Texas law would recognize the child claimant as the NH's equitably adopted child even though the adoption agreement took place in Illinois and did not involve the child's natural father. Texas law would likely consider the father to have abandoned the child, so that the NH would not need his consent to enforce the adoption agreement.

This memorandum is in response to your request for an opinion as to whether Texas State law would recognize an equitable adoption based upon an implied contract to adopt made in Illinois, with consent to adopt given only by the biological mother. For the reasons discussed more fully below, it is our opinion that Texas courts would recognize an equitable adoption under these circumstances. Neither the State in which the adoption contract originated, nor the fact that only one natural parent approved the adoption, would bar Texas courts from recognizing an equitable adoption in this case.

The information you supplied with your request indicates that the child at issue was born on July 13, 1988 in Illinois to Latonya B~. No natural father is identified in the child's birth certificate, and the natural father's identity apparently is unknown. The deceased number holder (NH), Joseph T~, Jr., a Title II beneficiary, and his wife, Georgia T~, are the child's maternal aunt and uncle. The NH and his wife, who also resided in Illinois, assumed custody of the child on or about July 27, 1988. At that time, the child's natural mother entered into a verbal agreement with the NH and his wife placing the child in their care for the purpose of adoption. Illinois court documents indicate that the NH and his wife, with the express concurrence of the child's natural mother and maternal grandmother, became the child's legal guardians on June 23, 1992. According to the NH's wife, she and the NH attempted to legally adopt the child in Illinois in 1996 or 1997, but the attorney retained to handle the proceedings died before filing any adoption papers. No other procedures to formally adopt the child have been undertaken in Illinois or any other State. The NH, his wife, and the child moved to Texas in 2001, and the NH died in Texas on June 16, 2002. On January 9, 2003, the NH's surviving spouse filed an application for surviving child's insurance benefits under Title II of the Social Security Act in the child's behalf. The NH also filed a request to be selected as the child's payee.

Title II of the Social Security Act (the Act) and the applicable regulations contain the criteria for entitlement to child's insurance benefits. The statute provides, in pertinent part, that a child may receive child's insurance benefits on the account of a deceased NH if the child is the child of the individual as defined in section 216(e) of the Act and was dependent upon such individual at the time of death. See Social Security Act § 202(d)(1), 42 U.S.C. ' 402(d)(1); see also 20 C.F.R. ' 404.350. The Act defines the term "child" as the child or adopted child of an individual. See Social Security Act § 216(e)(1), 42 U.S.C. § 416(e)(1).

Social Security regulations recognize the doctrine of equitable adoption as one method of establishing a relationship to an insured person. See 20 C.F.R. § 404.359. A child may be eligible for benefits as an equitably adopted child if the insured has agreed to adopt the child, but the adoption did not occur. See 20 C.F.R. § 404.359. The agreement to adopt must be recognized under state law so that the child would be eligible to inherit from the insured's intestate estate. See 20 C.F.R. § 404.359. SSA will apply the law of the state where the insured had his permanent home at the time the application was filed or, if the insured died prior to the date of application, at the time of death. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.359. At the time that the NH died, the NH was domiciled in Texas. Thus, Texas State law determines whether the child in question is the NH's equitably adopted child. See 20 C.F.R. § 404.359.

Texas State law recognizes the doctrine of equitable adoption, also known as adoption by estoppel. See Texas Probate Code § 3 (b). Before the enactment of Article 46a, Vernon's Texas Civil Statutes in 1931, adoptions were effected in Texas by execution, authentication, or acknowledgement and recording by the adopting parent or parents of a written instrument of adoption. See Heien v. W.T. Crabtree, 369 S.W. 2d 28, 30 (Tex. 1963). In a series of pre-1931 cases, the Texas Supreme Court recognized and affirmed a right of intestate succession in children who, being neither the natural nor legally adopted children of the intestate, were held to be entitled to the right by equitable adoption or adoption by estoppel. Id. The cases grew out of efforts to adopt which were ineffective because of the failure to comply strictly with statutory procedures, or of agreements to adopt which by neglect or design were not performed. Id.

