PR 01510.026 Minnesota
A. PR 04-082 Minnesota - Existence of Equitable Adoption, ~ Number Holder: Marilou M. S~ Claimant: Theodore R. S~ Your Reference: S2D5G6 S~Our Reference: 04P016
DATE: February 17, 2004
A Minnesota court, applying Minnesota law, would likely find that the child claimant was not the equitably adopted child of the deceased NH. The child's biological parents signed an affidavit, in the Republic of the Marshall Islands, designating the NH and her husband as the child's guardians. The affidavit does not constitute an express written contract to adopt; nor was there an express oral contract to adopt, or an implied contract to adopt.
You asked whether Theodore R. S~ (Theodore) should be considered the equitably adopted child of Marilou S~, M.D., (Dr. S~) for purposes of entitlement to child's insurance benefits as her surviving minor child. We conclude that the materials provided are not sufficient to establish that Theodore is Dr. S~'s equitably adopted child.
According to information provided by Dr. S~'s widower, Barry S~, a friend named Vivian N~ contacted the S~s and offered to have someone look in the Marshall Islands for a baby for the S~s. On July 10, 2001, the biological parents of a child named Theodore R. K~ signed an affidavit, in the Republic of the Marshall Islands, designating the S~s as Theodore's guardians. The affidavit states that the guardianship is for the purpose of Theodore residing with the S~s in the United States and that, while living in the United States, Theodore shall be called Theodore S~. The affidavit authorizes the S~s to act on behalf of the biological parents "in all respects" so that the S~s can provide for Theodore's "complete support, education, medical care, and all other needs. . .." The affidavit further states, "This guardianship assignment shall be in effect from the date of it being signed by the undersigned, until such time as may later be terminated by mutual consent of the parents and guardians."
Mr. S~'s statement to the field office indicates that Ms. N~ "arranged" the guardianship and brought Theodore, who was about three months old, from the Marshall Islands to the S~s in the United States. The materials you provided indicate that Theodore was issued a Marshall Islands passport, under the name of Theodore R. K~, on July 12, 2001 and was admitted to the United States on July 20, 2001.
Mr. S~ stated that Theodore had lived with him and his wife "as our child" ever since Ms. N~ brought Theodore to the United States, that the S~s provided for all of Theodore's needs, and that Dr. S~ supported Theodore until her death on April 26, 2003, although Mr. S~ was Theodore's primary caretaker after Dr. S~ became ill in November of 2002. Mr. S~ indicated that he and his wife were planning to wait until Theodore was four years old before initiating adoption proceedings. He stated, "We thought this would be best to let time go so biological parents' feelings wouldn't be as strong. We were trying to avoid possible requests from (sic) money from his biological parents."
You also submitted the following materials:
* A family website page, printed on May 13, 2003, which contains a message thanking those who attended Dr. S~'s funeral and stating "Your attendance meant so much to Teddy and me, and to the rest of our family";
* A page from the same website, also printed on May 13, 2003, which contains biographical information that appears to have been written before Dr. S~'s death and states, in part, that she and her husband married in May 2000 and "[o]ne year later, they adopted their beautiful son Teddy. Now in the throes of toddlerhood, Teddy takes on every day the way all of us should - as a full-throttle, joyous adventure. His parents are pleased to be taken along as passengers!"; the page has a photograph labeled "Teddy, October 2002";
* A page from the website of the International Falls Daily Journal, containing the April 29, 2003 obituary for Dr. S~, which states, in part, "Their family was complete when Theodore R. S~ joined their lives on July 21, 2001, at the age of three months"; the obituary article also refers to Dr. S~ as a "caring mother" and states that she is survived by her husband Barry S~ and son Teddy S~ of International Falls;
* A copy of Theodore R. K~'s birth certificate, registered July 10, 2001 and issued by the Republic of the Marshall Islands, showing Theodore's date of birth as April 21, 2001, his place of birth as Arno, and his parents as Nela B~ and Elson K~ (Nela B~ was the informant).
Your memorandum to our office also indicates that a friend of the family made a statement that, when Marshallese families give children up for guardianship, they typically go through a period of mourning for about a year and, after a time, the guardians can attempt to obtain a release for adoption. The friend's statement was not included in the materials provided to us.
