Under Navajo Tribal law, and confirmed by the laws of Arizona and the District of Columbia, children legally adopted by their maternal step-grandfather may be considered as adopted under common law from the time the wage earner began his support and assistance to their welfare. Navajo Nation tribal law also supports the conclusion that the claimants would be entitled to inherit intestate from the wage earner because they were "children" who lived with and who were supported by the wage earner.

QUESTION

You asked whether the child claimants, Staci Y~ and Sebrina Y~ (collectively, the "claimants"), qualified for child's insurance benefits as the equitably adopted children of wage earner Richard Y~ (the "wage earner") at any time prior to June of 2003, the first month through which the claimants were legally adopted children of the wage earner.

ANSWER

Based on the evidence in the record, the claimants qualified as equitably adopted children of the wage earner prior to June 2003. They were therefore entitled to child's insurance benefits on the wage earner's account based on the effective date of the applications filed on November 7, 2002.

SUMMARY OF EVIDENCE

The claimants were born "Sebrina V. W~" and "Staci V. W~" on November 18, 1986, and December 30, 1988, respectively. Both were natural children of Rita V. W~ D~. Sebrina's natural father was Spencer W~, who is still alive. Staci's natural father was Harry Y~, who died before Staci was born.

The wage earner is married to Loretta Y~, who is the mother of Rita D~. The claimants are therefore the step-grandchildren of the wage earner. The wage earner, his wife, and the claimants were at all relevant times enrolled members of the Navajo Tribe of Indians residing within the boundaries of the Navajo Nation in Ganado, Arizona.

Rita D~ surrendered custody of the claimants to the wage earner and his wife. According to a report of contact in the record, the claimants have been in the physical custody and support of the wage earner and his wife since October 1999. The wage earner and his wife claim that they also "started adoption proceeding[s]" in 1999 in the Family Court of the Navajo Nation, Judicial District of Window Rock.

On February 15, 2000, in response to a petition by the wage earner and his wife, the tribal court terminated the parental rights of the claimants' natural parents and granted legal and physical custody of the claimants to the wage earner and his wife. As grounds for its decision, the tribal court noted that Harry Y~ (i.e., Staci's natural father) was deceased; that Spencer W~ (i.e., Sebrina's natural father) "had not made any effort to maintain a parental relationship with his child"; and that Rita D~ had voluntarily relinquished her parental rights in a sworn affidavit dated July 26, 1999. Rita D~' sworn affidavit, a copy of which was not in file, was entitled: "Affidavit of Termination of Parental Rights, Consent to Adoption, and Waiver of Notice and Hearing."

In August 2002, the wage earner and his wife filed a Petition for Adoption with the tribal court, seeking to formally adopt the claimants. They listed the following four reasons as grounds for the requested adoption: (1) they "[had] provided a good and stable home for the minor children ever since they were toddlers"; (2) they "[had] shown love, concern, interest, and care for the minor children as if they are their own children"; (3) "[n]o other petitions regarding adoption [had] been filed with [the] court concerning the minor children to [their] knowledge" and "[n]o other family members … [had] shown an interest in obtaining adoption over the minor children"; and (4) they "[had] developed a strong emotional bond with the minor children where they established family unity."

The Navajo Division of Social Services conducted an Adoption Home Study, and on May 1, 2003, it issued a recommendation that adoption be granted. Accordingly, on May 13, 2003, the tribal court issued an Adoption Decree, granting the petition of the wage earner and his wife. Under the Adoption Decree, "Sebrina V. W~" and "Staci V. W~" were declared to be the adopted daughters of the wage earner and his wife and were to be known thereafter as "Sebrina Y~" and "Staci Y~." The tribal court expressly deemed the Adoption Decree to have the "full force and effect" of a final judgment of adoption under the Navajo Nation Code and waived the issuance of a temporary order based on the existing family relationship between the adoptive parents and the claimants.

On May 21, 2002, the wage earner filed for disability insurance benefits with the Agency. On his application, the wage earner mentioned his wife but did not mention any children. His mailing address at the time of filing was a post office box in the town of St. Michaels, Arizona. His residence at the time was within the boundaries of the Navajo Nation in the town of Ganado, Arizona. About four months later, on November 7, 2002, he filed claims for child insurance benefits on behalf of the claimants.

The Agency has since determined that the wage earner was entitled to disability insurance benefits beginning in November 2002. In a letter to the wage earner dated February 20, 2003, the Agency advised the wage earner of this determination and further gave him the option to "restrict [his] month of entitlement to a later date, as that later date may allow one or both of the [claimants] and perhaps [his] wife to become entitled to benefits whereas otherwise they could not be entitled."

