You asked whether South Dakota would recognize the deceased number holder’s (“the
NH’s”) three grandchildren as his equitably adopted children.
We do not believe that a court would find that the claimant proved by clear, cogent,
and convincing evidence that the NH equitably adopted the children. The facts also
fail to satisfy the POMS equitable adoption criteria. There is no evidence of an express
agreement to adopt between the NH and the South Dakota Department of Social Services
(DSS). Evidence that arguably supports an implied agreement to adopt is outweighed
by DSS’s subsequent recommendation that the claimant petition to adopt the children
alone, due to the NH’s failing health, and the fact that DSS never surrendered complete
and absolute custody and control of the children to the NH.
Between July 2003 and January 2004, the South Dakota Department of Social Services
attained legal and physical custody of all three children and placed them in kinship
or foster care with the NH and the claimant, the children’s maternal grandparents.
See “Authorization[s] to Seek Treatment and to Obtain Prescriptions for Children in the
Custody of the Department of Social Services.”
In May 2004, a DSS social worker filed a “Report to the Court” and reported the NH’s
and the claimant’s willingness to adopt the children. The social worker recommended
that it was in the children’s best interest to remain in kinship/foster care with
the NH and the claimant, and that physical and legal custody and full placement rights
of the children remain with DSS.
In January 2005, a DSS supervisor signed “A Permanency Planning Review Team Report.” It notes “adoption” as the goal, identifies the claimant and the NH as resources,
and indicates an “[a]doption worker is working with the family on submitting the adoption
paperwork to finalize the adoption.” The team recommended that DSS “start [the] adoption
process [with the] grandparent’s” but “[l]ook into [the NH’s] name on adoption paperwork
[since] he lives in a nursing home.”
With DSS’s consent, the claimant subsequently petitioned to adopt the children alone.
See March 31, 2005 “Order for Adoption.” On November 26, 2010, the NH died while domiciled
in South Dakota. On January 5, 2011, the claimant filed applications for benefits
as a surviving mother with minor children in her care and for child’s benefits on
behalf of all three children.
In a letter dated January 14, 2011, DSS confirmed that the NH and the claimant had
attended required foster care/adoption classes and had plans to adopt the children
together. DSS explained that by the end of 2004, however, the NH’s health deteriorated,
and his family doctor recommended he be placed in a nursing home. DSS noted that the
claimant and the children regularly visited the NH at the nursing home, and that he
still hoped to adopt the children with her. However, due to the NH’s “failing health,”
DSS advised the claimant to petition to adopt the children alone.
According to written statements from nursing home employees, the children visited
the NH weekly, and he referred to them as and treated them like his own children.
According to a joint statement from the NH’s sister-in-law and her husband, the NH
felt strongly about adopting the children and did not know that his name had not been
included on the adoption petition.
The report we received is only for one of the children. However, a hand-written note
at the bottom of the page indicates “[t]here was one form like this for each child.”
Requirements for Entitlement to Mother’s and Child’s Benefits
The entitlement requirements for mother’s benefits and for child’s benefits on the
NH’s record are interconnected. In order to be entitled to mother’s benefits, the
claimant must have in her care the NH’s child who is entitled to child’s benefits.
See 20 C.F.R. § 404.339. For a child to be entitled to child’s benefits on the NH’s record,
the claimant must prove that the child is indeed the NH’s child. See 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, step grandchild
or equitably adopted child. 20 C.F.R. § 404.354.
An individual may be eligible for child’s benefits as an equitably adopted child,
if the NH agreed to adopt the individual 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 NH’s personal property, if he or she were
to die intestate (i.e., without leaving a will). See 20 C.F.R. § 404.359. To determine whether an individual is eligible for benefits
as an equitably adopted child, the Commissioner follows the law of the state where
the NH had his permanent home at the time of his death. See 42 U.S.C. § 416(h)(2); 20 C.F.R. § 404.359. Here, the NH’s permanent home was in SD
when he died, so the agency must apply South Dakota law.
South Dakota Law and Agency Policy on Equitable Adoption
South Dakota statutes do not expressly recognize equitable adoption. However, South
Dakota courts have expressly recognized the equitable adoption theory. “It is the
settled law in this state that a contract to adopt, not followed by effectual adoption
proceedings during the lifetime of the adoptive parent, may be enforced to the extent
of declaring that the adopted child is entitled to inherit from the estate of the
adoptive parent.” Johnston v. Eriksson, 23 N.W.2d 799, 801 (1946) (citing Crilly v. Morris, 19 N.W.2d 836 (1945)); see also In re F~’s Estate, 62 N.W.2d 361 (Minn. 1954) (applying South Dakota law); Johnson v. Olson, 26 N.W.2d 132 (1947) (implicitly recognizing rule). The party seeking to prove an
equitable adoption must do so with “evidence so clear, cogent, and convincing as to
leave no reasonable doubt as to the agreement.” E~, 23 N.W.2d at 801 (citation omitted). A party may rely on circumstantial evidence
to prove an equitable adoption. See C~, 19 N.W.2d at 843 (citations omitted). However, “the circumstances that will warrant
an inference of an agreement to adopt must be not only consistent with the existence
of such agreement, but inconsistent with any other rational theory.” Id. at 844 (citation omitted).