Descriptive phrases such as "equitable adoption," "adoption by estoppel," and "adoptive status" function as terms of art. Courts using these phrases mean that because of the promises, acts, and conduct of an intestate decedent, those claiming under and through him are estopped to assert that the decedent did not adopt the child or convey the status of an adopted child. See Heien v. W.T. Crabtree, 369 S.W. 2d at 30. Under this doctrine, a parent's promises and conduct can create an equitable adoption that allows the child to assert intestate succession rights to the parent's estate. See Curry v. Williman, 834 S.W.2d 443, 444 (Tex. 1992) (citing Heien, 369 S.W.2d at 30). The case law discusses a requirement that the party claiming equitable adoption prove the existence of an agreement to adopt the child. See Cavanaugh v. Davis, 235 S.W. 2d 972, 974 (Tex. 1951). However, if the child lives with and receives support from the putative parents in a manner consistent with a parent-child relationship, the agreement to adopt may be established by circumstantial evidence. See Cavanaugh v. Davis, 235 S.W. 2d at 974; Luna v. Estate of Rodriguez, 906 S.W. 2d 576, 580-82 (Tex. App. - Austin 1996, no writ).

The case law reflects the courts' clear intent to provide for the welfare of children who live with and receive support from a putative parent under an arrangement that, through no fault of the child, did not rise to the level of a formal adoption. Accordingly, in the case of Deveroex v. Nelson, the Texas Court of Civil Appeals held that the equitable adoption doctrine applied to an adoption agreement entered into in Virginia, even though Virginia State law did not recognize this doctrine. The court did not find any Texas law on point, but noted that several other State courts had issued similar holdings. See Deveroex v. Nelson, 517 S.W. 2d 658, 661-62 (Tex. Civ. App. - Houston [14th Dist.] 1974), affd, 529 S.W. 2d 510 (Tex. 1975) (citations omitted). It thus appears that the equitable adoption of the child in question by the NH and his surviving spouse would permit the child to inherit intestate from the NH under Texas State law, even though the adoption agreement originated in Illinois. As a result, the origin of the agreement in another State would not affect the child's status as an equitably adopted child under Texas State law.

The omission of the child's father from the adoption agreement also does not prevent the child from qualifying for benefits as the NH's equitably adopted child. The Texas Supreme Court has held that a person claiming the protection of equitable adoption may qualify by submitting an agreement by the adoptive parent with the child's natural parent that she would adopt the child. See Cavanaugh v. Davis, 235 S.W. 2d at 973-974; see also Adler v. Moran, 549 S.W. 2d 760, 762 (Tex. App. 1977); Deveroex v. Nelson, 517 S.W. 2d at 661. If the evidence shows that one of the natural parents abandoned the child, the adoptive parent need not obtain this parent's agreement to the adoption. See Luna v. Estate of Rodriguez, 906 S.W. 2d at 581-82; Ramsay v. Lane, 507 S.W. 2d 905, 907-08 (Tex. Civ. App. -Houston [1st Dist.] 1974, writ ref'd n.r.e.). The information available to SSA, including official court documents, indicate that the child's natural father has not had any contact with the child since the adoption took place, and that he did not live with the child's mother at the time of the adoption. Therefore, Texas State law likely would consider the father to have abandoned the child, so that the NH would not need his consent to enforce the adoption agreement.

In conclusion, it is our opinion that Texas State law would recognize the child as the NH's equitably adopted child even though the adoption agreement took place in Illinois and did not involve the child's natural father. Thus, SSA should treat the child as the NH's child for purposes of determining entitlement to child's insurance benefits.

Tina M. W~
Regional Chief Counsel

By: ___________________________
Joseph B. L~
Assistant Regional Counsel

Texas law does not require complete and absolute surrender of the child by either natural parent for an equitable adoption to be recognized. Equitable adoption is shown when there is an agreement to adopt, and reliance by the parties on that agreement.

This memorandum is in response to your request for an opinion regarding whether Texas law on equitable adoption requires complete and absolute surrender of the child by the custodial parent when the adopter is the custodial parent's spouse. We conclude that Texas law does not require surrender of the child by either natural parent. Therefore, Ryan C. L~ ^[1] (Ryan) has proven that he was equitably adopted by the numberholder, Michael J. L~ (Mr. L~), and is Mr. L~'s child for the purposes of the Social Security Act (the "Act").

