In a case where the claimant's biological parents relinquished all parental rights and another woman took custody of the claimant, has lived with and cared for the claimant since infancy and is known in the community as the claimant's mother, a Colorado court would find that although no formal adoption was completed full performance of the agreement to adopt exists. The court would find that the evidence for equitable adoption was "clear, cogent, and convincing as to leave no reasonable doubt as to the fact that such agreement was made."

Since the claimant is filing for benefits based on the record of the woman's husband, the stepchild relationship must be established before an award of benefits can be made.

Issue

You asked whether actions taken by Mrs. A. A~, spouse of Nelson A~, the number holder (NH) receiving Title II benefits, meet the requirements for an equitable adoption of D.R. under Colorado law.

Short Answer

We believe that there is sufficient evidence for the Agency to conclude that Mrs. A~ actions meet the requirements for an equitable adoption under Colorado law.

Note: The resolution of the issue of equitable adoption is not determinative of whether D.R. meets the requirements for receiving benefits-D.R. would have to meet the dependency requirements as a stepchild of NH in order to receive benefits on his Social Security account.

Facts

You advised us of the following facts. Mrs. A~ began caring for D.R. when D.R. was six months old (in 1992). D.R.'s biological mother is the sister of Mrs. A~ nephew's wife; the biological mother's drug problems prevented her from caring for D.R. D.R. has been in the care of Mrs. A~ since that time. Mrs. A~ submitted school records showing herself as the mother of D.R. D.R.'s biological aunt (no known blood relation to Mrs. A~) also provided a statement verifying that D.R.'s biological parents voluntarily relinquished care to Mrs. A~, that Mrs. A~ has cared for D.R. continually since infancy, and that Mrs. A~ is known in the community as D.R.'s mother.

You provided copies of documents signed by the biological parents when D.R. was a toddler relinquishing "any and all parental rights, dominion, care, custody, and control" of D.R. Additionally, the biological father specifically consented to the adoption of D.R. by Mrs. A~ and her former husband. ^[1] Mrs. A~ stated, and D.R.'s biological aunt confirmed, that neither biological parent has been involved in D.R.'s upbringing or maintained contact with her. Mrs. A~ stated that she never pursued a legal adoption because she could not afford the fees.

We have no information pertaining to the relationship and living arrangements of D.R. and Mrs. A~ with NH.

Discussion

The Social Security Act provides that in determining whether a claimant is the child of an insured individual, the Commissioner shall apply such law as would be applied in determining the devolution of intestate personal property by the courts in the state where the insured individual is domiciled. Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A). The term "child" includes a stepchild, relevant here because benefits are sought based on the Social Security account of Mrs. A~ current spouse. A stepchild may be either legally or equitably adopted by the insured's spouse. POMS GN 00306.230.

Equitable adoption is the term used where state intestacy law recognizes an adoption for purposes of inheritance to benefit the child, even though a legal adoption did not occur.

20 C.F.R. § 404.359. Thus, the issue of whether D.R. may receive benefits as an equitably adopted child of NH's spouse, i.e. as NH's stepchild, turns on Colorado inheritance law regarding equitable adoption. See 20 C.F.R. § 404.359 (To be eligible for social security benefits, equitable adoption must be recognized under state law).

Numerous prior opinions ^[2] and POMS confirm that Colorado recognizes equitable adoption for the limited purpose of inheritance. POMS GN 00306.225. In Barlow v. Barlow, the Colorado Supreme Court recognized equitable adoption in cases where an oral contract to adopt a child exists, fully performed, but no statutory adoption occurred. 463 P.2d 305, 309 (Colo. 1969). Courts apply the concept of equitable adoption for the benefit of a child to share in the estate of an adoptive parent in the absence of a will. Id. The party seeking to benefit from the alleged equitable adoption has the burden of proving the existence of an oral contract for adoption by evidence so "clear, cogent, and convincing as to leave no reasonable doubt as to the fact that such agreement was made." Id. The court in Barlow found equitable adoption occurred where the biological parents consented to custody of their child by adoptive parents, constituting an oral contract to adopt; the biological parents had no contact with the child; the child was known by the adoptive parents' last name; the adoptive parent maintained a recognized parent-child relationship; and the adoptive parent provided financial support throughout the child's lifetime. Id. at 307-08. The facts are specific to the case, but provide some guidance for what evidence Colorado courts would recognize as clear, cogent, and convincing evidence of an equitable adoption. ^[3]