Agency policy 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. See POMS GN 00306.175(A). The POMS lists the requirements for equitable adoption, which include: (1) an
express or implied contract to adopt the child; (2) legal consideration for the adopting
parent’s promise to adopt; (3) in some states, a promise by the adopting parent to
give the child inheritance rights; (4) surrender of the child to the adopting parent;
(5) performance by the child under the contract; and (6) sufficient lapse of time
so that child could have been legally adopted under applicable state law.  POMS GN 00306.175(C).
Regarding the first requirement of an express or implied contract to adopt, the POMS
explains that a contract to adopt can be implied from the circumstances and conduct
of the parties. “However, if the terms of an agreement are known, no contract other
than that indicated in the agreement may be implied.” POMS GN 00306.180(C)(1). Regarding the fourth requirement of surrender of the child, the POMS explains:
There must be a complete and absolute surrender of the custody and control of the
child to the adopting parents pursuant to the contract of adoption. To meet this requirement:
[t]he agreement must not give the person or agency placing the child the authority
to regain custody, or give the adopting parent the right to return the child; and
[t]he person or agency placing the child must not retain the right to exercise control
and supervision over the child.
POMS GN 00306.200(A).
There Is Insufficient Evidence of Equitable Adoption under South Dakota Law and the
We do not think a court would find that the evidence submitted by the claimant is
so clear, cogent, and convincing as to leave no reasonable doubt of an express or
implied agreement to adopt. See E~, 23 N.W.2d at 801. The evidence is undisputed that the NH desired to adopt the children
jointly with the claimant, and attended required foster care/adoption classes. There
is also evidence that the children visited the NH in the nursing home where he resided,
and that the NH referred to the children as his own children. Moreover, the adoption
team’s recommendation in January 2005 that DSS “start” the adoption process with the
grandparents suggests that DSS was initially in favor of the NH and the claimant adopting
the children together. This evidence is not sufficient to show an express agreement
to adopt, but could be viewed as an implied agreement to adopt. However, there is
considerable evidence weighing against finding an implied agreement. Most significantly,
inconsistent with the notion of an implied agreement to adopt, the adoption team also
advised DSS to “[l]ook into [the NH’s] name on adoption paperwork [since] he lives
in a nursing home.” In fact, during the NH’s lifetime, with DSS’s consent, the claimant
petitioned to adopt the children alone. This evidence reflects that DSS did not have
any implied agreement with the NH, but rather that the parties were merely engaged
in discussions and planning regarding the adoption. As noted, “the circumstances that
will warrant an inference of an agreement to adopt must be not only consistent with
the existence of such agreement, but inconsistent with any other rational theory.”
C~, 19 N.W.2d at 844 (citation omitted). Based on the evidence here, the more rational
theory is that DSS initially considered the NH and the claimant to be prospective
adoptive parents but subsequently recommended that the claimant petition to adopt
the children alone, due to the NH’s declining health. Another way of looking at the
facts is that the petition to adopt was an express contract, but only between DSS
and the claimant (not the NH). An implied contract cannot exist where the terms of
an agreement are known – in such a case, “no contract other than that indicated in
the agreement may be implied.” POMS GN 00306.180(C)(1).
Moreover, there is not sufficient evidence that DSS ever completely surrendered the
children to the NH. See POMS GN
00306.200 (requiring “complete and absolute surrender of the custody and control of the child”).
Rather, the evidence shows that while the children remained in the kinship/foster
care of the NH and the claimant pending adoption, but that physical and legal custody
and full placement rights of the children remained with DSS. There is no evidence
that DSS surrendered custody and control of the children until the adoption was finalized
in March 2005; at that time, custody and control was surrendered only to the claimant
pursuant to the adoption order.
The claimant has not satisfied her burden of providing clear, cogent, and convincing
evidence that DSS entered into an express or implied agreement with the NH to adopt
the children, including evidence that DSS completely surrendered the children to the
NH. Since the claimant cannot prove that the NH equitably adopted the children, she
is not entitled to mother’s benefits, and the children are not entitled to child’s
benefits on the NH’s record.
John J. L~
Regional Chief Counsel, Region VIII
Yvette G. K~