In this case, Beth D. L~, Ryan's mother, applied for surviving child benefits on Ryan's behalf. Ryan was born on March 28, 1989, to Beth D~ in Dallas, Texas. Ryan's birth certificate does not indicate a father's name. In 1990, Ms. L~ and Mr. L~ began living together and eventually married in 1995. Ryan has been in the custody of Ms. L~ since his birth. Ryan has never had contact with his biological father and considered Mr. L~ to be his father. Mr. and Ms. L~ began formal adoption proceedings in 1997. Ryan's biological father, James W. M~, relinquished his parental rights on October 25, 2000. A home study was conducted in May 2001 in conjunction with the adoption proceedings. The report recommended approval of Mr. L~'s adoption of Ryan and noted the strong desire on the part of Mr. L~, Ms. L~, and Ryan that the adoption take place. Mr. L~ became eligible for disability insurance benefits in November 2000. He died on June 11, 2001, while domiciled in Texas. On December 6, 2001, Ryan's name was legally changed from Ryan C. O'M~ to Ryan C. L~.

Under Section 216(h)(2) of the Act, the Commissioner will apply the law of the state of the insured's domicile at the time of his death to determine whether an applicant is the child of an insured individual. Applicants who according to such law would have inherited intestate property as a child of the insured will be deemed the child of the insured individual for purposes of the section. See 42 U.S.C. § 216(h)(2)(A). The Commissioner's regulations recognize the doctrine of equitable adoption as one method of establishing a relationship to the insured. See 20 C.F.R. § 404.359. A child may be eligible for benefits as an equitably adopted child if the insured has agreed to adopt but the adoption did not occur. Id. The agreement to adopt must be recognized under state law so that the child would be eligible to inherit from the insured's intestate estate. Id. The Commissioner will apply the law of the state where the insured had his permanent home at the time of his death. Id. At the time of his death, Mr. L~ was domiciled in Texas. Thus, for Ryan to be entitled to survivor's benefits, he must prove that he was Mr. L~'s equitably adopted child under Texas law. See 20 C.F.R. § 404.359. Ryan must also show that he was dependent upon Mr. L~. See 20 C.F.R. §§ 404.360; 404.365.

Texas law is well established in the area of equitable adoption or adoption by estoppel. See Texas Probate Code § 3 (b). Under this doctrine, adoption by estoppel occurs when, because of promises, acts, and conduct of the deceased, those claiming inheritance rights through the deceased are prevented from asserting that the child was not legally adopted or did not occupy the status of an adopted child. See Pope v. First National Bank in Dallas, 658 S.W.2d 764, 765 (Tex. App. 1983). The equitably adopted child may assert a claim for inheritance if he/she can prove the existence of an agreement or contract to adopt and good faith reliance on that agreement by the parties. See Cavanaugh v. Davis, 235 S.W.2d 972, 973-974 (Tex. 1951). The standard necessary to show the existence of an agreement to adopt is proof of facts essential to invoke equity in a way that is clear, unequivocal, and convincing. See Cavanagh, 235 S.W.2d at 978. However, only a preponderance of such evidence is required to establish an agreement to adopt. See Adler v. Moran, 570 S.W.2d 883 (Tex. 1978). The Fifth Circuit also recognizes that the doctrine of equitable estoppel is applicable to agreements to adopt. See Smith v. Secretary of Health, Educ. and Welfare, 431 F.2d 1241, 1244 (5th Cir. 1970).

Here, Mr. and Ms. L~ jointly initiated formal adoption proceedings on September 23, 1997. This indicates an agreement by Mr. L~ to adopt Ryan. Such an agreement may be oral, and the oral agreement may be proven by indirect evidence. See Moore v. Heckler, 1985 WL 71821 (S.D. Tex. 1985). Mr. and Ms. L~ actively pursued the legal adoption proceedings until the time of Mr. L~'s death. An affidavit of relinquishment of parental rights was sought and obtained from Ryan's biological father, Mr. M~, in October 2000. In that affidavit of relinquishment, Mr. M~ voluntarily relinquished his parental rights to Ms. L~. Mr. M~ recognized that the termination proceedings "may or may not be combined with a suit to adopt my child," and understood that he had "no further say concerning [his] child, whether or not [his] child is adopted then or at some later time." Mr. M~'s affidavit of relinquishment and his lack of a relationship with Ryan indicate his intent to allow Ms. L~ to make all decisions regarding Ryan, including the agreement to adopt made with Mr. L~.