A. General Provisions
For purposes of entitlement to child's insurance benefits (CIB), a "child" is the wage earner's natural child, legally adopted child, stepchild, grandchild, or equitably adopted child. 20 C.F.R. § 404.354. Although there were no formal adoption proceedings, a child may be considered equitably adopted if the wage earner entered into a contract to adopt the child and the contract would be recognized under State law so that, if the wage earner died intestate, the child could inherit a child's share of the wage earner's personal property. 20 C.F.R. § 404.359. Thus, the basis for equitable adoption is an express or implied contract to legally adopt the child, generally a contract between the adopting parents and the child's natural parents or the person or agency having custody and control of the child. POMS GN 00306.180A.1.
B. Choice of Law
Theodore's CIB application was filed after Dr. S~'s death, and Dr. S~'s place of domicile at death was Minnesota. Therefore, we must ascertain whether a court of the State of Minnesota, applying the Minnesota intestate succession statutes, would find Theodore entitled to a child's share of Dr. S~'s intestate estate based on the status of equitably adopted child. See 20 C.F.R. § 404.359 ("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 her death will be followed").
Although Minnesota's intestacy laws clearly apply to the question of whether an equitably adopted child can inherit from Dr. S~'s intestate estate, that does not necessarily mean that Minnesota law applies to determine whether Theodore has the status of equitably adopted child. Rather, a Minnesota court would apply Minnesota's choice of law rules in determining whether to look to Minnesota law or Marshall Islands law to determine Theodore's status. To determine rights under a contract, Minnesota courts generally apply the law of the place where the contract was "made." See Heflebower v. Sand, 71 F.Supp. 607,609-10 (D. Minn. 1947). Under Minnesota case law, a child's status as an individual's adopted or equitably adopted child is determined under the law of the State where the contract to adopt was made. See In re Youman's Estate, 15 N.W.2d 537, 541 (Minn. 1944); In re Herrick's Estate, 144 N.W. 455, 457 (Minn. 1913) ("We hold the contract [to adopt] valid where made . . .). See also POMS GN 00306.180A.5.
Where a contract is "made" is not entirely clear. In all of the Minnesota adoption or equitable adoption cases we found where more than one jurisdiction was involved, all parties were in the same jurisdiction when they executed the contract and the child lived with the "adoptive parents" for a time in that same jurisdiction before moving to Minnesota. In those cases, the Minnesota courts applied the law of the foreign jurisdiction to determine whether the child was an equitably adopted child and the law of Minnesota to determine whether an equitably adopted child could inherit from the adoptive parent who died domiciled in Minnesota. See In re Will of Patrick, 106 N.W.2d 888 (Minn. 1960); In re Frederick's Estate, 62 N.W.2d 361 (Minn. 1954); In re Youmans’ Estate, 15 N.W.2d 537 (Minn. 1944); In re Herrick's Estate, 144 N.W. 455, 456-57 (Minn. 1913)
We were unable to locate any Minnesota cases, however, where the biological parents and child lived in a foreign jurisdiction and the biological parents entered into a contract to adopt with prospective adoptive parents who lived in Minnesota and intended to raise the child in Minnesota. Where the promises of the contracting parties were made and were to be performed in more than one jurisdiction, the determination of where a contract is "made" and, thus, which jurisdiction's law applies, can be difficult.
We did not locate any Minnesota statutory choice of law rules regarding equitable adoption. We did, however, locate cases that led us to conclude that Minnesota would likely follow the Restatement 2d Conflict of Laws (Rest. 2d. Conf.) to determine whether Minnesota law or Marshall Islands law should apply to the issues of whether there was a valid contract to adopt and whether Theodore should be considered Dr. S~'s equitably adopted child based on substantial performance of that contract. See Northern States Power Co. v. International Telephone and Telegraph Corp., 550 F. Supp. 108, 113 (D. Minn. 1982) (relying on Rest. 2d Conf. § 187 in finding Minnesota law applied where New York choice of law provision in contract was not knowingly negotiated as an expression of the parties intent and a significant portion of contract performance occurred in Minnesota); Heflebower v. Sand, 71 F. Supp. 607, 609-10 (D. Minn. 1947) (relying on the Rest. 1st to determine state law applicable to contract rights). In addition, Minnesota statutes dealing with child custody cases contain choice of law rules which, similar to the Restatements, require consideration of factors such as where the child lives and whether the child and a person acting as a parent have a significant connection to the state. Minnesota Statutes Annotated (M.S.A.) § 518D.201
Under general choice of law principles, where a state does not have a choice of law statute directing which state's law applies in a particular area, the court considers the following factors:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum, in determination of the particular issues,
(c) the relevant policies of other interested states and the relative interests of those states
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result,
(g) ease in the determination and application of the law to be applied.
