Because the number holder (NH) was domiciled in California when the Claimant filed his application, we apply the California law to determine whether the Claimant is the NH’s child. The evidence in this case demonstrates that a parent-child relationship can be established because the NH equitably adopted the Claimant. The statements from both the NH and the Claimant’s biological mother provide clear and convincing evidence that the NH agreed to adopt the Claimant but has not done so due to a lack of financial resources. Also, the evidence shows that the NH acted consistently with an intent to adopt by forming “a close and enduring familial relationship” with the Claimant. Based on the available evidence, the Claimant can inherit intestate from the NH as his equitably adopted child under California law. Therefore, the Claimant qualifies as the NH’s “child” under the Act. The Claimant also satisfies the other requirements to be entitled to child’s benefits and is deemed dependent upon the NH. Accordingly, the Claimant is entitled to benefits on the NH’s account under section 216(h)(2) of the Act.

QUESTION

You asked whether a parent-child relationship exists between the number holder, M~ (NH), and the child claimant, T~ (Claimant), such that the Claimant is entitled to child’s benefits on the NH’s record. The NH and his wife have raised the Claimant since birth but are not biologically related to him and have not legally adopted him.

SHORT ANSWER

Yes. The Claimant can inherit intestate from the NH as his equitably adopted child and, therefore, qualifies as the NH’s “child” under the Social Security Act. Because the Claimant satisfies the other requirements for child’s benefits and is deemed dependent upon the NH, the Claimant is entitled to child’s benefits on the NH’s account.

SUMMARY OF EVIDENCE

The Claimant was born on August XX, 2010 in California to a co-worker of the NH and the Claimant’s biological mother. According to the NH, the natural parents did not want a child, and asked if the NH and his wife would be willing to raise the Claimant.

They agreed to raise the Claimant as their own child with the intent of formally adopting him. The NH was present at the Claimant’s birth and was listed as his father on the birth certificate, which the NH signed. The NH stated that he and his wife have raised the Claimant since birth and intend to adopt him legally, but they have not been able to afford it. The Claimant’s biological mother submitted a statement in support of his benefits application, stating that she agreed to allow the N~s to adopt the Claimant when he was born because she was unable to raise a child and the biological father was uninvolved; she indicated that legal adoption has not been feasible for financial reasons.

The NH has listed the Claimant in his Last Will and Testament, claimed the child as his dependent on tax returns and insurance documents, and is named as the Claimant’s parent in school records. The NH identified the Claimant as his child when the NH applied for benefits. The NH is the sole financial provider for the Claimant and has represented to others orally that he is the Claimant’s father. The NH is domiciled in California.

APPLICABLE LAW

Federal Law

Under the Social Security Act (Act), every unmarried minor child of an insured individual shall be entitled to child insurance benefits. Social Security Act § 202(d)(1). However, to receive child’s insurance benefits, the applicant must qualify as the insured individual’s “child,” as defined by section 216(e) of the Act, and be dependent on the insured individual. See id.; 20 C.F.R. § 404.350.

Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted child of an individual.” Social Security Act § 216(e)(1). Section 216(h) of the Act further provides that “[i]n determining whether an applicant is the child . . .[of] the insured individual . . . apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which [the insured] was domiciled” when the applicant filed his application. Social Security Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1).

An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is also deemed dependent upon the insured individual. 20 C.F.R. ' 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); Social Security Ruling (SSR) 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”).

The agency recognizes that sometimes a child cannot qualify for benefits as a legally adopted child because a contemplated adoption was never completed. 20 C.F.R. § 404.359; Program Operations Manual System (POMS) GN 00306.175.A. A child may receive benefits as an equitably adopted child “if the insured had agreed to adopt [the child] as his or her child but the adoption did not occur.” 20 C.F.R. § 404.359. The agreement to adopt must be one that would be recognized under State law such that the child could inherit a child’s share of the insured’s personal property if the insured were to die intestate. Id. Any State law requirements regarding the agreement’s form and performance must also be satisfied. Id. If the equitable adoption occurred before the insured became entitled to benefits, the child is considered dependent upon the insured provided that he was living with or receiving support from the insured when the child applied for benefits. 20 C.F.R. § 404.365.

California Law - Equitable Adoption

The California Supreme Court has stated that “[t]he doctrine of equitable adoption allows a person who was accepted and treated as a natural or adopted child, and as to whom adoption typically was promised or contemplated but never performed, to share in inheritance of the . . . parents’ property.” Estate of Ford, 82 P.3d 747, 750 (Cal. 2004).

Equitable adoption requires an agreement to adopt, coupled with “subsequent objective conduct indicating mutual recognition of an adoptive parent and child relationship to such an extent that in equity and good conscience an adoption should be deemed to have taken place.” Mingo v. Heckler, 745 F.2d 537, 538-39 (9th Cir. 1984) (quoting Estate of Bauer, 168 Cal. Rptr. 743, 745 (Cal. Ct. App. 1980)).

The agreement to adopt, which may be oral, must be established by clear and convincing evidence. Estate of Ford, 82 P.3d at 754. As long as the agreement to adopt is for the child’s benefit, “[i]t makes no difference whether the agreement is with the child or with someone for its benefit.” Estate of Wilson, 168 Cal. Rptr. 533, 534 (Cal. Ct. App. 1980).

When deciding whether sufficient objective conduct exists to find equitable adoption, California courts consider factors including:

• •

  whether the adoptee lived with the adoptive parent for a number of years;

• •

  whether the adoptee assumed the adoptive parent’s surname;

• •

  whether the adoptive parent told the adoptee that he or she was adopted;

• •

  whether the adoptive parent publicly acknowledged the adoptee as his or her child;

• •

  whether the adoptee considered and conducted himself or herself as a natural child;

• •

  whether the adoptee worked or performed services for the adoptive parent; and

• •

  whether the adoptive parent attempted legally to adopt the child.

• •

  Mingo, 745 F.2d at 539 (citing California State cases). These factors are merely examples and not all of them need to be shown. Id. However, there must be evidence that the parent acted consistently with an intent to adopt by forming “a close and enduring familial relationship” with the applicant. Estate of Ford, 82 P.3d at 754.

