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