Ohio follows the general rule that whether a child has acquired the status of an adopted child is determined by the law of the state creating the adoption. To the extent that the applicable state would find that a child is adopted, Ohio would consider the child adopted and allow the child to inherit. In Minnesota, an oral agreement to adopt will, when executed, impose the same obligations as would result from a full compliance with the adoption statute. Such a contract will be enforced when the oral agreement is established by clear and convincing evidence and is at least partly performed. Although Minnesota requires that parental consent to a legal adoption be in writing, it is doubtful that such a requirement would be imposed in the case of an oral agreement to adopt. Minnesota does not require the consent of a parent who has abandoned his/her child. The standard for abandonment requires "desertion accompanied by an intention to entirely forsake the child."

This is in response to your inquiry concerning the status of Leonard A. G~ as an equitably adopted child of the deceased wage earner (DWE) Leon G~.

FACTS

Leonard A. G~ (a.k.a. Tony) was born on December 3, 1979 in Minnesota, to Patrick M~ and Sally A. F~. Ms. F~ intended to give up Tony for adoption. When Ms. F~ was six months pregnant, she and Patrick M~ orally agreed with Patrick M~'s step-mother, Patricia G~, and her husband, Leon G~ (the DWE), that the G~s would adopt the child when it was born. At that time, all the parties lived in Minnesota. When the child was born, Ms. F~ contacted the G~s from the hospital. The G~s, who had since moved to Michigan, went to the hospital in Minnesota, where they reiterated their oral agreement with Ms. F~ to adopt Tony. The hospital listed Patricia and Leon G~ as the parents on the hospital certificate of birth. The G~s then returned to their domicile in Michigan, taking the child with them.

The G~s started adoption proceedings, but could not afford to complete the process. However, they altered Tony's birth certificate to include the name "G~," and Leon G~ listed him as a dependent child on his tax returns. Tony does not know that he is adopted. Patrick M~, Tony's natural father, stated in 1996 that he had surrendered total custody of Tony to Leon and Patricia G~, and that he assumed that Tony had been adopted. Sally F~ did not respond to SSA's attempts to contact her, and the last time that she had contact with Patricia G~ was in 1992, although she knew the G~s' other children who remained in Minnesota and knew the G~s' address.

The G~s subsequently moved to Ohio, where Leon G~ died on April 1996. On August 5, 1996, in Ohio, Patricia G~ filed an application for child's benefits on Tony's behalf.

You ask whether the state of Ohio will recognize an oral agreement to adopt entered into in Minnesota.

DISCUSSION

A. The Adoption Of Tony G~

In order to be eligible for child's benefits on a deceased wage earner's account, a claimant must show that he is the child of the DWE. 42 U.S.C. § 416(e) defines a "child" as the child, legally adopted child, and in certain circumstances, stepchild, grandchild or stepgrandchild with no surviving natural parents. In cases in which the statutory requirements of adoption have not been met, a child who has been the subject of a contract to adopt and has performed as a child, may be eligible for benefits as an equitably adopted child. See POMS GN 00306.175.

The Social Security Act further provides that in determining whether an applicant is the "child" of a DWE, the Commissioner:

"shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which . . . [the DWE] was domiciled at the time of his death. . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such." 42 U.S.C. § 416(h)(2)(A).

Since Tony G~ was not legally adopted by the DWE, the question we must address is whether the laws of intestacy of the State of Ohio, the DWE's domicile at his death, would permit Tony G~ to take personal property as a child.

Ohio law provides that adopted children inherit as natural born children. Ohio Rev. Code Ann. § 3107.15(A)(2). Moreover, Ohio follows the general rule that whether a child has acquired the status of an adopted child, so as to allow him to inherit property in a state other than that of his adoption, will be determined by the law of the state creating the adoption, though that law is dissimilar to that of the situs of the property. "This rule has been applied even where there are radical differences in form and procedure by which the adoption proceedings are conducted in the different states." Barrett v. Delmore, 54 N.E.2d 789 (Ohio 1944), (citing 1 Am. Jur. 668, § 67).

Whether Tony G~ can be considered an adopted child will be determined by the law of Minnesota, the state of his adoption. If Tony G~ can be deemed an adopted child of the DWE in Minnesota, he would be considered an adopted child in Ohio, and under the Ohio intestacy statue, could inherit from the DWE as a child.

Thus, we turn to the laws of Minnesota to consider whether Tony G~ could be deemed an adopted child of the DWE in that state. In Minnesota, an oral agreement to adopt will, when executed, give rise to the same obligations as would ensue from a full compliance with the adoption statute. In re F~'s Estate, 265 N.W. 818 (Minn. 1936); Ondenbreit v. Utheim, 154 N.W. 741 (Minn 1915). Such a contract will be enforced when the oral agreement is established by clear and convincing evidence, and is at least partly performed. In re F~ 265 N.W. at 819.

