EQUITABLE ADOPTION — STATE LAW PROVISIONS — MONTANA

A child obtains inheritance rights if the necessary elements constituting an "equitable adoption" are met. These elements are: that there was an express contract to adopt, that the child has acted as though he or she has been legally adopted over an extended period of time, that an inequitable result would occur should the doctrine of equitable adoption not be applied. (C~, Doris J., ~— RA VIII (Cage) to RC 12/30/82).

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 ^[1] 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.^[2] 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 consideration therefore.

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 good conscience.

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

The claimant, Tina C~, has filed two applications for child's benefits on the account of Doris C~, who has been eligible for retirement insurance benefits since August 1980. Tina filed her first application in Guam in June 1980, at which time both she and the wage earner were residents and likely domiciliaries of Guam. She filed her second application in January 1981 in the state of Washington; however, the wage earner was, at that time, a resident and domiciliary of Oregon.

Tina was born on June 24, 1962, on the Navajo reservation in Utah. Her Navajo Indian parents, Mary L. B~ and Jimmy were unmarried. The evidence in file indicates that Mary L. B~ a hospital attendant at the Navajo Indian reservation in Utah, orally promised Mr. and Mrs. C~ before Tina's birth that the C~ "should take Tina and raise her." The C~'s had met Mary L. B~ during the two years they lived on the Indian reservation in Utah, where Mr. C~ was building a hospital. The C~ left Utah before Tina's birth and moved to Montana. The doctor who delivered Tina at the hospital in Utah (the same hospital on the Indian reservation which Mr. C~ had built) stated that Mary L. B~ informed him that she did not want to keep the baby and that she (Mary L.) asked him to arrange for Tina's adoption by a good family. The doctor telephoned the C~ in Montana where they were living. The C~ immediately came to the hospital in Utah and picked Tina up when she was ten days old. The C~ then located Mary L. B~ on the Indian reservation in Utah and obtained a notarized, signed statement, dated July 3, 1962, wherein Mary L. B~ gave her baby to the C~. Mary L. promised that she would "never try to get [Tina] back nor interfere with her raising." The statement also indicated that Tina would be "given the home, love, care and education the same as though she were one of [the C~ own]." The C~ then returned to their home in Montana, and Tina lived with them thereafter. The SSA Regional Commissioner has inquired as to whether Tina can be found to be the equitably adopted child of the C~, thereby entitling her to child's insurance benefits on Mrs. C~ account.

This case presents an extremely difficult choice of law problem. The claimant's first application was filed in Guam in June 1980, at which time the wage earner was a resident and likely domiciliary of Guam. ^[3] The wage earner was a resident and domiciliary of Oregon when the claimant filed her January 1981 application. Inasmuch as Oregon is not within our region ^[4] , we will limit our opinion to the Guam choice of law question pertaining to a possible equitable adoption presented by the claimant's first application. Guam courts would not apply that jurisdiction's own substantive adoption law if presented with this matter, because the acts relating to formation and anticipated performance of the contract to adopt (assuming there was such a contract) occurred elsewhere (on the Navajo reservation in Utah, and in Montana). If an equitable adoption was recognized under the laws of the jurisdiction where the acts effecting the adoption occurred, we previously have found that Guam courts also would recognize the adoption. See our opinion re Carlos A. T~ , July 15, 1982 (copy attached hereto).

The difficulty in this matter is that the acts effecting the adoption (if there was an adoption) occurred in several jurisdictions. Preliminary adoption contract negotiations allegedly took place prior to Tina's birth when all parties were within the jurisdiction of the Navajo reservation, or at least, within Utah. Further preliminary negotiations allegedly occurred at the time of Tina's birth, with the doctor who delivered Tina acting as an intermediary between the parties. At the time of those negotiations, the child's biological mother was residing on the Navajo reservation in Utah, but the C~, Tina's "adopting" parents, were residing in Montana. The final, written "agreement to adopt" was signed on the Navajo reservation in Utah, but performance of the "contract" by the C~ was to take place in their place of residence, Montana. Guam statutory and case law provides no guidance concerning the proper solution to such a choice of law problem. We therefore have concluded that Guam courts would apply general conflicts or choice of law principles in this situation. If under such principles, an equitable adoption would be recognized in the applicable jurisdiction, we foresee no public policy ground to cause a Guam court to refuse to recognize such an adoption. See our opinion re Carlos A. T~, supra.

In the absence of an effective choice of law by the parties to a contract, there are five main factors to be considered under general choice of law principles: (i) place of contracting; (2) place of negotiation of the contract; (3) place of performance of the contract; (4) location of the contract subject matter; and (5) domicile or residence (or nationality, place of incorporation, and place of business—not pertinent here) of the contracting parties. Restatements(Second) of Conflict of Laws §188(2) (1971). If the place of negotiating the contract and the place of performance are in the same state, the law of that state usually will be applied, subject to numerous exceptions. Id, §188(3). The place of anticipated performance of the instant adoption "contract" was Montana, and the last portion of the negotiations occurred when the "adopting" parents were residing in Montana. Although these negotiations took place between Montana and Utah, rather than entirely within either state, it is arguable that Montana law should be applied under this conflicts principle.

Section 188(3)'s rule concerning exceptions also may well apply here, and the same result would obtain thereunder. The pertinent exceptions are found in sections 189-199 and 203 of the Restatement. The only applicable exception for purposes of this case is found in section 196, pertaining to personal service contracts. The claimant's biological mother apparently did not express any preference for the C~ as adopting parents when she informed the physician who delivered Tina that she wanted her baby adopted by a good family. The written agreement signed by the biological mother on June 29, 1962, however, was in the nature of a personal service contract, inasmuch as it contemplated that the C~ would treat Tina as they would their own child. Thus, this adoption agreement (if it qualifies as such) should be treated as a personal service contract for choice of law purposes.

The controlling law in such personal service contracts, in the absence of an effective choice of law by the parties, is the law of the state where the contract requires that the services, or a major portion of the services, be rendered. The place of performance for the major portion of the services can be inferred from the contract's terms, from the nature of the services involved, or from other circumstances. Restatement (Second) of Conflict of Laws §196, Comment a. Here, it can be inferred from the nature of' the services involved and the "contract's" 'terms 'that the parties contemplated performance of a substantial portion of the services in the adoptive parents' state of residence, Montana.

For the foregoing reasons, we conclude that Montana law should be controlling as to the sufficiency of the agreement for Tina's adoption as an equitable adoption, at least with respect to the first application for child's insurance benefits filed in Guam. If Montana courts would treat such an agreement as invalid, the problem then is to decide whether the law of another state with a significant relationship to the transaction and the parties should be substituted for Montana law or whether Montana's interest in having its invalidating rule applied outweighs the value of protecting the expectations of the parties. Restatement (Second) of Conflicts §196, Comment d. If, on the other hand, Montana courts would recognize this agreement as sufficient for an equitable adoption, then no other state laws nor the second child's insurance benefits application would need to be considered.

We would appreciate your legal opinion on the equitable adoption issue in this matter under Montana law.