In this case, we believe the actions of the biological parents and Mrs. A~ evidence a clear agreement to adopt. Shortly after D.R.'s birth, both biological parents signed relinquishment papers at Mrs. A~ request. The biological father specifically agreed to relinquish his rights and consented to adoption by Mrs. A~ and her then husband in a written document. The biological mother signed a more vague agreement to relinquish all parental rights and allow the court to proceed with adoption of the child to "any person or persons determined by a court of competent jurisdiction to be proper." Mrs. A~ indicates that she obtained the relinquishment agreements upon the advice of an attorney. However, she never finalized the adoption because she could not afford the associated costs. D.R.'s aunt (her biological mother's sister) confirmed that D.R.'s biological mother agreed to leave her with Mrs. A~ permanently and subsequently signed the relinquishment papers. These written agreements provide clear evidence of an express agreement between Mrs. A~ and the biological parents that Mrs. A~ would adopt and care for D.R. This evidence presents even stronger proof of an agreement to adopt than the oral contract that the Barlow court found sufficient.

Likewise, the facts establish actions by Mrs. A~ and D.R. consistent with a parent-child relationship and therefore, demonstrating full performance of the agreement to adopt.

Mrs. A~ assumed care of D.R. when she was six months old and D.R. has remained in her care ever since. The biological parents have not been involved in D.R.'s upbringing.

Conclusion

We believe there is sufficient evidence for the Agency to find that Mrs. A~ actions provide the clear, cogent, and convincing evidence necessary to demonstrate an equitable adoption of D.R. under Colorado law. As noted above, we do not believe that resolution of the issue of equitable adoption is determinative of whether D.R. meets the requirements for receiving benefits-D.R. would have to meet the stepchild requirements ^[4] in order to receive benefits on NH's Social Security account.

Deana R. E~ -L~

Regional Chief Counsel, Region VIII

________________________________________

Kristi J. D~

Assistant Regional Counsel

Colorado State law does not require the absence of an impediment to a legal adoption for a valid equitable adoption to occur.

Whether Colorado State law precludes equitable adoption if the prospective adoptive parent is ineligible to legally adopt a child because of a legal impediment, and whether an equitable adoption occurred in this instance.

CONCLUSION

As discussed below, we do not believe Colorado State law requires the absence of an impediment to a legal adoption for a valid equitable adoption to occur. However, in light of the fact that the NH did not intend to have the claimant's surname changed to his, the paucity of documentary evidence to support the claimant's mother's statements as to the nature of the relationship of Phillip C~, the Number Holder (NH), with the claimant, and the fact that the NH did not designate the claimant as an insurance beneficiary or provide for him specifically at the time of his death, we recommend further development regarding the NH's relationship with and financial responsibility for the claimant before a determination is made as to whether an equitable adoption occurred.

STATEMENT OF FACTS

The claimant's mother reported that she and the NH began residing together in February or June 1998. The claimant's mother also reported that the claimant treated the NH as his father, that the NH was involved in raising the claimant, that the NH and the claimant had a "genuine father/son relationship," and that she and the NH shared all financial and child rearing responsibilities. The claimant's mother further reported that a number of family members knew of the NH's intention to adopt the claimant, including the claimant's biological father, the NH's mother, the claimant's mother's cousin, a friend of the NH's, and the claimant's mother's niece. The claimant's mother additionally reported that the NH did not intend to have the claimant's surname changed to his, that the NH did not designate the claimant as an insurance beneficiary, and that the NH did not specifically "name[ ]" the claimant at the time of his death, presumably in the NH's Last Will and Testament.

