In North Carolina, a motion to intervene in a custody hearing in which the number holder admitted to an "intent to adopt in the future" would not constitute an "express or implied agreement to adopt the child" leading to a determination of equitable adoption if the number holder died intestate.

QUESTION

Can Dakota P~ (C1) and Allen J~ (C2) qualify for Child's Insurance Benefits as the equitably adopted children of their foster parent, wage earner Patrick C~ (W/E)?

ANSWER

For the reasons stated below, we do not believe C1 and C2 qualify as W/E's equitably adopted children under North Carolina law.

BACKGROUND

W/E and Pamela C. C~ (Pamela) received C1 and C2 into their home as foster children. In March 1996, W/E and Pamela filed a Motion to Intervene in the custody hearing of C2. They asked the court to grant them legal custody of C2 and stated they wanted to adopt C2 at some point in the future. On May 3, 1996, the court awarded legal custody of C2 to W/E and Pamela. In February 1998, the court also granted W/E and Pamela legal custody of C1. Subsequently, W/E and Pamela divorced on November 26, 2001. Their divorce decree made no provision for child custody or child support. After the divorce, C1 and C2 resided with Pamela. Pamela later married Fred C~ in April 2003. W/E executed a signed will in December 2005 listing C1 and C2 as his foster children. W/E died in January 2006 while domiciled in North Carolina.

DISCUSSION

Under the Social Security Act, a "child" under age eighteen may collect child's insurance benefits on the work record of a deceased parent. See Social Security Act (Act) § 202(d), 42 U.S.C. § 402(d). The Act defines "child" to include a legally adopted child. See § 216(e) of the Act, 42 U.S.C. § 416(e). The determination of whether a child is the legally adopted child of a wage earner is based on the adoption laws of the State where the adoption took place. See 20 C.F.R. § 404.356 (2006). In this case, C1 and C2 could qualify for child's survivor's benefits if the Social Security Administration finds W/E adopted them before he died. See Social Security Act § 216(e).

The evidence is clear that C1 and C2 do not qualify as the legally adopted children of W/E. Under North Carolina law, the requirements for legal adoption are strictly construed. Nevertheless, even when all the criteria for a formal, legal adoption have not taken place, some states recognize through judicial determination that an adoption has taken place in equity. North Carolina is among the states that recognizes equitable adoption, "but only in limited circumstances." See Lankford v. Wright, 489 S.E.2d 604, 606 (N.C. 1997), where the North Carolina Supreme Court set forth the standard for a court to find an adoption in equity. First, the court must generally find an "express or implied agreement to adopt the child." Lankford, 489 S.E.2d at 606. There also must have been reliance on that agreement to adopt, performance by the natural parents of the child in giving up custody, performance by the child in living in the home of the foster parents and acting as their child, partial performance by the foster parents in taking the child into their home and treating the child as their own, and the intestacy of the foster parents. See Lankford, 489 S.E. 2d at 606-607. "Each element must be proven by clear, cogent, and convincing evidence." Lankford, 489 S.E.2d at 607 (citing First Nat'l Bank in Fairmont v. Phillips, 176 W.Va. 395, 344 S.E.2d 201).

Based on North Carolina caselaw, we do not believe that the evidence, here, demonstrates W/E equitably adopted C1 and C2. First, the Supreme Court said "equitable adoption, however, does not confer the incidents of formal statutory adoption; rather, it merely confers rights of inheritance upon the foster child in the event of intestacy of the foster parents." Lankford, 489 S.E.2d at 606. Here, W/E died testate and provided for C1 and C2, as his foster children, in the will. Therefore, North Carolina law would not recognize an equitable adoption in this case.

Evaluating the remaining elements set out in Lankford, there is not enough evidence to show W/E equitably adopted C1 or C2, even if he had died intestate. For instance, there is no express or implied agreement for adoption. The evidence shows W/E and Pamela were the foster parents of C1 and C2 after they were taken out their biological parents' custody. In March 1996, W/E and Pamela filed a motion to intervene in the custody hearing for C2. The motion to intervene stated W/E and Pamela had a desire to adopt C2 in the future. However, no formal adoption papers were signed or filed in court. Thus, while the evidence here may support contemplation of adoption, nothing supports the existence of an agreement for adoption.

