TN 5 (08-09)

PR 01510.050 Vermont

A. PR 09-144 Validity of Liberian Adoption/Application of Equitable Adoption - Survivor Benefits S2D1G3/CL8

DATE: July 31, 2009


In a Vermont case where the claimants are alleged to have been adopted by the deceased number holder in Liberia, we could find them to be legally adopted despite the lack of an IR-2 or IR-3 visa if the issuance of the IR-4 visa was based on the fact that the number holder did not see the children prior to adoption and other evidence submitted established the legality of the adoption proceedings. That is not the case in this specific situation since the papers submitted do not satisfy the prerequisites of Liberian law.

It is also doubtful that a Vermont court would find equitable adoption to exist even if that court were acknowledge that the concept exists in the State, something which has yet to be determined.

Four points stand out against even the possibility of a find of equitable adoption: (1) The number holder never resided with nor had physical custody of either child; (2) the number holder never completed nor signed any form authenticating his desire to adopt either child; (3) the funds in question were an adoption fee, not specifically directed toward the support of either child; and (4) when the funds were wired, one of the children had not even been selected as a subject of the adoption. The only real evidence that the number holder wished to adopt the children is his willingness to part with a $12,010.00 adoption fee, at a time when one of the children had been selected as a candidate for adoption.


This memorandum is in response to your question as to whether SSA should recognize a Liberian adoption or equitable adoption of--and consequently award survivor benefits to--Bill W~, Claim Number ~, and Tetee (or “Tete”) W~, ~, based on the earnings record of their alleged adoptive parent, Henry A~. Henry A~’s surviving spouse, Lisa S~, has applied for benefits on the children’s behalf. We recommend that SSA decline to recognize Bill and Tetee W~ as the children of Henry A~ because Lisa S~ has not submitted sufficient information to establish the validity of the adoption under Nigerian law and the prerequisites for equitable adoption have not been satisfied.

The complete background facts are adequately set forth in your June 22, 2009, memorandum (attached). Briefly, on June 27, 2006, at 5:40 a.m., Lisa S~ wrote an email to “Sister Pam” of the West African Children Support Network (“WACSN”), offering to wire funds to facilitate the adoption of “Bill W~ & a 2 to 3 year old girl.” On June 27, 2006, at 9:02 a.m., Lisa S~ sent personal information pertaining to herself and Henry A~ in support of their request to adopt a seven year-old boy and two-to-three year-old girl. On June 27, 2006, at 9:15 a.m., Lisa S~ received a reply email, apparently from WACSN, directing her to wire “adoption funds” to “John G. L~.” The email also indicated that “Bill” would be placed “on hold for 48 hours” in anticipation of the receipt of the requested funds, but the identity of the girl was not specified. On June 28, 2006, Henry A~ and Lisa S~ signed an authorization for $12,010.00 to be wired from A~’s investment account to an account of John G. L~. Liberian adoption paperwork, the validity of which is in question, indicates that custody of Bill and Tetee W~ was awarded to Lisa S~ and Henry A~ on July 5, 2006. Henry A~ passed away on July 15, 2006, in the United States, prior to meeting either Bill or Tetee W~. Bill and Tetee W~ were issued IR-4 immigrant visas to permit entry into the United States on January 5, 2007. On July 12, 2007, Lisa S~ filed an application for surviving child’s benefits for Bill and Tetee W~, based on the earnings record of Henry A~. A few additional, salient facts are provided in the body of our response.

Pursuant to 20 C.F.R. § 404.350(a)(1), a child is entitled to benefits if he or she qualifies as “the insured person’s child, based on a relationship described in §§ 404.355 through 404.359.” Meanwhile, 20 C.F.R. § 404.356 prescribes the criteria for recognition of legal adoptions. Under § 404.356, SSA recognizes legal adoptions where a child was (a) legally adopted by the insured or, on some occasions, (b) legally adopted by the surviving spouse. To ascertain whether a legal adoption took place, SSA “appl[ies] the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws [where the insured resided when he or she died].”

As you mentioned, GN 00306.155, entitled Evidence of Legal Adoption, provides that SSA may recognize the validity of a foreign adoption if the child was admitted to the United States under an IR-2 or IR-3 classification code. GN 00306.155(E). Alternatively, we may find that an adoption occurred where “there is no available evidence which raises questions about the validity of either the child’s adoption decree or immigrant visa . . . if we obtain the original foreign adoption papers plus evidence of one of the following:

  1. A Certificate of Citizenship issued by the [Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”)], or

  2. A Certificate of Naturalization issued by DHS, USCIS, or

  3. A valid United States passport, or

  4. A valid permanent resident card, I-551 (Alien Registration Receipt Card) issued by DHS, USCIS, including an IR3 or IR2 immigrant classification code, or

  5. A machine readable immigration visa with temporary I-551 annotation, an IR3 or IR2 immigrant classification code, and a U.S. immigration stamp.”