Mr. L~ acted as Ryan's father by caring for his needs such as preparing meals, enforcing discipline, and providing emotional support. The 2001 home study noted Mr. L~'s strong relationship and solid commitment to Ryan. Further, according to the home study, Ryan referred to Mr. L~ as his father and stated that Mr. L~ "feels like my real dad." Ryan also stated that he had no relationship with his biological father. Ryan noted that most people referred to him as Ryan L~, and ultimately, Ryan's name was legally changed to Ryan L~ after Mr. L~'s death. These facts indicate good faith reliance by Mr. L~, Ms. L~, and Ryan on the agreement to adopt as well as acquiescence to the adoption by Ryan's biological father. See Cavanaugh, 235 S.W.2d at 974. See also Hall v. Richardson, 362 F.Supp. 662 (S.D. Tex. 1973)(factors to be considered in verifying the existence of an adoptive relationship include assumption of adopting parent's surname, habitual use of terms indicating parent-child relationship, and existence of relationship of love and affection). Thus, it is our opinion that Ryan has shown that he is Mr. L~'s equitably adopted child under Texas law.

Mr. L~ acted as Ryan's father by caring for his needs such as preparing meals, enforcing discipline, and providing emotional support. The 2001 home study noted Mr. L~'s strong relationship and solid commitment to Ryan. Further, according to the home study, Ryan referred to Mr. L~ as his father and stated that Mr. L~ "feels like my real dad." Ryan also stated that he had no relationship with his biological father. Ryan noted that most people referred to him as Ryan L~, and ultimately, Ryan's name was legally changed to Ryan L~ after Mr. L~'s death. These facts indicate good faith reliance by Mr. L~, Ms. L~, and Ryan on the agreement to adopt as well as acquiescence to the adoption by Ryan's biological father. See Cavanaugh, 235 S.W.2d at 974. See also Hall v. Richardson, 362 F.Supp. 662 (S.D. Tex. 1973) (factors to be considered in verifying the existence of an adoptive relationship include assumption of adopting parent's surname, habitual use of terms indicating parent-child relationship, and existence of relationship of love and affection). Thus, it is our opinion that Ryan has shown that he is Mr. L~'s equitably adopted child under Texas law.

For Ryan to be eligible for benefits, he must further show that he was dependent upon Mr. L~. Mr. L~ became eligible for disability insurance benefits in November 2000. The Commissioner's regulations state that an equitably adopted child will be considered dependent upon the insured in the following circumstances:

If your equitable adoption is found to have occurred after the insured became entitled to old-age or disability benefits, your dependency cannot be established during the insured's life. If your equitable adoption is found to have occurred before the insured became entitled to old-age or disability benefits, you are considered dependent upon him or her if you were either living with or receiving contributions for your support from the insured at one of these times -

(a) When you applied; or

(b) If the insured had a period of disability that lasted until he or she became entitled to old-age or disability benefits, at the beginning of the period of disability or at the time the insured became entitled to benefits.

20 C.F.R. § 404.365.

See also 42 U.S.C. § 402(d) et seq. To prove dependency, Ryan must show that his equitable adoption occurred before Mr. L~ became entitled to disability insurance benefits and that he lived with Mr. L~ at the time of his application or when Mr. L~ first became eligible for benefits.

Because Texas law on equitable adoption requires only an agreement to adopt and reliance upon that agreement by the parties, it is our opinion that Ryan's equitable adoption occurred, at the latest, on October 25, 2000, when Ryan's biological father relinquished his parental rights. Mr. and Mrs. L~ had agreed to the adoption in 1997, as evidenced by them instituting formal adoption proceedings. Mr. M~ had acquiesced to the adoption by formally relinquishing his parental rights in October 2000. Thus, by October 2000, all parties involved had agreed to the adoption and reliance on that agreement by Mr. L~, Ms. L~, and Ryan had occurred. As a result, Ryan's equitable adoption occurred before Mr. L~ became eligible for disability insurance benefits in November 2000. Additionally, the evidence shows that Ryan was living with Mr. L~ in November 2000 when Mr. L~ became eligible for disability benefits. Thus, Ryan has shown that he was dependent upon Mr. L~ as required by the regulations. See 20 C.F.R. § 404.365.

