You asked whether the child claimants, Staci Y~ and Sebrina Y~ (collectively, the
"claimants"), qualified for child's insurance benefits as the equitably adopted children
of wage earner Richard Y~ (the "wage earner") at any time prior to June of 2003, the
first month through which the claimants were legally adopted children of the wage
Based on the evidence in the record, the claimants qualified as equitably adopted
children of the wage earner prior to June 2003. They were therefore entitled to child's
insurance benefits on the wage earner's account based on the effective date of the
applications filed on November 7, 2002.
SUMMARY OF EVIDENCE
The claimants were born "Sebrina V. W~" and "Staci V. W~" on November 18, 1986, and
December 30, 1988, respectively. Both were natural children of Rita V. W~ D~. Sebrina's
natural father was Spencer W~, who is still alive. Staci's natural father was Harry
Y~, who died before Staci was born.
The wage earner is married to Loretta Y~, who is the mother of Rita D~. The claimants
are therefore the step-grandchildren of the wage earner. The wage earner, his wife,
and the claimants were at all relevant times enrolled members of the Navajo Tribe
of Indians residing within the boundaries of the Navajo Nation in Ganado, Arizona.
Rita D~ surrendered custody of the claimants to the wage earner and his wife. According
to a report of contact in the record, the claimants have been in the physical custody
and support of the wage earner and his wife since October 1999. The wage earner and
his wife claim that they also "started adoption proceeding[s]" in 1999 in the Family
Court of the Navajo Nation, Judicial District of Window Rock.
On February 15, 2000, in response to a petition by the wage earner and his wife, the
tribal court terminated the parental rights of the claimants' natural parents and
granted legal and physical custody of the claimants to the wage earner and his wife.
As grounds for its decision, the tribal court noted that Harry Y~ (i.e., Staci's natural father) was deceased; that Spencer W~ (i.e., Sebrina's natural father) "had not made any effort to maintain a parental relationship
with his child"; and that Rita D~ had voluntarily relinquished her parental rights
in a sworn affidavit dated July 26, 1999. Rita D~' sworn affidavit, a copy of which
was not in file, was entitled: "Affidavit of Termination of Parental Rights, Consent
to Adoption, and Waiver of Notice and Hearing."
In August 2002, the wage earner and his wife filed a Petition for Adoption with the
tribal court, seeking to formally adopt the claimants. They listed the following four
reasons as grounds for the requested adoption: (1) they "[had] provided a good and
stable home for the minor children ever since they were toddlers"; (2) they "[had]
shown love, concern, interest, and care for the minor children as if they are their
own children"; (3) "[n]o other petitions regarding adoption [had] been filed with
[the] court concerning the minor children to [their] knowledge" and "[n]o other family
members … [had] shown an interest in obtaining adoption over the minor children";
and (4) they "[had] developed a strong emotional bond with the minor children where
they established family unity."
The Navajo Division of Social Services conducted an Adoption Home Study, and on May
1, 2003, it issued a recommendation that adoption be granted. Accordingly, on May
13, 2003, the tribal court issued an Adoption Decree, granting the petition of the
wage earner and his wife. Under the Adoption Decree, "Sebrina V. W~" and "Staci V.
W~" were declared to be the adopted daughters of the wage earner and his wife and
were to be known thereafter as "Sebrina Y~" and "Staci Y~." The tribal court expressly
deemed the Adoption Decree to have the "full force and effect" of a final judgment
of adoption under the Navajo Nation Code and waived the issuance of a temporary order
based on the existing family relationship between the adoptive parents and the claimants.
On May 21, 2002, the wage earner filed for disability insurance benefits with the
Agency. On his application, the wage earner mentioned his wife but did not mention
any children. His mailing address at the time of filing was a post office box in the
town of St. Michaels, Arizona. His residence at the time was within the boundaries
of the Navajo Nation in the town of Ganado, Arizona. About four months later, on November
7, 2002, he filed claims for child insurance benefits on behalf of the claimants.
The Agency has since determined that the wage earner was entitled to disability insurance
benefits beginning in November 2002. In a letter to the wage earner dated February
20, 2003, the Agency advised the wage earner of this determination and further gave
him the option to "restrict [his] month of entitlement to a later date, as that later
date may allow one or both of the [claimants] and perhaps [his] wife to become entitled
to benefits whereas otherwise they could not be entitled."
