This memorandum is in response to your request for our opinion whether a parent-child
relationship can be established between the number holder, Donald A. M~, and Stefon
M. M~. Based on our review of relevant Pennsylvania statues and case law, we believe
that a parent-child relationship may be established based on an equitable adoption
as of April 20, 2006 or based on a legal adoption as of September 22, 2006.
Stefon M. M~ (Stefon) was born in October 1996. In August 2001, a Circuit Court of
Common Pleas for Westmoreland County, Pennsylvania, issued an order granting primary
physical custody and shared legal custody of Stefon to the number holder, Stefon's
great uncle, Donald A. M~ (M~). Stefon's mother, Mindy J. M~, consented to the award
of custody and was to retain shared legal custody and periods of partial physical
custody. Stefon continued to live with and receive support solely from the number
holder at all times after August 2001.
In April 2006, M~ filed a petition to voluntarily terminate the parental rights of
Mindy J. M~ and to involuntarily terminate the parental rights of Stefon's biological
father, who had never been involved in Stefon's life. On April 20, 2006, Judge Christopher
A. F~ of the Court of Common Pleas of Westmoreland County, Pennsylvania, held a hearing
on M~'s petition. M~ testified that he treated Stefon as his own son (Voluntary Termination
Hearing Transcript 7) and that he had not received any child support from Stefon's
biological parents (Voluntary Termination Hearing Transcript 17). Mindy J. M~ stated
that although she continued to see her son a couple times a week, she wanted to voluntarily
give up her parental rights to Stefon (Voluntary Termination Hearing Transcript 25-27).
Judge F~ granted M~'s petition and terminated the parental rights of both Ms. M~ and
Stefon's biological father.
M~ passed away from pancreatic cancer six days after the petition for termination
of parental rights was granted, on April 26, 2006. However, on September 22, 2006,
Judge F~ issued an Order granting M~'s petition for adoption, giving Stefon “the status
of a child of the said Donald A. M~ under applicable Pennsylvania Law” (September
22, 2006 Order of Court at 3).
Because Stefon was not the biological child of the number holder, a parent-child relationship
could only be created through legal or equitable adoption. 20 C.F.R. §§ 404.350(a),
A parent-child relationship may be established on the basis of equitable adoption.
20 C.F.R. §§ 404.354, .359 (2006). Equitable adoption recognizes that a child who
has been the subject of a contract to adopt and has performed as a child for such
a length of time but has not been legally adopted may be entitled to benefits. POMS
GN 00306.175. If a child applies for benefits after the number holder's death based on equitable
adoption, the Commissioner will look at the law of the state in which the number holder
had his permanent home at the time of his death in determining whether an equitable
adoption has occurred. 20 C.F.R. § 404.359 (2006).
While acknowledging that there is no common law adoption in Pennsylvania, Pennsylvania
courts have recognized equitable adoption as a valid means of granting inheritance
rights to children in limited circumstances. Kilby v. Folsom, 238 F.2d 699 (3d Cir. 1956); POMS GN 00306.225. The controlling factor in determining whether an equitable adoption has taken place
in Pennsylvania is whether there is “clear evidence of the intent that the child should
share in the estate of the adopting parents.” Hashem o/b/o Joseph v. Celebrezze, 226 F.Supp. 450, 452 (E.D.Pa. 1964).
There is clear evidence of M~'s intent that Stefon should share in his estate. First,
Stefon was named as M~'s sole heir in his Last Will and Testament. Cf. SSR 63-50c
(refusing to find equitable adoption because the number holder failed to provide for
the adoptee in his insurance policies and will). Second, as in Kilby, the record is “replete with evidence showing a desire to adopt as soon as possible.”
