PR 01510.001 Alabama

A. PR 08-099 Equitable Adoption by Disability Recipient - Alabama

DATE: April 16. 2008

1. SYLLABUS

Alabama law recognizes equitable adoption, but only when a definite contract is clearly proven, not only to adopt, but to adopt so as to permit the adoptee to inherit, and the contract was one for which specific performance could be enforced. An intent to adopt is not sufficient to determine that an equitable adoption exists.

2. OPINION

QUESTION

Did the claimant's great aunt, a disability recipient, equitably adopt the claimant before the aunt was entitled to benefits, so that the claimant may qualify for child's insurance benefits on the great aunt's wage record?

No. Alabama allows equitable adoption, but strictly construes the manner it which it must be proven. Because there was no enforceable contract for adoption specifying an intention that the child may inherit, there was no equitable adoption.

BACKGROUND

Rachelle P~ the number holder (NH), filed for Title II Social Security disability insurance benefits (DIB) on July 14, 2006. On her application she listed Mileena H~ (whom NH listed as Mileena P~) (Claimant) as her child. NH was subsequently awarded DIB with a disability onset date of April 1, 2006. The Agency contacted NH on November 30, 2006, about auxiliary claims and discovered that Claimant was not yet legally adopted. Claimant had been placed with NH, Claimant's great aunt, by the biological mother on June 17, 2006. On June 19, 2006, NH filed a petition in an Alabama court to adopt Claimant, and obtained an interlocutory decree awarding her custody on July 20, 2006. The final decree of adoption and name change (Claimant's last name changed from H~ to P~) is dated December 20, 2007. NH stated that the adoption was delayed due to the biological father's initial reluctance to admit paternity and sign a consent for adoption. When asked whether there was an agreement for adoption, NH stated on December 22, 2007, that the biological mother had signed a document relinquishing parental rights.

DISCUSSION

A claimant may be entitled to child's insurance benefits on the wage record of an individual entitled to DIB if the claimant is the insured individual's "child." See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2007). "Child" may include the adopted child of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2007). The claimant may qualify for benefits as the disabled individual's child if the disabled individual equitably adopted the claimant. See 20 C.F.R. § 404.359 (2007). A child is eligible as an equitably adopted child if the agreement to adopt would be recognized under state law so that the child would be able to inherit from the insured under state intestacy law. See id. SSA applies the law of the state in which the number holder has her home at the time of application. See id. NH stated on June 18, 2006, that she lived in Riverside, Alabama, and there is no evidence that she moved to another state between that time and her application four weeks later. Therefore, we apply Alabama law to determine if the agreement to adopt would be recognized under state law so that Clamant could inherit from NH under Alabama intestacy law.

There is an additional issue regarding the timing of the alleged equitable adoption. One of the eligibility requirements for child's insurance benefits is that the child be dependent on the insured individual. See Act § 202(d)(1)(C); 20 C.F.R. §§ 404.350(a)(2), 404.360 (2007). If the equitable adoption occurred after the insured became entitled to benefits, dependency cannot be established. See Act § 202(d)(1)(C)(i); 20 C.F.R. § 404.365 (2007). Therefore, for Claimant to qualify for child's benefits on NH's record, the equitable adoption must have occurred prior to September 1, 2006 (NH's disability onset date plus the five-month waiting period; see 20 C.F.R. §§ 404.315(a)(4), 404.350(a) (2007)).

Alabama recognizes equitable adoption, but only in limited circumstances and with strict evidentiary requirements:

On those rare occasions when this Court or the Court of Civil Appeals has recognized an equitable adoption, it has recognized it only when a definite contract was clearly proven, not only to adopt, but to adopt so as to permit the adoptee to inherit, and the contract was one for which specific performance could be enforced.

Samek v. Sanders, 788 So. 2d 872, 875 (Ala. 2000). Evidence of a common understanding to adopt is insufficient:

nor was any written instrument introduced signed by the S~ wherein they agreed to take Lillie into their home and custody and to treat her and care for her as if she were their own child . . . .

We think the evidence shows there was a common understanding between appellant and Mr. and Mrs. S~ that at the death of Mr. and Mrs. S~ appellant would inherit their property. Such an understanding is not sufficient to justify a decree of specific performance as prayed.

Luker v. Hyde, 69 So. 2d 421, 424 (Ala. 1954).

In this case, the evidence prior to the critical date of September 1, 2006, shows an intent to adopt, a "common understanding" between the biological mother and NH. However, NH did not enter into a definite contract for adoption subject to specific performance; that is, she made no contract upon which the child could later sue in, for example, a probate situation. Rather, she petitioned for adoption, and the interlocutory decree awarded custody pending possible adoption at a later date.

Furthermore, the record contains no agreement or decree relating to rights to inherit, which is an additional prerequisite for equitable adoption. See Samek, 788 So. 2d at 875. In an earlier case, the Alabama Supreme Court did not find equitable adoption, stating, "A distinction must, of course, be recognized between a mere agreement to adopt, and an agreement to make the child a beneficiary of property, either by heirship or by deed or testament." C.H.H. v. R.H., 696 So. 2d 1076, 1078 (Ala. 1996), citing Prince v. Prince, 69 So. 906, 907 (1915). The cases setting forth the requirement that the agreement show an intent for the child to have rights of inheritance are inheritance cases; so, one could argue that this requirement is limited to cases where inheritance is the issue. However, Samek and C.H.H. do not explicitly limit the requirement in this fashion; that is, they do not state there was an equitable adoption, but not for inheritance purposes. Furthermore, the regulation regarding equitable adoption requires an agreement to adopt 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." 20 C.F.R. § 404.359.