Furthermore, there is insufficient evidence to establish by clear, cogent and convincing evidence that C1 and C2 relied on that agreement to adopt. As stated above, an express or implied agreement to adopt has not been established in this case. Moreover, there is no indication that W/E's treatment of C1 and C2 was anything more than what is expected from a foster parent.

We note that the remaining elements for equitable adoption were met in this case. The court had given legal custody of C1 and C2 to W/E and Pamela. W/E took the children into his home and treated them as his sons until W/E divorced Pamela in November 2001. Although three elements were met, all six elements must be proven before North Carolina will recognize an equitable adoption.

CONCLUSION

For the foregoing reasons, we do not believe C1 and C2 are the equitably adopted children of W/E.

Sincerely

Mary A. S~
Regional Chief Counsel

By:
Jennifer P~
Assistant Regional Counsel

Under North Carolina law, for a court to find an adoption in equity the court must find an express or implied agreement to adopt the child. There must have been reliance on that agreement to adopt, performance by the natural parents of the child in giving up custody, performance by the child in living in the home of the foster parents and acting as their child, partial performance by the foster parents in taking the child into their home and treating the child as their own, and the intestacy of the foster parents. Each of these elements must be proven by clear, cogent, and convincing evidence. A relationship without all these elements being present does not constitute equitable adoption.

QUESTION

Can James A. C~ (James) qualify for Child's Insurance Benefits as the equitably adopted child of his grandfather, wager earner Roscoe B. C~ (Roscoe)?

ANSWER

For the reasons stated below, we do not believe James can qualify as Roscoe's equitably adopted child under North Carolina law.

BACKGROUND

James was born in September 1984 to Terri B~ (Terri). Terri testified that she took James to live with her parents Mr. and Mrs. Roscoe C~. Terri moved to Atlanta in 1986 returning for occasional visits. In 1987, a petition for adoption was signed on behalf of Roscoe, but the petition was never filed. That same year, Roscoe's will was properly executed, naming James as his grandson. In 1988 and 1993, Terri gave legal guardianship to Roscoe. Roscoe again discussed adoption in 1993, but did not file a petition for adoption in court. Roscoe died in February 1994.

DISCUSSION

Under the Social Security Act, a "child" under age eighteen may collect child's insurance benefits on the work record of a deceased parent. See Social Security Act § 202(d), 42 U.S.C. § 402(d). The Social Security Act (Act) defines "child" to include a legally adopted child. See Social Security Act § 216(e) of the Act, 42 U.S.C. § 416(e). The determination of whether a child is the legally adopted child of a wage earner is based on the adoption laws of the State where the adoption took place. See 20 C.F.R. § 404.356 (20032004). In this case, James could qualify for child's survivor's benefits if the Social Security Administration finds Roscoe adopted him James before his Roscoe died death. See Social Security Act § 216(e).

The evidence is clear that James does not qualify as the legally adopted child of Roscoe. Under North Carolina law, the requirements for legal adoption are strictly construed. Nevertheless, even when all the criteria for a formal, legal adoption have not taken place, some states recognize through judicial determination that an adoption has taken place in equity. North Carolina is among the states that recognizes equitable adoption, "but only in limited circumstances." See Lankford v. Wright, 489 S.E.2d 604, 606 (N.C. 1997), where . Tthe). The North Carolina Supreme Court set forth the standard for a court to find an adoption in equity. First, the court must generally find an "express or implied agreement to adopt the child." Lankford, 489 S.E.2d at 606. There Court in Lankford added thatalso that there must have been reliance on that agreement to adopt, performance by the natural parents of the child in giving up custody, performance by the child in living in the home of the foster parents and acting as their child, partial performance by the foster parents in taking the child into their home and treating the child as their own, and the intestacy of the foster parents. See Lankford, 489 S.E. 2d at 606-607. "Each element must be proven by clear, cogent, and convincing evidence." Lankford, 489 S.E.2d at 607 (citing First Nat'l Bank in Fairmont v. Phillips, 176 W.Va. 395, 344 S.E.2d 201).