Hashem, 226 F.Supp. 451-52 (discussing the evidence in Kilby). M~ testified at the April 20, 2006 hearing that he intended to adopt Stefon as
soon as parental rights were terminated (Voluntary Termination Hearing Transcript
10). M~'s attorney stated at the hearing that the adoption proceedings were intended
to protect Stefon's rights according to the will and to ensure that Stefon would be
eligible to receive survivor's benefits upon M~'s passing (Voluntary Termination Hearing
Transcript 28). M~'s adoption of Stefon was prevented only because he died prior to
the end of the thirty day appeal period for the termination of parental rights. Accordingly,
a Pennsylvania court would recognize that M~ had equitably adopted Stefon prior to
Pursuant to POMS GN 00306.175, there are six requirements for finding equitable adoption. First, there must be
an express contract, either written or oral, to adopt the child. POMS GN 00306.180. This is consistent with Pennsylvania case law, which suggests that the existence
of a contract of adoption, either oral or written, must be in place to find an equitable
adoption. Such a contract existed in this case, as M~ testified that he intended to
adopt Stefon. Because custody of Stefon was irrevocably surrendered to M~ with a promise
by M~ to adopt Stefon and make him his heir, Pennsylvania courts would recognize a
valid contract to adopt. See Social Security Ruling (SSR) 61-30 (finding that a contract to adopt would be recognized
by a Pennsylvania court based on an irrevocable surrender of custody along with a
promise to make the child an heir); cf. SSR 64-27 (finding no contract to adopt because the child could be returned to the
natural mother). Accordingly, the requirement of an express contract has been satisfied.
Second, there must be “some legal consideration for the adopting parent's promise
to adopt.” GN 00306.175(C). The natural parent's absolute and permanent surrender of the child in exchange
for the promise of the adopting parents to adopt the child will constitute sufficient
consideration. POMS GN 00306.185. Stefon's natural mother voluntarily agreed to terminate her parental rights, upon
the understanding that he would be adopted by M~. Accordingly, the requirement for
consideration for the adopting parent's promise to adopt has been satisfied.
Third, in some states, including Pennsylvania, the adopting parent must promise to
give the child inheritance rights. POMS GN
00306.175(C). As previously stated, M~ had already given Stefon inheritance rights pursuant
to his Last Will and Testament, which was prepared in November 2001. M~, through his
attorney, repeated his intention to give inheritance rights to Stefon at the April
2006 hearing (Voluntary Termination Hearing Transcript 28). Accordingly, the requirement
of a promise to give the child inheritance rights has been satisfied.
Fourth, the child must be surrendered to the adopting parent. M~ had retained shared
legal and permanent physical custody of Stefon since August 2001. However, this custody
was made permanent and irrevocable as of the April 2006 Order of termination of parental
rights. Accordingly, the requirement of a surrender of custody has been satisfied
at least as of April 20, 2006.
Fifth, there must be performance by the child under the contract. In other words,
the child must occupy the position of a child, until the number holder's death. POMS
GN 00306.205. At all times prior to M~'s death, Stefon was under the care and support of M~. M~
provided both financial and emotional support for Stefan, testifying that he received
no child support (Voluntary Termination Hearing Transcript17 ) and took care of him,
taking him to school, playing ball, and doing other parental duties. There is no evidence
contradicting the testimony of M~ and Mindy J. M~ that Stefon had, since August 2001,
been under the care of M~ as if M~ were his own parent. Accordingly, the requirement
of performance by the child has been satisfied.
Finally, there must be a sufficient lapse of time so that the child could have been
legally adopted by the number holder prior to the number holder's death. POMS GN 00306.225 suggests that a child must live with the adopted parents for a trial period of six
months prior to adoption in Pennsylvania. However, this is not confirmed by Pennsylvania
law, which provides that an adoption decree may be entered “at any time” after the
legal requirements for adoption have been met. 23 Pa. Cons. Stat. Ann. § 2901 (West
2002). The only six month period referred to in the Pennsylvania statutes is a six
month waiting period prior to the termination of parental rights.
23 Pa. Cons. Stat. Ann. § 2511(a)(1) (West 2002). The six month waiting period referred
to in POMS GN 00306.225 would therefore not prevent a finding of equitable adoption.
The only other waiting period at issue is the thirty day appeal period after the termination
of parental rights. As Judge F~ noted, a parent has thirty days during which to appeal
the termination of parental rights. However, this is not a waiting period as defined
by POMS GN 00306.210. Pennsylvania law does not specify that an adoption cannot take place until thirty
days after the termination of parental rights. Rather, they specify that an adoption
may take place “at any time” after the legal requirements for adoption have been met.
Because this appeal period is not a “waiting period” as defined by POMS GN 00306.210, the fact that M~ died before the thirty day appeal period had passed should not
prevent the Commissioner from finding an equitable adoption.
Pennsylvania courts would recognize the April 20, 2006 hearing as a sufficient basis
for an equitable adoption. The remaining question is whether Stefon would be considered
dependent upon M~ such that he would be entitled to benefits.
