QUESTION
You requested an opinion regarding whether claimant Michael S~ (“claimant”) qualifies
for child's insurance benefits as the equitably adopted child of Karen A~ and Clayburn
A~ (referred to collectively as “the wage earners”) under section 216(h)(2)(A) of
the Social Security Act (the Act), 42 U.S.C. § 416(h)(2)(A).
ANSWER
For the reasons discussed below, claimant qualifies as an equitably adopted child
on the records of the wage earners for purposes of his claims for child's insurance
benefits and a lump sum death benefit.
SUMMARY OF EVIDENCE
Claimant was born on February 21, 1988. Less than two months after his birth, his
biological mother was incarcerated. During her six-month incarceration, the wage earners
(claimant's third cousin Karen and her husband Clayburn) cared for claimant. In October
1988, after claimant's biological mother was released from prison, the wage earners
petitioned the Salt River Pima-Maricopa Indian Community Court (the Court) for custody
of claimant. The Court awarded full custody of claimant to the wage earners in November
1988.
Claimant, his biological mother, and the wage earners are (or were until death) all
members of the Salt River Pima-Maricopa Indian Community, located within the borders
of the State of Arizona.
Claimant's biological mother died in 1991, and claimant continued to live with the
wage earners thereafter. Clayburn died in 1993, and Karen died in January 2003. Following
Karen's death, claimant, at age 15, became a ward of the Court, with the Salt River
Community Social Services serving as his guardian. On March 28, 2003, claimant applied
for survivor's benefits based on the wage earners' earnings records, and for a lump-sum
death benefit based on Karen's earnings record.
Responding to a request by SSA for proof of adoption by the wage earners in order
to process the application for benefits, claimant's social worker, Edward R~, discovered
that no final adoption had ever taken place. However, a statement by Kristina K~,
Chief Judge of the Salt River Pima-Maricopa Indian Community Court, indicates that
when a Salt River Pima-Maricopa Indian family member takes custody of a child, that
family member is recognized by the tribe as the legal parent of the child. Chief Judge
K~ stated that neither the Court nor the family would have demanded formal termination
of parental rights; once the biological mother was unable to fulfill her duties as
a mother, Karen A~, as a blood relative with custody of claimant, would be presumed
by the community to be claimant's mother. See October 2, 2003 Letter from Kristina K~, Chief Judge of the Salt River Pima-Maricopa
Indian Community Court (“K~ Letter”). Social worker Edward R~ also stated that, based
upon his personal knowledge, Karen A~ was the only mother claimant had ever known,
and that she was regarded within the community as his mother, with all the concomitant
rights and responsibilities. See May 19, 2003 Letter from Edward R~, Case Manager, Salt River Social Services (“R~
Letter”).
DISCUSSION
Choice of Law
To determine whether an applicant is the child of an insured individual for purposes
of survivor's benefits, the Commissioner of Social Security shall apply such law as
would be applied in determining the devolution of intestate personal property by the
court of the State in which such insured individual is domiciled at the time such
applicant files application, or if such insured individual is dead, by the courts
of the State in which he was domiciled at the time of his death, or if such insured
individual is or was not so domiciled in any State, by the courts of the District
of Columbia.
Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A). The statute looks to
the state of the insured's domicile at death to determine which law applies. The wage
earners resided within the borders of the State of Arizona, and thus Arizona law may
apply. However, they lived on the land of the Salt River Pima-Maricopa Indian community,
a sovereign tribe separate and apart from Arizona, and were thus arguably not domiciled
in any state.[1] Under this view, District of Columbia law would apply. By yet another perspective,
the tribal law of the Salt River Pima-Maricopa could apply as the functional equivalent
of state law.[2]
In this case, however, choice of law is not dispositive. Regardless of whether Arizona
law applies because the wage earners were domiciled there or by virtue of the tribal
law directive, or whether District of Columbia law applies because the wage earners
were not domiciled in any state, the same result is reached.
EQUITABLE ADOPTION
Equitably adopted children are eligible for survivor's benefits if the wage-earner
had agreed to an adoption 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 wage earner's personal property if she were to die
without a will. 20 C.F.R. § 404.359 (2002).
According to section 9-2 of the Salt River Pima-Maricopa Community Code, “[i]n the
determination of heirs, the court shall apply the laws of the State of Arizona.” Under
Arizona law, and therefore also under Salt River Pima-Maricopa Indian Community law,
it is well-established that an equitably adopted child may inherit by intestate succession
from a parent. Estate of Lamfrom, 368 P.2d 318, 320, 90 Ariz. 363, 366 (Ariz. 1962).
