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
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
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.
 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).
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.