The Office of the Regional Attorney, Region IX, has determined that Montana law is
controlling as to the sufficiency of the agreement for Tina C~ adoption as an equitable
adoption, with respect to her first application for child's insurance benefits which
was filed in Guam. See, Memorandum re, Doris J. C~ ~ from RA IX to RA VIII, December 8, 1982 (copy attached).
Because Montana is located in Region VIII, the matter was referred to this office
to determine the limited issue of whether or not Montana law would support a determination
that Tina has been equitably adopted. As more fully discussed below, it appears that
Montana law would support a finding that Tina has been equitably adopted.
The pertinent facts indicate that Tina M. (H~) C~ was born June 24, 1962 on the Navajo
reservation in Utah. Tina's natural mother is Mary L. B~. The birth certificate indicates
that the natural father is Jimmy H~; however, Mr. H~ stated that it is "questionable"
whether or not he is the child's father. Ms. B~ and Mr. H~ were not married at the
time of Tina's birth. Evidence in the file indicates that before Tina's birth Ms.
B~ indicated that the C~, should take Tina and raise her. After Tina's birth, Ms.
B~ informed Dr. M~, (the doctor who had delivered Tina) that she did not want the
baby. She asked the doctor to arrange for an adoption to a good family. The doctor
telephoned the C~ who had moved from Utah to Montana. The C~ picked up the child ten
days after her birth. On July 3, 1962, Ms. B~ executed a notarized statement as follows:
I, Mary L. B~, because of circumstances over which I have no control, give to Mr.
& Mrs. Merritt R. C~ , my baby girl born at Monument Valley Hospital June 24, 1962.
I will never try to get her back nor interfere with her raising. She will be given
the home, love, care and education the same as though she were one of their own.
The C~ returned with Tina to their home in Montana.
Other evidence in the file indicates that after the alleged adoption took place, Tina
lived continually (until her entrance into college) with the C~ . Tina used the name
of C~ and considered herself legally adopted by the C~ . Similarly, the C~ and others
in the community considered Tina to have been legally adopted. The C~ exercised full
responsibility for Tina's support and supervision. The C~ treated Tina as their child
and Tina treated the C~ as her parents.
This office has previously advised that the State of Montana recognizes the doctrine
of equitable adoption in estate cases  Memorandum re, Equitable Adoption -Montana, from RA VIII (C~) to RC VIII, Sept. 4,
1979, OD2500 (copy enclosed); See also, Pierce v. Pierce, 645 P.2d 1353 (Mont. 1982). That advice was based, in part, upon the holding in
the case of In Re C~'s Estate, 105 Mont. 401, 74 P.2d 401, 413 (1937) which provides:
The courts have uniformly assumed the validity of executory contracts to adopt. Contracts
to adopt, not performed by effectual adoption proceedings during the life of the adoptive
parent, will, upon the latter's death, be enforced to the extent of decreeing that
the child is entitled to such right of inheritance from the estate of the adoptive
parent as a natural child would enjoy, where the child in question has fully performed
the duties to the adoptive parent, when circumstances require the relief as a matter
of justice and equity.
Furthermore, a recent decision of the United States District Court for the District
of Montana has indicated that in order to find an equitable adoption, the record must
show: 1) that there was an express contract to adopt; 2) that the child had, for an
extended period of time, acted as if she were the adopted child of the adopting parents;
and 3) that an inequitable result will occur if the equitable adoption theory is not
used. Olson v. Schweiker, (U.S.D.C.D.Mt. Civil Action No. CV-82- 5-BU, Oct. 14, 1982).
In the present case it is clear that there is an express contract to adopt Tina. The
contract is evidenced by various statements of Ms. Doris C~ in the file. It is also
supported by the affidavit of Dr. M~ who was instrumental in Securing the "adoption"
of Tina by the C~. The most convincing evidence of the adoption however, is the notarized
statement made by the natural mother, Ms. B~, at the time of the adoption contract.
The statement indicates that Ms. B~ "give[s]" Tina to the C~ and that Ms. B~ will
"never" interfere with the raising of the child. The statement also indicates that
the C~ are to provide the "home, love, care and education" for Tina. Thus, this contemporaneous
document not only recites the fact of the adoption but also recites the terms and
The second element necessary to find an equitable adoption is that the child has acted
as if she were the adopted child of the C~ for an extended period of time. In this
case Tina has taken and used the name C~ throughout her life. Statements of friends
and neighbors indicate their belief that Tina was adopted by the C~ The statement
of Tina's half sister, Ms. R~, indicates that the C~ treated Tina as their child and
Tina treated the C~ as her parents. Various documents in the file (e.g. passports)
indicate that Tina is the child of the C~. Tina has also indicated her belief that
she is the legally adopted child of the
Finally, the child/parent relationship between Tina and the C~ has existed for nearly
twenty years. Accordingly, it appears that the second requisite element for equitable
adoption is present in this case.
The final element for a finding of equitable adoption is that it would be inequitable
not to apply the equitable adoption theory. In this regard, statements in the file
indicate that the C~ believed they had done all that was legally necessary under Indian
law in order to adopt Tina. The C~, Tina, and the community believed that Tina had
been adopted. As discussed above, this parent/child relationship has existed for many
years. Therefore, it appears that the parties have relied upon a good faith belief
that Tina was legally adopted. They have ordered their lives around this belief for
nearly twenty years. Accordingly, not to apply the equitable adoption theory would
thwart the good faith expectations of the parties and would be against equity and
Based upon the above, it appears that Montana law would support a finding that Tina
has been equitable adopted by the
DATE: November 30, 1982