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.
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.
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.
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.
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.
Mary A. S~
Regional Chief Counsel
Simone D. P~
Assistant Regional Counsel