Finally, you asked whether Ms. L~'s complete and absolute surrender of the custody and control of the child to the adopting parent is met or required in this situation under Texas law. Texas law does not require "complete and absolute surrender" of the child by either natural parent for an equitable adoption to be recognized. As noted above, equitable adoption is shown when there is an agreement to adopt and reliance by the parties on that agreement. See Cavanaugh, 235 S.W.2d at 973-974. These two elements have been established in this case.

In conclusion, Texas law on equitable adoption does not require the complete and absolute surrender of the child by the natural parents. Instead, it requires an agreement to adopt and reliance on that agreement by the parties. Ryan has satisfied these requirements. Ryan has shown that under Texas law, he would be entitled to inherit from Mr. L~'s intestate estate under the theory of equitable adoption. The Act looks to state law to determine whether an applicant is the child of an insured individual. The facts also indicate that Ryan was dependent upon Mr. L~ because the equitable adoption occurred before Mr. L~ became entitled to disability insurance benefits and because he lived with Mr. L~ in November 2000, at the time Mr. L~ became eligible for disability insurance benefits. For these reasons, it is our opinion that Ryan is Mr. L~'s child for the purposes of the Act.

Tina M. W~
Regional Chief Counsel

By: ___________________________
Amy J. M~
Assistant Regional Counsel

 

In this case, the children are entitled as the NHs' legally adopted children. There is a question as to whether they can qualify as equitably adopted children with an earlier entitlement date. Under Texas law, the doctrine of equitable adoption was designed to protect the inheritance rights of those who were never legally adopted by a decedent. Since the children were legally adopted by the NHs, their rights have been adequately protected under the law through the legal adoption decree. Therefore, they cannot avail themselves of the remedy of equitable adoption.

This memorandum is in response to your request for an opinion regarding whether, in connection with the issue of establishing an earlier date of entitlement, under Texas law an equitable adoption had occurred at a point in time prior to the actual legal adoption ^[2] on April 30, 2001. If we conclude that an equitable adoption occurred prior to the actual legal adoption, you asked when such equitable adoption should be considered to have occurred. We conclude that because a legal adoption was consummated, an equitable adoption could not occur under Texas law. Therefore, Samantha H~ and Kendall H~ are considered children of Raymond H~, Sr., and Janet K. H~ as of the date of the legal adoption for the purposes of the Social Security Act.

Samantha J. H~ (Samantha) was born on May 13, 1992, in Fort Bend County, Texas, to Kristina K. K~. Samantha's birth certificate does not indicate a father's name. Kendall C. H~ (Kendall) was born on April 12, 1994, in Houston, Texas, to Kristina K. K~ (Kristina). On Kendall's birth certificate, Raymond A. H~ (Raymond), the son of Janet K. and Raymond H~, was listed as the father. Kristina and Raymond were never married. Kristina disappeared in 1994, leaving the children with Raymond and his wife. Samantha and Kendall were removed three times from Raymond’s custody by Child Protective Services. Samantha and Kendall have lived with Raymond A. H~, and Janet K. H~, on and off since 1996. Mr. and Mrs. H~ were given custody of the children in August 1998. In February 1999, the numberholders were given permanent custody of the children by the District Court of Harris County, Texas.

On April 2, 2000, Raymond signed a Parental Consent to Adoption. Mr. and Mrs. H~ filed for legal adoption of Samantha and Kendall on June 6, 2000. On August 1, 2000, Raymond signed a Father's Affidavit for Voluntary Relinquishment of Parental Rights in the District Court of Harris County, Texas as to both Samantha and Kendall.

Mr. H~ became entitled to retirement insurance benefits effective January 2000, based on an application filed in August 1999. Mrs. H~ became entitled to retirement insurance benefits effective February 2001, based on an application filed in February 2001. Based on applications filed in May 2001, Kendall and Samantha were awarded benefits effective May 2001 on the Social Security records of Mr. and Mrs. H~ as their legally adopted children. The legal adoption was granted on April 30, 2001, per the Order Terminating Parental Rights and Granting Adoption, issued by the District Court of Harris County, Texas, 315th Judicial District. Effective May 2001, Samantha and Kendall were awarded benefits as the legally adopted children of Mr. and Mrs. H~. On June 8, 2001, a request for reconsideration was filed concerning a possible earlier date of entitlement raising the issue of equitable adoption.