California Law – Intestate Succession

Under the California Probate Code, a parent-child relationship exists between an adopted child and his adoptive parents for purposes of intestate succession. Cal. Prob. Code § 6450(b). Section 6455 of the Probate Code permits proof of a parent-child relationship for purposes of intestate succession under the theory of equitable adoption. Cal. Prob. Code § 6455 (“Nothing in this chapter affects or limits application of the judicial doctrine of equitable adoption for the benefit of the child . . . .”). Therefore, in California, an equitably adopted child may inherit intestate from a parent. Cal. Prob. Code § 6455; Estate of Wilson, 168 Cal. Rptr. at 534-37; see also Mingo, 745 F.2d at 538-40 (holding that child was entitled to Social Security benefits as the parent’s equitably adopted child); POMS PR 01510.006 California, (A) PR 03-157 OPINION: Claim for Child's Insurance Benefits (Auxiliary) on Account of Wage Earner Debra C. Y. (concluding the claimant was entitled to child’s benefits as the equitably adopted child of the wage earner under California law).

ANALYSIS

Because the NH was domiciled in California when the Claimant filed his application, we apply California law to determine whether the Claimant is the NH’s child. Social Security Act § 216(h)(2)(A), 20 C.F.R. § 404.355(a)(1); see also 20 C.F.R. § 404.359 (to establish eligibility for benefits as an equitably adopted child, the agreement to adopt must be one that would be recognized under State law such that the child could inherit a child’s share of the insured’s personal property if he were to die intestate).

The evidence in this case demonstrates that a parent-child relationship can be established because the NH equitably adopted the Claimant. First, the statements from both the NH and the Claimant’s biological mother provide clear and convincing evidence that the NH agreed to adopt the Claimant but has not done so due to a lack of financial resources. See Estate of Ford, 82 P.3d at 754.

Second, the evidence shows that the NH acted consistently with an intent to adopt by forming “a close and enduring familial relationship” with the Claimant. See id. For example, the Claimant has assumed the NH’s surname, the Claimant has resided with the NH for his entire life (nearly seven years), and the NH has publicly acknowledged the Claimant as his child in several ways: listing himself as the Claimant’s father on his birth certificate (which the NH signed) and in school records, naming the Claimant in his Last Will and Testament, identifying the Claimant as a dependent in tax records and insurance policies, representing orally to others that he is the Claimant’s parent, providing financial support for the Claimant, and identifying the Claimant as his child in the NH’s own benefits application. This evidence satisfies several of the factors that the Mingo court identified as examples of conduct that would support an equitable adoption finding. See Mingo, 745 F.2d at 539.

As an equitably adopted child, the Claimant is entitled to inherit intestate from the NH under California law. See Cal. Prob. Code §§ 6450, 6455; Estate of Wilson, 168 Cal. Rptr. at 534-37. Accordingly, the Claimant qualifies as the NH’s “child” under the Act. Social Security Act §§ 216(e)(1), 216(h)(2)(A).

The Claimant also satisfies the other requirements to be entitled to child’s benefits on the NH’s account: he is unmarried, under the age of 18, and has applied for benefits. Social Security Act § 202(d)(1). Further, the Claimant is deemed dependent upon the NH because the Claimant qualifies as the NH’s child under section 216(h)(2)(A) of the Act. 20 C.F.R. § 404.361(a) (“If you are the insured’s natural child, as defined in § 404.355, you are considered dependent upon him or her”); SSR 77-2c (“where state intestacy law provides that a child may take personal property from a father’s estate, it may reasonably be thought that the child will more likely be dependent during the parent’s life...”); see also 20 C.F.R. § 404.365 (if the equitable adoption occurred before the insured became entitled to benefits, the child is considered dependent upon the insured if he was living with or receiving support from the insured when the claimant applied for benefits).

CONCLUSION

Based on the available evidence, the Claimant can inherit intestate from the NH as his equitably adopted child under California law. Therefore, he qualifies as the NH’s “child” under the Act. Social Security Act §§ 216(e)(1), 216(h)(2)(A). The Claimant also satisfies the other requirements to be entitled to child’s benefits and is deemed dependent upon the NH. Accordingly, the Claimant is entitled to benefits on the NH’s account under section 216(h)(2) of the Act.

The child claimant filed for benefits based on the record of his natural mother's female partner. The requirements for an equitable adoption are met in this case. Evidence supports a finding of an agreement between the NH and the child's mother that the NH will act as the child's adoptive parent. The claimant is the beneficiary of this agreement to adopt. The NH's intent and agreement to adopt the claimant can be inferred from her conduct and statements. She and the claimant and the claimant's mother have lived together as a family; she financially supported the claimant before she became disabled; and she publicly referred to the claimant as her son. The "equitable adoption" occurred before the NH became disabled. The claimant's mother considered the NH to be the claimant's parent; she signed a statement consenting to the NH's adoption of the child. The dependency requirement is also met.

QUESTION

You asked whether the claimant, Spencer Y~ K~, (hereinafter, "the claimant"), qualifies for child's insurance benefits as the equitably adopted child of wage earner Debra Y~ (hereinafter, "the wage earner") under California law.

ANSWER

Yes. The claimant is the equitably adopted child of the wage earner under California law and is dependent on the wage earner for purposes of entitlement to child's insurance benefits on the wage earner's account.

SUMMARY OF EVIDENCE

The wage earner applied for Title II disability insurance benefits in January 1997, alleging that she became mentally disabled in 1996. On her disability application, she named two children with possible eligibility for benefits on her account. The Social Security Administration (SSA) found the wage earner disabled as of November 1996 and awarded disability insurance benefits beginning in April 1997.

On April 30, 1997, the wage earner applied for child's insurance benefits on the claimant's behalf. SSA denied the claim based on a finding that the claimant is neither the wage earner's natural child nor her adopted child. The wage earner filed a request for reconsideration, asserting that the claimant is her equitably adopted child.^[1]

According to the wage earner, she and her partner, Kathleen K~, (the claimant's natural mother), have lived together in California since approximately 1984. In 1989, Kathleen K~ petitioned to adopt her own nephew, Andrew. The Superior Court for Santa Barbara County (California) filed the decree of adoption in December 1989.

In 1994, Kathleen K~ became pregnant through artificial insemination. On November XX, 1994, Kathleen gave birth to the claimant. The claimant's birth certificate, registered on November 28, 1994, stated the claimant's full name as "Spencer Y~ K~." Kathleen K~ was named as his mother, and the father was "unknown."

The wage earner stated that she, Kathleen, Andrew and the claimant live together as a family. The wage earner has reportedly named Andrew and the claimant as her dependents on her tax returns.

According to an April 1996 hospital record submitted to SSA for the wage earner's disability claim, the wage earner told treating sources that "she and her lover are raising two sons together." Kathleen stayed at home, and the wage earner worked as an attorney. The wage earner reported that her partner had artificial insemination and "out of that process they are now raising a 17-month-old son." At the time of her hospitalization on April 9, 1996, the wage earner was acting bizarre and manic; she told hospital sources that she was "seeking absolution from her 17-month-old adopted son." The wage earner felt that she and her partner were relatively unaccepted by the community and school officials. The April 16, 1996 hospital discharge summary stated that up until her psychotic episode, the wage earner had a "very high level of functioning in that she is involved in a relationship and is raising two sons with her lover."