The NH and the claimant's mother purchased a home together in February 2001, where they resided with the claimant. Also in February 2001, the NH filed an application for Title II benefits based on disability. The NH and the claimant's mother were married in March 2001.

The following adoption documents were completed in approximately April 2001: "Consent To Adoption - Non-Custodial Parent," "Consent of Adoption - Custodial Parent," "Petition For Stepparent Adoption," a proposed "Finding of Fact and Decree - (Voluntary Consent)," a proposed "Final Decree of Adoption," and a proposed "State of Colorado Report of Adoption." The claimant's mother reported that the adoption documents were not filed only because legal counsel advised her and the NH that he would not be allowed to legally adopt the claimant because the NH was terminally ill. Thus, these documents were never filed, and a legal adoption did not occur.

The NH, in fact, died on July 10, 2001. An unattributed eulogy apparently delivered by someone other than the claimant's mother indicated that the NH, the claimant's mother, and the claimant spent a lot it time together, that the NH was involved in the claimant's sports and school activities, that the NH taught the claimant to play hockey and was "there for [the claimant] when he fell of his bike to fix the scratched knees," that the claimant always knew the NH as his dad, and that the NH and the claimant had a very close relationship.

The claimant's mother filed an application for Title II benefits on the claimant's behalf as the NH's stepchild on September 12, 2001. This application was denied because the claimant was not related to the NH for nine months, pursuant to Program Operations Manual System (POMS) § GN 306.230(A)(2)(a).

ANALYSIS

As you know, Social Security regulations provide that 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. The agreement to adopt 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 leaving a will. 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 after the insured 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. See 20 C.F.R. § 404.359 (2003); see also, 42 U.S.C. § 216(h); POMS § GN 00306.175, et. seq.

We have previously advised that Colorado recognizes the doctrine of equitable adoption for purposes of intestacy. Memorandum, Equitable Adoption in Colorado, CC VIII (L~/P~), to ARC/SSA, August 9, 1991; Memorandum, Equitable Adoption - Colorado, CC VIII (E~-B~), to RC/SSA, April 21, 1989; Memorandum, Equitable Adoption in Colorado, RA VIII (B~), to RC/SSA, August 7, 1984. Where there exists "an oral contract to adopt a child, fully performed except that there was no statutory adoption," the child may be considered equitably adopted for the limited purpose of determining the devolution of intestate property. Garcia v. Weinberger, (Jan 1975 - Jan. 1976 Transfer Binder) Unempl. Ins. Rep. (CCH) 14,327 (D. Colo. 1975) quoting Barlow v. Barlow, 170 Colo. 465, 472, 463 P.2d. 305, 309 (1969); Chavez v. Shea, 185 Colo. 400, 403-04, 525 P.2d 1148, 1149-50 (1974) (declining to apply the doctrine of equitable adoption in a situation where the putative adoptive parent was still alive). Indeed, POMS § GN 00306.225B indicates that Colorado recognizes equitable adoptions. The Colorado Supreme Court in Barlow "accepted" the following standard for establishing the existence of an agreement to adopt: One claiming benefit of an alleged oral contract for an adoption, and to share in the estate of an adoptive parent by virtue of such contract, has the burden of establishing the contract by evidence so clear, cogent, and convincing as to leave no reasonable doubt as to the fact that such agreement was made. See Barlow, 170 Colo. at 472-73, 463 P.2d. at 309.

