Guam would apply the law of the Estate in which the insured individual was domiciled, in this case, California. The evidence here meets the California requirements for equitable adoption. (M~, Felix R. RAIX [Y~] to RC, San Francisco, 11/01/89)

As requested, we are attaching an opinion of the Regional Chief Counsel, finding that Julie M. M~ was equitably adopted by the deceased worker.

On May 12, 1989, Juana H. M~ the widow of the wage earner Felix R. M~, applied for child's insurance benefits with the SSA Office in Agana, Guam, on behalf of Julie H. M~ Julie M~ was born on November 18, 1974, to Fermina A~ A~ , a niece of the applicant. The identity of the natural father is unknown. On February 18, 1977, the natural mother signed a written consent whereby she relinquished Julie to Mr. and Mrs. M~ and consented to their adopting her. ^[1] Mr. M~ died on March 10, 1982. Mrs. M~ formally adopted Julie in May 1986.

Since February 1977, Julie has lived continuously with the M~ as their child, and Julie believes herself to be their child. There is no evidence contradicting Mrs. M~ statements to the effect that she and her husband took Julie with the intent to adopt her, and that they treated and considered her as their child. Apparently formal adoption was postponed due to the wage earner's illness.

You have requested our legal opinion as to whether Julie M~ may be found to be the equitably adopted child of Felix M~. You referenced our opinion dated November 1, 1983, regarding Justa M. C~, as a precedent for the issue presented in this case. Our review of that opinion, California law, and the relevant SSA regulations, leads to the conclusion that the summary of law provided in the C~ opinion is equally applicable to the instant case.

Section 216(e) (1) of the Social Security Act defines "child" to include a legally adopted child of the insured individual. With respect to the circumstances of this case, section 216(h) (2) (A) of the Act provides that the determination of the existence of a child-parent relationship is to be based on the law of the state in which the insured individual was domiciled at the time of his death. Since the insured individual, Mr. M~, was domiciled in Guam at the time of his death, the question to be addressed is whether or not Guam courts would find that Julie had been equitably adopted by Mr. M~. Under the applicable C~ analysis, Guam courts would apply California's approach on this type of equitable adoption issue.

The evidence on file in this case meets the requirements of an equitable adoption under California law. ^[2] The consent document dated February 18, 1977, clearly states that Julie was surrendered by her natural mother to the care of Mr. and Mrs. M~ with the understanding that they would adopt her. The requisite contract to adopt may be implied from these circumstances. Apparently, Julie's formal adoption by the M~ did not take place prior to Mr. M~ death because of income restraints and his lingering illness. During his lifetime, however, the evidence consistently reflects that the M~ treated Julie as their child.

For the reasons discussed above, we conclude that Julie M~ may be found to be the equitably adopted child of the wage earner, Felix M~

EQUITABLE ADOPTION — WHAT STATE LAW GOVERNS — GUAM

Guam courts would look to the law of the place where a contract is to be performed and if this is not ascertainable, the law of the place where the contract was made, in determining the validity and effect of a contract, in this case, a contract to adopt. (M~, Alfredo H., ~ — RAIX (T~), to ARC, 06/10/83.)

EQUITABLE ADOPTION — STATE LAW PROVISIONS — FORM OF CONTRACT — GUAM

Where there was an express oral agreement between the natural parents and the man and wife presently having custody of the child whereby the natural parents relinquished the child absolutely in return for the custodian's promise to adopt her, and subsequent conduct of all the parties was consistent with such an agreement, Guam courts would find sufficient cause to find that the requirements for equitable adoption have been met. (M~, Alfred H., ~ — RAIX (T~), to ARC, 06/10/83.)

The wage earner, Alfredo H. M~, filed an application for child's insurance benefits on January 18, 1982, on behalf of Mehlanie M~. Mehlanie was born in the Philippines on November 2, 1974, to Marita M~, the wage earner's daughter, and Miguel S~, Jr., a citizen of the Philippines. Immediately after her birth, the natural parents gave Mehlanie to the wage earner's wife, Catalina. Delivery and hospital expenses were paid by the wage earner. Although the parties did not enter into a contemporaneous written agreement, subsequent statements (contained in the claims file) made by the wage earner and the natural parents indicate that Mehlanie was surrendered with the mutual understanding that the wage earner and Catalina would "adopt" her and raise her as their own child.