According to a report of the wage earner's outpatient psychiatric treatment with psychiatrist John C~, M.D., the wage earner was devoted to the "children" but complained that the "world doesn't want us to raise our children." In April 1997, Dr. C~ reported that the wage earner was easily overwhelmed and needed assistance in "taking care of her 2 children." He also explained that the wage earner was "mistrustful of the teachers of her children."

When the wage earner applied for her own Social Security disability insurance benefits in January 1997, she named Andrew and the claimant as her two children. On a "Work History Report" submitted to the state agency's disability evaluation division in January 1997, the wage earner explained that because of her mental illness, "I can't even attend to my children." On a review of the wage earner's record in February 1997, a state agency psychiatric consultant noted that the wage earner previously had a "very high functioning, supporting herself and family."

The record also documented that the wage earner visited the Santa Barbara Hospital emergency department in December 1998 due to an emerging manic episode. She said that increasing her medication caused sedation and that she was concerned about "taking care of her 4-year-old."

During SSA's continuing disability review of the wage earner's mental condition in late 1998 and early 1999, the wage earner reported that her "2 young children," ages 4 and 10, were dependent on her for care. Her average days included eating breakfast with her four-year-old son (the claimant), taking him to swim at the YMCA, and picking up her ten-year-old son from school. Kathleen K~ also reported that the wage earner lived with her and "our children," and that the four-year-old claimant "depends" on the wage earner during the day when Kathleen worked.

In February 1999, the wage earner's psychiatrist, John C~, M.D., reported that the wage earner required assistance with household tasks and in "raising her two kids."

The record also contains an undated, typewritten statement signed by Kathleen K~ consenting to the wage earner's adoption of the claimant and acknowledging that the wage earner has acted as a parent to the claimant since his birth.

There is also a pre-printed form entitled "Petition for Adoption," completed by the wage earner, in which she seeks adoption of the claimant. The wage earner signed and dated the form April 7, 2001. However, there is no indication that the form was filed with a California court.

ANALYSIS

Equitable Adoption

The Social Security Act provides that, in determining whether a claimant is the "child" of an insured wage earner for purposes of child's insurance benefits, SSA "shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files [an] application." 42 U.S.C. § 416(h)(2)(A). "Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such." 42 U.S.C. § 416(h)(2)(A).

According to the regulations, 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." 20 C.F.R. § 404.359 (2001). "The agreement to adopt [the claimant] 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 a will." Ibid. "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 "during the insured's life, the law of the State where the insured has his or her permanent home at the time of [the] application will be followed." Id.

In California, where the wage earner has her permanent home, an equitably adopted child may inherit by intestate succession from a parent. Cal. Prob. Code § 6455 (West 2000); Estate of Wilson, 111 Cal.App.3d 242, 247 (1st Dist. 1980). An equitable adoption is established when there is an agreement to adopt and there is subsequent objective conduct indicating mutual recognition of an adoptive parent and child relationship to such an extent that in equity and good conscience an adoption should be deemed to have taken place. Mingo v. Heckler, 745 F.2d 537, 539 (9th Cir. 1984); Estate of Bauer, 111 Cal.App. 3d 554, 560 (3rd Dist. 1980).

It makes no difference whether the agreement to adopt is with the child or with someone for the child's benefit, so long as the agreement is for the benefit of the child, not the parents or the persons making the agreement. Mingo v. Heckler, 745 F.2d at 539; Estate of Wilson, 111 Cal.App.3d at 254. There is no requirement that the agreement to adopt be in writing. "It is well-established that equity will specifically enforce an oral contract to adopt or a contract of inheritance and that part performance will take the contract out of the statute of frauds." Estate of Wilson, 111 Cal.App. at 245.

It makes no difference whether the agreement to adopt is with the child or with someone for the child's benefit, so long as the agreement is for the benefit of the child, not the parents or the persons making the agreement. Mingo v. Heckler, 745 F.2d at 539; Estate of Wilson, 111 Cal.App.3d at 254. There is no requirement that the agreement to adopt be in writing. "It is well-established that equity will specifically enforce an oral contract to adopt or a contract of inheritance and that part performance will take the contract out of the statute of frauds." Estate of Wilson, 111 Cal.App. at 245.

With respect to the "subsequent objective conduct" indicating mutual recognition of an adoptive relationship, courts examine the following factors: whether the adoptee lived with the adoptive parent for a number of years; whether the adoptee assumed the adoptive parent's surname; whether the adoptive parent told the adoptee that he was adopted; whether the adoptive parent publicly acknowledged the adoptee as his or her child; whether the adoptee considered and conducted himself or herself as a natural child; whether the adoptee worked or performed services for the adoptive parent; and whether the adoptive parent attempted legally to adopt or obtained guardianship papers for the child. Mingo v. Heckler, 745 F.2d at 539. The child need not satisfy every factor. Id.

Here, the evidence supports a finding of an agreement between the wage earner and her partner Kathleen, claimant's biological mother, that the wage earner will act as the adoptive parent of the claimant.[2][2] The claimant is the beneficiary of this agreement to adopt. The wage earner's intent and agreement to adopt the claimant can be inferred from the most probative evidence, records from 1996 showing that the wage earner has acted as a parent to the claimant since his birth. Before the wage earner became mentally disabled and entitled to benefits, her conduct and statements to third parties (e.g., hospital authorities) evince an intent to adopt the claimant and act as his parent.

In addition, Kathleen considers the wage earner the claimant's parent; she signed a statement consenting to the wage earner's adoption of the claimant and acknowledging that the wage earner has acted as a parent to the claimant since his birth.

The wage earner's conduct is consistent with an intent to adopt. Since the claimant's birth in November 1994, the wage earner, Kathleen, the claimant and Andrew have lived together as a family. The claimant's middle name is the wage earner's surname. Before she became disabled, the wage earner financially supported the claimant (and Andrew) when she worked as an attorney. She publicly referred to the claimant as her son. She has told hospital authorities and her treating doctor that the claimant is her son. She reportedly has named the claimant as a dependent on her tax returns. Since she became disabled, she has continued to act as a parent to the claimant.

Furthermore, the claimant's "equitable adoption" occurred before the wage earner became disabled in November 1996 and entitled to disability insurance benefits in April 1997. The wage earner and the claimant have been living together as parent and child since his birth in November 1994.