Based on the formal Adoption Decree of May 2003, the Agency awarded child insurance benefits to the claimants beginning June 2003, the first month through which the claimants were legally adopted children of the wage earner. The question remained, however, whether the claimants were entitled to benefits at any time prior to June 2003, based on a theory of equitable adoption.

ANALYSIS

Applicable Law

A "child" of an insured person is entitled to child's benefits on the earnings record of the insured, where the insured is entitled to old-age or disability benefits. 20 C.F.R. §§ 404.350(a)(1), 404.359 (2004). For entitlement purposes, the Social Security Act defines "child" broadly to include, among other things, a natural child, legally adopted child, and, under certain circumstances, an "equitably adopted" child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.350, 404.354, 404.359 (2004).

A claimant will be considered the "equitably adopted" child of an insured wage earner if the wage earner agreed to adopt the child but the adoption did not occur. 20 C.F.R. § 404.359 (2004). The agreement to adopt, however, 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 wage earner's personal property if he or she were to die without leaving a will. Id. If the claimant applies for child's benefits during the insured wage earner's life, "the law of the State in which the wage earner had his or her permanent home at the time of his or her application will be followed." Id.

The method by which the Agency shall determine which "law of the State" controls is codified at 42 U.S.C. § 416(h)(2)(A). This statute provides:

In determining whether an applicant is the child or parent of a fully or currently insured individual for the purposes of this subchapter, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the Courts of the State in which he was domiciled at the time of his death, or, if such insured individual was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a child or parent shall be deemed such.

Id. Thus, the statute looks to the state of the insured's domicile at the time of his or her application to determine which law applies.

The record in the instant case shows that, at the time he filed his application for disability insurance benefits, the wage earner lived within the boundaries of the Navajo Nation and within the State of Arizona. The wage earner was therefore a citizen of the United States and had the right to bring actions in Arizona state court. See State of Arizona v. Zaman, 946 P.2d 459, 462 (Ariz. 1997) (holding that members of tribes are citizens of the United States and of the state in which they reside and thus have the right to bring actions in Arizona state courts). Accordingly, the laws of the State of Arizona may apply.

Nonetheless, because the wage earner lived on the land of the Navajo Nation, he arguably was not domiciled in any state. Under this view, District of Columbia law would apply. Alternatively, the tribal law of the Navajo Nation could apply as the functional equivalent of state law. Regardless of which law applies, we reach the same conclusion that the claimants were equitably adopted children for the purposes of child's insurance benefits prior to June 2003.

Equitably Adopted Child Analysis

Arizona Law. According to the Arizona Supreme Court, for an equitable adoption to be valid, a court must find the following: (1) the putative adoptive parent, i.e., the promisor, must promise in writing or orally to adopt the child; (2) the natural parents, i.e., the promisees, must turn the child over to the promisor; and (3) the child must give filial affection, devotion, association, and obedience to the promisor during the promisor's lifetime. In re Estate of Lam from, 90 Ariz. 363, 367, 368 P.2d 318, 321 (Ariz. 1962); In re Estate of Prewitt, 498 P.2d 470, 471, 17 Ariz.App.396, 397 (Ariz. 1972). Arizona courts have acknowledged that the promise to adopt need not be express, but "may be implied from the acts, conduct, and admissions of the adopting parties." In re Estate of Lamfrom, 90 Ariz. at 366, 368 P.2d at 320; In re Estate of Prewitt, 17 Ariz.App. 397-398, 498 P.2d 471-472. The evidence in this case satisfied this standard with respect to both claimants.

The evidence showed the existence of an adoption agreement, and therefore, the first requirement was satisfied. The wage earner claimed that he and his wife began adoption proceedings in 1999. Rita D~, the natural mother of both claimants, consented to adoption and termination of her parental rights on July 26, 1999. Spencer W~, the natural father of Sebrina Y~, never consented to adoption, but his consent became unnecessary on February 15, 2000, the date on which his parental rights were terminated. The wage earner and the living natural parents therefore appear to have entered into an agreement to adopt. See In re Estate of Prewitt, 498 P.2d at 472, 17 Ariz.App. at 398 (written consent of natural mother constituted evidence of contract for adoption).

The second requirement that the promisee "turn over" the child to the "promisor" was also satisfied. Such "consideration" occurred at the earliest in October 1999, the month in which the wage earner and his wife obtained custody of the claimants, and no later than February 2000, when the tribal court formally granted legal and physical custody of the claimants to the wage earner and his wife.