Rest. 2d Conf. § 6. With regard to contracts, the applicable law will be the law of the state which has the most significant relationship to the transaction and the parties under these principles. Rest. 2d Conf. § 189. Specifically, in the absence of an explicit choice of law provision in the contract itself, the court considers the place of contracting, the place the contract was negotiated, the place of performance, the location of the subject matter of the contract, and the domicile, residence, nationality, place of incorporation, and place of business of the parties. Rest. 2d Conf. § 188. The "place of contracting" is the place where the last act occurred which, under the rules of offer and acceptance, was necessary to give the contract binding effect. Id. at comment e. The place of contracting, standing alone, is relatively insignificant. Id. Here, if a contract to adopt exists, it is unclear which party made the offer and which party accepted, so it is difficult to ascertain the place of contracting. If we assume that the consent to guardianship was executed in response to an offer by the S~s, or their agent, then the place of contracting would appear to be the Marshall Islands. Similarly, if there was a contract to adopt, it is unclear from the facts provided to us where the contract was negotiated. It may be that the negotiations took place entirely in the Marshall Islands, between the biological parents and the S~s' friend acting as their agent. It may be, however, that the negotiations took place over the telephone between the S~s in the U.S. and Theodore's parents in the Marshall Islands. Where there is no single place of negotiation, such as when negotiations take place by mail or on the telephone, the place of negotiation is of lesser importance than other factors. Rest. 2d Conf. § 188, commente.
While application of the first two factors, the place of contracting and the place of negotiation, does not direct a result based on the facts available to us, we believe that application of the remaining two factors weighs in favor of applying Minnesota law. With regard to the place of performance, local law of the place of performance is applied to govern all questions relating to details of performance. Rest. 2d Conf. § 188, comment e. Rest. 2d Conf. § 206 states, "Issues relating to details of performance of a contract are determined by the local law of the place of performance." The rationale behind this section is that details about the manner and time of performance are of primary concern to the state where those acts are done. Rest. 2d Conf. § 206, Comment a. In addition, under Rest. 2d Conf. § 196, in determining the validity of a contract for the rendition of services, the law of the state where the contract requires a major portion of the services to be rendered applies, unless another state has a more significant relationship under the general choice of law principles in Rest. 2d Conf. § 6. If, in fact the S~s and Theodore's biological parents intended to enter into a contract for Theodore's adoption, it seems clear that the intent was for the adoption to take place in Minnesota, since the consent to guardianship was explicitly given for the purpose of Theodore residing in the United States rather than in the Marshall Islands, and the child was brought to the S~s in Minnesota. The expectation of the parties, thus, was for the adoption to take place in Minnesota, under Minnesota law. The issue to be decided is whether there was sufficient performance such that the court, under the principles of equity, should find that there was, in effect, an adoption, despite the lack of formal adoption proceedings. This issue goes to whether the S~s sufficiently performed their obligations under the contract to adopt, obligations which were intended to be met in Minnesota. Therefore, if the Minnesota court were to look to the Rest. 2d Conf. § 206, Minnesota law would apply to determine Theodore's status as an equitably adopted child.
Consideration of the fourth relevant factor also points to application of Minnesota law in determining whether an equitable adoption exists. Here, although Theodore's biological parents are domiciled in the Marshall Islands, the place of domicile for Theodore and the S~s is Minnesota. As such, the state of Minnesota has a significant interest in determining the best interests of a child domiciled in Minnesota. See, e.g., Huynh Thi Anh v. Levi, 586 F.2d 625, 630 (6th Cir. 1978) (where Vietnamese children were placed with foster parents in Michigan, court stated that no rule or principle of international or federal domestic law required the child to be returned to their biological family without determining their eligibility for adoption and their best interests under the law of the state of their residence).
The Restatement 2d of Conflicts does contain choice of law rules regarding adoptions. Under Rest. 2d Conf § 262, the courts of the state where the decedent was domiciled at death is generally the court to determine whether an adoption affecting intestate succession is valid, but the court would use the law selected by application of Rest. 2d § 289. Rest. 2d. § 289, however, merely states that a court applies its own local law in deciding whether to grant an adoption. Although there was no adoption petition filed anywhere in the present case, again, it seems fairly certain that, if there was a contract to adopt, the understanding would have been that the adoption was to take place in Minnesota under Minnesota law. Thus, these portions of the Restatement 2d also suggest that the application of Minnesota law is appropriate to determine Theodore's status. We conclude that a Minnesota court, applying general choice of law principles, would most likely find that, under the facts in the present case, the law of Minnesota should apply to determine whether there was a valid contract to adopt and whether performance was such that an equitable adoption should be found.
