You requested an opinion regarding whether the adoption of a child in the Philippines
was a valid adoption under the law of the jurisdiction where the adoption took place;
and whether Illinois would recognize such adoption. We believe that there has been
a valid Illinois adoption, but advise the Agency to obtain additional verifying documentation.
Alternatively, we conclude that the Philippine adoption would likely be considered
valid in Illinois based on the theory of equitable adoption, although we recommend
that the Agency obtain additional statements.
Kristine A. O. D. C~ (Kristine) was born on May 25, 1990, in Paco, Manila, in the
Republic of the Philippines. According to an Agency contact note, Kristine's parents
died, and she was living with her grandfather, who was the brother of Dolores L~.
Dolores L~, and her husband, David L~, who lived in the United States, decided to
adopt Kristine. They completed required paperwork which they sent to the Philippines.
Dolores L~ also attended two court hearings in the Philippines regarding the adoption,
one of which was held on June 11, 1993.
On November 3, 1993, the Regional Trial Court for the Republic of the Philippines
in Manila issued a decision in which Kristine was judicially declared the legally
adopted child of the petitioners, Dolores L~ and David L~. The Court indicated that
the petitioners had fully complied with the jurisdictional requirements, and it ordered
an amendment to the Birth Certificate of Kristine to conform to the decree of adoption.
An amended Birth Certificate, dated December 3, 1993, from the Republic of the Philippines,
indicated Dolores L~, United States Citizen, as Kristine's mother, and David L~, United
States Citizen, as Kristine's father.
The evidence provided contains a State of Illinois Record of Foreign Birth issued
by the Department of Public Health - Division of Vital Records on June 3, 2002. The
document indicates that Kristine A. D. C~ L~, born on May 25, 1990, in Manila, Philippines,
is the child of David L~ and Dolores D. C~ (maiden name).
Dolores L~ became entitled to retirement benefits effective January 2004, based on
a January 2004 application. At the same time, Dolores filed a claim for child's insurance
benefits on behalf of Kristine L~.
On October 16, 2003, Ms. G~ filed a claim for child's insurance benefits on behalf
of Steven, on the account of Ms. L~, his adoptive mother and biological grandmother.
In order to be eligible for child's insurance benefits (CIB) on a wage earner's account,
a claimant must show that she is the wage earner's child. 42 U.S.C. §§ 402(d), 416(e);
20 C.F.R. § 404.350. The regulations define a child as a natural child, legally adopted
child, stepchild, grandchild, or equitably adopted child. 20 C.F.R. § 404.354. In
order to determine whether a claimant is a legally adopted child, SSA applies the
adoption laws of the State or foreign country where the adoption took place. 20 C.F.R.
In addition, a claimant may be eligible for CIB as an equitably adopted child if the
insured individual agreed to adopt the child but the adoption did not occur. The agreement
to adopt must be one that State law would recognize so that the claimant would be
eligible to inherit a child's share of the insured's personal property if the insured
were to die intestate. 20 C.F.R. § 404.359.
As explained below, it appears that the State of Illinois recognized Kristine as the
legally adopted child of Dolores and David L~; therefore, an evaluation of Philippines
law is unnecessary. In addition, it appears that even if this adoption did not conform
with the adoption laws of Illinois (or the Philippines), Kristine may still be eligible
for benefits as an equitably adopted child.
A. If Additional Development Supports the Existence of an Illinois Judgment of Adoption,
This Adoption Should Be Considered Valid Under State Law.
According to Illinois Law,
When it appears from a certificate of adoption transmitted to the State Registrar
of Vital Records, pursuant to the provisions of Section 16 of this Act, that the child
was born outside of the United States or its Territories, then, upon submission to
the State Registrar of Vital Records of evidence as to the child's birth date and
birthplace provided by the original birth certificate, or by a certified copy, extract,
or translation thereof or by other document essentially equivalent thereto (the records
of the U.S. Immigration and Naturalization Service or of the U.S. Department of State
to be considered essentially equivalent thereto), the State Registrar of Vital Records
shall make and file a Record of Foreign Birth. The Record of Foreign Birth shall include
the actual place and date of birth, the child's name and parentage as ordered in the
judgment of adoption and any other necessary facts.
410 Ill. Comp. Stat. Ann. 535/16.1(2002) (emphasis added). In the present case, a
Record of Foreign Birth was issued by the State of Illinois on June 3, 2002. Thus,
based on the language of the statute, it can be presumed that a certificate of adoption
was transmitted to the State Registrar of Vital Records in order for that office to
issue the Record of Foreign Birth. Also, it can be presumed that a judgment of adoption
had been ordered.