Thereafter, it appears that the claimants have given "filial affection, devotion, association and obedience" to the wage earner and his wife in satisfaction of the third requirement for equitable adoption. Evidence supporting this requirement includes the Petition for Adoption of August 2002, in which the wage earner and his wife claimed that they had "provided a good and stable home" for the claimants since they were toddlers; they had "shown love, concern, interest, and care for the minor children as if they are their own children"; and they had "developed a strong emotional bond with the [claimants] where they established family unity." Evidence also includes the Adoption Home Study of May 2003, in which the Navajo Division of Social Services recommended adoption based on its investigation. Finally, the tribal court's ultimate decree granting adoption showed that the existing relationship of the claimants and the wage earner and his wife was sufficient to warrant a final adoption without the need for a temporary order or further inquiry.

Some of the available evidence in the file may, however, suggest a contrary finding that the claimants were not equitably adopted children prior to legal adoption. For example, there is no evidence that the claimants assumed the wage earner's surname until the date of the Adoption Decree, at which time the claimants' last name of "V. W~" was changed to "Y~." See In re Estate of Prewitt, 498 P.2d at 472, 17 Ariz.App. at 398 (evidence that child used putative adoptive parents' surname supported finding of equitable adoption). Also, the wage earner did not mention that he had any children on his application for disability insurance benefits. Nevertheless, as outlined above, the weight of the evidence showed indices of an adoptive family relationship were present. The Arizona Supreme Court has recognized the "strong public policy of the forum in favor of equitable adoption." In re Estate of Lamfrom, 90 Ariz. at 368, 368 P.2d at 321. In light of this policy, greater weight should be given to evidence showing that equitable adoption existed at the time all requirements were satisfied.

Navajo Tribal Law. Navajo Nation tribal law further supports the conclusion that the claimants were the "children" of the wage earner. By supporting and assisting the claimants and by taking care of them when their natural parents were unable to, the wage earner and his wife effectively adopted the claimants as their own children. A finding of adoption, equitable or otherwise, is consistent with Navajo common law. See The Navajo Nation, ex rel. Division of Social Welfare, in the Matter of J.J.S., a Minor, 4 Nav.R. 192 (1983).

Navajo Nation tribal law also supports the conclusion that the claimants would be entitled to inherit intestate from the wage earner because they were "children" who lived with and who were supported by the wage earner. The Navajo Nation Code provides that inheritance shall be based on the "custom of the Navajo Nation … if such custom is proved." See Navajo Nation Code Tit. 8, § 2(B) (1995). Navajo custom, as evidenced by common law, dictates that intestate distribution should be granted to "heirs, meaning immediate family." In the Matter of the Estate of Boyd Apachee, 4 Nav.R. 178 (1983). One may inherit as an "immediate family" member "because of the close ties of blood, but more importantly, because of the mutual assistance and support they [give] to each other." Id.

Here, the evidence showed that not only did the claimants and the wage earner have "close ties of blood" but they also provided assistance and support to each other. Notably, it was on this basis that the tribal court ultimately granted the Adoption Petition filed by the wage earner and his wife. Given Navajo custom, therefore, a finding of equitable adoption prior to the date of the tribal court's formal Adoption Decree would be proper.

District of Columbia Law. The law of the District of Columbia supports the same conclusion. A 1964 federal appeals court declared that, under the District's law, the question remained open as to the validity of equitable adoption based on an alleged promise to adopt. Epstein v. Mesher, 333 F.2d 152, 152-153 (D.C.Cir. 1964). Subsequent decisions in the jurisdiction gave great weight to the law of the situs of the alleged adoption to determine whether an equitable adoption existed for purposes of inheritance. See In re McConnell, 268 F.Supp. 346, 347 (D.C.Cir. 1967) (looking to Florida law); see also In re Jarboe's Estate, 235 F.Supp. 505, 506 (D.C.Cir. 1964) (applying Maryland law). Based on this precedent, District of Columbia law would likely look to Arizona law or to Navajo Nation tribal law in finding that the claimants were the equitably adopted children of the wage earner.

Dependency Issues under the Equitably Adopted Child Analysis

Social Security regulations also require that an equitably adopted child be "dependent" on the wage earner for entitlement to child's insurance benefits. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.365 (2004). An equitably adopted claimant is considered dependent prior to entitlement if he or she was "either living with or receiving contributions for … support from the insured" at either: (a) the time of application; 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 (2004).

Here, the evidence shows that the claimants were living with the wage earner at least since October of 1999. No evidence shows that this living arrangement discontinued at any time prior to the wage earner's application for benefits in 2001. Thus, the record shows that dependency requirements were satisfied.

