PR 01510.035 New York

A. PR 86-041 B~, Lillie M., ~ Equitable Adoption - Conflict of Laws - South Carolina and New York

DATE: December 1, 1986



When the contract to adopt is not shown to be of definite, certain existence, both the New York courts and the Federal courts of the Second Circuit would be reluctant to recognize the existence of the contract to adopt. Matter of Estate of M~, 95 A.D. 2d 91, 466 N.Y.S. 2d 759, 762 (1983). No equitable adoption can be found because no contract to adopt was entered into between the wage earner and the subject child's natural parents. King v. Secretary of Health, Education and Welfare, 224 F. Supp. 846 (E.D.N.Y.), aff'd, 337 F.2d 859 (1964).

It is the opinion of the Chief Counsel, Region II, New York, that although under the circumstances that the agreement to adopt was not quite specific enough to satisfy the requirements for a equitably adopted child at the time the child was surrendered by the parent, the New York courts under New York State law would look to subsequent events such as a subsequent adoption of the child to find an equitable adoption most likely existed at the time the wage earner became eligible for retirement. Thus, the child would qualify for child's benefits retroactively. See Mingo v. Heckler, 745 F.2d 537, 538 (9th Cir. 1984); Smith v. - Secretary of Health, Education and Welfare, 432 F.2d 1241 (5th Cir. 1970); Hall v. Richardson, 362 F. Supp. 662 (S.D. Tex. 1973).


You have requested an opinion from this office as to whether the claimant's child, Johnny E. B~, also known as Johnny E. P~ and John E. B~, was equitably adopted by Lillie M. B~, the wage earner, and her husband, John W. B~, and, therefore, is eligible to receive child insurance benefits under the Social Security Act. The child in question has not been formally adopted.

The subject child was born on February 24, 1968 in Brooklyn, New York. His birth records indicate that his natural parents are Yvonne M~ and Andrew P~. The birth certificate, recorded on January 20, 1969, reveals that the child's name is Johnny E. P~. Lillie M. B~, the wage earner, has stated that she and her husband, John W. B~, got the subject child at the age of four (4) days from his mother at a Brooklyn, New York hospital because his mother could not keep him due to the father's refusal to let her take him home. Lillie M. B~ further stated, "his mother told me we could have him and she would sign him over to us for adoption." John W. B~ , the wage earner's husband, has stated that the child's mother told him that he could adopt the child; however, this statement was oral and not in writing. John W. B~ stated that he intended to make the subject child an heir in his will at age eighteen at which point the child would not need a guardian. He further stated that he has attempted to locate the child's natural parents for legal adoption purposes, but they could not be located. Mr. B~ also employed an attorney to secure a name change on the child's birth certificate but this effort was unsuccessful.

The file contains the record of a petition for the adoption of the subject child executed by John B~ on April 29, 1972. Said affidavit is addressed to the State of New York, County of Kings. A sworn affidavit by John W. B~ preparatory to the initiation of adoption proceedings, dated 4/29/79 for the adoption of claimant child, is also included.

The file also indicates that Lillie and John B~, with the subject child, moved to South Carolina in the early 1970s. Lillie M. B~, the wage earner, filed for retirement and insurance benefits in South Carolina, and at the same time, listed the claimant's child as her child. Concurrent with her filing, the claimant child filed an application for child insurance benefits where he indicated that he is the legitimate child of Lillie M. B~. References throughout the file indicate that he is not aware of the fact that the B~ are not his natural parents. Lillie and John B~ have continually cared for this child, have given him their last name and there is an insurance policy showing the claimant child as the insured and Lillie M. B~ as the beneficiary, whose relationship is shown as his "mother".

The B~s and the claimant child now live together in South Carolina. However, the initial acts underlying this alleged equitably adopted child relationship took place in New York, where the child was born and where the parties resided until the child was school age.

We note at the outset that of the three tests which Congress has provided for determining whether an individual is the "child" of a wage earner, namely the provision found at 42 U.S.C. S~416(h) (2) (A), 416(h) (2) (b), and 416(h) (3) (C), only §416(h) (2)(A) is applicable to the facts of the instant case. Section 416(h)(2)(A) states that the Secretary will apply the law of the state where the individual wage earner was domiciled at the time of death as would be applied to devolve the wage earner's intestate personal property. The wage earner herein, Lillie M. B~, is currently living in South Carolina, and thus the question of Johnny B~'s status as a "child" presents a question of South Carolina law. See Mingo v. Heckler, 745 F.2d 537, 538 n.2 (9th Cir. 1984) (where the wage earner was still living, a determination of the status of the foster child under 42 U.S.C. §416(h) (2) (A) presented a question of law of the state in which the wage earner was domiciled at the time he filed his application for Social Security benefits).