We find no provision under Colorado State law that a valid equitable adoption requires the absence of an impediment (in this case the prospective adoptive parent's terminal illness) to a legal adoption. The POMS, in fact, provides that the concept of equitable adoption may apply if adoption proceedings were defective and invalid under State law. See POMS § GN 00306.215.^[5]

"There is no list of exact rules as to the evidence required to establish equitable adoption. Because State laws very and development may be complex, handle each case on an individual basis. If there is a written agreement, the agreement or copy thereof that you have obtained, together with answers to the questions in GN 00306.220A.2 ^[6] . . . should provide sufficient evidence for a determination." POMS § GN 00306.220B. Probate courts in Colorado have found an equitable adoption occurred where biological parents consented to custody of their child by adoptive parents, which constituted a contract to adopt between the biological mother and the adoptive parents; the biological parents had no contact with the child; the child was known by the adoptive parents' last name; the adoptive mother obtained a birth certificate for the child with the adoptive parents' last name; the practical relationship between the deceased adoptive father and the child was that of father and son throughout the child's life; the father furnished all support for the family, including the child's clothing, spending money, and medical attention; the child visited the father and was with him at the time of his death; and the adoption was not attacked by either the natural or the adoptive parents. See Barlow, 170 Colo. at 307-08, 463 P.2d. at 468-71. On the other hand, Colorado courts have determined that equitable adoption occurred where stepchildren resided with and were supported by a deceased adoptive parent. See Herrera v. Glau, 772 P.2d 682, 683 (Colo. Ct. App. 1989). However, the courts have declined to find evidence of an equitable adoption where a deceased stepparent assumed maternal duties for a stepchild but there was no evidence in the record that she intended to adopt the stepchild. See First National Bank Of Denver, as Executor of the will of Ruth K. Shwayder, Deceased v. The People Of the State of Colorado, 183 Colo. 320, 321, 516 P.2d 639, 640 (1973).

Facts which weigh in favor of a finding that an equitable adoption occurred are that adoption documents were completed, including consents to adoption by both biological parents. While the claimant's mother reported that a number of family members knew of the NH's intention to adopt the claimant, including the claimant's biological father, the NH's mother, the claimant's mother's cousin, a friend of the NH's, and the claimant's mother's niece; that the claimant treated the NH as his father; that the NH was involved in raising the claimant; that the NH and she shared all financial and child rearing responsibilities; and that the NH and the claimant had a "genuine father/son relationship," no independent documentation of these individuals' knowledge of such intention to adopt is included in the material provided this office. The POMS directs you to "[o]btain answers to the questions listed in GN 00306.220A.2 from at least two persons who know the facts, including the person filing or inquiring for the child." POMS § GN 00306.220A.1.a. The unattributed eulogy also indicated that the NH, the claimant's mother, and the claimant spent a lot of time together, that the NH was involved in the claimant's sports and school activities, that the NH taught the claimant to play hockey and was "there for [the claimant] when he fell of his bike to fix the scratched knees," that the claimant always knew the NH as his dad, and that the NH and the claimant had a very close relationship. Since the source is unattributed, however, it is unknown whether this information was simply reported to the eulogist, possibly by the claimant's mother, or whether it actually constitutes independent corroboration of a parent/child relationship.

Facts which weigh against a finding that an equitable adoption occurred include that the NH did not intend to have the claimant's surname changed to his, that the NH did not designate the claimant as an insurance beneficiary, and that the NH did not specifically "name" the claimant at the time of his death.

In light of the fact that the NH did not intend to have the claimant's surname changed to his, the paucity of documentary evidence to corroborate the claimant's mother's statements as to the nature of the NH's relationship with the claimant, and the fact that the NH did not designate the claimant as an insurance beneficiary or provide for him specifically at the time of his death, we recommend further development regarding the NH's relationship with the claimant and the NH's financial responsibility for the claimant, before a determination is made as to whether an equitable adoption occurred.

Deana R. E~ -L~

Regional Chief Counsel, Region VIII

________________________________________

Pamela M. W~

Assistant Regional Counsel

ADOPTION — Equitable - State Law - COLORADO

Under section 216(h)(2)(A) an "equitable adopted" child would inherit under the intestacy laws of Colorado.

1. You asked if a child (in Colorado) may qualify as an "equitable adopted" child under Colorado law for purposes of receiving Social Security benefits where the child's natural parents are living and "able to consummate a legal adoption", indicating you have been advised the Colorado Supreme Court recently entered a decision adverse to this concept where both natural parents are living. You cite section 216(h) (2) of the Social Security Act.