CONCLUSION

Evidence in the present record supports a finding that the claimants were the equitably adopted children under the Social Security regulations for purposes of entitlement to child's insurance benefits and were entitled to child's insurance benefits on the account of the wage earner based on the effective date of the applications filed on November 7, 2002.

EQUITABLE ADOPTION — STATE LAW PROVISIONS — ARIZONA

A contract to adopt will be enforced where partially performed in Arizona regardless of the enforceability of the contract under the law of the State where the contract was made. There is no case law indicating this principle would not be applicable to contracts made in foreign countries.

An equitable adoption results from clear and convincing evidence that natural parent relinquished the child and that the recipients of the child promised to adopt the child. Merely taking the child into the home an naming the allegedly adoptive parents on the child's birth certificate is not sufficient evidence of a promise to adopt. (V~ Juan A., ~(F~) to RC to 12/22/82)

The wage earner, Juan A. V~ became entitled to retirement insurance benefits effective January 1981. He also filed an application for child's benefits on behalf of the claimant, Martha I. V~ The claimant was born out of wedlock on March 22, 1972, in the state of Sonora, Mexico. Shortly thereafter, her mother, ^[1] Martha O~ purportedly made an oral agreement with the wage earner and his wife: the mother would surrender the claimant in return for Mr. and Mrs. V~ taking her as their own child. The natural mother allegedly asked that the V~ "legitimize the child and register the child with [their] names as being the parents." The V~ have not seen or heard from the natural mother since she left the child with them. Apparently the V~ obtained a birth certificate for the claimant using their names as her parents. They did not legally adopt the claimant. For many years the wage earner maintained two households, one with his wife in Mexico and another in Arizona where he worked. Mrs. V~ moved to the United States in January 1981, leaving the claimant behind to finish school. The V~ and the claimant have resided together in Arizona since September 1981.

The wage earner was domiciled in Arizona when his applications for benefits (for himself and the claimant) were filed. Therefore, pursuant to section 216(h)(2)(A) of the Act, we must assess the claimant's status under Arizona's laws respecting the devolution of intestate personal property. Section 8-117 of the Arizona Revised Statute provides, inter alia, that an adopted child shall inherit from his/her adoptive parents as though the child were born to them in lawful wedlock.

We sought the assistance of the Law Library of Congress in determining whether the subject facts would constitute either a legal or an equitable adoption under the law of Sonora, Mexico. An attorney there informed us of the many requirements for a legal adoption in that jurisdiction. A number of those provisions of law were not complied with by the V~. Therefore, no legal (judicial) adoption of the claimant may be found. The attorney further indicated that Sonora does not recognize common-law or equitable adoptions.

Therefore, an equitable adoption under Arizona law is the only possible way for the claimant to qualify as the wage earner's "adopted child" for benefits purposes. Arizona courts have held that a contract to adopt will be enforced where partially performed in Arizona, regardless of the enforceability of the contract under the law of the state where it was made. See our opinion re James C. G~, D-11396, June 1, 1966, and In Re Lamfrom's Estate, 90 Ariz. 363, 368 P2d 318 (1962). In the absence of any case law to the contrary, we will assume that Arizona courts would apply this principle to contracts to adopt which were made in foreign countries, also; the underlying rationale in Lamfrom being based upon partial performance in Arizona, it should little matter whether the contract was made in a foreign country or another state.

The initial determination which you must make is whether the underlying facts would constitute an equitable adoption of the claimant by the wage earner. The key elements required initially are relinquishment of the child by the natural parent(s), in return for the (contemporaneous) promise, orally or in writing, by the adopting person(s) to adopt the child. Each must be shown by clear and convincing evidence. Relinquishment is likely shown by the V~ statement that the natural mother "gave up all rights to the child." The second requirement is more problematic. The contemporaneous agreement to adopt need not be express; it may be implied from the acts, conduct, and admissions of the "adopting" party(ies). See our opinion re: James C. G~, cited above. There is very little information in the claims file which addresses the specific issue of the wage earner's and Mrs. unequivocal promise to adopt the claimant. According to the V~ July 30, 1981 statement, the claimant's natural mother asked that they "legitimize the child and register the child with our names as being the parents." This statement does not show a clear and binding promise by the V~ to adopt the claimant. Further development must be undertaken to establish that the requisite contract to adopt was made between the V~ and Martha O~ If upon further inquiry you find that the parties actions and statements at the time the V~ received the claimant satisfy these elements required for an equitable adoption under Arizona law, the claimant would qualify for benefits as the wage earner's "adopted child."