Your office has requested our assistance in making a determination as to whether James
M. W~, Jr. can be entitled to child's insurance benefits on the wage record of Charles
R. W~, his paternal uncle. James M. W~, Jr. was born on December 18, 1975, in the
State of Alabama. His parents are James M. W~ and Shirley A. S~ W~. As the result
of a judicial action filed by Shirley against her husband, James, Jr. was placed in
the temporary custody of his grandmother, Vera W~, by order of the Circuit Court for
Dallas County, Alabama, dated August 9, 1977. Another child was placed with a Cecil
W~. There was no indication in your files as to the nature of the proceeding.
James' grandmother and his uncle lived in the same household and when his grandmother
died in September 1984, Charles W~ (the brother of James' father) filed for custody
of James. By order dated June 24, 1985, Charles R. W~, the deceased wage earner, was
given temporary custody of the child by the District Court of Dallas County. The parents
were given reasonable visitation rights.
At the time Charles applied to obtain custody of James, Jr., he secured a form, "Petition
for Adoption of Child," from Robert E. A~, III, an attorney in Selma, Alabama. Attorney
A~ stated that he recalled handling the custody proceedings for Mr. W~, but only had
a faint recollection of discussing the adoption of James, Jr. with Charles. The petition
for adoption form was only partially completed. It appeared that the form was signed
on November 23, 1985, by Shirley, giving her consent to adoption, and signed by Charles
on December 2, 1985. The form was not notarized, nor was it ever filed in court. Charles
and James, Jr. moved to North Carolina in March 1989. When Charles died on September
9, 1990, he left no will.
The father of James, Jr. was contacted in New Jersey. He stated that he had never
discussed adoption of James with Charles. He had been told by Charles that he might
want to try to adopt James, Jr. However, James W~ stated that he did not want Charles
or his mother, Vera, to adopt James. He was content to wait and see what happened.
He said he did give his consent to for custody of James, Jr. to be awarded to Charles.
Your inquiry concerning the possible recognition of an equitable adoption is premised
on the incomplete adoption for being deemed a written adoption agreement and the implied
surrender of parental rights or abandonment by James' father. Child's benefits may
be payable to an equitably adopted child as defined in 20 C.F.R. §404.359 as follows:
You may be eligible for benefits as an equitably adopted child if the insured had
agreed to adopt you as his or her child but the adoption did not occur. The agreement
to adopt you must be one that would be recognized under State law so that you would
be able to inherit a child's share of the insured's personal property if he or she
were to die without leaving a will. The agreement must be in whatever form, and you
must meet whatever requirements for performance under the agreement, that State law
directs. If you apply for child's benefits after the insured's death, the law of the
State where the insured had his or her permanent home at the time of his or death
will be followed.
The wage died in North Carolina, but the adoption form was initiated in Alabama. Therefore,
the courts of North Carolina would look to Alabama law to determine the validity of
any alleged adoption agreement. See Patrick, L~ - - ~ - RAIV [Bell] - to Reg. Rep., BDO0, Atlanta—11/17/70. Our office
has rendered an earlier opinion with respect to equitable adoptions under Alabama
law which is fully applicable here. We have previously determined that:
"Under Alabama law, the courts will not grant specific performance of a contract to
adopt under the theory of equitable adoption unless it is shown by clear and satisfactory
evidence that there was an agreement to adopt and that the agreement contemplated
that the child was to be given inheritance rights. "T~ Y~ T~ - SSN - ~ - RAIV [Jarrett]
- to ARC, Progs., Atl., 03/19/87 (copy attached).
It is our opinion that there was no valid agreement for the adoption of James, Jr.
because his father never signed any statement agreeing to the adoption. To the contrary,
contacts with the father indicate that he never intended to agree to an adoption by
his brother only to custody. Without his agreement or an order terminating his parental
rights, there could be no valid adoption agreement under Alabama law. Alabama statutes
require the consent of both parents; however, the consent of a parent who has abandoned
the child or cannot be found can be substituted with the consent of an agency or guardian
having permanent custody of the child. See, Code of Alabama §26-10-3.
We cannot assume that James, Jr. was abandoned by his father based on his lack of
custody. Temporary custody of James, Jr. was given through court orders to his grandmother
and then to his uncle. There is no reliable evidence in our files to show that James'
father has voluntarily surrendered his parental rights and there is no evidence that
he had his parental rights severed through judicial determinations or that he intentionally
abandoned James, Jr. He has been given reasonable visitation rights and there was
very little in our files to show whether he visited James, Jr. or provided any type
of financial support for any period of time. This information would be crucial to
making a determination of an implied abandonment. Alabama courts are reluctant to
find that a parent has abandoned a child, even where there has been no financial support
or visitation for several years. See, eg., Adkison v. Adkison, 239 So.2d 562 (Ala. 1970). See, also, Atraszewicz v. Gallman, 349 So. 2d 593 (Ala Civ. App. 1977); Butler v. Giles, 258 So. 2d 739 (1972). Alabama courts have also ruled that the loss of custody of
the child does not obviate the necessity of obtaining consent of the natural parent
to an adoption. See Steele v. McDaniel, 380 So. 2d 892 (Ala. Civ. App. 1980).
Moreover, there is a strong possibility that Charles did not pursue the adoption process
any further because of the inability to get his brother to agree to the adoption.
There was a period of almost five years between partial completion of the adoption
form and the death of Charles during which there is no evidence of further attempts
to adopt James, Jr. Consequently, based on the foregoing, we are of the opinion that
James W~ , Jr. cannot be entitled to child's insurance benefits on the wage record
of Charles W~ as an equitably adopted child.