Dependency of the Equitably Adopted Child

If a claimant's equitable adoption is found to have occurred before the insured became entitled to old-age or disability benefits, he is considered "dependent" upon the insured if he was either living with or receiving contributions for his support from the insured at either the time of the application filing or, if the wage earner 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 wage earner became entitled to benefits. 20 C.F.R. § 404.365 (2001).

Here, the claimant is "dependent" on the wage earner. The wage earner supported her partner and the children (the claimant and Andrew) until she became disabled in November 1996. The wage earner and the claimant continue to live together in a parent-child relationship.

CONCLUSION

Based on the present record, the claimant qualifies for child's insurance benefits as the wage earner's equitably adopted child under California intestacy law.

Janice L. W~

Regional Chief Counsel

By: Dennis J. M~

Assistant Regional Counsel

To find equitable adoption after the death of the adoptive parent, there must be clear and convincing evidence of the following 2 elements: an agreement to adopt and "subsequent conduct indicating mutual recognition of an adoptive parent and child relationship..." There is no requirement for a "surrender" of the child.

The agreement does not have to be a written contract. It may be implied by conduct.

Examples of mutual recognition of an adoptive parent and child relationship are: the adoptee lived with the adoptive parent for a number of years; the adoptee assumed the adoptive parent's surname; the adoptive parent publicly acknowledged the adoptee as his child; the adoptive parent told the adoptee that he was adopted; the adoptee worked or performed services for the adoptive parent; and the adoptive parent either attempted to legally adopt or had obtained guardianship papers for the child.

ISSUE

You asked: (1) whether the claimant Katie R~ is the equitably adopted child of the deceased wage earner Charles K~ under California law; (2) whether the wage earner made a contract to adopt the claimant before his death since the adoption was to occur after his marriage to the claimant's mother Hilary R~; and (3) whether the claimant's mother "surrendered" the claimant to the wage earner.

SUMMARY

Claimant appears to meet the requirements for equitable adoption under California law. If the Social Security adjudicator finds the evidence credible, the record supports a legal finding that the wage earner intended to adopt the claimant, and that he, the claimant's mother, and the claimant, by their conduct, mutually recognized the adoptive parent and child relationship.

SUMMARY OF EVIDENCE

On February 1, 2000, claimant's mother, Hilary R~, applied for child's insurance benefits on the claimant's behalf on the account of the deceased wage earner (WE). She submitted the following evidence.

According to claimant's mother and letters from friends, claimant's mother and WE lived together as common law husband and wife for nine years. In October 1998, they traveled to China to adopt a baby.

Claimant, a baby girl born on January XX, 1998, resided in an orphanage in the Anhui province of China. Claimant's biological parents were unknown, and her guardian was the director of the orphanage. The claimant's mother and the director agreed that she would legally adopt the claimant. The adoption was effective as of October 14, 1998.

WE did not officially adopt the claimant in China. He and the claimant's mother feared that Chinese officials would have denied the adoption if they had discovered WE's prior arrest for drug possession.

WE, claimant's mother, and the claimant returned to the United States where they lived together in West Hollywood, California. According to claimant's mother and friends of the couple, WE referred to the claimant as his daughter and helped take care of her. He carried pictures of the claimant in his wallet. Claimant called the WE "da da." WE and the claimant's mother planned to marry in the spring of 2000, and he wanted to officially adopt the claimant. They also planned to move to central California to raise the claimant.

In September 1999, an attorney wrote to the WE concerning his plan to adopt the claimant and formalize their parent and child relationship.

On November 10, 1999, the WE committed suicide. Claimant's mother applied for survivor benefits for the claimant. She submitted several letters from friends who observed and described the relationship between the WE and the claimant.

The Social Security Administration denied the application, and a request for reconsideration is pending.

ANALYSIS

Social Security Regulations

A claimant may be eligible for Social Security benefits as an equitably adopted child if the insured wage earner had agreed to adopt the claimant but the adoption did not occur. The agreement to adopt the claimant 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 wage earner's personal property if he were to die without leaving a will. 20 C.F.R. Section 404.359 (1999).

Once a claimant shows that she is an equitably adopted child under state law, she must also show that she was dependent on the insured wage earner. Dependency is established when the claimant is either living with or receiving contributions for her support from the insured wage earner at the time of his death. 20 C.F.R Section 404.365 (1999).

Equitable Adoption under California law

Because WE died in California, California law on equitable adoption applies. 20 C.F.R. Section 404.359 (1999).

In California, an equitably adopted child may inherit intestate from her parent. California Probate Code Section 6455; Estate of Wilson, 111 Cal.App.3d 242, 247 (1st Dist. 1980). To find equitable adoption after the death of the adoptive parent, a California court must find clear and convincing evidence of the following two elements: an agreement to adopt and "subsequent conduct indicating mutual recognition of an adoptive parent and child relationship to such an extent that in equity and good conscience an adoption should be deemed to have taken place." Mingo v. Heckler, 745 F.2d 537, 539 (9th Cir. 1984). No formal adoption proceedings are necessary. Estate of Wilson, 111 Cal.App.3d at 248. In addition, there is no requirement for a "surrender" of the child.

With respect to the first requirement, the agreement does not have to be a written contract. "It is well established that equity will specifically enforce an oral contract to adopt or a contract of inheritance and that part performance will take the contract out of the statute of frauds." Estate of Wilson, 111 Cal.App.3d at 245. The agreement may be implied by conduct. Estate of Wilson, 111 Cal.App.3d at 246-247. Also, it makes no difference whether the agreement to adopt is with the child or with someone for the child's benefit. Mingo v. Heckler, 745 F.2d at 539.

Here, the evidence strongly suggests that WE and the claimant's mother had an agreement that the WE would adopt the claimant. He and the claimant's mother planned to marry, and he planned to adopt the claimant after the wedding. He had contacted an attorney about officially adopting the claimant. His intent to formally adopt the claimant is probative of equitable adoption, since the first element requires an agreement to adopt. He and the claimant's mother behaved as if the WE were the claimant's father. They took care of the claimant as a parental unit. WE had told friends that he planned to adopt the claimant. The claimant knew the WE as her "da da." Although claimant, as an infant, was not capable of entering a "contract" with the WE, the agreement between WE and claimant's mother was intended for the claimant's benefit.

With respect to the second requirement for equitable adoption, the Mingo court listed some of the relevant factors for determining whether there is sufficient subsequent objective conduct demonstrating mutual recognition of an adoptive parent and child relationship: the adoptee lived with the adoptive parent for a number of years; the adoptee assumed the adoptive parent's surname; the adoptive parent told the adoptee that he was adopted; the adoptive parent publicly acknowledged the adoptee as his child; the adoptee worked or performed services for the adoptive parent; and the adoptive parent either attempted to legally adopt or had obtained guardianship papers for the child. The Mingo court stated that these were "examples" and that the claimant need not demonstrate that she satisfies every factor.