We believe that the evidence in the claim would satisfy this test. The statement of Patrick M~, the natural father, independently corroborates Patricia G~'s statement that there was an oral agreement to adopt the child and that the G~s took Tony home from the hospital. Moreover, Mr. M~ stated that he had given up custody of Tony with the understanding that the G~s would adopt him, and that he in fact thought that the legal adoption had gone through. The hospital listed the G~’s name as parents on the hospital birth certificate, and the G~s altered the official birth certificate to include their name. This evidence supports the existence of an agreement to adopt. See also POMS GN 00306.180C

The evidence also shows that the agreement was at least partially performed. The G~s did initiate legal adoption proceedings. They listed the child as their son on their income tax return. Moreover, Mr. M~ and two other sources verify that the DWE treated the child as his own. The G~s publicly held him out as their son and the child does not know that he is adopted. Therefore, we believe that in Minnesota, Tony G~ would be deemed an equitably adopted child of Leon G~.

You raised the question of whether the natural mother, Ms. F~, had properly consented to the adoption. We do not believe that the issue of consent is a problem in this case. According to Patricia G~ and Patrick M~, Ms. F~ planned to put the child up for adoption in any case, and she twice orally agreed to give the child for adoption to the G~s (once when she was six month pregnant, and again at the hospital following the birth). She then gave up the child to the G~s. Minnesota requires that parental consent to a legal adoption be in writing. Minn. Stat. § 259.24(5). However, it is doubtful that such a requirement would be imposed in the case of an oral agreement to adopt, and we have been unable to find a case in Minnesota in which an equitable adoption was denied based on the lack of written consent of one parent.

Furthermore, Minnesota state law provides that consent shall not be required of a parent who has abandoned the child. Minn. Stat. § 259.24(1)(b). In the unlikely event that Ms. F~'s oral consent in her agreement with the G~s, coupled with her total surrender of the child at birth were not sufficient to establish her consent, she can certainly be said to have abandoned the child, in which case her consent would no longer be required.

The standard for abandonment requires "desertion accompanied by an intention to entirely forsake the child. There must be an intention to sever the parental relation and wholly throw off all obligations that spring from it." In the Matter of the Petition of M.G. and J.G. to adopt H.A.B., 375 N.W.2d 588 (Minn. Ct. App. 1985); see also Statt v. Hennepin County Welfare Board, 178 N.W.2d 709 (Minn. 1970). Ms. F~ gave the child to the G~s at birth and has not established a relationship with him, although she has been aware of his whereabouts. She has never supported him, and has had no contact with the G~s or Tony in at least four years. Furthermore, she has failed to respond to any of multiple attempts by SSA to contact her on this issue. These facts demonstrate "an intention to sever the parental relation."

Moreover, at least one Minnesota court allowed an equitable adoption where evidence of the father's consent to the adoption was "slight," noting that the father's rights, "whatever they may have been in the premises, would not be impaired by permitting the "adopted" child to succeed to the estate of the "adopting" parent." Fiske v. Lawton, 144 N.W. 455 (Minn 1913). Similarly in this case, Ms. F~'s parental rights, if any, would not be impaired by permitting Tony G~ to draw child's benefits on the account of his "adoptive" father, Leon G~.

It appears that under Minnesota law, Tony G~ can be deemed an equitably adopted child of Leon G~. Accordingly, since Minnesota law would consider Tony G~ an adopted child, Ohio would also consider him an adopted child and, under Ohio's intestacy statute, would allow him to inherit from Leon G~. For the foregoing reasons, we believe that Tony should be considered an equitably adopted child of the DWE.

B. POMS: Oral Agreements and Equitable Adoptions In Ohio

We note that your query letter mentions that according to POMS GN 00306.225B, Ohio recognizes oral agreements to adopt. In the course of our research, we have found this POMS to be incorrect. Ohio state law does not recognize oral agreements to adopt. See Seymour v. Stotski, 611 N.E.2d 454 (Ohio Ct. App. 1992) (refusing to recognize status as adoptive parent merely through oral agreement).

This POMS also states that Ohio will recognize equitable adoptions. Although this is correct in certain very limited instances, Ohio courts have not extended the doctrine of equitable adoption to allow an equitably adopted child to inherit under the intestacy statutes. See York v. Nunley, 610 N.E.2d 576 (Ohio Ct. App. 1992) ("we decline to expand to the law of inheritance the very limited and narrow application of the doctrine of equitable adoption," refusing to allow two equitably adopted sisters from inheriting from their intestate adoptive parent.) Accordingly, since it is questionable whether a child which had been equitably adopted in Ohio, (as opposed to one adopted in a state that clearly applies the doctrine of equitable adoption, such as Minnesota), could inherit through intestate devolution, such a claimant might not qualify as a "child," for Social Security purposes under 42 U.S.C. § 416(h)(2)(A).

