PR 01510.030 Nebraska
A. PR 84-999 Validity of Adoption Contract - Kansas/Nebraska
DATE: June 1, 1984
For purposes of equitable adoption, both Kansas or Nebraska have enforced contracts to adopt. For an individual to be found to have been equitably adopted pursuant to a contract, the contract must provide that the adopting parents agree to adopt the child and/or make the child their heir. The contract must be shown by clear, convincing, and satisfactory evidence. The Placement Agreement entered into by the foster parents and United Catholic Social Services does not constitute a contract to adopt the child or make the child an heir because it states only that the foster parents expected to adopt the child. The Placement Agreement did not obligate the foster parents to do so.
On February 6, 1984, Glenda T~ applied for Child's Insurance Benefits on behalf of Sophia L. T~. In that application Ms. T~ listed Sophia as her adopted child. She indicated, however, that Sophia's legal adoption was in process but had not been completed.
According to a Special Determination dated April 11, 1984, Sophia was placed in the home of Glenda and Jesse T~ on March 16, 1973, by the United Catholic Social Services (UCSS) of Omaha, Nebraska, pursuant to a Placement Agreement dated March 16, 1973. According to the Placement Agreement, which is signed by the T~, the T~ agreed with UCSS that during the adjustment year they would provide Sophia with a home and full family participation; they would receive a UCSS caseworker into their home to observe the child and themselves; that during the adjustment year or until the child was adopted by them either the agency or the T~ could terminate the placement; that until legal adoption was accomplished they would take no other children into their home for foster care unless approved by UCSS; and that consent to legal adoption must be signed and sealed by the officer of UCSS authorized to do so.
According to the information you provided, neither party terminated the placement, and Sophia has lived with the T~ in Kansas since March 1973. You also indicated that the T~ had attempted to legally adopt Sophia several years ago, but were advised not to do so based on their legal and financial entanglements. You stated that the T~ legally adopted Sophia in April 1984, and that the adoption would be final under Kansas law in May 1984.
Because Glenda T~ was found to be entitled to disability benefits as of December 1, 1981, it was necessary for you to determine whether Sophia could be considered to have been equitably adopted by the T~ prior to April 1984, in order to determine when Sophia became entitled to child's insurance benefits.- Although you found that Sophia had met all the requirements of an equitably adopted child, you stated that your finding was contingent upon our determination as to the legality of the "adoption contract" (which you are required to request under POMS GN 00306.375). We are presuming that the adoption contract you refer to is the March 16, 1973, Placement Agreement. We have no reason to question the legality of the Placement Agreement, however, we do not believe it constitutes an adoption contract.
The insured, Glenda T~ was domiciled in Kansas at the time she received benefits, making Kansas law controlling in this case. See Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h)(2)(A). Because the placement agreement was entered into in Nebraska, and because Sophia was placed in the T~ home under the Interstate Compact for the Placement of Children, the Kansas courts would need to determine whether Kansas or Nebraska law should be applied in this case. We did not believe it was necessary for us to determine which law the Kansas courts would apply, however, since both Kansas and Nebraska have enforced contracts to adopt children.
Two General Counsel precedents imply that you may find a legally adopted person to have been equitably adopted prior to the date of the legal adoption. See GC Opinion re Equitable Adoption, June 29, 1979; GC Opinion re Equitable Adoption and Consent of Natural Parents, April 19, 1981. Nonetheless, for an individual to be found to have been equitably adopted pursuant to a contract, the contract must provide that the adopting parents agree to adopt the child and/or make the child their heir. The contract must be shown by clear, convincing, and satisfactory evidence.
We do not believe the Placement Agreement constitutes a contract to adopt Sophia or to make her the T~ heir. The Placement Agreement states only that the T~ expected to adopt Sophia. It did net, however, obligate them to do so. On the contrary, the Placement Agreement provided that the T~ or UCSS could terminate the placement anytime before Sophia was adopted by the T~’s . Therefore, we believe that the Placement Agreement does not constitute an adoption contract under Kansas or Nebraska law, and would not support a finding that Sophia was equitably adopted by the T~'s.
Sophia may be found to have been equitably adopted under Kansas or Nebraska law, however, under either an oral or implied contract to adopt. Therefore, you may wish to develop the facts of this case to determine if there is clear, convincing, and satisfactory evidence of an oral contract entered into between United Catholic Social-Services and the T~, whereby the T~ agreed 'to adopt Sophia and/or make her their heir. If you find that no such contract existed, you may wish to determine whether the facts of this case would warrant a court in finding an implied contract to adopt Sophia.
In our opinion the Placement Agreement tends to show that no oral contract to adopt existed, and absent other evidence may also preclude a court from finding an implied contract to-adopt in this case.
Kofka v. Rosicky, 59 N.W. 788 (Neb. 1894)'; Pemberton v. Pemberton's Heirs, 107 N.W. 996 (Neb. 1906); Peterson v. Bauer, 119 N.W. 764 (Neb. 1909); Evans v. Kelly, 178 N.W. 630 (Neb. 1920)'; Tuttle v. Winchell, 178 N.W. 755 (Neb. 1920); Wiseman v. Guernsey, 187 N.W. 55 (Neb. 1922); Franks v. Horrigan, 231 N.W. 27 (Neb 1930); Hickox v. Johnston, 213 P. 1060 (Kan. 1923); See also Malaney v. Cameron, 159 P. 19, aff'd, 161 P. 1180, reheating denied, 162 P. 1172 (Kan. 1917)'; GC Op. re V~, January 7, 1946.
Kofka; Pemberton; Peterson; Evans; Tuttle; Wiseman; Franks; Hickox; Malaney.
See GC Opinion re Roscoe L. F~ , deceased wage earner, earner, October 2, 1970; GC Opinion re Louis F~ , A/N ~ , April 27, 1976; GC Opinion re V~, January 7, 1946; GC Opinion re Willie C~ , deceased, February 18, 1954; GC Opinion re Equitable Adoption, December 13, 1982.