Section 16, which is referenced in the above statute, states:
For each adoption ordered by any court in this State, the clerk of the court shall
promptly furnish the State Registrar of Vital Records a certificate of adoption on
a form prescribed and furnished by the State Registrar of Vital Records. The record
shall include all facts necessary to locate and identify the original certificate
of live birth of the person adopted and provide information necessary to establish
a new certificate of birth, shall include the social security numbers of the adoptive
parents, and shall identify the judgment of adoption and be certified by the clerk
of the court.
410 Ill. Comp. Stat. Ann. 535/16 (2002). In reading these two statutory sections together,
a court in Illinois would have had to chronologically first issue a judgment of adoption
in order for the Record of Foreign Birth to be issued.
Although the evidence we were provided does not include an Illinois judgment of adoption,
when we contacted the claimant's attorney, she informed us that she believed a judgment
of adoption was entered by an Illinois court on May 16, 2002. As this information
appears to be consistent with the procedures outlined in the statutes above, it seems
likely that a judgment of adoption was issued by an Illinois court in this matter.
Because we have not received this document, the Agency may want to contact Dolores
L~ for any court records she may have or the official notice she received from the
Illinois court. Pursuant to POMS GN 00306.155, however, the Agency should be cautious not to directly solicit a copy of the adoption
decree. Assuming this information indicates Dolores L~ to be the mother of Kristine
L~, pursuant to an Illinois adoption, the Agency should find that Kristine was legally
adopted pursuant to the laws of the state of Illinois, as an Illinois court recognized
the adoption as valid and issued a judgment of adoption. Accordingly, Kristine would
then be eligible for CIB on Dolores L~'s account.
B. If Additional Development Supports the Existence of Parent/Child Relationships
Between Dolores L~ and Kristine L~, Illinois May Alternatively Give Legal Effect to
the Adoption Under the "Equitable Adoption" Theory.
Assuming that the Illinois judgment of adoption is not forthcoming, we cannot determine
without further inquiry into the 1993 adoption laws of the Philippines, whether Kristine's
adoption was valid under Philippine law. However, Kristine may nonetheless be entitled
to CIB as the equitably adopted child of Dolores L~.
Pursuant to 20 C.F.R. § 404.359,
You may be eligible for benefits as an equitably adopted child if the insured has
agreed to adopt you 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 you 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.
Thus, the basis for equitable adoption is an express or implied contract to legally
adopt the child, generally a contract between the adopting parents and the child's
natural parents or the person or agency having custody and control of the child. POMS
GN 00306.180A.1. As we have previously advised, Memorandum from Regional Chief Counsel, Chicago,
to Assistant Regional Commissioner - Management and Operations Support, Chicago, MOS-Foreign Adoption - Validity of adoption in India by parent domiciled in Illinois, (March 25, 2003), Illinois courts may recognize an adoption in a foreign country
that is not valid in that country under the theory of equitable adoption.
A review of Illinois case law reveals that Illinois courts have applied contract law
to determine whether there was a valid and enforceable contract to adopt in those
cases in which an adoption is alleged, but the statutory adoption procedures have
not been followed. See In Re Estate of Edwards v. Edwards, 435 N.E.2d 1379, 1381 (Ill. App. 3d 1982).
In accordance with contract law, Illinois has recognized equitably adopted children
as legitimate heirs for the purpose of intestate succession. In Dixon National Bank v. Neal, 125 N.E.2d 463 (Ill. 1955), the Illinois Supreme Court observed: "it has become
the settled rule of law that to be entitled to a decree for specific performance of
a contract for adoption it is necessary that the contract be proved as alleged by
evidence that is clear and convincing." The court determined that the common thread
among Illinois cases in which contracts to adopt were found valid for the purpose
of determining intestate succession was the existence of either a written memorandum
of the alleged agreement to adopt, or the testimony of a surviving witness who was
present and heard the making of the agreement to adopt. 125 N.E.2d at 465, citing
Weiss v. Beck, 115 N.E.2d 768, 772 (Ill. 1953). Further, the D~ court expressly noted that "in some jurisdictions an invalid adoption proceeding
has been enforced as a valid contract to adopt." 125 N.E.2d at 466.