In an analogous case, the defendant argued for equitable adoption of her child by her deceased spouse. C.H.H., 696 So. 2d at 1077-78. The spouse had filed a petition to adopt, and the court entered an interlocutory order granting custody. Id. Defendant then requested an expedited hearing, but her spouse passed away 40 minutes before the court issued the order of adoption. Id. The Supreme Court of Alabama held that there was no equitable adoption. Id. Here, as in that case, there was a petition to adopt, an interlocutory order, but no contract of adoption with rights of specific performance.

Because we believe no equitable adoption existed in this case, we do not reach the issue of when the equitable adoption occurred.

CONCLUSION

For these reasons, we believe NH did not equitably adopt Claimant and thus Claimant was not NH's child for purposes of child's insurance benefits.

Sincerely
Mary A. S~
Regional Chief Counsel

Rollin M~
Assistant Regional Counsel

B. PR 06-357 Implied Consent or Relinquishment by Alleged Biological Father and Potential Equitable Adoption of Minor Child in Alabama Deceased Number Holder - Johnny S~, Claimant - Raquel M~

DATE: October 5, 2006

1. SYLLABUS

In this Alabama case, the alleged biological father was not present at the birth of the child nor was he listed as the father on Claimant's birth certificate and there is no indication that he requested a determination of paternity after the claimant was born. He did not attend the custody proceedings or even respond to the notice. There is no evidence that he attempted to contact the claimant after the number holder and his wife were granted custody.

The evidence in this case supports a finding of implied consent or relinquishment by the alleged father for the claimant to be adopted.

Alabama is among the states that recognizes equitable adoption, "but only within carefully articulated limits." Alabama courts require proof of a definite contract to adopt so as to permit the adoptee to inherit. In this case, the signed adoption papers denote the proposed terms of what could have eventually become a legal adoption but none of these documents were filed with the court. The petition for adoption is only signed by the deceased number holder, his wife, and the notary. No attorney for the petitioners is listed on the petition for adoption. Thus, while the evidence here may support an intent to adopt, nothing supports the existence of an enforceable contract. Finally, the petition is silent on the subject of inheritance, a requirement for equitable adoption in Alabama.

The claimant does not meet the requirements to be an equitably adopted child under Alabama law.

2. OPINION

QUESTION

In determining whether Raquel M~ (Claimant) can qualify for Child's Insurance Benefits as the child of her deceased stepfather and number holder (NH), Johnny S~, you asked 1) whether there was an implied relinquishment of Raquel for adoption by her alleged biological father, V~ James (V~), and 2) whether Claimant meets the requirements of an equitably adopted child under Alabama Intestacy Law.

ANSWER

For the reasons stated below, we believe V~ provided an implied consent or relinquishment for the adoption of Claimant. However, Claimant does not meet the requirements of an equitably adopted child under Alabama Intestacy Law.

BACKGROUND

Claimant was born on February 12, 2000 to Demetrias M~. While no father is listed on the birth certificate, Claimant's mother alleges that the biological father is V~. However, there has never been a legal determination of whether V~ is actually Claimant's biological father. NH's wife, Linda S~, signed a statement stating that Claimant's mother was a drug abuser around the time she became pregnant and, at the time of the custody proceedings, Claimant's mother stated that she had several boyfriends around the time Claimant was conceived, not just V~.

Claimant has lived with NH and his wife since she was 2 months old. Claimant's mother formally signed forms agreeing to allow NH and his wife to take custody of Claimant. Custody was granted on October 23, 2000. V~ did not respond to the court regarding paternity. NH's wife said V~ was served with custody papers by the Sheriff's office and he never responded. NH's wife also said V~ has never attempted to see Claimant or contact her. V~ has not responded to telephone messages and letters from the Social Security Administration (SSA).

NH and his wife signed a petition for adoption on October 11, 2001 to begin adoption proceedings. Also, Claimant's mother signed a consent or relinquishment of minor for adoption on October 11, 2001, to consent to the adoption of Claimant by NH and his wife. However, the petition for adoption was not filed with the court. NH died before anyone attempted to notify V~ regarding the adoption, such as by notice in the newspaper.

DISCUSSION

Under the Social Security Act, a "child" under age eighteen may collect Child's Insurance Benefits on the work record of a deceased parent. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d) (2005). The Act defines "child" to include a legally adopted child. See Act § 216(e), 42 U.S.C § 416(e) (2005). The determination of whether a child is the legally adopted child of a wage earner is based on the adoption laws of the State where the adoption took place. See 20 C.F.R. § 404.356 (2006). In this case, Claimant could qualify for child's survivor's benefits if SSA finds NH adopted her before his death. See Act § 216(e), 42 U.S.C § 416(e) (2005). As the adoption did not actually take place because NH died before the adoption occurred, we need to determine whether Claimant is NH's equitable adopted child. A child is considered an equitably adopted child if the insured agreed to adopt the child, but the adoption did not occur, but only if, the agreement to adopt is one that would be recognized under State law so that the child would be able to take a child's share of the insured's personal property if he were to die without leaving a will. See 20 C.F.R. § 404.359 (2006). Furthermore, the agreement to adopt must be in whatever form, and the child must meet whatever requirements for performance under the agreement, that State law directs. See id. A determination of whether a child is the equitably adopted child of a wage earner is based on the adoption laws of the State where the insured had his permanent home at the time of his death. See id. As NH was domiciled in Alabama at the time of his death, we must apply Alabama law.

