This memorandum is in response to your request for an opinion regarding whether Texas
law on equitable adoption requires complete and absolute surrender of the child by
the custodial parent when the adopter is the custodial parent's spouse. We conclude
that Texas law does not require surrender of the child by either natural parent. Therefore,
Ryan C. L~ [1] (Ryan) has proven that he was equitably adopted by the numberholder, Michael J. L~
(Mr. L~), and is Mr. L~'s child for the purposes of the Social Security Act (the "Act").
In this case, Beth D. L~, Ryan's mother, applied for surviving child benefits on Ryan's
behalf. Ryan was born on March 28, 1989, to Beth D~ in Dallas, Texas. Ryan's birth
certificate does not indicate a father's name. In 1990, Ms. L~ and Mr. L~ began living
together and eventually married in 1995. Ryan has been in the custody of Ms. L~ since
his birth. Ryan has never had contact with his biological father and considered Mr.
L~ to be his father. Mr. and Ms. L~ began formal adoption proceedings in 1997. Ryan's
biological father, James W. M~, relinquished his parental rights on October 25, 2000.
A home study was conducted in May 2001 in conjunction with the adoption proceedings.
The report recommended approval of Mr. L~'s adoption of Ryan and noted the strong
desire on the part of Mr. L~, Ms. L~, and Ryan that the adoption take place. Mr. L~
became eligible for disability insurance benefits in November 2000. He died on June
11, 2001, while domiciled in Texas. On December 6, 2001, Ryan's name was legally changed
from Ryan C. O'M~ to Ryan C. L~.
Under Section 216(h)(2) of the Act, the Commissioner will apply the law of the state
of the insured's domicile at the time of his death to determine whether an applicant
is the child of an insured individual. Applicants who according to such law would
have inherited intestate property as a child of the insured will be deemed the child
of the insured individual for purposes of the section. See 42 U.S.C. § 216(h)(2)(A). The Commissioner's regulations recognize the doctrine of
equitable adoption as one method of establishing a relationship to the insured. See 20 C.F.R. § 404.359. A child may be eligible for benefits as an equitably adopted
child if the insured has agreed to adopt but the adoption did not occur. Id. The agreement to adopt must be recognized under state law so that the child would
be eligible to inherit from the insured's intestate estate. Id. The Commissioner will apply the law of the state where the insured had his permanent
home at the time of his death. Id. At the time of his death, Mr. L~ was domiciled in Texas. Thus, for Ryan to be entitled
to survivor's benefits, he must prove that he was Mr. L~'s equitably adopted child
under Texas law. See 20 C.F.R. § 404.359. Ryan must also show that he was dependent upon Mr. L~. See 20 C.F.R. §§ 404.360; 404.365.
Texas law is well established in the area of equitable adoption or adoption by estoppel.
See Texas Probate Code § 3 (b). Under this doctrine, adoption by estoppel occurs when,
because of promises, acts, and conduct of the deceased, those claiming inheritance
rights through the deceased are prevented from asserting that the child was not legally
adopted or did not occupy the status of an adopted child. See Pope v. First National Bank in Dallas, 658 S.W.2d 764, 765 (Tex. App. 1983). The equitably adopted child may assert a claim
for inheritance if he/she can prove the existence of an agreement or contract to adopt
and good faith reliance on that agreement by the parties. See Cavanaugh v. Davis, 235 S.W.2d 972, 973-974 (Tex. 1951). The standard necessary to show the existence
of an agreement to adopt is proof of facts essential to invoke equity in a way that
is clear, unequivocal, and convincing. See Cavanagh, 235 S.W.2d at 978. However, only a preponderance of such evidence is required to
establish an agreement to adopt. See Adler v. Moran, 570 S.W.2d 883 (Tex. 1978). The Fifth Circuit also recognizes that the doctrine
of equitable estoppel is applicable to agreements to adopt. See Smith v. Secretary of Health, Educ. and Welfare, 431 F.2d 1241, 1244 (5th Cir. 1970).
Here, Mr. and Ms. L~ jointly initiated formal adoption proceedings on September 23,
1997. This indicates an agreement by Mr. L~ to adopt Ryan. Such an agreement may be
oral, and the oral agreement may be proven by indirect evidence. See Moore v. Heckler, 1985 WL 71821 (S.D. Tex. 1985). Mr. and Ms. L~ actively pursued the legal adoption
proceedings until the time of Mr. L~'s death. An affidavit of relinquishment of parental
rights was sought and obtained from Ryan's biological father, Mr. M~, in October 2000.
In that affidavit of relinquishment, Mr. M~ voluntarily relinquished his parental
rights to Ms. L~. Mr. M~ recognized that the termination proceedings "may or may not
be combined with a suit to adopt my child," and understood that he had "no further
say concerning [his] child, whether or not [his] child is adopted then or at some
later time." Mr. M~'s affidavit of relinquishment and his lack of a relationship with
Ryan indicate his intent to allow Ms. L~ to make all decisions regarding Ryan, including
the agreement to adopt made with Mr. L~.
Mr. L~ acted as Ryan's father by caring for his needs such as preparing meals, enforcing
discipline, and providing emotional support. The 2001 home study noted Mr. L~'s strong
relationship and solid commitment to Ryan. Further, according to the home study, Ryan
referred to Mr. L~ as his father and stated that Mr. L~ "feels like my real dad."