Accordingly, we suggest that you may want to review the accuracy of the applicable POMS.

To be the equitably adopted child of the NH, the NH must show that there was an agreement to adopt and that, even though formal adoption did not occur, applicable State intestacy law would allow the child to inherit from the NH's estate. Although the Ohio courts have recognized equitable adoption in certain limited circumstances, they have declined to extend the theory to the area of intestate succession. Some Ohio courts have allowed an individual to inherit from an estate as an equitably adopted child, but only where there was a written contract to adopt. Ohio does not recognize oral agreements to adopt.

You asked for an opinion on whether under Ohio law, Devin S~ could be considered the equitably adopted child of his grandfather James S~, and therefore qualify for child's insurance benefits on Mr. S~' account. We have determined that although Ohio courts have used the doctrine of equitable adoption to establish a parent/child relationship in certain limited circumstances, it has not been extended to the area of intestate succession. Therefore, Devin would not entitled to child's insurance benefits on the earnings his grandfather's account,

FACTS

On September 4, 1986, Devin G~ was born to parents Amy S~ and Michael G~. ^[1] On May 8, 1989, Patricia S~, Devin's maternal grandmother, filed a complaint in Medina County Juvenile Court alleging that Devin's mother (Amy S~) and presumed father (Michael G~) had failed to provide proper care for Devin., and that he was a neglected child as defined under the Ohio Revised Code Section 2151.031. According to Patricia S~, Amy had placed Devin in her care in February 1987 but had since failed to provide any financial support, The Medina County Juvenile Court granted emergency temporary custody to Patricia S~ on May 8, 1989, and the temporary custody order was extended twice on June 14, 1989, and December 6, 1989.

On July 23, 1990, the Court's order of temporary custody was terminated and Devin was placed in the permanent custody of Patricia S~. The court noted that rehabilitation and reunification efforts with Devin's mother and father had failed completely. The Court terminated all parental rights between Devin and his parents. On August 16, 1990, Patricia S~ had Devin's name legally changed from Devin G~ to Devin S~.

On July 17, 1997, James S~, who had applied for retirement benefits, applied for child's insurance benefits for Devin as an equitably adopted child. Mr. S~ indicated that he and his wife have had permanent custody of Devin since 1990, and that they have always treated him as their own child. Mr. S~ further stated that Devin refers to him and his wife as Mom and Dad and that they have supported him totally. ^[2] Mr. S~ said that he and his wife did not legally adopt Devin because they could not afford to pay for the adoption.

Linda H~, Mr. S~' attorney, submitted a letter in support of Mr. S~' claim that Devin was equitably adopted. She stated that rather than pursuing formal adoption, Amy S~ impliedly agreed with the transfer of permanent custody to have her parental rights terminated and to have Mr. and Mrs. S~ provide for Devin's financial, emotional, and physical needs. Ms. H~ said that this was an oral agreement which has been in effect for over ten years. According to Ms. H~ there is no person or agency which is in a position to regain embody or control of Devin.

DISCUSSION

In order to be eligible for child's benefits on a wage earner's account, a claimant must show that he is wage earner's child. 20 C.F.K. § 404.350. The regulations define a child as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. For our purposes, only the equitable adoption provisions are relevant:

You may be eligible for benefits as an equitably adopted child if the insured has agreed to adopt you as his or her child but the adoption did not occur. The agreement to adopt 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.

20 C.F.R. § 404.359. Thus, Mr. S~ must show that he had an agreement with his daughter to adapt Devin, and that even though formal adoption did not occur, Ohio law would allow Devin to inherit a child's Share of Mr. S~ estate if he were to die intestate.