1. Implied Consent or Relinquishment

The Alabama Adoption Code requires that notice of the pendency of an adoption proceeding shall be served on the father and putative father of the adoptee if made known by the mother or otherwise known by the court unless the court finds that the father or putative father has given implied consent to the adoption, as defined in Section 26-10A-9. ALA CODE § 26-10A-17(a)(1) (2006). The Alabama Adoption Code further states:

(a) A consent or relinquishment to adoption required by Section 26-10A-7 may be implied by any of the following acts of a parent: (1) Abandonment of the adoptee. Abandonment includes, but is not limited to, the failure of the father, with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of 6 months prior to the birth. (2) Leaving the adoptee without provision for his or her identification for a period of 30 days. (3) Knowingly leaving adoptee with others without provision for support and without communication, or not otherwise maintaining a significant parental relationship with the adoptee for a period of 6 months. (4) Receiving notification of the pendency of the adoption proceedings under Section 26-10A-17 and failing to answer or otherwise respond to the petition within 30 days. (5) Failing to comply with Section 26-10C-1, which covers registration of putative father; notice of intent to claim paternity; release of information.

ALA CODE § 26-10A-9 (2006); see Ex parte J.W.B. and K.E.W.B, 933 So. 2d. 1081, 1087(Ala. 2005).

The Committee Comments to Section 26-10A-9, dealing with implied consent of a parent for the adoption of his or her child state:

Just as acceptance of the terms of a commercial contract can be implied from the conduct of a party, so may the consent of a person to the adoption be implied from the conduct of that individual. When it is not possible to obtain the actual consent of a person who is specified in Section 26-10A-7, this section enumerates instances in which a person's consent may be implied from his or her acts or omissions with respect to his or her duty to care for the adoptee in the past.

ALA CODE § 26-10A-9 (2006); see S.W.B. v. R.C. and B.C., 668 So.2d 835, 837-838 (Ala. Civ. App. 1995).

In S.W.B. the Alabama Court of Civil Appeals held that the biological parents implicitly relinquished their child for adoption, justifying termination of their parental rights. See id. at 838. The court reasoned that the biological mother knowingly gave the child to the adoptive parents when the child was an infant; the adoptive parents reared the child for the prior twelve years; and for at least the prior seven years the biological parents provided no financial support for child, did not communicate with the child, and did not maintain even a nominal parental relationship. Id. at 837.

Similarly, Claimant's mother knowingly gave Claimant to NH and his wife when she was an infant. When SSA contacted Claimant's mother regarding V~, she said she knew that V~ was the father and that he acknowledged Claimant and was crazy about her, but added he will not do anything to support her. In sum, V~ has not provided any financial support for Claimant, nor has he communicated or maintained even a nominal parental relationship with her.

Also, there is no evidence that V~ actually made any attempts to claim Claimant as his child. In Ex parte F.P., the Alabama Supreme Court found that a biological father, who had never seen his child before the trial of the adoption petition and who had not provided any support to the mother or to the adoptive parents after the birth of the child, could, nevertheless, not be deemed to have impliedly consented to the adoption of the child pursuant to § 26-10A-9(a)(1) (abandonment of the child) or § 26-10A-9(a)(3) (failure to maintain a significant parental relationship with the child) because, before the child's birth, he took the following steps to pursue his parental rights through legal action; he petitioned the juvenile court for a determination of the father-child relationship; he registered with the Putative Father Registry; he requested a blood test to determine paternity; and he moved for a stay of the adoption proceedings pending the paternity determination. 857 So. 2d 125 (Ala. 2003). The court further found that post-birth, the father had a justifiable excuse for failing to establish a relationship with the child - the adoptive parents did not wish to allow him to do so. Id. at 138.

Here, V~ was not present at the birth of the child nor was he listed as the father on Claimant's birth certificate. There is no indication that V~ requested a determination of paternity after Claimant was born. In addition, when V~ was given notice of the custody proceedings, he did not attend the proceedings or even respond to the notice. Furthermore, there is no evidence that V~ attempted to contact Claimant after NH and his wife were granted custody. Therefore, the evidence in this case supports a finding of implied consent or relinquishment by V~ for Claimant to be adopted.

2. Equitable Adoption

The next question is whether Claimant can qualify as NH's equitably adopted child under Alabama Intestacy Law.

The Alabama Supreme Court has held "[t]he right of adoption . . . is purely statutory, and was never recognized by the rules of common law." C.H.H. v. R.H., 696 So. 2d 1076, 1078 (Ala. 1996) (quoting Hanks v. Hanks, 199 So. 2d 169, 176 (1967)); see also Samek v. Sanders, 788 So. 2d 872, 875 (Ala. 2001) (containing similar language). The C.H.H. court further stated that Alabama "courts have always required strict adherence to statutory requirements in adoption proceedings." C.H.H., 696 So.2d at 1078 (citations omitted). Here, the parties failed to strictly adhere to the requirements of the Alabama adoption statute.

Nevertheless, even when all the criteria for a formal, legal adoption have not been satisfied, some states recognize through judicial determination that an adoption has taken place in equity. Alabama is among the states that recognizes equitable adoption, "but only within carefully articulated limits." Glaze v. Richardson, 438 F.2d 120, 121 (5th Cir. 1971) (citing e.g., Robinson v. Robinson, 215 So.2d 585 (Ala. 1968); Luker v. Hyde, 45 So. 2d 32 (Ala. 1950); Rivers v. Rivers, 200 So. 764 (Ala. 1941); Marietta v. Faulkner, 126 So. 635 (Ala. 1930)). However, the Alabama Supreme Court explained that "[e]quitable adoption is rarely recognized in Alabama . . . . " Samek, 788 So. 2d at 875.