Stefon would be considered dependent upon M~ for purposes of surviving child's benefits
because he was living with and receiving all his support from M~ at the time of M~'s
death. 20 C.F.R. § 404.365. However, because the equitable adoption took place after
M~ became entitled to disability benefits, Stefon's dependency upon M~ cannot be established
during M~'s lifetime. 20 C.F.R. § 404.365. Equitable adoption may therefore entitle
Stefon to surviving child's benefits as of April 26, 2006, the date of M~'s death,
but would not entitle him to any disability benefits on M~'s record.
An alternative basis for awarding benefits to Stefon Michael M~ on the record of M~
would be legal adoption. The Commissioner will apply the law of the state in which
the adoption took place in order to determine whether it was a legal adoption. 20
C.F.R. § 404.356 (2006). M~'s adoption of Stefon occurred in Pennsylvania, so Pennsylvania
state law will determine whether a legal adoption took place.
M~ complied with the legal requirements for adoption by filing a petition to terminate
parental rights, terminating parental rights pursuant to a court order, and retaining
physical custody of Stefon. See 23 Pa. Cons. Stat. Ann. § 2501-2535, 2711-25 (West 2002) (describing Pennsylvania's
adoption procedures). Pennsylvania found that the legal requirements for adoption
had been met, as demonstrated by the Court's September 2006 order of adoption.
The only potential obstacle to finding that M~ legally adopted Stefon is the fact
that the adoption was not completed until after M~'s death. M~ died on April 26, 2006,
before the adoption process could be completed. The Court of Common Pleas of Westmoreland
County, Pennsylvania issued an official Order of Adoption in September 2006, months
after M~'s death. The question then becomes whether a court in Pennsylvania may grant
a petition for adoption after the petitioner's death.
Pursuant to Pennsylvania's Adoption Act, a court may enter a decree of adoption “at
any time” after the legal requirements for adoption have been met. 23 Pa. Cons. Stat.
Ann. § 2901 (West 2002). Pennsylvania law also provides that “any individual” may
adopt. 23 Pa. Cons. Stat. Ann. § 2312 (West 2002). No Pennsylvania statute or case
specifically addresses the question of whether a petition for adoption may be granted
after the petitioner's death or whether a deceased individual may adopt a child. However,
Judge F~'s Order granting M~'s petition for adoption months after M~'s death has not
been challenged or overruled. In the absence of contrary law, Judge F~'s Order demonstrates
that a Pennsylvania court would, and in fact did, grant a petition of adoption after
the petitioner's death.
A remaining question is whether such a posthumous adoption would be contrary to Social
Security law or policy. Pursuant to 20 C.F.R. § 404.356, a child legally adopted by
the number holder's spouse after the number holder's death would be considered the
number holder's legally adopted child. While this provision does not directly control
Stefon's case, as Stefon was not adopted by M~'s spouse after M~'s death, it does
suggest that Social Security recognizes posthumous adoption in certain circumstances.
This implies that Social Security does not have a law or policy against posthumous
adoption per se.
The final question in determining whether Stefon is entitled to benefits as a legally
adopted child is whether Stefon was dependent upon M~. M~ became eligible for disability
benefits in November 2005, based on an October 2005 application. M~'s adoption of
Stefon did not take effect until September 2006, the date of the court order. Stefon
applied for child's benefits in October 2006, after M~ became eligible for disability
benefits and after M~'s death. Stefon is therefore considered to have been dependent
upon M~ pursuant to 20 C.F.R. § 404.362(a) (2006).
Under Pennsylvania law, Stefon became the legally adopted child of the number holder
on September 22, 2006, when the Court of Common Pleas of Westmoreland County, Pennsylvania
issued an official Order decreeing Stefon to be the child of the number holder. A
parent-child relationship can be established as of September 22, 2006 based on a legal
adoption. Therefore, Stefon would therefore be entitled to disability or surviving
child's benefits based on a legal adoption.
Based on a review of Pennsylvania law, we have determined that a parent-child relationship
was established between the number holder and Stefon M. M~ as of either April 20,
2006, the date of the Termination Hearing on the basis of equitable adoption, or as
of the date of the September 22, 2006 Court Order on the basis of legal adoption.
Regional Chief Counsel
Kelly C. C~
Assistant Regional Counsel