Mary E. M~ intends to file for child benefits on behalf of her granddaughter, Brittiany,
on the basis that Brittiany is her equitably adopted child. You asked us confirm the
accuracy of Program Operations Manual Systems (POMS) GN 00306.225, which indicates that Illinois permits a child to acquire rights under the theory
of equitable adoption. Assuming Illinois recognizes equitable adoption, you also asked
us whether the facts establish a contract to adopt between Mary E. M~ and Tracy M~.
Although Illinois statutes do not expressly recognize equitable adoption, Illinois
courts have applied contract law in situations similar to those encompassed by the
equitable adoption theory. However, we believe that the POMS regarding equitable adoption
in Illinois should be clarified.
Also, for the reasons discussed below, we believe that Brittiany is not Mary’s equitably
adopted child under Illinois law. Thus, Brittiany would not be entitled to child’s
Mary E. M~, who currently resides in Springfield, Illinois, applied for Social Security
retirement benefits on August 10, 2010, indicating on her application that she also
intended to apply for benefits on behalf of her granddaughter, Brittiany. Brittiany
was born in Atlanta, Georgia on February 23, 1995 to Tracy M~, Mary’s daughter. The
birth certificate did not list the name of Brittiany’s biological father. Mary alleged
that Tracy left Brittiany with Mary when Brittiany was about two weeks old, and that
Mary has maintained custody of Brittiany ever since then. According to statements
by Mary’s sister and grandson, Mary treats Brittiany as her own child and receives
no support from Tracy for Brittiany’s care.
According to the information you provided us, Tracy only made a few phone calls off
and on during the first three years of Brittiany’s life and has made no effort to
Mary alleged that she attempted to adopt Brittiany when Brittiany was around two years
old. According to Mary, Tracy called her from an Atlanta jail, asking for bail money
and promising to visit Springfield to sign adoption papers. However, Tracy never visited
Springfield. Mary alleged that she did not proceed with the adoption because she could
not locate Tracy, and she did not wish to proceed without Tracy knowing about the
adoption. Mary also indicated that a family friend who was an attorney informed her
that it would be easier to adopt Brittiany with Tracy’s consent.
The records also indicate that Tracy signed a notarized statement in August 1997 granting
Mary “temporary custody” of Brittiany for the duration of her “treatment for drug
abuse.” Tracy’s statement indicated, “This custody is a temporary measure only until
such time as it takes for me to complete a re[h]abilitation program.”
In order to be entitled to child’s benefits on a wage earner’s account, a claimant
must show that he or she is the wage earner’s child. 42 U.S.C. §§ 402(d), 416(e);
20 C.F.R. § 404.350. The regulations define a child as a natural child, legally adopted
child, stepchild, grandchild, stepgrandchild, or equitably adopted child. 20 C.F.R.
§ 404.354. Brittiany cannot qualify for benefits as Mary’s grandchild because her
natural mother is not deceased or disabled. See 20 C.F.R. § 404.358. In order to determine whether a claimant is a legally adopted
child, the Agency applies the adoption laws of the state or foreign country where
the adoption took place. 20 C.F.R. § 404.356.
A claimant may be eligible for child’s benefits as an equitably adopted child if the
insured individual agreed to adopt the claimant but the adoption did not occur. The
agreement to adopt must be one that State law would recognize so that the claimant
would be eligible to inherit a child’s share of the insured’s personal property if
the insured were to die intestate (i.e., without leaving a will). 20 C.F.R. § 404.359.
The record in this case indicates that Mary never legally adopted Brittiany. Thus,
Brittiany only would be entitled to child’s benefits on Mary’s account if she were
recognized as an equitably adopted child under Illinois law.
A. Illinois Statutes Do Not Expressly Recognize Equitable Adoption, but Illinois
Courts Have Applied Contract Law in Situations Similar to Those Encompassed by the
Equitable Adoption Theory.
As we have previously advised, Illinois does not expressly recognize the theory of
equitable adoption. POMS PR 01325.162 (PR 03-110); POMS PR 01310.016 (PR 05-129). Instead, Illinois courts have consistently applied contract law to determine
whether there was a valid and enforceable contract to adopt in those cases in which
an adoption is alleged, but the parties failed to follow statutory adoption proceedings.
In Re Estate of Edwards v. Edwards, 435 N.E.2d 1379, 1381 (Ill. App. Ct. 1982). The common thread among Illinois cases
in which contracts to adopt were found valid for the purpose of determining intestate
succession was the existence of either a written memorandum of the alleged agreement
to adopt or the testimony of a witness to the making of an oral contract. Dixon National Bank v. Neal, 125 N.E.2d 463, 465 (Ill. 1955), citing Weiss v. Beck, 115 N.E.2d 768, 772 (Ill. 1953). The evidence supporting an agreement to adopt must
be “strong and compelling,” and it must not be “readily harmonizable with any other
theory.” Monahan v. Monahan, 153 N.E.2d 1, 3 (Ill. 1958). Oral testimony must be “clear and conclusive of the
existence and terms of the contract, leaving no room for reasonable doubt.” Monahan , 153 N.E.2d at 3.