Here, the evidence strongly indicates objective conduct demonstrating mutual recognition of an adoptive parent and child relationship. WE publicly acknowledged that the claimant was his daughter. He, the claimant, and her mother lived together as a family unit after returning from China in October 1998. He treated the claimant as his daughter. He and the claimant's mother planned to marry and then he intended to adopt the claimant. He also told friends that he planned to adopt her. He even contacted an attorney about making the relationship "official." Although the claimant was only twenty-two months old when the WE died, he was apparently the only father she knew: she called him "da da."

Dependency

The record shows that the claimant lived with the WE from October 1998, the date of her official adoption by her mother, through the time of the WE's death in November 1999. The WE and the claimant "ordinarily lived together in the same household," and the WE exercised parental control over the claimant. Thus, the claimant satisfies the dependency requirement for Social Security benefits. 20 C.F.R. Sections 404.365 and 404.366 (1999).

CONCLUSION

The evidence, if accepted as credible by the Social Security fact finder, appears to satisfy the clear and convincing standard of proof that claimant was the equitably adopted child of the WE, and accordingly, that she could inherit from the WE under California law. The evidence also indicates that she was dependent on the WE at the time of his death. Thus, claimant appears to be entitled to Social Security benefits on the WE's account based on the application filed on February 1, 2000. Because the evidence of "equitable adoption" began in approximately October 1998, claimant would be entitled to 6 months of retroactive benefits on the application. 20 C.F.R. Section 404.621(a)(1)(ii) (1999).

EQUITABLE ADOPTION — SPECIFIC CONTRACTUAL AND EQUITABLE ELEMENTS — CALIFORNIA

The California courts will enforce an adoption contract in equity even though adoption was not contemplated when the adoptive parents first assumed custody. (P~, Frank L.; RA IX; S~; March 26, 1986).

On January 8, 1985 applications for child's insurance benefits were filed on behalf of Sofia and Oscar P~ on the account of Frank L. P~. Evidence in the file indicates that Sofia and Oscar were born on May XX, 1974 and May XX, 1975, respectively, to Juana R. T~ and Orlando D. A~. Mr. and Mrs. P~, U.S. citizens and California domiciliaries, first took custody of Sofia, bringing her to their California home in 1977. In 1979 Oscar joined his sister. According to Mr. and Mrs. P~, they have acted as the children's parents since their arrival in this country.

Mrs. P~ states that in 1978, she entered into an oral adoption agreement with the children's grandmother (her half-sister) and that the natural parents also consented to adoption. Mr. and Mrs. P~ further claim that a legal adoption was finalized in Nicaragua in 1980. Evidence to this effect includes a ten page testimonial statement (and English translation) by a Nicaraguan notary public dating from October 1980. The statement indicates, inter alia, that in the course of legal adoption proceedings before a Nicaraguan civil court, the natural parents orally consented to the P~ request to adopt Sofia and Oscar. It further appears that an adoption was subsequently authorized by the court, although it is unclear whether the formalities necessary to finalize an adoption in accordance with Nicaraguan law were met. Mrs. P~, states that the natural parents signed the "adoption papers; however, no such papers, bearing the parents' signatures., are in the record, nor has an adoption decree been submitted- You have inquired, in essence, whether Oscar and Sofia qualify as Mr. P~ adopted children for purposes of entitlement to child's benefits on his account. As you recognize, determination of the children's status for this purpose is to be made with reference to the laws of California, the state of Mr. P~ domiciled at the time the applications for child's benefits were filed. See section 216(h)(2)(A) of the Act, 42 U.S.C. §416(h)(2)(A).

Regardless of whether an adoption in accordance with Nicaraguan law can be established, the California courts would find that Sofia and Oscar were equitably adopted by Mr. and Mrs. P~. We have frequently advised that the California courts will enforce a contract to adopt, entered into in another jurisdiction, if the contract would be valid under the law of either that jurisdiction or the place where the contract was fully performed. E.g., GC opinion re Theodore J~, August 21, 1985. Here, accordingly, an equitable adoption may be found solely on the basis of California law, since the adoption contract was fully performed in this State.

As noted in the J~ opinion, cited above, the essential requirements for an equitable adoption under California law are: (a) an express or implied contract of adoption, and (b) absolute surrender of the child to the adopting parents. GC opinions re John R. B~, November 29 1982 and William M. N~ , July 30, 1980. The adoption contract may be written, oral, or implied from the conduct of the parties and the surrounding circumstances, but its existence must be established by clear, convincing, and unequivocal evidence, enabling a court to enforce specific performance. See GC opinion re Barbara J. E~, August 31, 1979; In re R~'s Estate, 194 Cal. App. 2d 773, 15 Cal. Rptr. Erickson v. Geranson, 123 Cal. App. 573, 11

In this case, Mrs. P~ has stated that she and her husband first offered to adopt the children in 1978, and that the natural parents orally agreed (viz., gave their blessing") to the adoption. The parents' consent was later confirmed when they signed the Nicaraguan adoption papers (see Statement of Charlotte P~, March 6, 1985). Although these papers have not been submitted, the testimonial statement by the notary verifies that, in addition, the parents orally expressed their agreement to adoption in the course of the proceedings before him (see "Testimony, p. 5). If credited, this evidence constitutes clear, convincing, and unequivocal proof that an oral adoption agreement was reached, at the latest, during the 1980 Nicaraguan proceedings.

Note that an adoption contract is enforceable in equity even though adoption was not contemplated when the adoptive parents first assumed custody. For example, in Mingo v. Heckler, 745 F.2d 537 (9th Cir. 1984), the Ninth Circuit (as here, construing California law pursuant to section 216(h)(2)(A)) found an oral adoption agreement based on a number of conversations which occurred years after the child was given to the adoptive parents. Here, as in Mingo, the fact that the children were originally relinquished without a clear understanding as to the nature of the custodial relationship is immaterial, since it appears that the parties eventually agreed to adoption. Of course, where relinquished precedes a definite understanding as to adoption, the rights and obligations incident to adoption date from the time of the agreement, not the moment of relinquishment.

The second requirement for an equitable adoption-absolute surrender-is also evident in this case. According to Mr. and Mrs. P~, Sofia and Oscar have shared their home for many years. During this period neither child has had any contact with the natural parents. The participation by the parents in the adoption proceedings clearly indicates their intention to divest themselves of all responsibility for the children. On the other hand, the P~ commitment to the children is demonstrated by their extraordinary efforts first to bring Sofia and Oscar to this country and then to obtain a Nicaraguan adoption. They also have treated the children as their own, providing the usual parental material and emotional support.