The Alabama Supreme Court set forth the standard for a court to find an adoption in equity in Samek. First, the court must generally find "an intent to adopt." Samek, 788 So. 2d at 875. On the "rare occasions" when the Alabama Supreme Court or the Alabama Court of Civil Appeals recognized an equitable adoption, those courts required proof of "a definite contract . . . , not only to adopt, but to adopt so as to permit the adoptee to inherit, and the contract was one for which specific performance could be enforced." Samek, 788 So. 2d at 875; (citing C.H.H., 696 So. 2d at 1078; Prince v. Prince, 69 So. 906 (Ala. 1915) (benchmark case allowing for equitable adoption in Alabama)); see also Glaze, 438 F.2d at 121 (must have a contract to adopt, supported by consideration, and sufficient in form to become the subject of specific performance). In two recent cases, the Alabama Supreme Court found insufficient evidence to support an equitable adoption. See Samek, 788 So. 2d at 875-76 (finding an absence of a specifically enforceable contract that could provide the basis of an order of specific performance); C.H.H., 696 So. 2d at 1078-79 (finding no indication of an agreement that the child would inherit any of decedent's property).

In a case that closely parallels the facts in this case, the decedent in C.H.H. had signed a petition to adopt the minor son of his wife, which they filed in probate court in August 1994. See C.H.H., 696 So. 2d at 1078. The trial court entered an interlocutory order, which recognized the decedent as the stepfather of his wife's son and granted him custody of the son. See id. The court set a final disposition hearing for November 1994. See id. At the request of a daughter of the widow from another marriage, see id., at 1079, the court held an expedited hearing after which it "entered a final decree of adoption of [the son] on October 18, 1994, at 9:50 a.m., which was approximately 40 minutes after the decedent's death at 9:10 a.m. . . . " Id., at 1078. The Alabama Supreme Court found "no indication that there was ever an agreement whereby [the son] would inherit any of the decedent's property." Id., at 1079. The court noted that the petition was prepared based on information provided by the widow; the attorney preparing the documents only saw the decedent once when he signed the petition; although the decedent declared he understood what he was signing, the evidence does not indicate whether the decedent was aware of the expedited hearing; and the widow took the decedent to the hospital two days before his death and she was actually at the hearing when decedent died. See id. The court concluded that "[t]he facts of this case simply do not present those specific facts necessary to invoke the application of equitable adoption." Id.

Based on Alabama case law, we do not believe that the evidence, here, is sufficient to show NH equitably adopted Claimant. First, although the signed adoptions papers denote the proposed terms of what could have eventually become a legal adoption, none of these documents were filed with the court. If the signed and filed petition to adopt was insufficient to show an equitable adoption in C.H.H., the simply signed petition, here, is even less compelling. Also, as in C.H.H., there is no indication that an attorney ever saw NH. The petition for adoption is only signed by NH, his wife, and the notary. No attorney for the petitioners is listed on the petition for adoption. Thus, while the evidence here may support an intent to adopt, nothing supports the existence of an enforceable "contract" for adoption.

Furthermore, even if we could construe the proposed petition as a contract from which a court could discern specific performance, the terms of the proposed petition contain no clear indication of any intent that Claimant inherit from NH. While NH's wife said NH told her that if he passed away he wanted her and Claimant to have everything he possessed; the proposed petition for adoption is silent regarding inheritance. NH, also, did not leave a will, which could have possibly supported the statement by NH's wife. The Alabama statute states that an "adoptee shall be treated as the natural child of the adopting parent or parents and shall have all rights and be subject to all of the duties arising from that relation, including the right of inheritance." ALA. CODE § 26-10A-29(a) (2006). However, this section has been in force since 1990, during the period covered by the recent cases. Thus, although a legally adopted child automatically acquires inheritance rights, it seems that the adoption petition or contract must clearly indicate the right to inherit. See C.H.H., 696 So. 2d at 1078-79 (finding no indication of an agreement that the child would inherit any of decedent's property). Thus, in keeping with the holdings of the Alabama Supreme Court, the evidence here fails to present the specific facts necessary to prove an equitable adoption.

CONCLUSION

Although we do believe V~ provided an implied consent or relinquishment for the adoption of Claimant by NH and his wife, we do not believe Claimant is the equitably adopted child of NH.

Sincerely
Mary A. S~
Regional Chief Counsel

Simone D. P~
Assistant Regional Counsel

C. PR 04-080 Wage earner: Augustus W. W~, No. ~ potential equitable adoption of wife's minor child, Courtney E~, in Alabama

DATE: February 10, 2004

1. SYLLABUS

The child claimant cannot qualify as the deceased NH's equitably adopted child under Alabama law. Although the adoption papers denote the proposed terms of what could have eventually become a legal adoption, none of these documents are signed and none were filed with the court. Furthermore, there is no indication that the attorney ever saw the NH, or she at most saw him at an initial meeting. Moreover, no evidence shows that the NH was ever aware of the proposed terms of this prospective adoption. Thus, while the evidence here may support an intent to adopt, nothing supports the existence of an enforceable "contract" for adoption. Also, the terms of the proposed petition contain no clear indication of any intent that the child inherit from the NH.

2. OPINION

Can Courtney E~ (Courtney) qualify for Child's Insurance Benefits as the equitably adopted child of her stepfather, wager earner Augustus W. W~, (Augustus)?