Under Section 216(h)(2)(A), the Commissioner will apply the law of the state of the insured's domicile at the time an applicant files her application to determine whether the applicant is the child of the insured individual. An applicant who according to such law can inherit intestate property as the child of the insured will be deemed the child of the insured for purposes of this section. See 42 U.S.C. § 216(h)(2)(A). The Commissioner's regulations recognize the doctrine of equitable adoption as one method of establishing a relationship to the insured. See 20 C.F.R. § 404.359. A child may be eligible for benefits as an equitably adopted child if the insured has agreed to adopt but the adoption did not occur. See 20 C.F.R. § 404.359. The agreement to adopt must be recognized under state law so that the child would be eligible to inherit from the insured's intestate estate. See 20 C.F.R. § 404.359. The Commissioner will apply the law of the state where the insured had his permanent home at the time the application was filed. See 20 C.F.R. § 404.359. At the time the applications were filed, Mr. and Mrs. H~ were domiciled in Texas. Thus, Samantha and Kendall would have to prove that they were the equitably adopted children of Mr. and Mrs. H~ under Texas law. See 20 C.F.R. § 404.359.

Texas law is well established in the area of equitable adoption or adoption by estoppel. See Texas Probate Code § 3 (b). Before the enactment of Article 46a, Vernon's Texas Civil Statutes, in 1931, adoptions were effected in this state by execution, authentication, or acknowledgement and recording by the adopting parent or parents of a written instrument of adoption. See Heien v. W.T. Crabtree, 369 S.W.2d 28, 30 (Tex. 1963). In a series of cases arising out of fact situations having their inception prior to 1931, the Court recognized and affirmed a right of intestate succession in children, who being neither the natural nor legally adopted children of the intestate, were held to be entitled to the right by equitable adoption or adoption by estoppel. Id. The cases grew out of efforts to adopt which were ineffective because of the failure to comply strictly with statutory procedures, or of agreements to adopt which by neglect or design were not performed. Id.

The descriptive phrases equitable adoption, adoption by estoppel, and adoptive status were used in deciding cases strictly as a shorthand method of saying that because of the promises, acts, and conduct of an intestate deceased, those claiming under and through him are estopped to assert that a child was not legally adopted or did not occupy the status of an adopted child. Id. Under this doctrine, a parent's promises and conduct can create an equitable adoption which allows the child to assert intestate succession rights to the parent's estate. See Curry v. Williman, 834 S.W.2d 443, 444 (Tex. 1992) citing Heien, 369 S.W.2d at 30.

The Supreme Court of Texas has held that a person claiming the protection of equitable adoption must allege and prove either an unsuccessful attempt by the "adoptive parent" to comply with the requirements of the adoption statutes or an agreement by the adoptive parent with the child, or with the child's parents or with some other person in loco parentis that he would adopt the child. See Cavanaugh v. Davis, 235 S.W.2d 972, 973-974 (Tex. 1951); see also Adler v. Moran, 549 S.W. 2d 760, 762 (Tex. App. 1977).

Under Texas Law, when a person dies, property rights vest "immediately in the heirs at law." See Texas Probate Code §§ 37, 38. Texas law applies the theory of equitable adoption in the cases of persons who die intestate. The intent of the doctrine of equitable adoption is to estop those claiming under the deceased parent from denying the equitably adopted child's inheritance rights because the child was not legally adopted or did not occupy the status of an adopted child. See Curry v. Williman, 834 S.W.2d 443, 444 (Tex. 1992).

In the present case, Mr. and Mrs. H~ have perfected a legal adoption. It is clear that the doctrine of equitable adoption was designed to protect the inheritance rights of those who were never legally adopted by a decedent. The rights of Samantha and Kendall have been adequately protected under the law through the decree effecting the legal adoption. Samantha and Kendall cannot avail themselves of the equitable remedy of equitable adoption when their remedy lies in the rights afforded them as the legally adopted children of Mr. and Mrs. H~. See Morales v. Trans World Airlines, Inc., et al., 504 U.S. 374, 381, 112 S.Ct. 2031, 2035 (1992); In Re Ronfin Series C Bonds Security Interest Litigation, et al. Vs. Nauru Phosphate Roylaties (Honolulu), Inc.; et al 182 F.2d 366, 373 (5th Cir. 1999). The facts of this case cannot establish a right under equitable adoption because Mr. and Mrs. H~ have perfected the legal adoption that gives Samantha and Kendall the status of heirs at law immediately upon the death of either.