If for any reason you decide that a finding of equitable adoption is not warranted (e.g., you determine that the statements regarding the alleged agreement are untrustworthy), you will need to resubmit the case so that we may seek guidance from the Library of Congress in determining whether a valid legal adoption under Nicaraguan law can be made out.

EQUITABLE ADOPTION — STATE LAW PROVISIONS — CALIFORNIA

Section 6408 of the California Probate Code defines the circumstances under which a relationship of parent and child exists for purposes of intestate succession to the estates of decedents dying on or after January 1, 1985. (M~, Thomas; RA IX; S.; February 11, 1986)

EQUITABLE ADOPTION — STATE LAW PROVISIONS — CALIFORNIA

In the absence of clear evidence that a "foster parent" was deterred from, pursuing a judicial adoption by a legal impediment, his/her foster child is not entitled to rights of inheritance pursuant to California Probate Code section 6408(a)(3). (M~, Thomas; RA IX; S.; February 11, 1986)

LEGITIMACY AND LEGITIMACY — CALIFORNIA

Under California law, any ruling upon the issue of paternity in a dissolution action cannot affect the rights of the child unless the divorce action is converted into a filiation proceeding under Civil Code section 7000 et seq. (M~, Thomas; RA IX; S~; February 11, 1986)

A claim for child's insurance benefits has been filed on the account of the deceased wage earner, Thomas M~, on behalf of Faith R. M~. Faith was born on June XX, 1976 to Sandra L. R~, the sister of Mr. M~ wife, Sharon R. M~. The claims file contains a declaration by Ms. R~ dated November 12, 1976, by means of which she purported to cede her legal right as Faith's mother to Mr. and Mrs. M~. The document is signed by Ms. R~ a witness, and a notary. Mrs. M~ has stated that she and her husband treated Faith as their child but did not adopt her because they feared that the attendant publicity would result in their losing custody. On Faith's benefit application Mrs. M~ indicated that Mr. M~ "usually considered Faith [to be] his child."

Mr. and Mrs. M~ separated on April 1, 1982. Thereafter Mrs. M~ petitioned a California state court for a divorce. A court-approved stipulation filed on August 29, 1984 refers to Faith as one of "two children of the marriage" ^[2] and allocates child support and visitation rights accordingly. Mr. M~ died on April XX, 1985 while domiciled in California. You have asked whether, based on these facts, Faith qualifies as Mr. M~ "child" for purposes of entitlement to Social Security benefits.

Section 216(h) (2) (A) of the Social Security Act provides, in pertinent part, that in determining whether an applicant is the "child" of a wage earner, the Secretary is to apply the law which would be applied in determining the devolution of intestate personal property by the courts of the state in which such insured individual was domiciled at the time of his death. Thus, the issue here is whether Faith would be considered Mr. M~ "child" under California's laws of intestate succession.

California Probate Code section 6408, which applies to the estates of decedents, such as Mr. M~ dying on or after January 1, 1985, defines the circumstances under which a relationship of parent and child exists for purposes of intestate succession. Adoption is one method of creating the requisite relationship. Probate Code §6408(a) (2). In this case, Faith was not legally adopted by Mr. M~, nor are the criteria for an equitable adoption evidenced. The essential requirements for an equitable adoption under California law are: (a) an express or implied contract to adopt, and (b) absolute surrender of the child to the adoptive parents. GC opinion re Theodore J~, August 21, 1985. The November 12, 1976 declaration by Ms. R~ may be fairly construed as an expression of complete relinquishment of Faith to the M~ nevertheless, an equitable adoption cannot be found in the absence of any evidence of an actual or implicit adoption agreement. There is no proof that the M~ ever expressly undertook to adopt Faith. An agreement to adopt cannot be implied since the M~ acceptance of responsibility for Faith is consistent with either an informal foster care or an adoption arrangement. GC opinion re Theodore J~, cited above.

As we noted in J~, Probate Code section 6408(a) (3) creates an additional category of parent and child relation- ship entitling the child to rights of inheritance from his/ her foster parent ^[3] where (a) the relationship began before the child's eighteenth birthday, (b) the relationship continued throughout the parties' mutual lifetimes, and (c) it is shown by clear and convincing evidence that the foster parent would have adopted the child but for a legal barrier. Only the first two of these three conditions are satisfied bede. Mr. and Mrs. M~ began caring for Faith when she was about six months old. Mr. M~ apparently continued his parental role even after he and his wife separated; despite his having initially contested Faith's status as a child of the marriage, he stipulated to the final judgment which granted him significant parental rights and responsibilities by virtue of awarding him joint custody. However, there is no clear evidence that Mr. M~ was deterred from adopting Faith by a legal impediment. Since this third requirement is unmet, a parent and child relationship cannot be made out under section 6408(a) (3).

Noting that Faith was classified as a "child of the marriage" in the divorce proceedings, you have questioned whether this designation somehow endows her with inheritance rights. The answer is no. In the first place, as explained above, in order for a child to inherit from his/her "father," a parent and child relationship, whether natural, legal, or equitable, must be found to have existed. The divorce court here did not even purport to ascertain whether such a relation- ship had been established between Mr. M~ and Faith. Furthermore, even if the designation "child of the marriage" were read as embodying a finding of paternity by implication, such a determination by a divorce court would have no bearing on Faith's rights of intestate succession. For inheritance purposes, (natural) paternity may only be adjudicated under the provisions of California's version of the UPA. Probate Code §6408(b); see Civil Code §7006; GC opinion re Michael S~, October 17, 1985. "Any ruling upon the issue of paternity in a dissolution action cannot affect the rights of the child unless the divorce action is converted into a filiation proceeding under [California] Civil Code section 7000 et seq. . ." Ruddock v. Ohls, 91 Cal. App. 3d 271, 282, 154 Ca].. Rptr. 87, 94 (1979). Since paternity was neither litigated nor adjudicated in the M~s' divorce action, the allocation of support to Faith as a child of the marriage does not affect her rights of inheritance under California law or, consequently, her status as a "child" pursuant to section 216(h) (2) (A) of the Social Security Act.

