Legal Framework for Determining Whether Sapna A~ and Amandeep S. A~ Are Entitled to Child's Benefits on the Earnings Record of Amarjit A~ Under the Social Security Act and Regulations and Illinois Law.
In order to be eligible for child's benefits on a wage earner's account, a claimant must show that he or 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, stepgrandchild, or equitably adopted child. 20 C.F.R. §§ 404.350-359. 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. § 404.356. A claimant may be eligible for child's benefits as an equitably adopted child if the insured individual agreed to adopt the claimant 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, the adoptions of Sapna A~ and Amandeep S. A~ were not valid under the law of India, where the adoptions were attempted. However, Illinois courts have enforced contracts to adopt in situations where the evidence shows the intent to adopt but the adoption proceedings were procedurally defective.
The 1991 Adoptions of Sapna A~ and Amandeep S. A~ Did Not Comply With Indian Law.
The IR-4 visas granted to Sapna A~ and Amandeep S. A~ indicate that their adoptions did not comply with INS requirements, and that INS determined that Amarjit A~ would have to adopt both children after they arrived in the United States. Section 5 of the Hindu Adoptions and Maintenance Act, India Code, Act No. 78 of 1956, provides that purported adoptions in contravention of its provisions shall be void. Section 6 of the Act provides that no adoption is valid under it unless:
the adopting parent has the capacity and right to take the person in adoption;
the parent giving someone in adoption has the capacity to do so;
the person being adopted has the capacity to be adopted; and
the adoption complies with the other statutory conditions.
In addition, the Act requires precise adherence to a ceremony of “giving and taking” the children in adoption to show the intention to transfer the children from the natural family to the adopting family. The Supreme Court of India has found this requirement satisfied only by the actual physical delivery and acceptance of a child by its natural parent and its adopting parent.
The evidence does not demonstrate that the required ceremony took place. First, although the adoption deeds indicate that the natural mother, Jatinder K., participated, Amarjit A~ stated that the natural mother was not present to “give” the children at the required ceremony. Second, the record shows that Amarjit A~ did not participate in the ceremony to “take” the children, but instead remained in the United States and authorized an attorney to take the children on her behalf. Further, Amarjit A~ apparently did not go to India, and the children did not come to the United States, until 1997. Under these circumstances, we conclude that the essential “giving and taking” ceremony did not take place in accordance with Indian law. Consequently, Illinois would not recognize as valid the 1991 adoptions of Sapna A~ and Amandeep S. A~ in India.
If Additional Development Supports the Existence of Parent/Child Relationships Between Amarjit A~ and Sapna and Amandeep S. A~, Illinois Would Give Legal Effect to the Adoptions of Sapna A~ and Amandeep S. A~ Under the “Equitable Adoption” Theory.
Although the 1991 adoptions of Sapna A~ and Amandeep S. A~ in India appear to have been invalid, they may nonetheless be entitled to child's benefits as the equitably adopted children of Amarjit A~:
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.
20 C.F.R. § 404.359. Our review of Illinois case law reveals that Illinois does not expressly recognize the theory of equitable adoption. Instead, Illinois courts have consistently 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 adoption proceedings were found defective. In Re Estate of Edwards v. Edwards, 435 N.E.2d 1379, 1381 (Ill. App.3d 1982).
Illinois in several cases 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, 465 (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 witness to the making of an oral contract. 125 N.E.2d at 465, citing Weiss v. Beck, 115 N.E.2d 768, 772 (Ill. 1953). Further, the court expressly noted in Dixon that “in some jurisdictions an invalid adoption proceeding had been enforced as a valid contract to adopt.” 125 N.E.2d at 466.
In Winkelmann v. Winkelmann, 178 N.E. 118 (Ill. 1931), plaintiff sought a decree that she was the legally adopted daughter of Winkelmann, who died intestate, and thus entitled to inherit his personal property. Winkelmann had mistakenly believed he adopted the child in compliance with Illinois law. The court concluded that there was a valid contract to adopt because the evidence showed Winkelmann treated the child as his daughter and she treated him as her father; 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 Winkelmann by her natural father was a valuable consideration for the contract. See also Monahan v. Monahan, 153 N.E.2d 1, 4 (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.”).
Even an agreement signed by only the natural parents 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 mother/daughter relationship. Soelzer v. Soelzer, 47 N.E.2d 458 (Ill. 1943). 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. Yet absent either a written memorandum of the alleged agreement to adopt or the testimony of a witness to the making of an oral contract, Illinois courts have declined to find a valid contract to adopt. See, e.g., In Re Estate of Staehli v. LaRaviere, 407 N.E.2d 741, 744 (Ill. App.3d 1980).
The cases discussed above indicate that the adoption deeds constitute persuasive evidence of valid contracts to adopt Sapna A~ and Amandeep S. A~. The terms of the adoption decrees make clear that the intent of the natural mother and Amarjit was that Amarjit adopt and raise the children as her own. Moreover, the decrees specifically provide that each child “shall inherit the properties of the adoptive mother.” The surrender of the children by their natural mother was valuable consideration sufficient to support the existence of a contract to adopt. See Dixon National Bank, 125 N.E.2d at 467. All of these factors suggest that Illinois law would likely find a valid contract to adopt Sapna A~ and Amandeep S. A~.
Nonetheless, aside from the evidence that Sapna and Amandeep S. resided with Amarjit A~ and took her last name, we have no information regarding the nature of the children's relationship with Amarjit and whether friends and/or relations generally regarded the children as Amarjit's legally adopted children. We conclude that additional information addressing this issue is necessary before a final determination as to the validity of Sapna's and Amandeep S.'s adoptions under Illinois law can be made. So long as the information you develop supports the existence of a parent/child relationship, we believe Illinois would recognize as valid the adoptions of Sapna A~ and Amandeep S. A~ by Amarjit A~. Both children would therefore be entitled to child's benefits.