Because the concept of equitable adoption is essentially a question of contract in equity, the courts would look to the law of the state where the contract was entered into where there has been an absence of effective choice of law of the parties concerned. See, e.g., Restatement (Second) of Conflicts §§6 and 188 (1960); see also Downs v. American Mutual Liability Insurance Company, 14 N.Y. 2d 266, 25] N.Y.S. 2d 19, 200 N.E. 2d 204 (1964).

Thus, the question of equitable adoption presented herein must be determined using the laws of New York, the state where the wage earner claims the adoption took place.

Because New York holds adoption to be in derogation of the common law, its adoption statutes "must be strictly complied with in all [their] essential parts." In re B~'s Estate, 147 Misc. 712 ( ). An adoption cannot be effected by inference or presumption, only by statutory compliance. Id. at page__. An adoption is not legally effective unless an order of adoption, pursuant to Article VII of the New York Domestic Relations Law, has been signed. Matter of Landon v. Motorola, Inc., 38 A.D. 2d 18, 326 N.Y.S. 2d 960 (1971).

However, the theory of equitable adoption has been applied by the courts of New York under limited circumstances. Because the parent-child relationship contemplated by the Domestic Relations Law can only be effected by statutory compliance, New York views equitable adoption as a type of contract to make a will provision. Barrett v. Mines, 119 Misc. 230, 233-234, 196 N.Y.S. 2d 175, 178 (1959). Technically, an informally adopted person becomes, "at best, a mere creditor or claimant against the [would-be parent's] estate " B~, Id at page whose contract right is enforceable in equity against the estate. See Estate of Riggs, 109 Misc. 2d 644, 440 N.Y.S. 2d 450 (1981). Thus, "the right to enforce the equitable adoption rule is limited to the alleged adoptee and is only against the property of the alleged adoptive parent." Riggs, supra at 452 (emphasis added).

An equitable adoption will be found where the contract to be enforced is "definite and certain, . . . free of fraud, duress and misrepresentation, . . . equitable, [has] mutuality of obligations and remedies, and [is] founded upon consideration." (citations omitted).

Because the equitable adoption theory has as its basis the doctrine of contract rights enforceable in equity, the court will act only to "enforce that which the adoptive parent should have done [i.e., to adopt the child before the wage-earner's demise] but failed to do . . ." Riggs, supra at 452. The United States Court of Appeals for the Second Circuit stated that where a state has instituted a statutory scheme to adopt, that statute "precludes the court from compelling performance of a non-statutory agreement to adopt." Williams v. Richardson, 523 F.2d 999, 1005 (2d Cir. 1975) (V. G~, J., concurring) (citations omitted). It follows, then, that because an agreement to adopt has not traditionally been held legally enforceable during the lifetime of the adoptive parent, "the doctrine of equitable adoption would have to come into play, if at all, only after [the parent wage-earner's] death." Id. at page 1005.

New York has traditionally upheld the equitable adoption theory in cases where a foster child sought to obtain a share in the deceased foster parent's estate, where that child had been surrendered by his natural parent[s] under agreements that the foster parents would legally adopt the child, treat and support him as their own, assume the full duties of a parent, and upon the death of the foster parent, the child would enjoy all the rights of a child of the foster parent by sharing in the estate. See Smith v. Jones, 43 Misc. 2d 350, 250 N.Y.S. 2d 955, 960 (1964); Middleworth v. Ordway, 191 N.Y. 404, 84 N.E. 291 (1908).

We note that the federal courts have upheld use of the equitable adoption theory where either (1) formal adoption proceedings were pending during filing or initiated subsequent to the filing of a claim by the parent wage-earner for child's benefits, or (2) the parent wage earner died and the remaining parent had commenced formal adoption proceedings prior or subsequent to filing a claim for child's benefits. In Mingo v. Heckler, 745 F.2d 537, 538 (9th Cir. 1984), the claimant was found to be an equitably adopted child under California law and thus entitled to benefits accruing before the date that she was formally adopted. Adoption proceedings were not initiated until plaintiff's adopted father was urged to do so by the Social Security Administration. In awarding plaintiff benefits which had accrued prior to her date of formal adoption (at which time she had initially begun to receive child's benefits), the court found that there had existed "sufficient subsequent conduct to demonstrate a mutual recognition of an adoptive parent and child relationship" prior to the date on which plaintiff was actually adopted. 745 F.2d at 539 (emphasis added). The court found that although he did not complete the formal adoption of plaintiff until a later date, at all times plaintiff's adoptive father had exhibited a parental attitude toward her, and thus there had existed an agreement to adopt.