Based on the formal Adoption Decree of May 2003, the Agency awarded child insurance
benefits to the claimants beginning June 2003, the first month through which the claimants
were legally adopted children of the wage earner. The question remained, however,
whether the claimants were entitled to benefits at any time prior to June 2003, based
on a theory of equitable adoption.
A "child" of an insured person is entitled to child's benefits on the earnings record
of the insured, where the insured is entitled to old-age or disability benefits. 20
C.F.R. §§ 404.350(a)(1), 404.359 (2004). For entitlement purposes, the Social Security
Act defines "child" broadly to include, among other things, a natural child, legally
adopted child, and, under certain circumstances, an "equitably adopted" child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.350, 404.354, 404.359 (2004).
A claimant will be considered the "equitably adopted" child of an insured wage earner
if the wage earner agreed to adopt the child but the adoption did not occur. 20 C.F.R.
§ 404.359 (2004). The agreement to adopt, however, 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 he or she were to die without leaving a will. Id. If the claimant applies for child's benefits during the insured wage earner's life,
"the law of the State in which the wage earner had his or her permanent home at the
time of his or her application will be followed." Id.
The method by which the Agency shall determine which "law of the State" controls is
codified at 42 U.S.C. § 416(h)(2)(A). This statute provides:
In determining whether an applicant is the child or parent of a fully or currently
insured individual for the purposes of this subchapter, the Commissioner of Social
Security shall apply such law as would be applied in determining the devolution of
intestate personal property by the courts 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 was not so domiciled in any State, by the courts of
the District of Columbia. Applicants who according to such law would have the same
status relative to taking intestate personal property as a child or parent shall be
Id. Thus, the statute looks to the state of the insured's domicile at the time of his
or her application to determine which law applies.
The record in the instant case shows that, at the time he filed his application for
disability insurance benefits, the wage earner lived within the boundaries of the
Navajo Nation and within the State of Arizona. The wage earner was therefore a citizen
of the United States and had the right to bring actions in Arizona state court. See State of Arizona v. Zaman, 946 P.2d 459, 462 (Ariz. 1997) (holding that members of tribes are citizens of the
United States and of the state in which they reside and thus have the right to bring
actions in Arizona state courts). Accordingly, the laws of the State of Arizona may
Nonetheless, because the wage earner lived on the land of the Navajo Nation, he arguably
was not domiciled in any state. Under this view, District of Columbia law would apply.
Alternatively, the tribal law of the Navajo Nation could apply as the functional equivalent
of state law. Regardless of which law applies, we reach the same conclusion that the
claimants were equitably adopted children for the purposes of child's insurance benefits
prior to June 2003.
Equitably Adopted Child Analysis
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, i.e., the promisor, must promise in writing or orally to adopt the child; (2) the natural
parents, i.e., the promisees, must turn the child over to the promisor; and (3) the child must give
filial affection, devotion, association, and obedience to the promisor during the
promisor's lifetime. In re Estate of Lam from, 90 Ariz. 363, 367, 368 P.2d 318, 321 (Ariz. 1962); In re Estate of Prewitt, 498 P.2d 470, 471, 17 Ariz.App.396, 397 (Ariz. 1972). 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." In re Estate of Lamfrom, 90 Ariz. at 366, 368 P.2d at 320; In re Estate of Prewitt, 17 Ariz.App. 397-398, 498 P.2d 471-472. The evidence in this case satisfied this
standard with respect to both claimants.
The evidence showed the existence of an adoption agreement, and therefore, the first
requirement was satisfied. The wage earner claimed that he and his wife began adoption
proceedings in 1999. Rita D~, the natural mother of both claimants, consented to adoption
and termination of her parental rights on July 26, 1999. Spencer W~, the natural father
of Sebrina Y~, never consented to adoption, but his consent became unnecessary on
February 15, 2000, the date on which his parental rights were terminated. The wage
earner and the living natural parents therefore appear to have entered into an agreement
to adopt. See In re Estate of Prewitt, 498 P.2d at 472, 17 Ariz.App. at 398 (written consent of natural mother constituted
evidence of contract for adoption).
The second requirement that the promisee "turn over" the child to the "promisor" was
also satisfied. Such "consideration" occurred at the earliest in October 1999, the
month in which the wage earner and his wife obtained custody of the claimants, and
no later than February 2000, when the tribal court formally granted legal and physical
custody of the claimants to the wage earner and his wife.