GN 00306.155(E). You submitted this matter for a precedent opinion pursuant to GN 00306.155(E) because Lisa S~, the surviving spouse of Henry A~ who is now requesting benefits on behalf of the children, cannot produce any of these documents, other than the Liberian adoption papers.

OGC also notes that another party has challenged the validity of the Liberian adoption due to the absence of the Henry A~’s and Lisa S~’s signatures on the adoption paperwork. OGC has previously opined, in PR 01325.208 Liberia (Jan. 14, 2002), that “[t]he issuance of an IR-2 or IR-3 visa to a child adopted in Liberia is proof that the Department of Homeland Security-United States Citizenship and Immigration Services and the Department of State have determined that adoption to be valid according to the laws of that country,” and that it is unnecessary to determine whether the State of residence would recognize the adoption as valid. Here, of course, neither an IR-2 or IR-3 visa was issued. Nevertheless, PR 01325.208 merely establishes the sufficiency of an IR-2 or IR-3 visa to establish a legal adoption; nothing in the opinion necessarily precludes SSA’s recognition of an adoption on a lesser showing.

Moreover, the issuance of an IR-4 visa does not conclusively negate, or even evidence, the legality of the foreign adoption. An IR-2 visa is issued to a child of a U.S. citizen born in wedlock, legitimated prior to age 16, or adopted by and in the custody of a parent with whom the child has resided for at least two years. An IR-3 visa is issued to an orphan adopted abroad where (1) the adoption is recognized as legal and (2) any “U.S. citizen parents have seen the child prior to or during the adoption proceedings.” See Betancourt Letter at 1. An IR-4 visa is issued to a child who is “to be” adopted in the U.S. by a U.S. citizen. Specifically, an IR-4 visa is issued when one of the two IR-3 visa conditions have not been satisfied, i.e., when the foreign adoption cannot be confirmed as entirely valid or when either U.S. citizen parent did not see the child prior to or during the adoption process. See id. at 1.

Thus, it is possible that the Liberian adoption is legally valid, but DHS nevertheless issued an IR-4 visa solely because neither Henry A~ nor Lisa S~ saw the children prior to adoption. On the other hand, it is also plausible that DHS did not consider the Liberian adoption valid. Consequently, resolution of your first question depends upon whether we have sufficient evidence to ascertain the validity of the adoption under Liberian law.

Given the dearth of readily available legal materials regarding Liberian adoption, we contacted the Law Library of Congress to obtain a legal opinion and ascertain the controlling legal criteria. In response, we received the attached letter from Hanibal M. G~ (“G~ letter”), a foreign law specialist at the Law Library of Congress, expressing his opinion on the adoption in question. Mr. G~ also sent to us a copy of the relevant Liberian adoption law, DOMESTIC RELATIONS LAW, III LIBERIAN CODES REV. TIT. 9, CH. 4(C) (1998), which we have likewise appended.

Mr. G~ advised us that the papers submitted by Lisa S~ do not satisfy the prerequisites for a valid adoption under Liberian law. Specifically, Mr. G~ first pointed out that the adoption petition does not, as required, “contain the place of marriage, date of marriage[,] and place of residence of the applicants.” See G~ letter at 2. Second, the petition does not elaborate how the applicants “acquired custody of the children in question.” Id. Third, the adoption papers do not include proof of the mother’s death and, additionally, fail to substantiate that the father had the right to consent to the adoption. Ordinarily, under Liberian law, the mother of children born out of wedlock must consent to adoption. Moreover, while we redacted information regarding the children’s birth dates, making it unclear to Mr. G~ whether parental consent was required, the children were both minors at the time of the adoption, rendering effective consent necessary. Id. at 2-3. Fourth, Mr. G~ noted that “the documents do not contain any reference to a[] [legally mandated] investigation by the court.” Id. at 3. Fifth, the adoption documents should have been sealed, and it is unclear whether a court ordered disclosure. Id. Sixth and finally, the documents in question bear the same date, July 5, 2006, despite the fact that an adoption process in Liberia would ordinarily be completed over a more extensive period of time. Id. Reinforcing this concern, there is no evidence that an expedited process for adoption exists in Liberia. Id. at 3-4.

Based on Mr. G~’s letter and our review of the applicable law, we conclude that Lisa S~ has not adduced sufficient evidence of legal adoption under Liberian law. With the exception of the residence of the applicants and the ages of the children, which we redacted from the material submitted to the Law Library of Congress, Mr. G~’s concerns appear well-founded. Buttressing the cautionary flags raised by Mr. G~, we observe that the U.S. State Department has issued a notice revealing that the Liberian government has “suspended adoption services provided by the . . . West African Children Support Network,” the very agency involved in this adoption. See U.S. Department of State, Bureau of Consular Affairs, Office of Children’s Issues, Government of Liberia Suspends Intercountry Adoptions (Jan. 27, 2009), available at .