While the facts of this case would seem to support a conclusion that an equitable adoption did, in fact, occur at some time during the years that Johnny lived with the wage earner and her husband in New York, both the New York courts and the federal courts of this circuit would be reluctant to recognize the existence of such an adoption because the contract to adopt has not been shown to be of definite and certain existence.

In the instant case,. one unsuccessful attempt was made to adopt Johnny B~, which was subsequently abandoned because Johnny's biological mother could not be located. [1] An attempt was made, also unsuccessfully, to change the surname on Johnny's birth certificate from "P~" (his natural mother's name) to "B~." Thus there has been no clear and convincing evidence presented that a binding contract to adopt existed as between the B~'s and Mrs. P~. As the court in Crozier v. Cohen, 299 F. Supp. 563 (W.D. Okla. 1969) stated, an equitable adoption cannot be presumed to exist where there is a lack of any evidence sufficient to establish a prima facie agreement between the foster parents and the natural parent that they would take the child and devise a portion of their property to him. 299 F. Supp. at 565. The only evidence presented herein is that Mrs. P~ orally agreed to hand Johnny over to the B~ because she could not take him home. Although she said that she would "sign him over" to the B~'s, no formal written agreement was ever entered into by the parties.

In the absence of a clear contract to adopt, it is questionable whether it was the B~s' intention to take Johnny and make him their heir. It is interesting to note that although Mrs. B~ insured Johnny on her life insurance policy, there is no indication that Mr. B~, the wage earner's, husband, acted in a similar fashion. Additionally, the B~'s had decided not to include Johnny in their will until he had attained the age of eighteen. We submit that the foregoing does not represent clear and convincing evidence that the B~'s intended to devise property to Johnny as their heir prior to the age of eighteen, and their actions cannot be considered as prima facie evidence of an agreement to adopt.

We believe that the facts in the instant case are analogous to those in King v. Secretary of Health, Education and Welfare, 224 F. Supp. 846 (E.D.N.Y.), aff'd, 337 F.2d 859 (1964). No equitable adoption was found to exist where the natural mother had delivered her daughter to the claimant without any formal agreement to adopt the child, only with the "intention" to adopt. 224 F. Supp. at 848-489. Although the natural mother was willing to give up the child, no agreement to adopt was entered into which would make the child a prospective heir of the foster parents. Id. at page 848. In the instant case, Mrs. B~ concedes that she never agreed with Mrs. P~ that she would adopt Johnny. Thus, per the holding in King, no equitable adoption can be found because no contract to adopt was entered into between the wage earner and Johnny's natural mother.

However, we note that in the opinion of the Chief Counsel, Region II, New York, that application of New York State law to the solution of the issue of equitable adoption that failure to evidence clear and convincing evidence of intent to adopt need not be fatal to the instant application. The New York courts would look at subsequent events in reaching a holding, i.e., were the B~'s to adopt Johnny now, an equitable adoption would most likely be found to exist at the time that Mrs. B~ became eligible for retirement benefits and thus Johnny would qualify retroactively for child's benefits. See Mingo v. Heckler, supra; Smith v. Secretary of Health, Education and Welfare, 432 F.2d 1241 (5th Cir. 1970); Hall v. Richardson, 362 F. Supp. 662 (S.D. Tex. 1973).[2]

In considering the status of the concept of equitable adoption in South Carolina, we reviewed the previous opinions of the Office of General Counsel holding that the Social Security Administration should continue to award benefits to equitably adopted children in South Carolina under appropriate circumstances and the relevant case law. There are no facts in the present case to substantiate a change of our previous position on this matter. (L~ , Willie E. — RA IV (S~) to ARC/RSI, San Francisco 2/20/79.

Accordingly, the facts of this case supports a finding that the subject child was not equitably adopted under New York law and that the courts of South Carolina would apply the laws of New York in this case.



In New York, failure to locate a child's natural parent[s] in order to commence formal adoption proceedings is not fatal. N.Y. Dom. Rel. Law §111(2) (a) states that consent is not required of a parent of a child who is in custody of another who has abandoned that child for a period of six months or more. We note that as early as August, 1968 Johnny could have been formally adopted by the B~ but they had neglected to do so. See, e.g., Adoption of Baby Girl, 103 Misc. 2d 542, 426 N.Y.S. 2d 398 (1980).


Entitlement to child's insurance benefits has also been found in cases where the wage earner died prior to the completion of adoption proceedings but an equitable adoption was found to have existed nonetheless. See Williams v. Richardson, supra; Kilby v. Folsom, 238 F.2d 699 (3d Cir. 1956).

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PR 01510.035 - New York - 04/17/2002
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