ANSWER

For the reasons stated below, we do not believe Courtney can qualify as Augustus' equitably adopted child under Alabama law.

BACKGROUND

Augustus married Courtney's mother, Jacqueline Y. E~ (Jacqueline), in Alabama on June 19, 1999. Courtney, born June 11, 1987, was twelve years old when Augustus and Jacqueline wed. On October 6, 2002, Augustus died, at which time Courtney was fifteen years old. The evidence presented includes unsigned papers consisting of: (1) a petition for adoption setting forth the proposed terms of Augustus' adoption of Courtney; (2) "consent of minor for adoption" in which Jacqueline agrees to the adoption and shared parental custody of Courtney; and (3) a motion to serve notice of the prospective adoption on Courtney's natural father by publication. The evidence also contains an affidavit of Jacqueline, in which she attests to the steps she and Augustus had taken towards the adoption, which remained incomplete when Augustus died. An affidavit from the W~' original attorney, Ms. Leslie T. F~, further supports Jacqueline's assertion of her husband's intent to adopt Courtney and recounts initial meetings to discuss adoption in September 2002; but, Ms. F~ ultimately referred the W~ to another, more specialized attorney. Finally, the evidence includes a letter from the attorney who drafted the adoption papers, Ms. Wendy P~, in which she states that Augustus died two days before his next meeting with her, when he was to review and presumably sign the documents.

DISCUSSION

Under the Social Security Act, a "child" under age eighteen may collect child's insurance benefits on the work record of a deceased parent. See Social Security Act § 202(d), 42 U.S.C. § 402(d). The Social Security Act defines "child" to include a legally adopted child. See Social Security Act § 216(e). The determination of whether a child is the legally adopted child of a wage earner is based on the adoption laws of the State where the adoption took place. See 20 C.F.R. § 404.356 (2003). In this case, Courtney could qualify for child's survivor's benefits if the Social Security Administration finds Augustus adopted her before his death. 1 See Social Security Act § 216(e).

The evidence is clear that Courtney does not qualify as the legally adopted child of Augustus. Recently, the Alabama Supreme Court reiterated: "[t]he right of adoption ... is purely statutory, and was never recognized by the rules of common law." C.H.H. v. R.H., 696 So.2d 1076, 1078 (Ala. 1996) (quoting Hanks v. Hanks, 199 So.2d 169, 176 (1967)); see also Samek v. Sanders, 788 So.2d 872, 875 (Ala. 2001) (containing similar language). The C.H.H. court further stated that Alabama "courts have always required strict adherence to statutory requirements in adoption proceedings." C.H.H., 696 So.2d at 1078 (citations omitted). Here, the parties failed to strictly adhere to the requirements of the Alabama adoption statute.

Nevertheless, even when all the criteria for a formal, legal adoption have not taken place, some states recognize through judicial determination that an adoption has taken place in equity. Alabama is among the states that recognizes equitable adoption, "but only within carefully articulated limits." Glaze v. Richardson, 438 F.2d 120, 121 (5th Cir. 1971) (citing e.g., Robinson v. Robinson, 215 So.2d 585 (Ala. 1968); Luker v, Hyde, 45 So.2d 32 (Ala. 1950); Rivers v. Rivers, 200 So. 764 (Ala. 1941); Marietta v. Faulkner, 126 So. 635 (Ala. 1930)). However, the Alabama Supreme Court explained that "[e]quitable adoption is rarely recognized in Alabama ...." Samek, 788 So.2d at 875.

The Alabama Supreme Court set forth the standard for a court to find an adoption in equity. First, the court must generally find "an intent to adopt." Samek, 788 So.2d at 875. On the "rare occasions" when the Alabama Supreme Court or the Alabama Court of Civil Appeals recognized an equitable adoption, those courts required proof of "a definite contract ..., not only to adopt, but to adopt so as to permit the adoptee to inherit, and the contract was one for which specific performance could be enforced." Samek, 788 So.2d at 875; (citing C.H.H., 696 So.2d at 1078; Prince v. Prince, 69 So. 906 (Ala. 1915) (benchmark case allowing for equitable adoption in Alabama)); see also Glaze, 438 F.2d at 121 (must have a contract to adopt, supported by consideration, and sufficient in form to become the subject of specific performance). In both recent cases, the Alabama Supreme court found insufficient evidence to support an equitable adoption. See Samek, 788 So.2d at 875-76 (finding an absence of a specifically enforceable contract that could provide the basis of an order of specific performance); see also C.H.H., 696 So.2d at 1078-79 (finding that there was no indication of an agreement that the child would inherit any of decedent's property).

Most closely parallel to the facts in this case, the decedent in C.H.H. had signed a petition to adopt the minor son of his wife, which they filed in probate court in August 1994. See C.H.H., 696 So.2d at 1078. The trial court entered an interlocutory order, which recognized the decedent as the stepfather of his wife's son and granted him custody of the son. See Id. The court set a final disposition hearing for November 1994. See id. At the request of a daughter of the widow from another marriage, see id., at 1079, the court held an expedited hearing after which it "entered a final decree of adoption of [the son] on October 18, 1994, at 9:50 a.m., which was approximately 40 minutes after the decedent's death at 9:10 a.m. ...." Id., at 1078. The Alabama Supreme Court found there was "no indication that there was ever an agreement whereby [the son] would inherit any of the decedent's property." Id., at 1079. The court noted that the petition was prepared based on information provided by the widow; the attorney preparing the documents only saw the decedent once when he signed the petition; although the decedent declared he understood what he was signing, the evidence does not indicate whether the decedent was aware of the expedited hearing; and, the widow took the decedent to the hospital two days before his death and she was actually at the hearing when decedent died. See id. The court concluded that "[t]he facts of this case simply do not present those specific facts necessary to invoke the application of equitable adoption." Id.