PARENT AND CHILD — EQUITABLE ADOPTION — CALIFORNIA

Pursuant to California Probate Code section 6408(a) (3), an adoptive relationship entitling a child to rights of inheritance from the child's foster parent or stepparent exists if the parent died on or after January XX, 1985, and (a) the relationship began before the child's eighteenth birthday, (b) the relationship continued throughout the parties' joint lifetimes, and (c) it is established by clear and convincing evidence that the foster parent or stepparent would have adopted the child but for a legal barrier. (J~, Theodore; RA IX; S~; 9/3/85)

The claimant, Tarsha M. B~, has filed for child's insurance benefits on the account of a disabled wage earner, Theodore J~. Tarsha was born in Mississippi on September XX, 1972. According to statements obtained from Mr. J~ and his wife, Laverne, Tarsha was given to them by her natural mother within a few months of birth. The natural mother, Barbara J. B~, identified Tarsha's father as J. T. M~ the stepson of Mr. J~. Ms. B~ and Mr. M~ were never married.

All parties were resident in Mississippi at the time the J~ took custody. Mrs. J~ reports that Ms. B~ moved away from town the same week that she relinquished Tarsha to the J~. Neither natural parent has been in contact with the J~ or Tarsha since that time.

Mr. J~ relates that, although Ms. B~ stated that she would "sign any papers necessary to give up the child," no adoption agreement, written or oral, was either proposed or executed. The J~ obtained temporary legal custody of Tarsha pursuant to the order of a Mississippi state court issued on October 3, 1973. Mr. J~ also claims to have initiated adoption proceedings in California in 1978; however, he failed to follow through with these proceedings. The J~ allege that Tarsha has lived with them continuously since they first received her in 1972, that they have assumed full parental responsibility for her care and support, and that she refers to them as her parents and uses J~ as her surname. You have found the J~ statements to be credible and convincing.

Your initial question is whether the facts summarized above would support a finding that Tarsha was equitably adopted under the laws of California, the state of Mr. J~ domicile at the time the application for child's insurance benefits was filed. See section 216(h) (2) (A) of the Social Security Act, 42 U.S.C. §416(h) (2) (A). We have previously advised that California courts, "when asked to equitably enforce a contract to adopt entered into in another jurisdiction and which was intended to be performed there, will initially look to the law of that other jurisdiction to determine the contract's validity." GC opinion re Charles v. Waller, December 8, 1965. In this case, any adoption agreement would have to have been made in Mississippi, since the Jacks had no contact with either parent elsewhere. There is nothing to indicate that the parties contemplated performance of the custody arrangement anywhere other than Mississippi.

You have already ascertained that Mississippi does not recognize the concept of equitable adoption. Consequently, if presented with the facts of this case, the California courts would proceed to determine whether an equitable adoption can be found pursuant to California law, on the theory that the adoption contract, if any, was fully performed after the J~ and Tarsha moved to California. GC opinion re Charles v. Waller, cited above. The essential requirements for an equitable adoption under California law are: (a) an express or implied contract of adoption, and (b) absolute surrender of the child to the adopting parents. GC opinions re John R. B~ November 29, 1982, and William M. N~, July 30, 1980. The adoption contract may be written, oral, or implied from the conduct of the parties and the surrounding circumstances, but its existence must be established by clear, convincing, and unequivocal evidence, enabling a court to enforce specific performance. See GC opinion re Barbara J. E~, August 31, 1979; In re R~'s Estate, 194 Cal. App. 2d 773, 15 Cal. Rptr. 268 (1961); Erickson v. Geranson, 123 Cal. App. 573, 11 P.2d 907 (1932). In addition, where the contract can only be implied, the conduct must be referable only to a contract to adopt and must not be open to any other reasonable interpretation. GC opinion re Barbara J. E~, cited above.

The second of the two conditions - - absolute surrender of the child - - has been met in this case. Tarsha has lived with the J~ continuously from the time she was given to them in 1972. Reportedly, she has not had any contact with either natural parent since she was relinquished by her mother. Mr. and Mrs. J~ have both remarked that Ms. B~ was eager to be rid of her child. According to Mr. J~, the mother offered to "sign any papers necessary to give up the child." That the J~ also considered Tarsha to have been absolutely surrendered to their care is evidenced by their longterm treatment of the child as their daughter.

Nevertheless, an equitable adoption cannot be found here, on the basis of California case law, in the absence of any evidence of either an actual or implied adoption agreement. Mr. J~ has candidly acknowledged that he did not enter into an adoption agreement with Ms. B~. Such an agreement cannot be implied, since the J~ assumption of a parental role is consistent with either a foster care or adoption arrangement. Because there are no contract rights, legal or equitable, for a court to enforce, Tarsha cannot be considered the equitably adopted child of

You have also asked us to consider the effect of section 6408(a) (3) of the California Probate Code on the instant case and claims for child's insurance benefits generally. As amended in 1984, section 6408 supersedes former sections 255 and 257 of the Probate Code. ^[4] Section 6408(a) sets out the circumstances under which "[a] relationship of parent and child is established for the purposes of determining intestate succession by, through, or from a person .... " The particular provision about which you inquire states as follows:

The relationship between a person and his or her foster parent or stepparent has the same effect as if it were an adoptive relationship if (A) the relationship began during the person's minority and continued throughout the parties' joint lifetimes and (B) it is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.

California Probate Code §6408(a) (3) (emphasis added).

A parent and child relationship cannot be found under this provision in this case because one of the two statutory requirements clearly has not been met. It does not appear that there was any legal barrier to prevent Mr. J~ from adopting the child. Such a barrier might exist, for example, if an adoption could not be effected due to Ms. B~ refusal to give her consent. See Legislative Committee Comment - Senate (1983 Addition), reprinted in West's Annotated Cal. Codes, Probate Code, Vol. 54A, 1985 Cumulative Pocket Part, following section 6408. There is no indication, however, that either natural parent objected to Tarsha's adoption, nor is there evidence that Mr. J~ was precluded from pursuing adoption proceedings in consequence of any other legal impediment. Therefore, lacking clear and convincing evidence that Mr. J~ would have adopted Tarsha but for a legal barrier, a child and parent relationship giving rise to rights of intestate succession cannot be premised on Probate Code section 6408(a) (3).

Although this new addition to the California Probate Code does not alter the outcome here, it may have a significant effect on other claims, inasmuch as it creates a new category of adoptive relationship in California. POMS ought to be revised to take this change into account. The amended entry should state that, under California law, an adoptive relationship entitling a child to rights of inheritance from the foster parent ^[5] or stepparent exists if the parent died on or after January 1, 1985, and (a) the relationship began before the child's eighteenth birthday, ^[6] (b) the relationship continued throughout the parties' -joint lifetimes, ^[7] and (c) it is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.

