TN 4 (12-08)
PR 01510.028 Missouri
A. PR 09-006 Equitable Adoption in Missouri Gary C~, SSN ~ Satami A~ S~, Child
DATE: October 8, 2008
Since July 7, 1997, Missouri law requires that the child must be in the "lawful and actual custody" of the individual petitioning to adopt the child for a period of at least six months prior to an adoption being finalized. The only provision under Missouri law which allows waiving the six-month period involves situations in which the child at issue has been under the "prior and continuing" jurisdiction of the juvenile court and the individual(s) seeking to adopt the child is the foster parent(s). For an equitable adoption situation to exist, this six month period must be passed so that the formal adoption could have the chance to have taken place.
Additionally, Missouri case law indicates that equitable adoption as a concept only exists in situations where the prospective adoptive parent has died after beginning the adoption process.
You asked whether a child may be eligible for benefits based upon her prospective adoptive father's record, under the theory of equitable adoption; whether the nine-month waiting period refers to legal custody or actual custody; and whether the nine-month waiting period may be waived. Based upon Missouri state law, the child and prospective adoptive father's state of residence, and the Commissioner's regulations, we do not believe that equitable adoption is appropriate in this case.
The facts as relayed to our office are as follows: Satomi S~, the child at issue, was born in Miyoshi City, Hiroshima Pref. Japan on June 8, 1991, during the lawful marriage of Antonette M~ A~ and Kazushi S~. That marriage was subsequently dissolved at an unknown date. Thereafter, Ms. A~ married number holder Gary C~ on September 26, 2000. You advised that the child came to live with Mr. C~ on November 31, 2001, and that Ms. A~ came to live with Mr. C~ later, in April 2002. Ms. A~ and Mr. C~ divorced on June 26, 2007, but the child remained with Mr. C~ in Missouri. Formal adoption proceedings were initiated in January 2008. Mr. C~, whose date of birth is January 10, 1946, filed for Social Security retirement benefits in January 2008, and became entitled to benefits beginning February 2008. On August 15, 2008, the Circuit Court of Camden County, Missouri, Juvenile Division, terminated the natural father's parental rights, acknowledged Ms. A~'s written consent to Mr. C~'s petition for transfer of custody and legal adoption, and transferred legal custody to Mr. C~. The adoption will not be final until six months from August 2008, i.e. February 2009. Having been presented with no evidence to the contrary, for purposes of this opinion, it is assumed that Ms. A~ is a United States citizen.
We first address your question concerning the applicability of the equitable adoption doctrine to the facts of this case. The Commissioner's regulations provide that benefits may be available for an equitably adopted child if the insured had agreed to adopt that child, but the adoption did not occur. See 20 C.F.R. § 404.359 (2008). The agreement to adopt the child must be one which would be recognized under laws of the state where the insured had his permanent home, and which would enable the child to inherit his or her share of the insured's personal property if the insured dies without leaving a will, i.e. intestate succession laws. Id. The Program Operations Manual System (POMS) GN 00306.175.A also provides that a child who cannot qualify for benefits as a legally adopted child because the contemplated adoption was never completed may be eligible for benefits as an equitably adopted child. The POMS further provides that most states grant inheritance rights in the number holder's personal property to a child who has been the subject of a contract to adopt and who has performed as a child for such a length of time that failure to grant such rights would operate as a fraud upon the child. Id. In addition, the POMS recognizes that several factors must exist to find an equitable adoption, the last of which is that "[s]ufficient lapse of time so that the child could have been legally adopted under applicable State law before the [number holders] death." See POMS GN 00306.175.C. In Missouri, adoptions may not be finalized for six months after the petition for adoption is filed. See Mo. Rev. Stat. § 453.080.1(1) (West, Westlaw through 2008). Thus, six months would be a "sufficient lapse of time" for the child to be legally adopted in Missouri.
We were unable to find any case law where an equitable adoption was found while the prospective parent was still living. There is case law in Missouri which states that the "need for the [equitable adoption] doctrine arises when a proposed adoptive parent dies without having conducted a formal adoption." See Coon v. American Compressed Steel, Inc., 207 S.W.3rd 629, 634 (Mo. App. 2006). It is an equitable remedy "invoked by the court to allow the 'supposed-to-have-been adopted child' to take an intestate share" of the parent's estate. Id. In this case, Mr. C~ is still alive and there is no reason to believe that the formal adoption will not be finalized in February 2009.
Furthermore, because Missouri has a six-month waiting period, there has not been a sufficient lapse of time before the adoption may become final. If the fact pattern involved a foster parent, the outcome may well be different because, in those situations, a formal adoption may be finalized at an earlier time which could change the "sufficient lapse in time" factor as described in POMS GN 00306.175.C.
You also asked about the length and type of custody required and whether the required period of custody preceding the finalization of an adoption could be waived. Missouri law requires that the child must be in the "lawful and actual custody" of the individual petitioning to adopt the child for a period of at least six months prior to an adoption being finalized. See Mo. Rev. Stat. § 453.080.1(1) (West, Westlaw through 2008). Thus, both lawful and actual custody are required. As stated above, the court found that the child was in the "lawful and actual custody" of Mr. C~ since on or before August 2000. Therefore, custody is not an issue in this case. The only provision under Missouri law which allows waiving the six-month period involves situations in which the child at issue has been under the "prior and continuing" jurisdiction of the juvenile court and the individual(s) seeking to adopt the child is the foster parent(s). Id. Thus, Missouri law does not allow waiver of the waiting period in circumstances such as the situation under review.
Because this situation must be reviewed under Missouri law, pursuant to the Commissioner's regulations and POMS, the prospective adoptive parent must be deceased for the equitable adoption doctrine to apply. Under the facts presented, the number holder, Mr. C~, is still living. Thus, the child may not be eligible for benefits as an equitably adopted child. In addition, there are no provisions for waiving the six-month custody requirement, absent situations wherein the child has been under the prior and continuing jurisdiction of the juvenile court and the proposed adoptive parent(s) is the foster parent(s). As stated above, however, a change in facts may result in a different conclusion.
Kristi A. S~
Acting Chief Counsel, Region VII
Pamela J. M~
Assistant Regional Counsel