You also asked us to consider whether we should recognize an equitable adoption (sometimes called adoption by estoppel) in this case. Pursuant to 20 C.F.R. § 404.359, an individual “may be eligible for benefits as an equitably adopted child if the insured had agreed to adopt [the individual] but the adoption did not occur.” In such circumstances, we look to whether state law would recognize the adoption for inheritance purposes. Id. Here, that state would be Vermont, the state where Henry A~ was domiciled at the time of his death. Id.

A review of the Vermont code reveals that the legislature has not spoken regarding the doctrine of equitable adoption. See generally R. B. D~, Status or Contract? A Comparative Analysis of Inheritance Rights Under Equitable Adoption and Domestic Partnership Doctrines, 38 GA. L. REV. 675, 681 (Winter 2005) (claiming that, in fact, no state has passed such a law). The Supreme Court of Vermont has seemingly never officially endorsed the doctrine of equitable adoption, though it has arguably suggested that it might do so in an appropriate case. See Titchenal v. Dexter, 693 A.2d 682, 689 (Vt. 1997) (citing Whitchurch v. Perry, 408 A.2d 627, 631 (Vt. 1979)). A firm but not overwhelming majority of state courts that have considered the issue have recognized the doctrine. See Drake, supra, at 681.

Thus, it is not entirely clear whether, under Vermont law, equitable adoption is even available in the abstract. Nevertheless, we need not hazard a guess as to the future course of state law, because it is unlikely that Vermont courts would find an equitable adoption in this case, assuming arguendo that the doctrine is viable in the state. In summarizing the relevant principles, the Vermont Supreme Court has stated:

Courts generally apply the doctrine of equitable adoption in cases of intestate succession to permit participation in the estate by a foster child who was never legally, i.e., statutorily, adopted by the decedent. Typically, the decedent obtained custody by expressly or implicitly promising the child, the child’s natural parents, or someone in loco parentis that an adoption would occur. Custody is transferred and the child lives with the foster parent as would a natural child, but, for one reason or another (usually the promisor’s neglect), an adoption never occurs. Upon the foster parent’s death, a court, applying the maxim that ‘equity regards that as done which ought to be done,’ declares that the child is entitled to share in the state as if he were a legally adopted child.

Titchenal, 693 A.2d at 683-84 (quoting Whitchurch, 408 A.2d at 631) (emphasis removed); see also RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 2.5, n. 7, cmt. k (1999) (delineating doctrine in similar fashion).

It is uncontested that Henry A~ never obtained physical custody of the children and that neither child ever resided with him. Indeed, Henry A~’s intent to adopt the W~ children is less than explicit. At best, there is evidence that Henry A~ intended to finance the adoption of children by paying $12,010.00 from his investment account to an individual supposedly associated with WACSN. Nevertheless, the pertinent evidence does not designate Bill and Tetee W~ exclusively as the children that Henry A~ wished to adopt. Henry A~ signed a wire transfer authorization form on June 28, 2006, but email correspondence from an apparent WACSN agent to Lisa S~, dated June 27, 2006, establishes that Bill W~ was only “on hold” and that WACSN had not yet selected a girl for the adoption. Henry A~ had, of course, never met Bill or Tetee W~. Indeed, the adoption processing had not yet begun. Moreover, the correspondence with WACSN was seemingly authored by Lisa S~, not Henry A~ (for example, June 27, 2006, correspondence from WACSN was sent to “Lisa S~” at the email address , in reply to an email sent from that address, which was electronically signed by “Lisa S~ & Family”). The purported Liberian adoption itself, of course, did not take place until July 5, 2006. Finally, the $12,010.00 should be construed as an adoption fee to WASCN, as it does not seem to have been intended to support Bill and Tetee W~, directly.

We emphasize four points: (1) Henry A~ never resided with nor had physical custody of either Bill or Tetee W~; (2) Henry A~ never completed nor signed any form authenticating his desire to adopt Bill or Tetee W~; (3) the funds in question were an adoption fee, not specifically directed toward the support of Bill or Tetee W~; and (4) when the funds were wired, Tetee W~ had not even been selected as a subject of the adoption. In contrast, the only real evidence that Henry A~ wished to adopt the children is his willingness to part with the $12,010.00 adoption fee, at a time when Bill W~, at least, had been selected as a candidate for adoption.

In summary, we do not believe that SSA should recognize an equitable doctrine under Vermont law. Initially, it is uncertain whether the doctrine is even available under Vermont law. Assuming that it is, however, the facts adduced in the file militate, on balance, against application of the doctrine in this case. There is certainly no course of conduct in this situation that would compel a court sitting in equity to exercise its authority in favor of recognizing an adoption.

Finally, I note that 20 C.F.R. § 404.356 leaves open the possibility that Lisa S~ could, at some point in the future, legally adopt Bill and Tetee W~, rendering them eligible for benefits based on Henry A~’s record. As this event has not yet taken place, at least to our knowledge, this option remains theoretical at this time.

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PR 01510.050 - Vermont - 08/06/2009
Batch run: 08/13/2009