C. Sufficiency of the Evidence
Having concluded that a Minnesota court would likely apply Minnesota law to determine Theodore's status as an equitably adopted child, we turn to the question of whether the information provided thus far would suffice for a Minnesota court to conclude that there was either an express or implied contract to adopt, that the contract was valid, and that there was sufficient performance of the contract to require, in accordance with the principles of equity, that Theodore be considered the S~s' equitably adopted child. In Minnesota, an adopted child has the same inheritance rights as a biological child. Minnesota Statutes Annotated (MSA) § 524.2-109. In re Will of Patrick, 106 N.W.2d 888, 890 (Minn. 1960). An equitably adopted child has the same inheritance rights as adopted children and biological children. In re Will of Patrick, 106 N.W.2d at 892 (child who would have been considered "de facto" adopted child under Scottish law was entitled to inherit as child of adoptive parent who died domiciled in Minnesota, even if he might not have had inheritance rights under Scottish law); In re Firle's Estate, 265 N.W. 818, 818 (Minn. 1936) (contract to adopt will, when executed, give rise to same obligations as full compliance with the adoption statute) (citing Odenbreit v. Utheim, 154 N.W. 741 (Minn. 1915). Thus, if a Minnesota court would find that Theodore has the status of an equitably adopted child, he has inheritance rights and, therefore, meets the definition of "child" for CIB entitlement purposes.
In Minnesota, the existence of a contract to adopt must be established by clear and convincing evidence. In re Berge's Estate, 47 N.W.2d 428, 430 (Minn. 1951) (citing In re Herrick's Estate, 144 N.W. 455, 457 (Minn. 1913) and In re Norman's Estate, 295 N.W. 63 (Minn. 1940)). In re Berge's Estate, the court found that a contract to adopt was not established because there was no evidence to prove (1) who the parties to the alleged contract to adopt were, (2) when or where the alleged contract was made, or (3) that anyone acted "in such a manner that the existence of such an agreement should be implied." The court stated, "The mere fact that a child is received into a home, supported and educated, is not sufficient to show an implied agreement to adopt such child." Id. at 431.
1. Was there an Express Written Contract to Adopt?
In the present case, we have an affidavit, signed by the biological parents in the Marshall Islands, in which they designate the S~s as Theodore's guardians. We need to consider whether this document constitutes an express written contract to adopt. If it does, nothing outside the four corners of the contract can be used to add to the terms of the contract. See POMS GN 00306.180 (if there is an express contract, no other terms can be implied). The affidavit signed by Theodore's biological parents appoints the S~s as Theodore's guardian. Although a contract would generally be signed by both parties, and the S~s did not sign the affidavit, it appears clear from the language appointing them as guardians and providing for termination by the mutual consent of the parents and guardians that, if the document is a contract, the parties are the S~s and Theodore's biological parents.
Although a contract need not specifically mention adoption, it must be clear from the language that the intent of the parties was that the S~s would adopt Theodore and that Theodore would have the same rights and obligations that an adopted child would have. See In re Berge's Estate, 47 N.W.2d at 430 (contract to adopt must be established by clear and convincing evidence). The affidavit specifies that Theodore take the S~s' last name, which would also be the case if there were an adoption. Rather than stating an intent that the S~s adopt Theodore, or an intent that they treat Theodore as their child in all respects and give him all of the rights a child of theirs would have (including inheritance rights), however, the document merely assigns "guardianship" and recites that its purpose is for Theodore to "reside" with the S~s in the United States. See In re Norman's Estate, 295 N.W. at 66 (court stated, in finding no equitable adoption where alleged adoptive father referred to "my foster daughter" in his will, "Technical words which have a definite and well-understood meaning will be presumed to have been used in that sense in the absence of surrounding circumstances or context which show that a different meaning was intended" (citing In re Holden's Trust, 291 N.W. 104, 107 (Minn. 1940). See also Memorandum from OGC, Region VIII to ARC, Programs, Region VII, Validity of Adoption Contract (June 1, 1984) (placement agreement did not constitute contract to adopt where it stated that couple expected to adopt child but also stated that the couple or the agency could terminate the placement at anytime before such an adoption). The affidavit gives the S~s "complete authority" necessary for them to "provide for complete support, education and medical care, and all other needs. . ." While the S~s would permanently have such authority, and the biological parents would permanently give up such authority, if the S~s adopted Theodore, the document signed by Theodore's biological parents clearly limits the authority given to the S~s. The document states that such authority continues only while Theodore is living with the S~s in the United States and, even then, only so long as the guardianship assignment is not terminated by mutual consent. Rather than permanently terminating their parental rights, the biological parents merely authorized the S~s "to act on our behalf" for a period of time. Because the language of the affidavit expresses intentions that are not consistent with an intention that the S~s adopt Theodore, we conclude that the affidavit does not constitute an express written contract to adopt.