Based on our research, we believe Devin would not likely be entitled to inherit as Mr. S~ child. Although the Ohio courts have recognized equitable adoption in certain limited circumstances, ^[3] they have declined to extend the theory to the area of intestate succession. See York v. Nunley, 610N,E.2d 576, 578 (Ohio Gr. App. 1992). ("we decline to expand to the law of inheritance the very limited and narrow application of the doctrine of 'equitable adoption'... where the laws of inheritance in this delineate with specificity those persons who are legal heirs and next of kin of a decedent, the rights of a legally adopted person in matters of inheritance, and the formal requirements in making a valid will."). And while some earlier state courts have allowed an individual to inherit from an estate as an equitably adopted child where a written contract to adopt was fully performed by that child, but not by his adopting parents, no such agreement exists in this case. See Sunior v. Sunior, 152 N.E., 729, 730 (Ohio Ct. App. 1925) (citing Snyder v. Shuttleworth, 5 Ohio App. 137) ("Whatever fights [Plaintiff] has in this action can arise only out of the written instrument as a contract to make him an heir); Spiegel v. Flemming. 181 F.Supp. 185, 188-89 (N.D. Ohio 1960) (denying inheritance rights to plaintiff where there was no contract to adopt and where the adoption could not have been completed prior to the wage earner's death). Rather, Mr. S~' attorney has indicated that formal adoption was never intended at the time Amy agreed to have her parental rights terminated. Mr. S~ has also indicated that no promises were made to Devin's natural parents at the time his wee gained permanent custody of' Devin.

We further note that oral agreements to adopt are not recognized in Ohio. ^[4] See Seymour v. Stotski, 611 N.E.2d 454, 4511 (Ohio Ct. App. 1992). Nor do we believe that the Ohio courts would be willing to imply that such an agreement existed from the parties' conduct outside of the wrongful death context. See Lawson, 536 N.E.2d at 1169 ("indiscriminate application of such a broad legal principle is not desirable."), York, 610 N.E.2d at 578 (declining to extend equitable adoption to the area of intestate succession); see also In re Adoption of H~, 504 N.E.2d 1173, 1175 (Ohio Ct. App. 1983) (noting that under Ohio law, adoption is statutory in nature and will be strictly construed). ^[5] Therefore, we believe that Devin would not be considered the equitably adopted child of Mr. S~.

CONCLUSION

For the above-stated reasons, we conclude that Devin S~ would not be considered the equitably adopted child of James S~ under Ohio law so as to allow him to inherit from his grandfather's estate.

Ohio follows the general rule that whether a child has acquired the status of an adopted child will be determined by the law of the State creating the adoption. Therefore, if the claimant for child's benefits can be deemed an adopted child of the deceased NH in Minnesota, he/she would be considered an adopted child in Ohio and, under Ohio intestacy statue, could inherit from the deceased NH as a child.

In Minnesota, an oral agreement to adopt will give rise to the same obligations as would ensue from a full compliance with the adoption statute. Minnesota requires that parental consent to a legal adoption be in writing. However, it is doubtful that such a requirement would be imposed in the case of an oral agreement to adopt.

Minnesota law provides that consent shall not be required of a parent who has abandoned the child. The standard for abandonment requires desertion accompanied by an intention to sever the parental relation and wholly throw off all obligations that spring from it.

This is in response to your inquiry concerning the status of Leonard A. G~ as an equitably adopted child of the deceased wage earner (DWE) Leon G~.

FACTS

Leonard A. G~ (a.k.a. Tony) was born on December 3, 1979 in Minnesota, to Patrick M~ and Sally A. F~. Ms. F~ intended to give up Tony for adoption. When Ms. F~ was six months pregnant, she and Patrick M~ orally agreed with Patrick M~ 's step-mother, Patricia G~, and her husband, Leon G~ (the DWE), that the G~ would adopt the child when it was born. At that time, all the parties lived in Minnesota. When the child was born, Ms. F~ contacted the G~ from the hospital. The G~, who had since moved to Michigan, went to the hospital in Minnesota, where they reiterated their oral agreement with Ms. F~ to adopt Tony. The hospital listed Patricia and Leon G~ as the parents on the hospital certificate of birth. The G~ then returned to their domicile in Michigan, taking the child with them.

The G~ started adoption proceedings, but could not afford to complete the process. However, they altered Tony's birth certificate to include the name "G~," and Leon G~ listed him as a dependent child on his tax returns. Tony does not know that he is adopted.

Patrick M~, Tony's natural father, stated in 1996 that he had surrendered total custody of Tony to Leon and Patricia G~, and that he assumed that Tony had been adopted. Sally F~ did not respond to SSA's attempts to contact her, and the last time that she had contact with Patricia G~ was in 1992, although she knew the G~' other children who remained in Minnesota and knew the G~' address.

The G~ subsequently moved to Ohio, where Leon G~ died on April 1996. On August 5, 1996, in Ohio, Patricia G~ filed an application for child's benefits on Tony's behalf.

You ask whether the state of Ohio will recognize an oral agreement to adopt entered into in Minnesota.

DISCUSSION

A. The Adoption Of Tony G~

ust show that he is the child of the DWE. 42 U.S.C. § 416(e) defines a "child" as the child, legally adopted child, and in certain circumstances, stepchild, grandchild or stepgrandchild with no surviving natural parents. In cases in which the statutory requirements of adoption have not been met, a child who has been the subject of a contract to adopt and has performed as a child, may be eligible for benefits as an equitably adopted child. See POMS GN 00306.175.