In conclusion, Texas law on equitable adoption provides a remedy for one who was never legally adopted by the decedent. In this case, Samantha and Kendall were legally adopted; therefore, their rights have accrued as a result of their legal status as the legally adopted children of Mr. and Mrs. H~. Therefore, Samantha and Kendall are considered the children of Mr. and Mrs. H~ as of April 30, 2001, the date of their legal adoption under Texas law.

Tina M. W~
Regional Chief Counsel

By: ___________________________
Cicely S. J~
Assistant Regional Counsel

 

The NH's equitable adoption of the child in question would permit the child to inherit intestate from the NH under Texas State law, even though the adoption agreement originated in Maryland. As a result, the origin of the agreement in another State would not affect the child's status as an equitably adopted child under Texas State law.

The omission of the child's father from the adoption agreement also does not prevent the child from qualifying for benefits as the NH's equitably adopted child under Texas law.

This memorandum is in response to your request for an opinion as to whether Texas State law would recognize an equitable adoption based upon a contract to adopt made in Maryland, with consent to adopt given only by the biological mother. For the reasons discussed more fully below, it is our opinion that Texas courts would recognize an equitable adoption under these circumstances. Neither the State in which the adoption contract originated, nor the fact that only one natural parent approved the adoption, would bar Texas courts from recognizing an equitable adoption in this case.

The information you supplied with your request indicates that the child at issue was born in 1987. Although the child's birth certificate lists both parents' names, an investigation of available marriage records did not reveal the existence of a marriage between the parents. The number holder (NH), Vani L. J~, assumed custody of the child on or about July 20, 1988. On that date, the child's natural mother, Isella P~, executed a written notarized agreement in Maryland placing the child in the NH's care for the purpose of adoption. The agreement contains the signatures of Ms. P~, the NH, and a witness. According to the NH, she and the child moved to Texas in 1991. The NH has not undertaken any procedures to formally adopt the child in Texas or any other State. On July 22, 2002, the NH filed an application for child's insurance benefits under Title II of the Social Security Act in the child's behalf. The NH also filed a request to be selected as the child's payee.

Title II of the Social Security Act (the Act), and the applicable regulations, contain the criteria for entitlement to child's insurance benefits. The statute provides, in pertinent part, that a child may receive child's insurance benefits on the account of an aged or disabled NH if the child is the child of the individual as defined in section 216(e) of the Act, and is dependent upon such individual. See Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350. The Act defines the term “child” as the child or adopted child of an individual. See Social Security Act § 216(e)(1), 42 U.S.C. § 416(e)(1).

Social Security regulations recognize the doctrine of equitable adoption as one method of establishing a relationship to the insured. See 20 C.F.R. § 404.359. A child may be eligible for benefits as an equitably adopted child if the insured has agreed to adopt the child, but the adoption did not occur. See 20 C.F.R. § 404.359. The agreement to adopt must be recognized under state law so that the child would be eligible to inherit from the insured's intestate estate. See 20 C.F.R. § 404.359. SSA will apply the law of the state where the insured had his permanent home at the time the application was filed. See Social Security Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. § 404.359. At the time that the NH filed the application for child's insurance benefits, she and the child were domiciled in Texas. Thus, Texas State law determines whether the child in question is the NH's equitably adopted child. See 20 C.F.R. § 404.359.

Texas State law recognizes the doctrine of equitable adoption, also known as adoption by estoppel. See Texas Probate Code § 3 (b). Before the enactment of Article 46a, Vernon's Texas Civil Statutes, in 1931, adoptions were effected in Texas by execution, authentication, or acknowledgement and recording by the adopting parent or parents of a written instrument of adoption. See Heien v. W.T. Crabtree, 369 S.W.2d 28, 30 (Tex. 1963). In a series of pre-1931 cases, the Texas Supreme Court recognized and affirmed a right of intestate succession in children, who being neither the natural nor legally adopted children of the intestate, were held to be entitled to the right by equitable adoption or adoption by estoppel. Id. The cases grew out of efforts to adopt which were ineffective because of the failure to comply strictly with statutory procedures, or of agreements to adopt which by neglect or design were not performed. Id.