2. Was there an express oral contract to adopt?
Having concluded that the affidavit signed by Theodore's biological parents cannot be considered an express written contract to adopt, we need to consider whether there was an express oral contract to adopt and, if not, whether a contract to adopt can nevertheless be implied from the totality of the circumstances. See Odenbreit v. Utheim, 154 N.W., 741 (Minn. 1915) (finding that child would have same right to inherit as a biological child upon proof of alleged oral contract to adopt). The information you provided to us indicates only that Ms. N~ spoke with the S~s, at which time she offered to have someone find a baby and set up guardianship for them. Mr. S~ also stated that Ms. N~ "arranged" the guardianship. Even if we assume that, during this conversation, the S~s authorized Ms. N~ to act as their agent, the extent of the agency appears to have been merely to arrange guardianship. We have no evidence of any oral agreement between Theodore's biological parents and either the S~s or Ms. N~. Thus, based on the information provided to us, we must conclude that there was no express oral agreement to adopt.
3. Was there an implied contract to adopt?
Minnesota recognizes the existence of an equitable adoption based on a valid implied contract to adopt. See, e.g., In re Estate of Rowe, 132 N.W.2d 180, 183 (Minn. 1964) (citing cases in which a valid contract to adopt was recognized and stating that there must be an express or implied promise by the adoptive parents to the biological parents, or the child's legal custodian, that the child was to be taken by the adoptive parents for adoption). Therefore, we look to whether a contract to adopt can be implied from the actions of the parties, both before and after Theodore came to live with the S~s. Certain facts tend to support the existence of an implied contract to adopt. For example, Mr. S~ told SSA that Theodore lived with him and his wife "as our child" continuously from the time Ms. N~ delivered Theodore to them in the U.S., that his wife supported Theodore until her death, and that the couple cared for all of Theodore's needs. While this conduct is consistent with an intent to adopt the child, standing alone it is not dispositive. In In re Berge's Estate, the court wrote, "The mere fact that a child is received into a home, supported and educated is not sufficient to show an implied agreement to adopt such child." 47 N.W.2d at 431. Moreover, no statements have been provided from other persons who might corroborate Mr. S~'s statement. See POMS GN 00301.305C (in evaluating weight to give a statement, consider if the person has a personal interest in the outcome).
There is also the family website page, dated May 13, 2003, which was obviously written after Dr. S~'s death and refers to "Teddy" as part of the family. This can be of little probative value with regard Dr. S~'s intent or her actions toward Theodore during her lifetime. The April 29, 2003 obituary from the International Falls Daily Journal which refers to Dr. S~ as a "caring mother" and lists her survivors as her husband and her son Teddy S~, likewise, is of little probative value for the same reason. The family website page, dated May 13, 2003, appears to have been written during Dr. S~'s lifetime and refers to her "son Teddy." The authenticity of this webpage article is not entirely established, however, since the webpage is dated May 13, 2003, the same day that the CIB application was filed. No proof was provided that the article was posted to the website prior to Ms. S~'s death.
Mr. S~ stated that Ms. N~ offered to set up "guardianship" if a baby was found. Nothing in Mr. S~'s statement indicates that there was any mention of any intention to adopt. In the absence of information to the contrary, we presume that the S~s understood that they were agreeing only to guardianship, which is not the same as adoption. In In re Norman's Estate, the child was given the alleged adoptive parents' last name at baptism and the church baptismal record showed her as "adopted" by them. The child lived with them until adulthood and was treated, and regarded by all, as their daughter. The alleged adoptive father, however, referred to the child as his "foster daughter" in a will prepared by his attorney. 295 N.W. at 64-65. The court wrote, "Technical words which have a definite and well-understood meaning will be presumed to have been used in that sense in the absence of surrounding circumstances or context which show that a different meaning was intended." 295 N.W. at 66 (citation omitted). The court concluded that there had been no contract to adopt. 295 N.W. at 67. Thus, Mr. S~'s statement that Ms. N~ offered to set up "guardianship" tends to support the conclusion that there was no implied contract to adopt.