The Social Security Act further provides that in determining whether an applicant is the "child" of a DWE, the Commissioner:

"shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which . . . [the DWE] was domiciled at the time of his death. . . .Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such." 42 U.S.C. § 416(h) (2) (A).

Since Tony G~ was not legally adopted by the DWE, the question we must address is whether the laws of intestacy of the State of Ohio, the DWE's domicile at his death, would permit Tony G~ to take personal property as a child.

Ohio law provides that adopted children inherit as natural born children. Ohio Rev. Code Ann. § 3107.15(A) (2). Moreover, Ohio follows the general rule that whether a child has acquired the status of an adopted child, so as to allow him to inherit property in a state other than that of his adoption, will be determined by the law of the state creating the adoption, though that law is dissimilar to that of the situs of the property. "This rule has been applied even where there are radical differences in form and procedure by which the adoption proceedings are conducted in the different states." Barrett v. Delmore, 54 N.E.2d 789 (Ohio 1944), (citing 1 Am. Jur. 668, § 67).

Whether Tony G~ can be considered an adopted child will be determined by the law of Minnesota, the state of his adoption. If Tony G~ can be deemed an adopted child of the DWE in Minnesota, he would be considered an adopted child in Ohio, and under the Ohio intestacy statue, could inherit from the DWE as a child.

Thus, we turn to the laws of Minnesota to consider whether Tony G~ could be deemed an adopted child of the DWE in that state. In Minnesota, an oral agreement to adopt will, when executed, give rise to the same obligations as would ensue from a full compliance with the adoption statute. In re F~'s Estate, 265 N.W. 818 (Minn. 1936); Ondenbreit v. Utheim, 154 N.W. 741 (Minn 1915).^[6] Such a contract will be enforced when the oral agreement is established by clear and convincing evidence, and is at least partly performed. In re F~, 265 N.W. at 819.

We believe that the evidence in the claim would satisfy this test. The statement of Patrick M~, the natural father, independently corroborates Patricia G~'s statement that there was an oral agreement to adopt the child and that the G~ took Tony home from the hospital. Moreover, Mr. M~ stated that he had given up custody of Tony with the understanding that the G~ would adopt him, and that he in fact thought that the legal adoption had gone through. The hospital listed the G~'s name as parents on the hospital birth certificate, and the G~ altered the official birth certificate to include their name. This evidence supports the existence of an agreement to adopt. See also POMS GN 00306.180C

The evidence also shows that the agreement was at least partially performed. The G~ did initiate legal adoption proceedings. They listed the child as their son on their income tax return. Moreover, Mr. M~ and two other sources verify that the DWE treated the child as his own. The G~ publicly held him out as their son and the child does not know that he is adopted. Therefore, we believe that in Minnesota, Tony G~ would be deemed an equitably adopted child of Leon G~.

You raised the question of whether the natural mother, Ms. F~, had properly consented to the adoption. We do not believe that the issue of consent is a problem in this case. According to Patricia G~ and Patrick M~, Ms. F~ planned to put the child up for adoption in any case, and she twice orally agreed to give the child for adoption to the G~ (once when she was six month pregnant, and again at the hospital following the birth). She then gave up the child to the G~. Minnesota requires that parental consent to a legal adoption be in writing. Minn. Stat. 259.24(5). However, it is doubtful that such a requirement would be imposed in the case of an oral agreement to adopt, and we have been unable to find a case in Minnesota in which an equitable adoption was denied based on the lack of written consent of one parent.

Furthermore, Minnesota state law provides that consent shall not be required of a parent who has abandoned the child. Minn. Star. § 259.24(1) (b). In the unlikely event that Ms. F~'s oral consent in her agreement with the G~, coupled with her total surrender of the child at birth were not sufficient to establish her consent, she can. certainly be said to have abandoned the child, in which case her consent would no longer be required.

The standard for abandonment requires "desertion accompanied by an intention to entirely forsake the child. There must be an intention to sever the parental relation and wholly throw off all obligations that spring from it." In the Matter of the Petition of M.G. and J.G. to adopt H.A.B., 375 N.W.2d 588 (Minn. Ct. App. 1985); see also Statt v. Hennepin County Welfare Board, 178 N.W.2d 709 (Minn. 1970). Ms. F~ gave the child to the G~ at birth and has not established a relationship with him, although she has been aware of his whereabouts. She has never supported him, and has had no contact with the G~ or Tony in at least four years. Furthermore, she has failed to respond to any of multiple attempts by SSA to contact her on this issue. These facts demonstrate "an intention to sever the parental relation."