2. The legal standards for determining eligibility of an applicant for child's insurance benefits are set forth in section 202(d) of the Social Security Act, 42 U.S.C.A. 402(d), which provides in part:

(d) (1) Every child (as defined in section 416(e) of this title) of an individual entitled to old- age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, if such child [meets the qualifications set forth in the Act].

3. The definition of the word "child" is found in section 216(e) of the Act, 42 U.S.C.A. 416(e) which states in part:

The term "child" means (1) the child or legally adopted child of an individual . . .

4. Section 216(h) (2') (A) of the Act, 42 U.S.C.A. [incorporated by reference § 402 (d) (1)] further defines the meaning of "child":

In determining whether an applicant is the child of a fully or currently insured individual . . . the Secretary 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 application .... 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.

Under section 216(h) (2) (A) of the Act, 42 U.S.C.A. 416(h) (2) (A), one who is not actually the child of a wage earner will never- the-less occupy the status, for purposes of the Social Security Act, if intestate personal property of the wage earner would devolve upon such child under the applicable state law.

5. Though the only method of legal adoption in Colorado is pursuant to the Colorado Children's Code, ^[7] a child in Colorado may be "equitably adopted" for purposes of intestacy. The court in the case of Barlow v. Barlow, 463 P.2d 305, 170 Colo. 465 (1969), recognized the doctrine of "equitable adoption" which was, however, prior to the passage of the Colorado Children's Code. The court there stated:

The doctrine applicable here has been called by several names, such as adoption by contract, equitable adoption, estoppel to deny adoption, defacto adoption and creation and development of status. . . . By this we mean a situation involving an oral contract to adopt a child, fully performed except that there was no statutory adoption, and in which the rule is applied for the benefit of the child in the determination of heir- ship upon the death of the person contracting to adopt. . . .

6. In a case in Colorado involving an application for financial assistance under Colorado's aid for families with Dependent Children (AFDC), denied by Saguache County Department of Social Services, Chavez V. Shea, 525 P.2d 1148, 185 Colo. 400 (1974), benefits were denied because the applicant did not meet the qualifications of one listed as a relative entitled to AFDC benefits under 42 U.S.C. § 605(a).

The court in Chavez, at 525 P.2d 1149, affirmed the doctrine of equitable adoption in Colorado for purposes of intestacy, stating also that this doctrine had never been extended further.

7. The case of Chavez v. Shea, supra is therefore distinguishable from a child entitled to benefits who meets the intestacy laws of Colorado as an "equitable adopted" child under 216(h) (2) (A) of the Act, 42 U.S.C.A. 416(h) (2) (A). The Chavez case, we note, did eminate in the 12th Colorado Judicial District in which Alamosa is located and some of the attorneys involved were from Alamosa. Thus, although the facts you provided did not comport with the facts in Chavez, it is possible that this is the case referred to by your Alamosa office.

8. That, is the fact that this case, initially decided in that judicial district affirms equitable adoption only in the case of intestacy could have led the Alamosa office to believe that both parents must be deceased (to which "intestacy" applies) not realizing that the Social Security Act merely applies the test which would be applied if the person who has allegedly equitably adopted a child, were deceased. In our opinion, D~, Frank H.~-RA VIII (A~) to R. Rep., 9/7/66, we stated:

Colorado recognizes and enforces the doctrine of equitable adoption.

It is necessary, however, in order to establish an equitable adoption under the law of Colorado, to prove by clear and convincing evidence that a contract of adoption was made . . . It is immaterial whether the contract of adoption is expressed or oral . but it is essential, in order to support a finding of equitable adoption, that the natural parent or parents should agree to surrender the child to the adopting parents completely and totally.

10. We have found no Colorado case which would require a change in our opinion that Colorado recognizes an "equitable adoption" so that a child so adopted would inherit under the intestacy laws of Colorado and be entitled to Child's insurance benefits under section 216(h)(2)(A) of the Act, 42 U.S.C.A., 416(h) (2) (A).

11. Please advise if we may be of further assistance.