Descriptive phrases such as “equitable adoption,” “adoption by estoppel,” and “adoptive status” function as terms of art. Courts using these phrases mean that because of the promises, acts, and conduct of an intestate decedent, those claiming under and through him are estopped to assert that the decedent did not adopt the child or convey the status of an adopted child. See Heien v. W.T. Crabtree, 369 S.W.2d at 30. Under this doctrine, a parent's promises and conduct can create an equitable adoption that allows the child to assert intestate succession rights to the parent's estate. See Curry v. Williman, 834 S.W.2d 443, 444 (Tex. 1992) (citing Heien, 369 S.W.2d at 30).

The case law reflects the courts' clear intent to provide for the welfare of children who live with and receive support from a putative parent under an arrangement that, through no fault of the child, did not rise to the level of a formal adoption. Accordingly, in the case of Deveroex v. Nelson, the Texas Court of Civil Appeals held that the equitable adoption doctrine applied to an adoption agreement entered into in Virginia, even though Virginia State law did not recognize this doctrine. The court did not find any Texas law on point, but noted that several other State courts had issued similar holdings. See Deveroex v. Nelson, 517 S.W.2d 658, 661-62 (Tex. Civ. App. - Houston [14th Dist.] 1974), affd, 529 S.W.2d 510 (Tex. 1975) (citations omitted). The court also found it significant that although the agreement to adopt originated in Virginia, most of the performance of the agreement occurred in Texas. See id. at 662.

The facts of this case provide an even more compelling argument for recognizing the equitable adoption in this case than in Deveroex. In this case, as in Deveroex, most of the performance of the 1988 adoption agreement has occurred in Texas, as the NH has lived in Texas with the child since 1991. Further, unlike Deveroex, the law of Maryland, the State in which the adoption agreement originated, recognizes the equitable adoption doctrine. See McGarvey v. State, 311 Md. 233, 236, 533 A.2d 690 (1987) (recognizing the doctrine to the extent that it would allow a child to inherit intestate from an equitably adoptive parent). It thus appears that the NH's equitable adoption of the child in question would permit the child to inherit intestate from the NH under Texas State law, even though the adoption agreement originated in Maryland. As a result, the origin of the agreement in another State would not affect the child's status as an equitably adopted child under Texas State law.

The omission of the child's father from the adoption agreement also does not prevent the child from qualifying for benefits as the NH's equitably adopted child. The Texas Supreme Court has held that a person claiming the protection of equitable adoption may qualify by submitting an agreement by the adoptive parent with the child's natural parent that she would adopt the child. See Cavanaugh v. Davis, 235 S.W.2d 972, 973-974 (Tex. 1951); see also Adler v. Moran, 549 S.W. 2d 760, 762 (Tex. App. 1977); Deveroex v. Nelson, 517 S.W.2d at 661. If the evidence shows that one of the natural parents abandoned the child, the adoptive parent need not obtain this parent's agreement to the adoption. See Luna v. Estate of Rodriguez, 906 S.W.2d 576, 581-82 (Tex. App. - Austin 1996, no writ); Ramsay v. Lane, 507 S.W.2d 905, 907-08 (Tex. Civ. App. -Houston [1st Dist.] 1974, writ ref'd n.r.e.). The NH's statements to Agency personnel indicate that the child's father has not had any contact with the child since the adoption took place, and that he did not live with the child's mother at the time of the adoption. Therefore, Texas State law likely would consider the father to have abandoned the child, so that the NH would not need his consent to enforce the adoption agreement.

In conclusion, it is our opinion that Texas State law would recognize the child as the NH's equitably adopted child even though the adoption agreement took place in Maryland and did not involve the child's natural father. Thus, SSA should treat the child as the NH's child for purposes of determining entitlement to child's insurance benefits.

Tina M. W~
Regional Chief Counsel

By: ___________________________
Joseph B. L~
Assistant Regional Counsel