenile court and the individual(s)
seeking to adopt the child is the foster parent(s). Id. Thus, Missouri law does not allow waiver of the waiting period in circumstances such
as the situation under review.
CONCLUSION
Because this situation must be reviewed under Missouri law, pursuant to the Commissioner's
regulations and POMS, the prospective adoptive parent must be deceased for the equitable
adoption doctrine to apply. Under the facts presented, the number holder, Mr. C~,
is still living. Thus, the child may not be eligible for benefits as an equitably
adopted child. In addition, there are no provisions for waiving the six-month custody
requirement, absent situations wherein the child has been under the prior and continuing
jurisdiction of the juvenile court and the proposed adoptive parent(s) is the foster
parent(s). As stated above, however, a change in facts may result in a different conclusion.
Kristi A. S~
Acting Chief Counsel, Region VII
By___________
Pamela J. M~
Assistant Regional Counsel