Based on North Carolina caselaw, we do not believe that the evidence, here, is enough to show Roscoe equitably adopted James. First, the Supreme Court of North Carolina was very clear on the application of equitable adoption to situations of intestacy. See Lankford, 489 S.E.2d at 606-607. Specifically, the North Carolina Supreme Court said "equitable adoption, however, does not confer the incidents of formal statutory adoption; rather, it merely confers rights of inheritance upon the foster child in the event of intestacy of the foster parents." Lankford, 489 S.E.2d at 606. Here, Roscoe died testate and provided for James, as his grandson in the will. Therefore, North Carolina law would not recognize an equitable adoption in this case.

Evaluating the remaining elements set out in Lankford, there is not enough evidence to show Roscoe equitably adopted James, even if he had died intestate. For instance, there is no express or implied agreement for adoption. The evidence shows Terri gave over legal guardianship of James. Terri testified that she had discussed adoption prior to her mother's death in 1993. However, there is no indication that Roscoe agreed to be more than a legal guardian. Moreover, Terri continued to visit on holidays and vacations, and gave money to James at Christmas. In 1987, a petition for adoption was signed on behalf of Roscoe, but this petition was never filed. In fact, Roscoe executed a will that same year designating James as his grandson. This will was never revoked or amended. Six years later, Roscoe again discussed adoption of James in 1993, but no formal paperwork was signed or filed in court. Thus, while the evidence here may support contemplation of adoption, nothing supports the existence of an agreement for adoption.

Furthermore, there is insufficient evidence to establish by clear, cogent and convincing evidence that James relied on that agreement to adopt. As stated above, an express or implied agreement to adopt has not been established in this case. Moreover, there is no indication that Roscoe's treatment of James was anything more than grandfatherly love.

We note that the remaining elements were met in this case. Terri gave up custody of James, James lived with Roscoe and acted as his son, and Roscoe took James into his home and treated him as his own. Although these three elements were met, all six elements must be proven before North Carolina will recognize an equitable adoption.

CONCLUSION

For the foregoing reasons, we do not believe James is the equitably adopted child of Roscoe.

Sincerely

Mary A. S~
Regional Chief Counsel

By:
Jennifer P~
Assistant Regional Counsel

In determining the validity of an Alabama adoption, the State of North Carolina would look to the laws of Alabama and under Alabama law, the consent of both parents is required in the adoption of a minor child. Where there was no showing of an abandonment by the father of a minor child and the father did not give his consent to an adoption, we determined that an agreement signed only by the mother was insufficient to show a valid agreement to adopt the child and the child could not be found to be the equitably adopted child of the deceased wage earner.

(W~, Charles R. - Progs., Atl., 01/03/92)

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.

Under North Carolina law, an individual who has been the subject of a written agreement or contract to adopt is entitled to pursue her rights under the contract or agreement through a decree of specific performance in equity and this could constitute the basis for a finding of equitable adoption. (P~, Pearlean — ~— GC (Liferiedge) to AC 9/7/79)

Previous opinions re equitable adoption in North Carolina which indicated that an oral agreement would be sufficient to establish an equitable adoption misconstrued North Carolina law. Therefore, to the extent that they indicate that an oral agreement is sufficient the opinions re Kermit C~(~) April 5, 1976; Samuel F~ October 8, 1963; Robert E. R~ (~-~ February 2, 1950; and Harold D. L~ (~) August 27, 1947 are overruled. (P~ Pearlean — ~— GC (Lifefledge) to AC 9/7/79)

North Carolina law requires that a contract or agreement to adopt be evidenced by a writing. The writing must identify the parties, adequately express the intent and obligations of the parties, describe the property involved and the consideration for the agreement. (P~ Pearlean— ~—GC (Lifefledge) to AC- 9/7/79)

An adoption petition which identifies the petitioners and the agency which placed the child in their custody, and which includes a statement of petitioners' desire to have permanent custody of the child, to establish a parent-child relationship and to provide for the child's inheritance of real and person- al property is a sufficient writing to support a finding of equitable adoption under North Carolina law. (P~ Pearlean — ~— GC (Liferiedge) to AC - 9/7/79)

Under North Carolina law, receipt of regular and substantial contributions from a child welfare agency for a child's sup- port up to the time of the child's legal adoption would not preclude a finding of an equitable adoption. (P~ Pearlean — ~— GC (Liferiedge) to AC - 917179)

You have requested our opinion as to whether the child claimant may qualify as the deceased wage earner's equitably adopted child under section 216(h)(2)(i) of the Social Security Act.