Still other facts, while cutting both ways to some extent, point more to the conclusion that there was no implied contract to adopt. The affidavit of guardianship states that Theodore will be known as Theodore S~, but it also states that he will be known by that name "while he is living with the Guardians in the United States of America." The affidavit gives the S~s complete authority to act in order to provide Theodore's support, education, medical care and "all other needs," but it states that such actions are on behalf of the biological parents and provides for termination of the guardianship upon mutual consent of the S~s and the biological parents. These limitations tend to indicate that the biological parents did not absolutely relinquish custody and control in exchange for the S~s' promise to adopt Theodore. See POMS GN 00306.180C.2 (contract to adopt may be implied where there is a clear indication that there was a promise to absolutely relinquish custody and control in exchange for a promise to adopt and give the child the same rights and considerations he would have had if he were a biological child). In addition, Mr. S~ told SSA that he and Dr. S~ planned to initiate adoption proceedings but intended to wait until Theodore was four years old. The reason he gave for the delay was that the biological parents' feelings likely wouldn't be as strong and, therefore, they would not ask the S~s for money. The statement expresses an intent to adopt at some point in time. The reason given for waiting, however, tends to demonstrate that the understanding at the time was that the biological parents had not agreed to permanently give up their parental rights in exchange for a promise from the S~s that they would adopt Theodore and give him all the rights he would have if he were their child. See POMS GN 00306.180C.2 (subsequent conduct and statements must clearly reflect the mutual exchange of promises, and no other inference can reasonably be drawn). The friend's statement that Marshallese parents generally go through a period of mourning after assigning guardianship and that, after a time, the guardians can attempt to obtain a "release for adoption" also cuts both ways but, on balance, favors the absence of an implied contract to adopt. While such a period of mourning would occur if the biological parents had assigned the guardianship with the understanding that their child would be adopted, it is also possible that there might be a period of sadness or mourning at the loss of a child even temporarily, if the intent was for the child to live in the United States for a significant period of time. Also, while the friend indicated that a period of mourning was customary, there is no evidence in the record that Theodore's parents went through a period of mourning in anticipation of a permanent adoption. Moreover, the fact that, in order to adopt, the S~s would have to "attempt" to secure a release from the biological parents tends to show that there was no more than the possibility of a future contract to adopt, rather than an existing contract to adopt.
After considering all of the materials submitted, we conclude that a Minnesota court, applying Minnesota law, would likely find that the evidence is insufficient to establish the existence of a valid contract to adopt. The court, therefore, would likely find that Theodore was not Dr. S~'s equitably adopted child.
It may be that more information could be obtained which would change the outcome. For example, statements might be secured from the biological parents as to their understanding of the situation or from the intermediary as to what transpired in the Marshall Islands and what was said by the S~s when she delivered Teddy. See 20 C.F.R. § 404.734 (written statements from biological parents and adoptive parents will be requested, in addition to other evidence of the child's relationship to the adopting parents). See also POMS GN 00306.220 ("Wherever possible, obtain statements from the natural and adopting parents and any other parties to the contract.") Perhaps statements could be obtained from disinterested persons who have firsthand knowledge about the S~s relationship with Theodore or about statements made by the S~s as to the existence of a contract to adopt. See POMS GN 00301.305C (in evaluating a statement, consider whether it can be independently corroborated by other evidence). If an adoption agency was involved, a statement from an agency official might be helpful. See e.g., In re Firle's Estate, 265 N.W. 818 (Minn. 1936) (implied contract to adopt found where adoptive parents took custody of the child from Bethany Home and raised the child as their own and a Bethany Home official testified that it was Bethany Home's custom to require couples to adopt).
We conclude that a Minnesota court, applying Minnesota law, would find that the evidence submitted is insufficient to find the existence of a contract to adopt. Therefore, based on the evidence submitted, Theodore cannot qualify for CIB as Dr. S~'s equitably adopted child.
In Huynh Thi Anh, the court noted that, under both international choice of law rules and traditional United States conflict of law principles, the forum would look to its own choice of law rules in adoption and child custody matters. 586 F.2d at 630.