Utah would not recognize equitable adoption under the facts presented in this case because the natural father did not consent to the adoption (he has repeatedly refused to consent), and because there was no evidence that he abandoned the child, failed to maintain a parental relationship, or had his parental rights judicially terminated. Under such circumstances, the proposed adoption cannot be completed under Utah State law.

The Office of General Counsel, Baltimore, asked this office to resolve a discrepancy between a legal opinion "Equitable Adoption in State of Utah, NH-Danny H~," (the H~ opinion), which was issued by this office on September 12, 2003 (Attachment A), and the POMS, GN 00306.225 (State Laws on Equitable Adoption) (Attachment B). For the reasons set forth below, it is our opinion that the H~ opinion should be modified only to the extent that it indicated Utah does not recognize equitable adoption, and that the POMS, which states that Utah does recognize equitable adoption, need not be modified.

A. Factual and Procedural Background

As indicated in the attached opinion, the Office of the Regional Commissioner requested a legal opinion concerning the equitable adoption of a child in Utah - specifically, whether Alexandria K. S~, a minor child, is entitled to benefits on the record of her grandfather and legal guardian, number holder Danny L. H~, based on a relationship established under the principle of equitable adoption. The Office of the Regional Commissioner stated that all conditions for equitable adoption set forth in POMS GN-00306.1751 were met, with the exception of surrender of control by the natural father.

Based upon the facts presented and applicable state and federal laws, we opined that the State of Utah would not recognize equitable adoption and that the Agency is precluded from finding that Alexandria S~ was the equitably adopted child of the insured, Danny H~.

Based upon a review of the opinion by the OGC policy component, Sherry P~, OISP, OEEP, AART, stated that the H~ opinion would not be included in the Legal Precedent File because it stated, contrary to a chart contained in POMS GN-00306.225B (State Laws on Equitable Adoption), that Utah does not recognize equitable adoption. Ms. P~ indicated that this POMS provision was based on case law, rather than statute; was in POMS for many years; and was based upon input from the Regional Chief Counsel. However, the POMS provision does not contain any documentation to support the information contained in the chart, and the OGC policy component that brought this discrepancy to our attention was unable to locate any documents that support the POMS' reference to equitable adoption in Utah. And, this office searched but could not find any OGC opinions on that particular subject in our files, in OGC's internal opinion database, or in the Westlaw SSAMEMO database.

ANALYSIS

Social Security regulations provide that a claimant may be eligible for benefits as an equitably adopted child if the insured had agreed to adopt [the claimant] as his or her child but the adoption did not occur. The agreement to adopt [the claimant] 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 or she were to die without leaving a will. The agreement must be in whatever form, and [the claimant] must meet whatever requirements for performance under the agreement, that State law directs. . . . If [the claimant applies] for child's benefits during the insured's life, the law of the State where the insured has his or her permanent home at the time of [the claimant's] application will be followed.

20 C.F.R. ' 404.359 (2003); see also 42 U.S.C.A. ' 216(h). Because Danny H~ is domiciled in Utah, Utah intestacy law applies. Id.

As set forth in the September 2003 H~ opinion, Utah's Probate Code provides that a legal parent-child relationship creating inheritance rights may be created by a final decree of adoption, and Utah's Adoption Statute expressly requires the consent of both parents before a child may be adopted. This is consistent with the POMS and SSA regulations, which provide that equitable adoption generally requires the consent of both natural parents, which can be waived only under very fact-specific conditions. See 20 C.F.R. ' 404.359 (2003)and POMS GN 00306.180 (Contract to Adopt).

A 1960 decision of the Utah Supreme Court (In the Matter of the Estates of Williams, 348 P. 2d 683 (Utah 1960) has been interpreted in several legal treatises (see 97 A.L.R.3d § 347 and 2 Am. Jur. 2d § 53) as holding that Utah recognizes equitable adoption when the natural parents agree to the adoption; the agreement is fully performed, except the adoption did not actually occur; and a court orders "specific performance" of the agreement.2 The Williams case did not use the term "equitable adoption," but it apparently formed the basis for the POMS provision relating to equitable adoption in Utah, and can be construed in that manner.

In the Matter of the Estates of Williams, 348 P.2d at 684.

As also set forth in the September 2003 H~ opinion, other Utah cases hold that state courts will permit adoption without the natural parents' consent if the natural parents have abandoned the children or failed to maintain a parental relationship with the children. See In re C.J.U., 660 P.2d 237 (Utah 1983); In re Adoption of Guzman, 586 P.2d 418 (Utah 1978); Robertson v. Hutchinson, 560 P.2d 1110 (Utah 1977).

Thus, we maintain that Utah would not recognize equitable adoption under the facts presented in the H~ case because the natural father did not consent to the adoption (he has repeatedly refused to consent), and because there was no evidence that he abandoned the child, failed to maintain a parental relationship, or had his parental rights judicially terminated. Under such circumstances, the proposed adoption cannot be completed under Utah State law.

C. Conclusion

The H~ opinion issued in September 2003 should be modified to reflect that Utah does recognize equitable adoption, albeit in limited circumstances. The POMS need not be modified. However, the conclusion reached in that opinion was correct, in that the facts presented would not support a finding of equitable adoption in the State of Utah.

Yvette G. K~

Regional Chief Counsel

Debra J. M~

Assistant Regional Counsel

_11 POMS, GN 00306.175 (Equitable Adoption), requires all of the following: * An express contract (may be implied in some States) to adopt the child;* Some legal consideration for the adopting parent's promise to adopt; * In some States, a promise to give the child inheritance rights in the adopting parent's personal property; * Surrender of the child to the adopting parent; * Performance by the child under the contract;* Sufficient lapse of time so that the child could have been legally adopted under applicable State law before the NH's death, or the time the child's application is filed if the NH is alive.

Where a child's natural parents enter into an agreement with the adoptive parents to relinquish all of their rights to the child in consideration of the adoptive parents' agreement to adopt such child, and to care and provide for it the same as though it were their own child, and such agreement is fully performed by all parties connected with such contract[,] except that there is no actual adoption, the courts will decree specific performance of such contracts and thereby award to the child the same distributive share of the adoptive parents' estate as it would have been entitled to had the child actually been adopted as agreed.