The law of the District of Columbia is somewhat unsettled. A 1964 federal appeals
court declared that, under the District's law, the question remained open as to the
validity of equitable adoption based on an alleged promise to adopt. Epstein v. Mesher, 333 F.2d 152, 152-53 (D.C. Cir. 1964). Subsequent decisions in this jurisdiction
gave great weight to the law of the situs of the alleged adoption to determine whether
an equitable adoption existed for purposes of inheritance. See In re McConnell, 268 F. Supp. 346, 347 (1967) (looking to Florida law); see also In re Jarboe's Estate, 235 F. Supp. 505, 506 (D.C. Cir. 1964) (applying Maryland law). Based on this precedent,
District of Columbia law would likely look to Arizona law, or to Salt River Pima-Maricopa
Indian Community law, which, as discussed, in turn incorporates Arizona law.
According to the Arizona Supreme Court, for an equitable adoption to be valid, a court
must find the following: (1) the putative adoptive parent must promise in writing
or orally to adopt the child; (2) the biological parents must turn the child over
to the adoptive parents; and (3) the child must give filial affection, devotion, association
and obedience to the adoptive parents during the latter's lifetime. Estate of L~, 368 P.2d at 320, 90 Ariz. at 366. Arizona courts have acknowledged that the promise
to adopt need not be express, “but may be implied from the acts, conduct, and admissions
of the adopting parties.” Id.; see also Estate of Prewitt, 498 P.2d 470, 471-72, 17 Ariz. App. 396, 397-98 (Ariz. Ct. App. 1972) (acknowledging
that a contract to adopt may be shown by circumstantial evidence). Using the test
set out by the Arizona Supreme Court, there is sufficient evidence to show that the
wage earners equitably adopted claimant.
Two of the three factors necessary to find an equitable adoption are easily shown
from the evidence. Claimant was “turned over” to the wage earners when his biological
mother agreed to allow them to have permanent custody. In addition, according to social
worker Edward R~, claimant considered the wage earners his parents and willingly gave
the requisite “affection” and “devotion.” See R~ Letter.
The Salt River Pima-Maricopa Indian Community has formal adoption procedures. See Salt River Community Code §§ 10-31 to 10-39. There is no evidence that this legal
process was followed or that the wage earners ever attempted to adopt claimant through
these means. The remaining factor in the Arizona test, an agreement to adopt, is nonetheless
satisfied, as the evidence indicates that the custom in the tribe is to effect an
adoption through less formal means. Chief Judge K~ provided evidence that, according
to the custom of the tribal community, family members are recognized as the permanent,
legal parents upon assuming custody of a child due to the natural parent's inability
to provide adequate care.[3] Indeed, Chief Judge K~ indicated that no community member or institution would have
advocated for legal termination of a biological mother's rights in this situation.
See K~ Letter. Since a transfer of custody is apparently regarded as an informally-effected
yet permanent adoption, in this case, the act of transferring custody constituted
an implied agreement between claimant's biological mother and the wage earners to
adopt. This conclusion is also supported by the fact that when claimant's biological
mother died, claimant's life with the wage earners continued uninterrupted; it was
only after the wage earners' deaths that claimant was declared a ward of the state
and placed in foster care. The wage earners, and apparently no other adults, made
an agreement with claimant's biological mother to assume permanent responsibility
for claimant's care and well-being. The evidence supports a finding that the wage
earners agreed to adopt claimant.
Under Arizona law as it applies directly or as it would be incorporated by the Salt
River Pima-Maricopa Community laws or by a District of Columbia court looking for
guidance, all factors necessary to show an equitable adoption are met. Therefore,
claimant is considered the equitably adopted son of the wage earners.
Dependency of the Equitably Adopted Child
For entitlement to child's insurance benefits, an equitably adopted child must be
shown to be “dependent” upon the wage earner. Social Security Act § 202(d)(1)(C),
42 U.S.C. § 402(d)(1)(C). A child is considered dependent upon the wage earner if
he was either living with or receiving contributions for his support from the wage
earner at the time of her death. 20 C.F.R. § 404.365 (2003).
Here, the evidence indicates that claimant lived continuously with the wage earners
from the age of two months until their respective deaths. Thus, the dependency requirement
has been satisfied.
CONCLUSION
Based on the present record, the claimant qualifies for child's insurance benefits
as the wage earners' equitably adopted child under tribal, Arizona or District of
Columbia intestacy law.