In response to your final request for guidance in distinguishing equitable adoption from a mere "in loco parentis" situation, we refer you to our numerous opinions on this subject. See, e.g., GC opinions re John R. B~, cited above; William M. N~, cited above. Of course, we are always available to advise you regarding the application of the principles discussed in these opinions to the circumstances of particular cases.

EQUITABLE ADOPTION — FORM OF CONTRACT — CALIFORNIA

The Courts of Guam in a matter relating to equitable adoption would be likely to apply the law of California as it consistently does in other similar matters.

California Courts would only find an equitable adoption where there is in existence a valid contract to adopt (either written, oral or implied).

If the contract can only be implied the "agreement must be referable only to a contract to adopt and must not be open to any other reasonable interpretation."

Where the conduct and statements of the parties could be construed to apply to an agreement to be appointed guardian (which is what actually happened) the requirement that the agreement to adopt be unequivocal is not satisfied. (C~, Justa M., ~ — RAIX (T.), to RC, 11/O1/83.)

On May 19, 1982, the wage earner, Justa M. C~, filed an application for child's insurance benefits with the SSA branch office in Agana, Guam, on behalf of Julius C~. Julius was born in Guam on July XX, 1972. His natural mother, Necitas C~, is Justa's daughter. The identity of the natural father is not recorded. Julius and Necitas lived together with Justa and her husband;" Frank., until Julius was approximately one year of age ( i.e., about July 1973), at which time Necitas departed with the understanding that her parents would assure a full responsibility for the child's upbringing. On January 4, 1974, Necitas executed a statement in which she purported to yield full, permanent responsibility for Julius to her parents. She stated that Julius' personal and educational needs were to be furnished by her parents, and she further certified that she would never attempt to take the child back or away from her parents. Necitas, Justa, and Frank all signed the statement. Necitas later claimed that she did not mention adoption in the statement because she was not sure if her parents were walling to adopt Julius.

In 1975 Necitas married and moved from Guam to California. From California she wrote to her parents, indicating that they could adopt Julius. Justa and Frank did not act on this proposal. In 1982 they also decided to move to California. Justa has stated that this decision prompted an attempt to secure a legal adoption. The file contains no documents related to adoption proceedings; however, on April 19, 1982, Justa and Frank were appointed as Julius' guardians by the Superior Court of Guam. ^[8]

Both Justa and Necitas have stated that Julius believes Justs and Frank to be his natural parents. Evidently, Justs and Frank have supported Julius from birth, and they have exercised exclusive parental authority. Julius is not designated as the child of Frank and Justs on any official documents other than the social security benefit application, however.

You have asked for our opinion as to whether or not Julius has been equitably adopted by the wage earner for purposes of entitlement to child's insurance benefits. Section 216(e)(1) of the Social Security Act defines "child" to include a legally adopted child of the wage earner. Section 216(h)(1)(A) of the Act provides that the determination of the existence of a child-parent relationship is to be based on the law of the state in which the insured individual was domiciled at the time the application for' benefits was filed. Since the wage earner in thin case was domiciled in Guam at the time of application, the question-to be addressed is whether or not Guam courts would find that an equitable adoption has been effected.

Although no Guam statute or judicial opinion has specifically addressed the question of equitable adoption, we are reasonably certain that Guam courts would, as they have in other areas, follow California's lead and recognize the existence of an equitable adoption under appropriate circumstances. See GC opinions re Alfredo H..M~, June 1 1983; Ngeaol A. 0~ October 29, 1980; and Barbara J. E~/Emily A~, August '31, 1979. The essential requirements for an equitable adoption under California law are: (a) an express or implied contract of adoption, and (b) absolute surrender of the child to the adopting parents. GC opinions re Alfredo H. M~ cited above John R. B~, November 29, 1982, William M. N~ July 30, 1980. The adoption contract may be written, oral, or implied from the conduct of the parties and the surrounding circumstances, but its existence must be established by clear, convincing, and unequivocal evidence, enabling a court to enforce specific performance. See GC Opinion re Barbara J. E~, cited above; In re R~'s Estate, 194 Cal. App. 2d "773, 15 Cal. Rptr. 268 (1961) Steinberger v. Young, 175 Cal. 81, 165 P. 432 (1917); Erickson .v. Geranson, 123 Cal. App. 573, 11 P.2d 907 (1932). In addition, where the contract can only be implied, the conduct and circumstances surrounding such an agreement must be referable only to a contract to adopt and must not be open to any other reasonable interpretation. GC Opinion re Barbara J. E~, cited above.

The evidence on file in this case strongly supports a finding that the second of the two requirements, absolute surrender, was met, at least as of the date of Necitas' January 29, 1974, declaration. In this signed statement Necitas certified that her parents were to have full, permanent responsibility for and custody of Julius. The acceptance of these terms by Frank and Justa is attested to by their signatures. The conduct of all the parties is further evidence that Necitas absolutely surrendered her child. Julius has resided with Justa and Frank continually from birth. He has never lived alone with his natural mother, and for most of his life she lived thousands of miles away. An additional indication that Necitas did not expect to reclaim her parental role is that Julius' has always been told that she is his sister.

Determining the existence of an adoption contract is more problematic. There is no evidence of an express adoption agreement. Nor does the evidence currently on file provide an adequate basis for implying the existence of an adoption agreement. Statements by Justa and Necitas are somewhat vague and inconsistent as to the substance of their understanding regarding Julius' status. Justa' has indicated that by the January 19, 1974, statement, Necitas intended to state that Julius be theirs, and that the absence of any reference to adoption is explained by Necitas' ignorance of the law. 'This account is contradicted by Neeires herself, however, who claims that she did not mention adoption because she did not know whether her parents would want to adopt her son. She also stated that the 1974 statement in no way altered their original "transfer" of Julius. Justa's recollection that Necitas later proposed adoption by letter is further evidence that an adoption was not contemplated prior thereto. Moreover, the failure of Justa and Frank either to accept or reject this later proposal or to take any action towards formal adoption until 1982 also militates against a finding that an adoption was ever intended. The file does not indicate that Necitas was informed of or acquiesced in the purported plan by Frank and Justa to obtain a legal adoption in 1982.

The statements and actions of the parties are most consistent with a finding that a guardianship relationship of the sort actually established by the superior court, rather than an adoption, was intended. (Such a role or relationship is not unusual between grandparents and illegitimate grandchildren, particularly in the Pacific islands.) At best, the evidence indicates a lack of mutual understanding or agreement. It does not represent the kind of clear, convincing, unequivocal proof of an implied contract of adoption required under California (and Guam) law. For this reason, it is our opinion that the evidence on file is legally insufficient to establish the existence of an equitable adoption for purposes of Julius' entitlement to child's insurance benefits.