Moreover, at least one Minnesota court allowed an equitable adoption where evidence of the father's consent to the adoption was "slight," noting that the father's rights, "whatever they may have been in the premises, would not be impaired by permitting the "adopted" child to succeed to the estate of the "adopting" parent." Fiske v. Lawton, 144 N.W. 455 (Minn 1913). Similarly in this case, Ms. F~'s parental rights, if any, would not be impaired by permitting Tony G~ to draw child's benefits on the account of his "adoptive" father, Leon G~.

It appears that under Minnesota law, Tony G~ can be deemed an equitably adopted child of Leon G~. Accordingly, since Minnesota law would consider Tony G~ an adopted child, Ohio would also consider him an adopted child and, under Ohio's intestacy statute, would allow him to inherit from Leon G~. For the foregoing reasons, we believe that Tony should be considered an equitably adopted child of the DWE.

B. POMS: Oral Agreements and Equitable Adoptions In Ohio

We note that your query letter mentions that according to POMS GN 00306.225B, Ohio recognizes oral agreements to adopt. In the course of our research, we have found this POMS to be incorrect. Ohio state law does not recognize oral agreements to adopt. See Seymour v. Stotski, 611 N.E.2d 454 (Ohio Ct. App. 1992) (refusing to recognize status as adoptive parent merely through oral agreement).

This POMS also states that Ohio will recognize equitable adoptions. Although this is correct in certain very limited instances, Ohio courts have not extended the doctrine of equitable adoption to allow an equitably adopted child to inherit under the intestacy statutes. See York v. Nunlet, 610 N.E.2d 576 (Ohio Ct. App. 1992) ("we decline to expand to the law of inheritance the very limited and narrow application of the doctrine of equitable adoption," refusing to allow two equitably adopted sisters from inheriting from their intestate adoptive parent.) ^[7] Accordingly, since it is questionable whether a child which had been equitably adopted in Ohio, (as opposed to one adopted in a state that clearly applies the doctrine of equitable adoption, such as Minnesota), could inherit through intestate devolution, such a claimant might not qualify as a "child," for Social Security purposes under 42 U.S.C. § 416(h) (2) (A).

Accordingly, we suggest that you may want to review the accuracy of the applicable POMS.

EQUITABLE ADOPTION — OHIO

The Courts of Ohio where the number holder resides would look to the law of the State where the contract to adopt a child was entered into, Kansas, to determine the existence of an equitable adoption. Under the law of Kansas an agreement to adopt a child and to make him/her an heir in consideration of the surrender of the child by the natural parents is sufficient to constitute an equitable adoption and although the agreement is revocable it remains in effect until such time as revocation takes place. (W~, Paul E., ~ — RAV (H~), to ARC, 12/10/84.)

You have asked whether Scottie J. H~ should be considered adopted by the wage earner and his wife under the principle of equitable adoption.

We understand that on August 29, 1973 Scottie J. H~ was born to Mr. and Mrs. Robert T. H~ in Memorial Hospital, Abilene, Kansas. When Scottie was four or five days old the H~ entered into a written agreement with the wage earner, Paul E. W~, and his wife, Helen. Helen is Robert H~ sister. The signing of the agreement was witnessed by Ms. Chloe C~. Although the agreement is no longer available and the H~ are not willing to cooperate in helping to establish the equitable adoption, all of the parties have agreed that the writing exists and the evidence strongly supports the conclusion that under its terms the H~ totally surrendered the child to the W~. The W~ promised to adopt the child legally and to give him the rights of a natural child.

The W~ took Scottie from the hospital to their home in Ohio. The child has resided with them there since that time. The H~ have not seen Scottie nor contributed to his support since he left the hospital. Scottie is known in the community as Scottie W~, the child of Paul and Helen W~ He is named in their wills as their child. Because of the expense, the W~ did not pursue the legal adoption until recently.

We conclude that Scottie should be considered adopted by the wage earner under the principles of equitable adoption.

Under section 216(h)(2)(A) of the Social Security Act a child may be found entitled to benefits if the facts of the case support a theory of equitable adoption. This section generally states that if the applicant can inherit personal property from the wage earner as a child or parent under the applicable .state laws of intestacy, the applicant is determined to be the child or parent of the insured. Because the wage earner resides in Ohio we apply Ohio law.

The Federal District Court for the Northern District of Ohio has explained the principle of equitable adoption:

This principle [of equitable adoption] is invoked usually where a contract or agreement of adoption has been performed on the part of the child or those who agreed to the adoption on his behalf and there has been a failure by adopting parents to comply with the statutes governing adoption.