The deceased wage earner (DWE) and his wife filed a petition to adopt the child claimant on September 3, 1976. The child, Lucy P~ had been living in their home as a foster child since May 1975. Although the wage earner died on October ll, 1976, before the adoption had become final, his wife continued the adoption proceedings. The interlocutory decree placing Lucy in the care and custody of the DWE's wife was issued January 21, 1977 and the final order of adoption was issued August 26, 1977. Despite the child's subsequent adoption by the DWE's wife, she does not qualify for benefits as his legally adopted child under section 216(e) because at the time of his death she was receiving regular contributions toward her support from the Department of Social Services. ^[1] The Johnson County Department of Social Services paid $100 per month in foster care payments to the P~ through May 1976 and beginning in June 1976, the P~ received $32.20 a month from the county agency and $67.80 per month in Supplemental Security Income payments. This arrangement continued until the adoption was completed in August 1977. The county agency has stated that the payments for Lucy were continued because the child is retarded and consequently had extraordinary expenses.

In some states, an individual such as Lucy who could not qualify as a legally adopted child could be considered the wage earner's "equitably adopted" child. Under the doctrine of equitable adoption a child who has been the subject of an agreement or contract to adopt may be granted inheritance rights in the adoptive parents estate as that individual's child, although a legal adoption never occurred. Thus, if North Carolina recognizes equitable adoption and Lucy meets the relevant State requirements she may become en- titled to benefits on that basis.

We requested an opinion from the Regional Attorney, Atlanta as to whether North Carolina recognizes equitable adoption and if so whether the fact that a child receives regular and substantial contributions would prevent a finding of equitable adoption. The opinion of the Regional Attorney, which is attached, states that under North Carolina law a claimant may be entitled to pursue her rights under a contract to adopt through a decree of specific performance in equity and this could constitute the basis for a finding of equitable adoption.

Although some previous opinions on equitable adoption in North Carolina indicated that an oral agreement would be sufficient to establish an equitable adoption, the Regional Attorney considers these opinions to be a misconstruction of North Carolina law ^[2] and they are specifically overruled by the opinion in the P~ case. See our opinions: re Kermit C~, (~) April 5, 1976; Samuel F~ (~) October 8, 1963; Robert E. R~ (~~ February 2, 1950; Harold D~ ( August 27, 1947. North Carolina law requires that the agreement be evidenced by a writing. The writing must identify the parties, adequately express the intent and obligation of the parties, and describe the property involved and the consideration for the agreement. ^[3] The Regional Attorney indicated that the adoption petition filed by Mr. and Mrs. P~ may be a sufficient writing if the requisite information is present.

Our examination of the adoption petition filed by the P~ reveals that the necessary information is present. The petition identifies the petitioners and the agency which placed the child in their custody. It also includes a statement of petitioner's desire to have permanent custody of the child, to establish a parent-child relationship and to provide for the inheritance of real and personal property by the child. Therefore, we believe that the adoption petition is a sufficient writing to support a finding of equitable adoption.

With regard to the payments which the P~ received on Lucy's behalf, the Regional Attorney feels that, under North Carolina law, receipt of regular and substantial contributions for a child's support would not preclude a finding of an equitable adoption.

Therefore, since the adoption petition constitutes a sufficient writing to establish an equitable adoption and the receipt of regular and substantial contributions would not be sufficient to preclude the establishment of an equitable adoption, we conclude that the child Lucy P~ qualifies as an equitably adopted child under section 216(h)(2)(A) of the Social Security Act.