Absent either a written memorandum of the alleged agreement to adopt or the testimony
of a witness to the making of an oral contract, Illinois courts have declined to find
a valid contract to adopt. See, e.g., In Re Estate of Staehli v. LaRaviere, 407 N.E.2d 741, 744 (Ill. App. Ct. 1980). The Illinois Supreme Court declined to
infer an oral adoption agreement where the petitioner argued that facts, circumstances,
and conduct of the parties implied the existence of an agreement. Weiss, 115 N.E.2d at 772-73. Furthermore, in Drisch v. Landau, 250 N.E. 2d 513, 516-17 (Ill. App. Ct. 1969), although the court conceded that an
agreement existed between the orphanage and the petitioner’s foster parents, the evidence
indicated that the petitioner had been placed with the family on a “trial” basis,
contingent in part on the family’s provision of a suitable Catholic religious environment.
B. Brittiany Would Not Qualify For Benefits as an Equitably Adopted Child Because
the Evidence Supporting an Agreement to Adopt is Not Strong and Compelling, and the
Evidence Could Be Readily Harmonized With Other Theories.
The evidence in this case supporting an agreement to adopt is not “strong and compelling”
and leaves “room for reasonable doubt” as to the existence and terms of an adoption
agreement. Monahan, 153 N.E.2d at 3. Although Tracy promised to sign adoption papers, she did not follow
through on her promise to provide her consent to the adoption. Mary admitted that
she did not wish to proceed without Tracy knowing about the adoption, casting doubt
on whether Tracy has agreed to the adoption.
Furthermore, the evidence here can be readily harmonized with other theories. The
notarized statement signed by Tracy in 1997 granted Mary only “temporary custody”
of Brittiany for a limited period: the duration of Tracy’s “treatment for drug abuse.”
Tracy’s statement further indicated, “This custody is a temporary measure only until
such time as it takes for me to complete a re[h]abilitation program.” An agreement
to place a child temporarily with a family “does not carry with it an absolute consent
to adoption.” Greco v. Chicago Foundlings Home, 230 N.E.2d 865, 867 (Ill. 1967). When evaluating the sufficiency of a biological parent’s
consent to adoption, Illinois courts require clear and convincing evidence that the
biological parent has been advised about and affirmatively consented to the irrevocable
surrender of his or her parental rights. Meza v. Rodriguez, 713 N.E.2d 764, 785 (Ill. App. Ct. 1999). Under Illinois law, even when there are
circumstances consistent with an agreement to adopt, a court will decline to find
a contract to adopt if the evidence could also “readily be harmonized with a theory
that [the child] was merely taken to raise in a good home.” Weiss, 115 N.E.2d at 773.
C. The POMS Should Be Clarified To Explain When Illinois Would Recognize an “Implied”
Contract to Adopt.
The statement in the chart in POMS GN 00306.225, which indicates that an agreement to adopt may be implied in Illinois, should be
clarified. Illinois does not appear to recognize an “implied contract” to adopt as
that term is used and defined in the POMS. See POMS GN 00306.180. Although one federal court used the phrase “implied contract to adopt” to describe
Illinois equitable adoption law, Edwards, on Behalf of Collins v. Director, Office of Workers’ Compensation Programs,
U.S. Dept. of Labor, 953 F.2d 637, 1992 WL 16091, at *2 (4th Cir. Feb. 4, 1992), Illinois courts still
require evidence of an actual agreement. In Illinois, while circumstantial evidence
may be relied upon to establish the existence and terms of an oral contract, Illinois
courts still require a definite agreement to adopt. Monahan, 153 N.E.2d at 3; Weiss, 115 N.E.2d at 426-28. Illinois courts have not gone so far as to infer that an agreement
exists based solely on facts, circumstances, and conduct consistent with an intent
to adopt. Id.
Therefore, we recommend that the chart in POMS GN 00306.225 be modified as follows:
1. Change the entry for Illinois under “Agreement to Adopt May Be Implied” to indicate
2. Insert a footnote explaining, “Circumstantial evidence may be relied upon to establish
the existence and terms of an oral contract to adopt, but an agreement will not be
implied based solely on facts, circumstances, and conduct.”
In sum, Illinois courts have applied contract law in situations similar to those encompassed
by the equitable adoption theory. However, we believe that the POMS should be modified
with respect to implied agreements to adopt. In this case, we believe that there was
no contract to adopt between Mary and Tracy, and that Brittiany would not be entitled
to child benefits as an equitably adopted child.
Donna L. C~
Regional Chief Counsel, Region V
Deborah H. L~
Assistant Regional Counsel