TN 3 (08-08)

PR 01510.012 Georgia

A. PR 08-153 Potential Equitable Adoption of Granddaughter, Essence L~, in Georgia Wage Earner/Number Holder - Ezzard M~ Claimant - Essence L~

DATE: July 16, 2008

1. SYLLABUS

Georgia's standard for equitable adoption is not met in a case where four of the five elements necessary under the law are met, but there is no evidence of an agreement between the birth and adoptive parents.

2. OPINION

QUESTION

You have asked whether the claimant can qualify for child's insurance benefits as the equitably adopted child of the number holder.

OPINION

For the reasons stated below, we do not believe the claimant has satisfied the requirements for an equitable adoption.

BACKGROUND

Essence L~ (Claimant) was born on May 5, 1999, to Ebony L. L~ and James F. M~. Claimant has been living with her grandparents, Dianne L~ (Claimant's grandmother) and Ezzard M~, the number holder (NH), since her birth, because Claimant's natural mother was fifteen when Claimant was born. Presently, Claimant's natural mother lives in Alabama and her natural father lives in Georgia.

NH, a Georgia resident, died on December 28, 2007. In June 2008, Claimant's grandmother filed for survivor's child's benefits for Claimant on NH's record. Claimant's grandmother stated she and NH were in the process of adopting Claimant prior to NH's death. Claimant's grandmother submitted a copy of a draft petition for adoption, which listed her and NH as the petitioners. However, the draft petition was not dated (shows December 2007), not signed by the attorney for the petitioners, and not filed with the courts. Claimant's grandmother also submitted a filed petition for adoption dated May 12, 2008, which only listed her as the petitioner; acknowledgements of surrender of rights/final release for adoption from Claimant's natural parents dated May 6, 2008, and May 7, 2008; a mother's affidavit from Claimant's natural mother dated May 6, 2008; and an affidavit of petitioner's representative from Attorney Greg W. H~ dated May 12, 2008. The order for final hearing on this petition is scheduled for July 22, 2008.

DISCUSSION

Under the Social Security Act (Act), a claimant may qualify for child's insurance benefits on the earnings record of a deceased insured individual if the claimant is the insured individual's "child." See Act § 202(d), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350 (2008). "Child" includes both a child and a legally adopted child. See Act § 216(e), 42 U.S.C. § 416(e). Moreover, the notion of an equitably adopted child is implicit in the definition of child. The Act provides that, in determining whether a claimant is the "child" of an insured wage earner for purposes of child's insurance benefits, SSA "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 [an] application." Act § 216(h)(2)(A). "Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such." 42 U.S.C. § 416(h)(2)(A). A claimant may be eligible for benefits as an equitably adopted child if the insured individual had agreed to adopt the claimant as his or her child but the adoption did not occur. See 20 C.F.R. § 404.359 (2008). The agreement to adopt must be one that would be recognized under State law so that the claimant would be able to inherit a child's share of the insured individual's personal property if he or she died without leaving a will. See id. Furthermore, the agreement must be in whatever form, and the claimant must meet whatever requirements for performance under the agreement that State law directs. See id. If the claimant applies for child's benefits after the insured individual's death, the law of the State where the insured had his or her permanent home at the time of his or her death will be followed. See id. Consequently, since the equitably adopted child is one who could inherit a child's share of the number holder's intestate estate, the equitably adopted child's status as a child for Social Security benefits purposes derives from the § 216(h)(2)(A) definition of child as one who would have the same status relative to taking intestate personal property as a child. See 20 C.F.R. § 404.354 (2008). The determination of whether a child is the legally adopted child of an insured individual is based on the adoption laws of the State where the adoption took place. See 20 C.F.R. § 404.356 (2008).

Because NH was a Georgia resident when he died in Georgia, we apply Georgia law to determine whether Claimant was NH's adopted child. See 20 C.F.R. § 404.359 (2008). Because any purported adoption would have taken place in Georgia, we apply Georgia law to determine whether NH adopted Claimant.

The evidence is clear that Claimant does not qualify as the legally adopted child of NH. 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. Georgia is among the states that recognizes equitable adoption. See Davis v. Bennett, 438 S.E.2d 73 (Ga. 1994); see also Prince v. Black, S.E.2d 411 (Ga. 1986); Williams v. Murray, 236 S.E.2d 624 (Ga. 1977).

To establish a cause of action for virtual or equitable adoption in Georgia, one must make "some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating [it] as their child, and . . . the intestacy of the foster parent." Chambers v. Chambers, 398 S.E.2d 200 201 (Ga. 1990) (citations omitted). We do not believe that the evidence is sufficient to show NH equitably adopted Claimant.

The evidence submitted with your inquiry appears to establish four of the five elements of equitable adoption under Georgia law. First, Claimant's natural parents gave up custody of Claimant. Second, Claimant lived with NH. Third, NH took Claimant into his home and appeared to have treated her as his own child. Fourth, NH died intestate.

However, the evidence does not establish the element of "some showing of an agreement between the natural and adoptive parents." Chambers, 398 S.E.2d at 201. A successful virtual adoption claim requires some showing of a contract to adopt between the natural and adoptive parents. Walden v. Burke, 637 S.E.2d 859, 860 (Ga. App. 2006) (citing Hulsey v. Carter, 588 S.E.2d 717 (Ga. 2003)). "While the agreement must comprehend and intend an adoption, the use of the word 'adopt' is not necessary." Anderson v. Maddox, 360 S.E.2d 590 (Ga. 1987) (citing Williams v. Murray, 236 S.E.2d at 625).

In this case, there is no evidence that Claimant's natural parents contracted or agreed to Claimant's adoption by NH. "In virtual adoption cases, a contract for adoption must be proven by clear and compelling evidence and 'the first essential element of a contract for adoption is that it be made between persons competent to contract for the disposition of the child.'" Hulsey, 588 S.E.2d at 718 (citations omitted). Here, the record contains no evidence of an agreement or contract by Claimant's natural parents to an adoption of Claimant by NH. The draft petition for adoption dated December 2007, which included NH as one of the petitioners, is not sufficient to establish such an agreement. Notably, the acknowledgments of surrender of rights entered into by Claimant's natural parents were not signed prior to NH's death but rather five months later when Claimant's grandmother filed a petition to adopt Claimant on her own. These acknowledgments reflect that Claimant's natural parents released Claimant for adoption by Claimant's grandmother. Based on these facts, we cannot infer an agreement or contract for Claimant's adoption by NH.

In addition, NH's actions in taking physical custody of Claimant at her birth, allowing Claimant to live with him and standing in the position of a parent, was not sufficient proof of a contract for adoption. In Lee v. Gurley, the Supreme Court of Georgia found insufficient evidence of surrender of a child by her natural parents to prove a contract of adoption where the child's custodial parent gave physical custody of the child to her uncle, child lived with her uncle, and the uncle stood in the position of a parent to the child. 389 S.E.2d at 334.

CONCLUSION

For the foregoing reasons, we do not believe Claimant is the equitable adopted child of NH. Consequently, Claimant is not eligible for child's insurance benefits on the earnings record of NH.

Very truly yours,


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


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PR 01510.012 - Georgia - 08/19/2008
Batch run: 01/27/2009
Rev:08/19/2008