Ryan also stated that he had no relationship with his biological father. Ryan noted
that most people referred to him as Ryan L~, and ultimately, Ryan's name was legally
changed to Ryan L~ after Mr. L~'s death. These facts indicate good faith reliance
by Mr. L~, Ms. L~, and Ryan on the agreement to adopt as well as acquiescence to the
adoption by Ryan's biological father. See Cavanaugh, 235 S.W.2d at 974. See also Hall v. Richardson, 362 F.Supp. 662 (S.D. Tex. 1973)(factors to be considered in verifying the existence
of an adoptive relationship include assumption of adopting parent's surname, habitual
use of terms indicating parent-child relationship, and existence of relationship of
love and affection). Thus, it is our opinion that Ryan has shown that he is Mr. L~'s
equitably adopted child under Texas law.
Mr. L~ acted as Ryan's father by caring for his needs such as preparing meals, enforcing
discipline, and providing emotional support. The 2001 home study noted Mr. L~'s strong
relationship and solid commitment to Ryan. Further, according to the home study, Ryan
referred to Mr. L~ as his father and stated that Mr. L~ "feels like my real dad."
Ryan also stated that he had no relationship with his biological father. Ryan noted
that most people referred to him as Ryan L~, and ultimately, Ryan's name was legally
changed to Ryan L~ after Mr. L~'s death. These facts indicate good faith reliance
by Mr. L~, Ms. L~, and Ryan on the agreement to adopt as well as acquiescence to the
adoption by Ryan's biological father. See Cavanaugh, 235 S.W.2d at 974. See also Hall v. Richardson, 362 F.Supp. 662 (S.D. Tex. 1973) (factors to be considered in verifying the existence
of an adoptive relationship include assumption of adopting parent's surname, habitual
use of terms indicating parent-child relationship, and existence of relationship of
love and affection). Thus, it is our opinion that Ryan has shown that he is Mr. L~'s
equitably adopted child under Texas law.
For Ryan to be eligible for benefits, he must further show that he was dependent upon
Mr. L~. Mr. L~ became eligible for disability insurance benefits in November 2000.
The Commissioner's regulations state that an equitably adopted child will be considered
dependent upon the insured in the following circumstances:
If your equitable adoption is found to have occurred after the insured became entitled
to old-age or disability benefits, your dependency cannot be established during the
insured's life. If your equitable adoption is found to have occurred before the insured
became entitled to old-age or disability benefits, you are considered dependent upon
him or her if you were either living with or receiving contributions for your support
from the insured at one of these times -
(a) When you applied; or
(b) If the insured 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 insured became entitled to benefits.
20 C.F.R. § 404.365.
See also 42 U.S.C. § 402(d) et seq. To prove dependency, Ryan must show that his equitable
adoption occurred before Mr. L~ became entitled to disability insurance benefits and
that he lived with Mr. L~ at the time of his application or when Mr. L~ first became
eligible for benefits.
Because Texas law on equitable adoption requires only an agreement to adopt and reliance
upon that agreement by the parties, it is our opinion that Ryan's equitable adoption
occurred, at the latest, on October 25, 2000, when Ryan's biological father relinquished
his parental rights. Mr. and Mrs. L~ had agreed to the adoption in 1997, as evidenced
by them instituting formal adoption proceedings. Mr. M~ had acquiesced to the adoption
by formally relinquishing his parental rights in October 2000. Thus, by October 2000,
all parties involved had agreed to the adoption and reliance on that agreement by
Mr. L~, Ms. L~, and Ryan had occurred. As a result, Ryan's equitable adoption occurred
before Mr. L~ became eligible for disability insurance benefits in November 2000.
Additionally, the evidence shows that Ryan was living with Mr. L~ in November 2000
when Mr. L~ became eligible for disability benefits. Thus, Ryan has shown that he
was dependent upon Mr. L~ as required by the regulations. See 20 C.F.R. § 404.365.
Finally, you asked whether Ms. L~'s complete and absolute surrender of the custody
and control of the child to the adopting parent is met or required in this situation
under Texas law. Texas law does not require "complete and absolute surrender" of the
child by either natural parent for an equitable adoption to be recognized. As noted
above, equitable adoption is shown when there is an agreement to adopt and reliance
by the parties on that agreement. See Cavanaugh, 235 S.W.2d at 973-974. These two elements have been established in this case.
In conclusion, Texas law on equitable adoption does not require the complete and absolute
surrender of the child by the natural parents. Instead, it requires an agreement to
adopt and reliance on that agreement by the parties. Ryan has satisfied these requirements.
Ryan has shown that under Texas law, he would be entitled to inherit from Mr. L~'s
intestate estate under the theory of equitable adoption. The Act looks to state law
to determine whether an applicant is the child of an insured individual. The facts
also indicate that Ryan was dependent upon Mr. L~ because the equitable adoption occurred
before Mr. L~ became entitled to disability insurance benefits and because he lived
with Mr. L~ in November 2000, at the time Mr. L~ became eligible for disability insurance
benefits. For these reasons, it is our opinion that Ryan is Mr. L~'s child for the
purposes of the Act.
Tina M. W~
Regional Chief Counsel
By: ___________________________
Amy J. M~
Assistant Regional Counsel