TN 1 (02-07)

PR 01510.042 Pennsylvania

A. PR 07-139 Reply to your Request for a Legal Opinion Regarding the Sufficiency of the Evidence of a Parent-Child Relationship Under Pennsylvania Law Between the Number Holder, Callie S~ SSN: , and the Claimant Travis A. P~-S~

DATE: May 22, 2007

1. SYLLABUS

The Pennsylvania Adoption Act mandates a strict procedure to be followed in the adoption of a child. Although Pennsylvania requires a married adopting parent to obtain the consent of his or her spouse before an adoption can take place, the Adoption Act does not require that both spouses join in the adoption petition.

In this case, the deceased number holder did not take part in the legal adoption nor did he ever promise to adopt the child. As a result, the child cannot be considered to be either a legally or equitably adopted child of the deceased.

2. OPINION

QUESTION PRESENTED

On April 26, 2007, you requested our opinion as to whether a parent-child relationship can be established under Pennsylvania law between Number Holder Callie S~, and Travis A. P~-S~ (Travis) based upon Travis' adoption by the Number Holder's wife.

CONCLUSION

We have reviewed the material you provided and have researched the relevant provisions of the Code of Federal Regulations and Pennsylvania law as it pertains to adoption. We believe that, under the facts presented, there is insufficient evidence to establish a parent-child relationship between the Number Holder and Travis. Accordingly, we believe that Travis is not entitled to receive child's benefits on the Number Holder's account.

BACKGROUND

According to the information you provided, on May 2, 1996, the Number Holder married Arla P~-S~ (Arla) in Bellefonte, PA. On January 26, 2000, the Commonwealth of Pennsylvania, Court of Common Pleas of Allegheny County, Orphans' Court Division issued a Certificate of Adoption to Arla as the adopting parent of Travis. At the time of the adoption, Arla and the Number Holder were living together as husband and wife. According to Arla, the Number Holder wanted nothing to do with the adoption. The Certificate of Adoption does not list the Number Holder as an adoptive parent. An amended birth certificate, dated May 18, 2000, lists "Arla R. P~" as Travis's mother. Travis was born on July 29, 1990. No father is listed in the amended birth certificate.

On September 15, 2002 and February 25, 2004, the Number Holder applied for disability benefits. He was paid benefits from June 2000 through September 2001, and he became re-entitled to benefits effective January 2004. In June 2005, Arla and the Number Holder separated and the Number Holder moved to New York State.

On March 7, 2007, Arla filed a disability claim for herself. Arla told the Technical Expert at the Social Security field office that she had an adopted child under the age of 18, and the Technical Expert asked why the child was not receiving benefits under the Number Holder's record. Arla responded that she had not applied for child's benefits as the Number Holder had wanted nothing to do with Travis' adoption. The Technical Expert informed Arla that it still might be possible for Travis to obtain benefits on the Number Holder's account and, on March 28, 2007, Arla filed an application for child's benefits on Travis' behalf. The relationship of the Number Holder and Travis indicated on the application is "adopted child".

DISCUSSION

I. Travis Would Not Be Entitled to Child's Benefits as the Number Holder's Legally Adopted Child.

According to the Code of Federal Regulations, a claimant may be eligible for benefits as an insured's child if the claimant was legally adopted by the insured. 20 C.F.R. § 404.356 (2006). SSA applies the adoption laws of the state where the adoption took place to determine if the claimant is the insured's legally adopted child. Id. In this case, as Travis was adopted in Pennsylvania, Pennsylvania adoption law controls.

There is no common law adoption in Pennsylvania. See Kilby v. Folsom, 238 F.2d 699, 700 (3d Cir. 1956). Rather, adoption of children is governed by a strict application of the Adoption Act. 23 Pa. C.S.A. §§ 2101-2901; Gibbs v. Ernst, 538 Pa. 193, 206 (1994). Exceptions to the Adoption Act may not be judicially created. Id.

The Pennsylvania Adoption Act mandates a strict procedure to be followed in the adoption of a child. Although Pennsylvania requires a married adopting parent to obtain the consent of his or her spouse before an adoption can take place, the Adoption Act does not require that both spouses join in the adoption petition. 23 Pa. C.S.A. § 2711.

In this case, although the Number Holder may have given Arla consent to adopt Travis, it is clear from the information provided that he did not join in the adoption petition as his name does not appear on Travis's Certificate of Adoption. Accordingly, the Number Holder did not legally adopt Travis under Pennsylvania law. Therefore, Travis would not be entitled to child's benefits as the Number Holder's legally adopted child. 20 C.F.R. § 404.356.

II. Travis Would Not Be Entitled to Child's Benefits as the Number Holder's Equitably Adopted Child.

Under the Code of Federal Regulations, a claimant may also be eligible for benefits as an equitably adopted child. 20 C.F.R. § 404.359 (2006). In order to be eligible for benefits as an equitably adopted child of the insured, the insured must have agreed to adopt the claimant as his child but the adoption did not occur. Id. The agreement to adopt must be one that would be recognized under state law so that the claimant would be able to inherit a child's share of the insured's personal property if he were to die without leaving a will. Id. The agreement must be in whatever form, and the clamant must meet whatever requirements for performance under the agreement that state law directs. Id. If a claimant applies for benefits during the insured's life, the law of the state where the insured had his permanent home at the time of the claimant's application will be followed. Id.

Based on the facts provided, it does not appear that Travis meets the requirements to be considered an equitably adopted child of the Number Holder. Although the number holder may have consented to Arla's adoption of Travis, there is no evidence that the Number Holder himself ever agreed to adopt Travis. To the contrary, Arla indicated that the Number Holder wanted nothing to do with Travis' adoption. If additional facts are developed indicating that the Number Holder had, at some point, agreed to adopt Travis, it may still be possible to analyze Travis' claim for benefits under an equitable adoption theory. If evidence of such an agreement is found, it should be analyzed under New York law as the Number Holder had his permanent home in New York at the time of Travis' application for child's benefits on the Number Holder's account.

Michael M~,
Regional Chief Counsel

By: ___________________________
Heather B~
Assistant Regional Counsel

B. PR 07-066 Whether a Parent-Child Relationship Exists Between the Number Holder (Donald M~) and Stefon M. M~, SSN: ~

DATE: February 7, 2007

1. SYLLABUS

In Pennsylvania, the controlling factor in determining whether an equitable adoption has taken place is whether there is “clear evidence of the intent that the child should share in the estate of the adopting parents.” In this case, the deceased number holder had custody and supported the claimant from 2001 until his death and requested and received a termination of the parental rights of the natural parents as a part of his efforts to adopt the child six days prior to his death.

This activity along with evidence that the number holder promised the natural mother that he would adopt the child, testified to that at the termination hearings and the fact that the child was listed as his sole heir in his will constitutes clear evidence of his intent to adopt.

2. OPINION

INTRODUCTION

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.

BACKGROUND

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), .354 (2006).

Equitable Adoption

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 his death.

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.

Legal Adoption

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 petitio