Based on Alabama caselaw, we do not believe that the evidence, here, is enough to show Augustus equitably adopted Courtney. Indeed, the present evidence is even less compelling than the evidence presented in the prior cases in which the courts declined to find equitable adoptions. First, although the unsigned papers denote the proposed terms of what could have eventually become a legal adoption, none of these documents are signed and none were filed with the court. If the signed and filed petition to adopt was insufficient to show an equitable adoption in C.H.H., the unsigned documents, here, are even less compelling. Also, as in C.H.H., there is no indication that the attorney ever saw Augustus, or she at most saw him at an initial meeting. Moreover, similar to the lack of proof that the decedent in C.H.H. was ever aware of the expedited adoption hearing, no evidence shows Augustus was ever aware of the proposed terms of this prospective adoption. Indeed, there is no indication that the documents prepared reflected the true terms Augustus would agree to, given that he had not yet seen the prepared documents or signed them. Thus, while the evidence here may support an intent to adopt, nothing supports the existence of an enforceable "contract" for adoption.

Furthermore, even if we could construe the proposed petition as a contract from which a court could discern specific performance, the terms of the proposed petition contain no clear indication of any intent that Courtney inherit from Augustus. Indeed, the proposed petition is silent regarding inheritance. The Alabama statute states that an "adoptee shall be treated as the natural child of the adopting parent or parents and shall have all rights and be subject to all of the duties arising from that relation, including the right of inheritance." ALA. CODE § 26-10A-29 (a). However, this section has been in force since 1990, during the period covered by the recent cases. Thus, although a legally adopted child automatically acquires inheritance rights, it seems that the adoption petition or contract must clearly indicate the right to inherit. See C.H.H., 696 So.2d at 1078-79 (finding that there was no indication of an agreement that the child would inherit any of decedent's property). Thus, in keeping with the holdings of the Alabama Supreme Court, the evidence here fails to present the specific facts necessary to prove an equitable adoption.

Cases in which equitable adoption was found in Alabama highlight additional concerns. In such cases, the courts acknowledged clear contracts between the adoptive parents and either the natural parent(s) or an orphanage. See Prince v. Prince, 69 So. 906, 907 (Ala. 1915) (equitable adoption found in case with attested, but unfound, contract to adopt with natural mother, combined with the consideration of the mother relinquishing son, adoption papers contemporaneously filed but not recorded in compliance with the statute, and 30 year's performance of duties to the parent as his child); Benefield v. Faulkner, 29 So.2d 1, 2-3 (Ala. 1947) (equitable adoption found where contract with orphanage to adopt was signed, but was not witnessed, acknowledged by the probate judge, or recorded in accordance with the statute, and the contract was supported by twenty-nine years of a child-parent relationship). This case lacks the type of contract with consideration illustrated in these prior cases. Jacqueline may have intended to contract with Augustus to share custody and control over Courtney as "parents." Cf. ALA. CODE § 26-10-7(2) (the adoptee's mother must consent); § 26-10A-17(a)(3) (notice must be given to the spouse of any petitioner who has not joined in the petition); § 26-10A-27 (stepparent adoption, which exempts investigation and report of fees, does not exempt notice and consent requirements). However, like the other documents, her consent was never signed; and, like the petition for adoption, it is unclear whether she would agree to the proposed terms of consent.

Finally, the proposed adoption papers indicate the location of Courtney's natural father, Mr. Willie E~, is unknown. Nevertheless, we cannot say with any certainty what effect the absence of actual publication of the notice of intent to adopt would have on the existence of a contract to adopt. Certainly, such notice is required by statute to finalize a statutorily legal adoption, and the father must respond within thirty days if he objects. See ALA. CODE § 26-10A-17(a)(10). Under Alabama Law, if the father or putative father is made known (i.e., disclosed), his consent must be obtained through this notice and thirty day response period. 2 See ALA. CODE § 26-10A-7(5). Such notice and consent is required even in stepparent adoptions. See ALA. CODE § 26-10A-27 (stepparent adoption section, which exempts investigation and report of fees, does not exempt notice and consent). Nevertheless, parental consent "may be implied" in the following circumstances: (1) the parent leaves the child anonymously for a period of thirty days (i.e. abandonment without self-disclosure); (2) the parent knowingly leaves the child with others and does not provide for support, communicate, or otherwise maintain a significant parental relationship for a period of six months (i.e. knowing abandonment and withdrawal of parental relationship); or (3) the parent receives notification of the adoption proceedings and fails to respond within the allowed thirty days. See ALA. CODE § 26-10A-9. The facts as presented are unclear as the level of contact Mr. E~ had with Courtney. Jacqueline attested that he did not pay child support and did not have "regular" contact with Courtney. See Jacqueline's Affidavit. However, the notice of publication states that he has had no contact with Courtney for the past four years and has provided no support. No divorce papers have been submitted that indicate Mr. E~' support obligation or his visitation rights. Moreover, the absence of contact during the "past four years" coincides with the duration of the marriage between Augustus and Jacqueline, who may have prevented contact with Courtney. Given this evidence, it seems that Mr. E~ may have abandoned, which would support implied consent. However, the facts differ as to the level of Mr. E~' contact, which makes unclear whether actual or implied consent was needed. Given that Augustus and Jacqueline were intending to notify him by publication so as to obtain consent, their attorney likewise felt some further consent, beyond implied consent, was needed.

