You asked us:
to determine the validity of Number Holder (NH), P~’s, adoption of the Disabled Adult
Child (DAC), M~, who is over the age of twenty-one, to establish a parent/child relationship
under Maryland law for the purpose of Title II benefits; and
if we determine a parent/child relationship was established, to opine as to the date
of the establishment of such a relationship.
We believe that, under Maryland law, NH’s formal adoption of DAC was likely valid
to establish a parent/child relationship for the purpose of Title II benefits, and
that the parent-child relationship was likely established on November XX 2016, the
date of the formal Judgment of Adoption. We further note that, under Maryland law,
it is likely that NH did not equitably adopt DAC earlier than November XX 2016.
DAC was born in October 1961 in Latvia to I~, her biological mother, and J~, her biological
father. She became a permanent resident of the United States in 2009 or 2010. NH is
an adult who has been receiving retirement insurance benefits since 2000.
On June XX, 2016, NH, who was 84 years old, and his wife, K~ (the Applicant), the
50 year old biological sister of DAC, petitioned the Circuit Court of M~, Maryland
for an adult adoption of DAC. At the time of the petition, they stated that DAC was
54 years old, had resided in the United States for nineteen years, and was permanently
disabled due to having Down Syndrome. They further stated that an adoption-in-fact
had already existed for nineteen years. In conjunction with their petition, NH and
the Applicant submitted an adoption agreement they had executed with DAC on June XX,
2016, stating that NH, the Applicant, and DAC all wanted the adoption to occur and
would petition the Maryland courts accordingly.
Two days later, on June XX, 2016, the Applicant filed an application on behalf of
DAC for auxiliary benefits on NH’s record. She claimed that she and NH had already
equitably adopted DAC.
On November XX, 2016, via a formal Judgment of Adoption, the Circuit Court of Montgomery
County, Maryland granted the formal adoption of DAC by NH and the Applicant. Although
the Court’s Judgment stated that it was establishing and reaffirming the relationship
of parent and child between NH and DAC, the Court’s judgment did not explicitly address
the Applicant’s claim to the agency that she and NH had equitably adopted DAC earlier
than November 15.
Section 202(d) of the Social Security Act (the Act) provides for the payment of child’s
insurance benefits to a child (as defined in section 216(c) of the Act) of an insured
individual. Under the Act and regulations, the term child means a natural child, legally
adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child.
See Section 216(e) of the Act, 42 U.S.C. 416(e); 20 C.F.R. § 404.354.
A. We Believe That NH’s Formal Adoption of DAC Was Likely Valid to Establish a Parent/Child
Relationship For The Purpose of Title II benefits, And That The Parent-Child relationship
Was Likely Established on November XX, 2016
The Social Security regulations explain that to determine whether an individual is
an insured’s legally adopted child, the agency applies the adoption laws (not the
inheritance laws) of the State where the adoption took place. 20 C.F.R. § 404.356.
In this case, it is alleged that NH legally adopted DAC in Maryland; thus, Maryland
adoption law applies.
According to the Maryland Code on Family Law, any adult or minor may be adopted. Md.
Code Ann., Fam. Law § 5-3B-13. In addition, a court may enter an order for adoption
if the prospective adoptee is at least 10 years old and the prospective adoptee consents.
Md. Code Ann., Fam. Law § 5-3B-20. Here, NH petitioned the Circuit Court of Montgomery
County, Maryland for an adult adoption of DAC. In conjunction with that petition,
NH and the Applicant submitted an adoption agreement they had executed with DAC on
June XX 2016 stating that NH, the Applicant, and DAC all desired the adoption to occur
and would petition the Maryland courts accordingly. The Circuit Court of M~, Maryland
entered a Judgment of Adoption on November XX, 2016, establishing and reaffirming
the relationship of parent and child between NH and DAC. Thus, NH’s legal adoption
of DAC on November XX, 2016 was likely valid.
B. NH Most Likely Did Not Equitably Adopt DAC Earlier Than November XX, 2016
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. The issue of whether DAC may receive benefits as NH’s
equitably adopted child turns on Maryland inheritance law regarding equitable adoption
and whether DAC could inherit from NH through intestacy as an equitably adopted child.