Spiegel v. Flemming, 181 F. Supp. 185 (N.D. Ohio 1960). In keeping with this principle, a party wishing to establish an equitable adoption under Ohio law must show the existence of a contract to adopt supported by consideration. L~, Ernest F. ~,~RAV (M~) to RRep V-B, 6/23/66. The consideration on the-part of the natural parents is generally relinquishment of the custody of the child and consent to its adoption. Id.

Where, as here, a contract to adopt is entered into in a state other than Ohio, the Ohio courts will look to the law of the state in which the contract was entered to determine the validity, obligation and legal effect of that contract. Am, Garner, ~ RAV (F~) to RRep V-B, 7/t6/64; C ~, Robert E., ~ RA V (C~) to RRep V-B, 4/12/57. In a recent opinion the Regional Attorney office for Region VII has noted that in Kansas an agreement to adopt will be binding if it provides that the adopting parents agree to adopt the child and make him their heir. The contract must be shown by "clear, convincing and satisfactory evidence." T~, Glenda, RA VII (E~) to ARC, 6/1/84. (copy attached).

The evidence in this case shows that the W~ unequivocally agreed to adopt Scottie and to make him their heir. The H~ totally surrendered the child and consented to his adoption. The fact that the natural parents have threatened to withdraw this consent does not alter our finding. As noted in the L~ opinion cited above:

The requirement is...a valid contract to adopt supported by consideration, either express or implied...and the consent of the natural parents, even though revocable, has been held to be sufficient consideration to support the contract to adopt where, as here, it has not been revoked at the time it is acted upon by the adopting parents. ^[8]

There was thus a valid agreement under Kansas law which would be recognized by an Ohio court. The agreement was supported by consideration. We therefore conclude that Scotty J. H~ should be considered adopted by the wage earner under the principle of equitable adoption.

Equitable Adoption—Form of Contact—What State Law Governs

Where the natural mother and father of a child are divorced and custody is granted to the mother, who subsequently leaves the child in the care of the child's paternal grandmother and her husband ostensibly on a temporary basis, but who does not return to reclaim custody or show any interest in or concern for the child, the order of a West Virginia court granting custody of the child to the grandmother and her husband in which both natural parents at least implicitly acquiesce, is not sufficient to constitute an implied agreement to adopt between the custodian and the natural parents giving rise to a finding of "equitable adoption" by the custodian.

The law of the jurisdiction where the insured individual resided during all relevant time periods, Ohio, must be applied. As the proceeding in West Virginia did not involve a "legal adoption" there is no question as to whether Ohio is bound to give full faith and credit to the custody order in determining inheritance rights under Ohio State law.

You have inquired in your memorandum concerning the above captioned matter as to whether Sherri D. J~ (Sherri or claimant) is entitled to child's benefits on the account of Claude W. ~ (M~ or wage-earner) on the basis that she is his child for purposes of the Social Security Act by virtue of "equitable adoption." (Section 202(d), 216(e) and (h) of the Social Security Act, as amended. )

The pertinent facts as we understand them from the materials with which you have provided us are as follows: Sherri was born in Wood County, West Virginia to Joseph S. J~ and Donna G. J~ on September 17, 1964. On August 5, 1968, pursuant to her petition, Donna G. was granted a divorce from Joseph S. by the Court of Common Pleas of Washington County, Ohio. In addition, the Ohio court awarded "the care, custody, and control" of Sherri to Donna, her mother, subject to reasonable visitation rights by her father, Joseph. Ha was also ordered to make child support and alimony payments. Shortly thereafter Joseph entered the military service; he ceased making alimony and child support payments and did not return from the military until 1973.

Sherri lived with her mother, presumably in Parkersburg, West Virginia, until February, 1970. At that time Donna brought Sherri to the home of Claude and Mabel M~ Joseph's mother and step-father, who live in Little Hocking, Ohio, and asked whether they could care for Sherri while Donna attended to her younger child who was in the hospital. There was no agreement between Donna and the M~, either express or implied, that Sherri was to remain with and in the care of the M~ for an extended period. ^[9] The M~, in fact, assumed, although the length of her stay was not discussed, that Sherri was staying only for the weekend. Donna did not return to the M~ home to get Sherri. She neither contacted them to inform them of her whereabouts or to inquire as to Sherri's well-being, nor did she attempt to get Sherri and resume caring for her. The on the other band, did not search for Donna G. or seek to have Sherri returned to her as they feared for her welfare. (There is evidence in the file to indicate that Sherri was physically abused while residing with her mother.)