CONCLUSION

For the foregoing reasons, we do not believe Courtney is the equitably adopted child of Augustus.

Sincerely
Mary A. S~
Regional Chief Counsel

By: Jerry A~
Assistant Regional Counsel

D. PR 92-001 - Equitable Adoption - W~, Charles R. - SSN ~

DATE: January 03, 1992

1. SYLLABUS

In determining the validity of an Alabama adoption, the State of North Carolina would look to the laws of Alabama and under Alabama law, the consent of both parents is required in the adoption of a minor child. Where there was no showing of an abandonment by the father of a minor child and the father did not give his consent to an adoption, we determined that an agreement signed only by the mother was insufficient to show a valid agreement to adopt the child and the child could not be found to be the equitably adopted child of the deceased wage earner.

(W~, Charles R. - Progs., Atl., 01/03/92)

2. OPINION

Your office has requested our assistance in making a determination as to whether James M. W~, can be entitled to child's insurance benefits on the wage record of Charles R. W~, his paternal uncle. James M. W~ was born on December 18, 1975, in the State of Alabama. His parents are James M. W~ and Shirley A. S~ W~. As the result of a judicial action filed by Shirley against her husband, James was placed in the temporary custody of his grandmother, Vera W~, by order of the Circuit Court for Dallas County, Alabama, dated August 9, 1977. Another child was placed with a Cecil W~. There was no indication in your files as to the nature of the proceeding.

James' grandmother and his uncle lived in the same household and when his grandmother died in September 1984, Charles W~ (the brother of James' father) filed for custody of James. By order dated June 24, 1985, Charles R. W~, the deceased wage earner, was given temporary custody of the child by the District Court of Dallas County. The parents were given reasonable visitation rights.

At the time Charles applied to obtain custody of James he secured a form, "Petition for Adoption of Child," from Robert E. A~, an attorney in Selma, Alabama. Attorney A~ stated that he recalled handling the custody proceedings for Mr. W~, but only had a faint recollection of discussing the adoption of James with Charles. The petition for adoption form was only partially completed. It appeared that the form was signed on November 23, 1985, by Shirley, giving her consent to adoption, and signed by Charles on December 2, 1985. The form was not notarized, nor was it ever filed in court. Charles and James moved to North Carolina in March 1989. When Charles died on September 9, 1990, he left no will.

The father of James was contacted in New Jersey. He stated that he had never discussed adoption of James with Charles. He had been told by Charles that he might want to try to adopt James. However, James W~ stated that he did not want Charles or his mother, Vera, to adopt James. He was content to wait and see what happened. He said he did give his consent to for custody of James to be awarded to Charles.

Your inquiry concerning the possible recognition of an equitable adoption is premised on the incomplete adoption for being deemed a written adoption agreement and the implied surrender of parental rights or abandonment by James' father. Child's benefits may be payable to an equitably adopted child as defined in 20 C.F.R. §404.359 as follows:

You may be eligible for benefits as an equitably adopted child if the insured had agreed to adopt you as his or her child but the adoption did not occur. The agreement to adopt you 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. The agreement must be in whatever form, and you must meet whatever requirements for performance under the agreement, that State law directs. If you apply for child's benefits after the insured's death, the law of the State where the insured had his or her permanent home at the time of his or death will be followed.

The wage died in North Carolina, but the adoption form was initiated in Alabama. Therefore, the courts of North Carolina would look to Alabama law to determine the validity of any alleged adoption agreement. See Patrick, L~ - - ~ - RAIV [B~] - to Reg. Rep., BDO0, Atlanta—11/17/70. Our office has rendered an earlier opinion with respect to equitable adoptions under Alabama law which is fully applicable here. We have previously determined that:

"Under Alabama law, the courts will not grant specific performance of a contract to adopt under the theory of equitable adoption unless it is shown by clear and satisfactory evidence that there was an agreement to adopt and that the agreement contemplated that the child was to be given inheritance rights." T~ Y~ T~ - SSN - ~ - RAIV [Jarrett] - to ARC, Progs., Atl., 03/19/87 (copy attached).

It is our opinion that there was no valid agreement for the adoption of James because his father never signed any statement agreeing to the adoption. To the contrary, contacts with the father indicate that he never intended to agree to an adoption by his brother only to custody. Without his agreement or an order terminating his parental rights, there could be no valid adoption agreement under Alabama law. Alabama statutes require the consent of both parents; however, the consent of a parent who has abandoned the child or cannot be found can be substituted with the consent of an agency or guardian having permanent custody of the child. See, Code of Alabama §26-10-3.

We cannot assume that James was abandoned by his father based on his lack of custody. Temporary custody of James was given through court orders to his grandmother and then to his uncle. There is no reliable evidence in our files to show that James' father has voluntarily surrendered his parental rights and there is no evidence that he had his parental rights severed through judicial determinations or that he intentionally abandoned James. He has been given reasonable visitation rights and there was very little in our files to show whether he visited James or provided any type of financial support for any period of time. This information would be crucial to making a determination of an implied abandonment. Alabama courts are reluctant to find that a parent has abandoned a child, even where there has been no financial support or visitation for several years. See, eg., Adkison v. Adkison, 239 So.2d 562 (Ala. 1970). See, also, Atraszewicz v. Gallman, 349 So. 2d 593 (Ala Civ. App. 1977); Butler v. Giles, 258 So. 2d 739 (1972). Alabama courts have also ruled that the loss of custody of the child does not obviate the necessity of obtaining consent of the natural parent to an adoption. See Steele v. McDaniel, 380 So. 2d 892 (Ala. Civ. App. 1980).