Thereafter, it appears that the claimants have given "filial affection, devotion,
association and obedience" to the wage earner and his wife in satisfaction of the
third requirement for equitable adoption. Evidence supporting this requirement includes
the Petition for Adoption of August 2002, in which the wage earner and his wife claimed
that they had "provided a good and stable home" for the claimants since they were
toddlers; they had "shown love, concern, interest, and care for the minor children
as if they are their own children"; and they had "developed a strong emotional bond
with the [claimants] where they established family unity." Evidence also includes
the Adoption Home Study of May 2003, in which the Navajo Division of Social Services
recommended adoption based on its investigation. Finally, the tribal court's ultimate
decree granting adoption showed that the existing relationship of the claimants and
the wage earner and his wife was sufficient to warrant a final adoption without the
need for a temporary order or further inquiry.
Some of the available evidence in the file may, however, suggest a contrary finding
that the claimants were not equitably adopted children prior to legal adoption. For
example, there is no evidence that the claimants assumed the wage earner's surname
until the date of the Adoption Decree, at which time the claimants' last name of "V.
W~" was changed to "Y~." See In re Estate of Prewitt, 498 P.2d at 472, 17 Ariz.App. at 398 (evidence that child used putative adoptive
parents' surname supported finding of equitable adoption). Also, the wage earner did
not mention that he had any children on his application for disability insurance benefits.
Nevertheless, as outlined above, the weight of the evidence showed indices of an adoptive
family relationship were present. The Arizona Supreme Court has recognized the "strong
public policy of the forum in favor of equitable adoption." In re Estate of Lamfrom, 90 Ariz. at 368, 368 P.2d at 321. In light of this policy, greater weight should
be given to evidence showing that equitable adoption existed at the time all requirements
Navajo Tribal Law. Navajo Nation tribal law further supports the conclusion that the claimants were
the "children" of the wage earner. By supporting and assisting the claimants and by
taking care of them when their natural parents were unable to, the wage earner and
his wife effectively adopted the claimants as their own children. A finding of adoption,
equitable or otherwise, is consistent with Navajo common law. See The Navajo Nation, ex rel. Division of Social Welfare, in the Matter of J.J.S., a Minor, 4 Nav.R. 192 (1983).
Navajo Nation tribal law also supports the conclusion that the claimants would be
entitled to inherit intestate from the wage earner because they were "children" who
lived with and who were supported by the wage earner. The Navajo Nation Code provides
that inheritance shall be based on the "custom of the Navajo Nation … if such custom
is proved." See Navajo Nation Code Tit. 8, § 2(B) (1995). Navajo custom, as evidenced by common law,
dictates that intestate distribution should be granted to "heirs, meaning immediate
family." In the Matter of the Estate of Boyd Apachee, 4 Nav.R. 178 (1983). One may inherit as an "immediate family" member "because of
the close ties of blood, but more importantly, because of the mutual assistance and
support they [give] to each other." Id.
Here, the evidence showed that not only did the claimants and the wage earner have
"close ties of blood" but they also provided assistance and support to each other.
Notably, it was on this basis that the tribal court ultimately granted the Adoption
Petition filed by the wage earner and his wife. Given Navajo custom, therefore, a
finding of equitable adoption prior to the date of the tribal court's formal Adoption
Decree would be proper.
District of Columbia Law. The law of the District of Columbia supports the same conclusion. 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, 152-153 (D.C.Cir. 1964). Subsequent decisions in the 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 (D.C.Cir. 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 Navajo Nation tribal
law in finding that the claimants were the equitably adopted children of the wage
Dependency Issues under the Equitably Adopted Child Analysis
Social Security regulations also require that an equitably adopted child be "dependent"
on the wage earner for entitlement to child's insurance benefits. 42 U.S.C. § 402(d)(1);
20 C.F.R. § 404.365 (2004). An equitably adopted claimant is considered dependent
prior to entitlement if he or she was "either living with or receiving contributions
for … support from the insured" at either: (a) the time of application; or (b) if
the insured had a period of disability that lasted until he or she became entitled
to old-age or disability benefits, at the beginning of the period of disability or
at the time the insured became entitled to benefits. 20 C.F.R. § 404.365 (2004).
Here, the evidence shows that the claimants were living with the wage earner at least
since October of 1999. No evidence shows that this living arrangement discontinued
at any time prior to the wage earner's application for benefits in 2001. Thus, the
record shows that dependency requirements were satisfied.
Evidence in the present record supports a finding that the claimants were the equitably
adopted children under the Social Security regulations for purposes of entitlement
to child's insurance benefits and were entitled to child's insurance benefits on the
account of the wage earner based on the effective date of the applications filed on
November 7, 2002.