After a period of time passed and the M~ did not hear from Sherri's mother, they contacted an attorney who apparently advised them that they should bring an action in the Juvenile Court of Wood County, West Virginia, the place of residence of Donna G., seeking custody of Sherri, ^[10] The M~ filed a petition alleging that Sherri was a "neglected child." Donna G., who was represented by counsel, initially denied the allegations of neglect but subsequently withdrew her denials and admitted the allegations. Based on the mother's admissions, the court determined that Sherri was a neglected child within the meaning of the law." Then finding that the M~ desired and were "suitable to act as custodians," the court ordered that custody of Sherri be vested in the M~, her paternal grandparents. This was not an adoption proceeding and there is no indication or evidence that at the time of this proceeding Sherri's mother actually did or intended to agree to an adoption or to relinquish all of her parental rights to the M~. Although according to his statement (5/7/80), Joseph, Sherri's natural father, agreed that his and step-father "could raise Sherri," and he feels it is best for her if she stays with the M~, there is no indication that he agreed or contemplated that she be adopted by them. The M~ have never commenced adoption proceedings.

Sherri has had no contact with her mother since February, 1970 and she has remained in the care of the M~ continuously since that time. The M~ have had no contact with Donna G. since the time of the aforementioned court proceeding. Her whereabouts are presently unknown. There are numerous statements contained in the materials with which you have provided us which indicate that the M~ treat Sherri as if she were their child, as do the M~ adult-natural children, and the community in which Sherri and the M~ reside. She, in turn, treats Claude and Mabel M~ as if they were her parents. Sherri has, however, retained her natural father's surname, and she is aware of the circumstances which resulted in her living with the M~, as well as the fact that the M~ are actually not her natural parents although she has maintained a parent-child relationship with them.

The M~, who have claimed Sherri as a dependent child on their tax returns, have indicated that they did not commence or contemplate adoption as they did not believe such action was necessary in light of the aforementioned custody determination.

As you are aware, for purposes of determining "family status," specifically whether an applicant is the "child" of an insured individual within the meaning of the Social Security Act, we must:

... apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, .. Section 216(h)(2)(A) of the Social Security Act, as amended.

Since Claude M~, the insured individual in this matter, has resided in Ohio for all time periods relevant hereto, we must look to the law of that State to determine if Sherri is entitled to child's benefits on his account. As Sherri is neither the wage earner's natural child nor his child pursuant to an express legal adoption, ^[11] the question of her entitlement rests on resolving whether pursuant to the law of Ohio she is Claude's child by virtue of "equitable adoption."

As noted in the Claims Manual (Section 2438.1), "[t]he essential basis for equitable adoption is an express or implied contract to adopt the child legally. This contract is ordinarily between the adopting parents and the child's parents..." In Ohio, which recognizes equitable adoption, the principle of equitable adoption is invoked 'where a contract or agreement of adoption has been performed on the part of the child or those who agreed to the adoption on his behalf and there bas been a failure by adopting parents to comply with the statutes governing adoption." Spiegel v. Fietuning, 181 F.Supp. 185 (N.D. Ohio, 1960). The contract or agreement to adopt may be either express or implied. Claims Manual §2441; W~ , Alma, ~ RA:V (M~) to Director, GLPSC, Chicago, 7/30/79; C~ Harry RA:V (K~) to DM, McKeesport, Pa., 1/30/73. Since in the present case there was no express agreement 4/ between either of the child's parents and the M~ for Claude and Mabel to pursue adoption of Sherri, we must determine whether an implied contract or agreement to that effect existed.

We have concluded based on our review of the evidence submitted that an implied contract to adopt did not exist and therefore, for purposes of thin Social Security Act, Sherri J~ is not the child of the wage earner by virtue of an equitable adoption. The West Virginia court action ^[12] pursued by the M~ which resulted in their obtaining custody of Sherri, can be construed, at best, as an agreement, by virtue of Donna's admissions to the allegations of neglect, between Sherri's mother and the M~ that they should have custody of the child and provide for her well-being. Although these are usually viewed as "parental" responsibilities, custody does not equate to adoption and neither Donna nor Joseph J~ Sherri's natural parents, have consented to totally extinguish the parental relationship and to relinquish all parental rights. The M~, with the advise of counsel, specifically and knowingly sought to gain custody of Sherri, but did not pursue adoption or promise to do so. The Ohio courts, assuming thin validity of the "custody" action, will recognize the action as such. ^[13] The specific actions of the M~ cannot be translated into an adoption. Their explicit actions must be interpreted to represent their explicit intentions. Furthermore, there is no evidence that either parent consented or contemplated Sherri's adoption by the M~ ^[14] Based on these facts no contract or agreement to adopt can be implied. Thus, Sherri is not the equitably adopted child of the M~ and is not entitled to child's benefits on Claude M~ account.