Moreover, there is a strong possibility that Charles did not pursue the adoption process any further because of the inability to get his brother to agree to the adoption. There was a period of almost five years between partial completion of the adoption form and the death of Charles during which there is no evidence of further attempts to adopt James. Consequently, based on the foregoing, we are of the opinion that James W~ cannot be entitled to child's insurance benefits on the wage record of Charles W~ as an equitably adopted child.

E. PR 87-005 T~ Young T.- SSN ~ C1 Adoption on Decree Voided - Grandparents - Inheritance Rights

DATE: March 25, 1987

1. SYLLABUS

EQUITABLE ADOPTION — ALABAMA

EQUITABLE ADOPTION— NATURE OF CONTRACT REQUIRED FOR EQUITABLE .ADOPTION— ALABAMA Under Alabama law, a court has no power to decree an adoption by estoppel. In order for there to be an adoption, the statute must be strictly complied with and there must be an adjudication proceeding to that end. Robinson v. Robinson, 215 So.2d 585 (1967).

(T~, Young T. - SSN ~ - RAIV [Jarrett] to ARC, Progs., Atl., 03/19/87)

EQUITABLE ADOPTION — ALABAMA

EQUITABLE ADOPTION— NATURE OF CONTRACT FOR EQUITABLE ADOPTION ALABAMA Under Alabama law, the courts will not grant specific performance of a contract to adopt under the theory of equitable adoption unless it is shown by clear and satisfactory evidence that there was an agreement to adopt and that the agreement contemplated that the child was to be given inheritance rights.

(T~, Young T. - SSN - ~- RAIV [Jarrett] to ARC, Progs., Atl., 03/19/87)

2. OPINION

In your memorandum, your office requested our advice as to whether the child-claimant Kenny (C~) T~ could qualify as the adopted child of the number holder, Young T. T~. You specifically wanted to know whether the State of Alabama would grant the child inheritance rights under a theory of estoppel where the adoption proceedings were defective and were subsequently annulled.

The relevant facts are as follows:

The child claimant, Kenny (C~) Y~ was born to Lora C~ in New York, on June 23, 1983. Young T. and his wife, Helen T~, filed a petition for adoption, asserting that they were the grandparents of the child. The Alabama State Probate Court for Clarke County issued a final decree for adoption on March 27, 1986. A new birth certificate was issued on April 30, 1986, officially changing the child's name to that of the adoptive parents. The same Probate Court on July 24, 1986, set aside the final decree of March 27, 1986, after it was discovered that the adoptive parents were actually the great-grandparents instead of the grandparents of the child. The court declared the final decree to be null and void and of no force and effect. The Alabama Courts do not grant a child inheritance rights on the basis of equitable adoption by estoppel as suggested in POMS 00306 380. Robinson v. Robinson, 215 So.2d 585 (1967). However, Alabama Courts, may decree specific performance of a contract to allow inheritance rights on the theory of equitable adoption; where (1) there is a contract to adopt between the natural parent(s) or one standing in Loco parentis and the adopting parent(s); (2) the agreement contemplates that the child is to be given inheritance rights in the property of the adopting parent(s); and (3) the contract has been fully performed by the child. Benefield v. Faulkner, 29 So.2d 1 (1947); Prince v. Prince 69 So.906 (1914). See opinions Re: D~ Betty S., A/N ~, RAIV (M~) to Kansas City P.C. 12/09/64; Re: O~ George, SSN~ RAIV (B~) to Reg. Rep. RSI. B'ham. P.C. 10/08/70; and Re: T_~ _John_ SSN ~RAIV (K~) tp P.C. Chicago 03/25/64.

The contract to adopt and make the adopted child an heir may be either express or implied (i.e. implied in fact). In other words, the elements may be implied from the conduct and/or statements of the parties. However, the elements must be present and must be shown by clear and satisfactory evidence Rivers v. Rivers , 240 So. 864 (1941). The Alabama Supreme Court held in Benefield surpa, that, 'an adoptive paper, though not proven or recorded, so as to constitute a legal adoption, may be competent evidence of an contractual relation between the quasi adoptive parent and child." (emphasis added)

In order to prove a contract on which an Alabama Court would decree specific performance, in the present case, it must be shown that the adoptive parents agreed to give the child inheritance rights. Although the March 27, 1986 adoption decree and the July 24, 1986 order to set aside the final decree of adoption may be considered as evidence to support a finding that there was an agreement to adopt, however, they are insufficient to support an order for specific performance. There is nothing in the final adoption decree or the order setting aside the adoption indicating that the child was to be given inheritance rights in the property of the adopting parents.

Thus, it is our opinion that the Alabama courts would not decree specific performance of a contract to adopt on the limited facts shown in the instant case. If, upon further development, it can be established that there was an express promise or an agreement to give inheritance rights, then your office would be authorized in finding that the child was equitably adopted.

We suggest that your office obtain a copy of the pleadings, if possible, and the evidence which was presented to the court during the original adoption proceedings. We further suggest that written statements be obtained from the adoptive parents relating to all and any discussion between the adoptive parent and the natural parent, and particularly those statement relating to the giving of inheritance rights to the adoptive child. The adoptive parent should be advised that they need not recall the exact dates of conversations or the meeting. Your office also should contact the Department of Pensions and Security to see whether it was involved in the adoption. If it was involved, we suggest that you obtain a copy of any discussion between it and the adoptive parents regarding the giving of inheritance rights.