The Maryland Court of Appeals, the highest Court in the State, has considered the
concept of equitable adoption twice since 1987. In these cases, the Court found that
equitable adoption was possible with regard to a minor child, and that a child who
was equitably adopted as a minor may be able to inherit intestate from their equitably
adopted parent, but that the benefits to an equitably adopted child only extended
from the equitably adopted parent, not others. See Bd. of Educ. of Montgomery Cty. v. Browning, 635 A.2d 373, 378 (Md. 1994) (denying an equitably adopted minor child an inheritance
tax benefit that a legally adopted child would receive); McGarvey v. State, 533 A.2d 690, 692 (Md. 1987) (denying an equitably adopted minor child the ability
to inherit intestate from the sister of the equitably adopted parent).
In Browning, the more recent of the two cases decided by the Maryland Court of Appeals, the Court
set out an exacting standard for demonstrating that an equitable adoption occurred.
In particular, the Court found that the party seeking to establish equitable adoption
must present clear and convincing proof that all of the elements of equitable adoption
are met. Browning, 635 A.2d 376. Those elements are: “[s]ome showing of an agreement between the natural
and adoptive parents, performance by the natural parents of the child in giving up
custody, performance by the child by living in the home of the adoptive parents, partial
performance by the foster parents in taking the child into the home and treating [the
child] as their child, and the intestacy of the foster parent.” Id. at 377, n. 3 (quoting Lee v. Gurley, 389 S.E.2d 333, 334 (Ga. 1990)).
While we were able to locate cases where the Maryland Court of Appeals recognized
the concept of equitable adoption involving a minor child, we were unable to locate
any controlling authority for the proposition that an equitable adoption in Maryland
could be extended to an adult. This is notable because a well-known legal encyclopedia
provides that the doctrine of equitable adoption cannot be applied to a promise to
adopt an adult. See 2 C.J.S. Adoption of Persons § 34 (“The doctrine of virtual adoption cannot be applied
to a promise to adopt an adult”); see also Angela Chaput Foy, Adult Adoption and the Elder Population, 8 Marq. Elder’s Advisor
109 (2006) (“Courts cannot create an equitable adoption of an adult”). Indeed, in
2016, the Court of Appeals of Texas surveyed the current state of equitable adoption
law nationwide and explained that the majority of courts have agreed with legal treatises
in finding that an adult cannot be equitably adopted. Dampier v. Williams, 493 S.W.3d 118, 124 (Tex. App. 2016) (citing Thompson v. Moseley, 125 S.W.2d 860, 862 (Mo. 1939) (refusing to allow adults to be adopted by estoppel);
Miller v. Paczier, 591 So. 2d 321, 323 (Fla. Dist. Ct. App. 1991) (stating that adoption by estoppel
of adult “has been litigated in a few instances and each of the courts have rejected
the claims”); see also 2 C.J.S. Adoption of Persons § 30 (“The doctrine of equitable adoption cannot be
applied to an oral contract to adopt a person who was an adult at the time the oral
contract was made”); 2 Am. Jur. 2d Adoption § 62 (equitable adoption generally does
not apply to adoption of adults)).
We believe that the Maryland Court of Appeals would likely find that NH did not equitably
adopt DAC earlier than November XX, 2016 for two reasons.
First, as set forth above, courts have generally found that the doctrine of equitable
adoption does not apply to adults. We have no reason to believe that Maryland Court
of Appeals would deviate from this majority view and extend the concept of equitable
adoption in this case.
Second, even if the Maryland Court of Appeals were willing to extend the concept of
equitable adoption to an adult in this case, the Applicant has not produced clear
and convincing proof that all of the elements of equitable adoption are met, such
as evidence of an agreement between DAC’s natural and adoptive parents, [or] performance
by the natural parents of DAC in giving up custody. Thus, the Applicant has not produced
the requisite proof that she could meet the exacting standards of an equitable adoption
required by Maryland law.
In conclusion, we believe that, under Maryland law, NH’s formal adoption of DAC was
likely valid to establish a parent/child relationship for the purpose of Title II
benefits, and that the parent-child relationship was likely established on November
XX, 2016, the date of the formal Judgment of Adoption. Additionally, it is likely
that NH did not equitably adopt DAC earlier than November XX, 2016, under Maryland
Regional Chief Counsel
By: Stuart Weiss
Assistant Regional Counsel