In Winkelmann v. Winkelmann, 178 N.E. 118 (Ill. 1931), appellee sought a decree that she was the legally adopted
daughter of W~, who died intestate, and entitled to inherit his personal property. The court concluded
that an agreement to adopt was made because W~ thought he had adopted the appellee and that he had complied with the law in that
respect; W~ treated the appellee as his daughter; the appellee bore W~'s name; W~ took care of the appellee the same as he would his own daughter; and the appellee
treated W~ as her father. Furthermore, the terms of the contract to adopt were reasonable, clear,
and specific; the contract was not repugnant to public policy; and the surrender of
the child to W~ by her natural father was a valuable consideration for the contract. 178 N.E. at
121. See also Monahan v. Monahan, 153 N.E.2d 1, 4 (Ill. 1958) (where oral contract to adopt was "clearly established"
and "fully performed" by the adopted child, "to allow the contract to remain unenforced
is unfair, unjust, and inequitable."). In M~, the court found clear and convincing evidence of a contract based on evidence that
the M~ attempted to consult an attorney when the child was seven years old, but mistakenly
believed they needed the father's consent and were unable to locate him; the M~ and the child referred to each other as "Son" and "Mom and Dad;" many relatives believed
the child had been adopted by the M~; the child conducted himself as a dutiful child; the M~ held themselves out as the child's parents; the M~ indicated to others that the child's natural mother had given the child to them to
adopt and agreed to execute any necessary consent. 153 N.E.2d at 2-4.
Even an agreement signed by only the natural parent and the institution placing the
child, but not by the adoptive parents, was found to create a valid contract to adopt
when considered together with circumstances which otherwise tended to show the existence
of a parent/child relationship. Soelzer v. Soelzer, 47 N.E.2d 458 (Ill. 1943). However, in a case where no money or other consideration
was received for raising the child, no agreement to adopt was alleged, and no attempt
to legally adopt was asserted, an Illinois court declined to find a valid contract
to adopt. See, e.g., Estate of Staehli v. LaRaviere, 407 N.E.2d 741, 744 (Ill. App. 3d 1980). Thus, Illinois courts have generally examined
the nature of the relationship between the purported adopted child and the purported
adoptive parent in determining the validity of an alleged contract to adopt.
The cases discussed above suggest that the decision issued by the Regional Trial Court
of the Republic of the Philippines would constitute persuasive evidence of a valid
contract to adopt Kristine L~. See Memorandum from Regional Chief Counsel, Chicago, to Assistant Regional Commissioner
- Management and Operations Support, Chicago, MOS-Foreign Adoption - Validity of adoption
in India by parent domiciled in Illinois, at 5 (March 25, 2003), According to the
Regional Trial Court decision, the court expressly stated that the petitioners had
"fully complied with all the jurisdictional requirements;" and the court judicially
declared Kristine legally adopted by Dolores and David L~. Further, as Kristine left
the home of her grandfather in the Philippines (her parents were deceased, and she
was in the care of her grandfather), and returned to the United States with the L~s
in accordance with the adoption decree, such appears to be sufficient consideration
to support the existence of a contract to adopt. See Dixon National Bank, 125 N.E.2d at 467. Further, Kristine's birth certificate in the Philippines was
amended to reflect Dolores and David L~ as Kristine's mother and father; Kristine's
last name was changed to L~; and the L~s participated in court proceedings in Illinois
to have a Record of Foreign Birth issued, which also reflected them as Kristine's
mother and father. Illinois courts would likely consider these factors to support
a valid contract to adopt. However, with regard to an important consideration to Illinois
courts, we have no information addressing the nature of Kristine's relationship with
Dolores L~ and whether friends and/or relations generally regarded her as Dolores
L~'s legally adopted child. We recommend that such additional information be obtained
before a final determination as to the validity of Kristine's adoption under Illinois
law can be made under the theory of equitable adoption. Provided that the information
developed on this issue supports the existence of a parent/child relationship, we
believe Illinois would recognize the adoption of Kristine L~ to be valid under the
theory of equitable adoption, such that she could be entitled to benefits.
Assuming that additional evidence is obtained, the adoption in the instant case may
be found valid, such that Kristine could be entitled to benefits on the account of
Dolores L~. We recommend that further development should be undertaken in order to
determine whether records of the court or official notice provides evidence of legal
adoption in Illinois, such that the adoption in question may be considered valid.
Alternatively, further development should be undertaken to assess Kristine's relationship
with Dolores L~ in order to determine the existence of a parent/child relationship
and find the adoption to be valid under the theory of equitable adoption.