Mehlanie remained in the Philippines in Catalina's custody for almost a year. In September 1975 they joined the wage earner in Guam, where he had been residing since 1971. Since that time Mehlanie and the M~ have lived together on Guam. The M~ have stated that they treat Mehlanie as their child and that she considers them to be her parents. In 1980 legal adoption proceedings were begun by the wage earner (with the natural parents' written consent), but due to lack of funds no final decree of adoption was obtained.

You have asked for our opinion as to whether or not Mehlanie has been equitably adopted by the wage earner for purposes of entitlement to child's insurance benefits. Section,216(e) (1) of the Social Security Act defines "child" to include legally adopted child of the wage earner. Section 216 (h)(2)(A) of the Act provides that the determination of the, existence of a child-parent relationship is to be based on the law of the state in which the insured individual was domiciled at the time the application for benefits was filed. Since the wage earner was domiciled in Guam ^[3] at the relevant time, the question to be resolved is whether or not Guam courts would find that an equitable adoption has been effected.

Section 1646 of the Guam Civil Code ^[4] provides:

A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.

It appears that the natural parents and the M~ entered into an oral adoption agreement in the Philippines. Therefore, substantive Guam law would apply only if the contracting parties intended that the agreement was to be "performed" in Guam. If the parties made no mention of the place of performance and did not otherwise assume or intend a specific place of performance, then Philippine law — the law of the place where the contract was made — must be applied.

The statements of the wage earner and the natural parents do not indicate whether: (1) it was contemplated that Mehlanie would remain in the Philippines; (2) it was anticipated that she would reside with the McAuslens in Guam; or (3) if the place of Mehlanie's residence (i.e., the place of performance for purposes of the adoption agreement) was even considered by the parties. Any of these three possibilities is plausible, based upon information currently in the claims file. The M~ evidently maintained a home in the Philippines and, as late as May 1980, the wage earner described himself (in an adoption petition drafted for presentation to a Philippine court) as only a temporary resident of Guam. It may be that at the time Mehlanie was given to the M~, the parties expected the wage earner to resume permanent residence in the Philippines and to care for Mehlanie there. This hypothesis is reinforced by the fact that Mehlanie and the wage earner's wife remained in the Philippines for nearly a year after her birth. On the other hand, the wage earner has stated that he has lived in Guam since 1971 and Mehlanie has remained with him in Guam since she was brought there in 1975. Thus, it could be assumed that the parties initially intended that the adoption agreement would be performed in Guam. Finally, it is certainly conceivable that neither the natural parents nor the wage earner and his wife even considered, much less agreed upon, where Mehlanie was to live or to be adopted, so long as she remained in the wage earner's custody.

Because the pertinent Guam statute requires a determination as to where the contract was to be performed (if any such location was "indicated" or agreed upon), further development will be needed in this case. The parties to the adoption agreement — the natural parents and the M~ — should be asked what understanding, if any, they had as to the place of performance. If the topic never arose and the natural parents assumed that Mehlanie would be adopted wherever the M~ lived, you should establish whether the M~ anticipated securing the adoption decree in Guam or in the Philippines (or if the issue of where Mehlanie would be adopted was considered at all).

If the new information indicates that the parties intended the adoption agreement to be carried out in Guam, the substantive law of that jurisdiction would apply on the equitable adoption issue. Although no Guam statute or judicial opinion has specifically addressed the question of equitable adoption, we are reasonably certain that Guam courts would, as they have in other areas, follow California's lead and recognize the existence of an equitable adoption under appropriate circumstances.

See our opinions re Ngeaol A. O~, October 29, 1980, and Barbara J. E~ /Emily A~, August 31, 1979. The essential requirements for an equitable adoption under California law are: (a) an express or implied contract of adoption, and (b) absolute surrender of the child to the adopting parents. GC opinions re William M. N~, July 30, 1980; Thomas K. S~, July 16, 1952; and John R. B~, November 29, 1982. The contract may be written, oral, or implied from the conduct of the parties and the surrounding circumstances. See GC opinion re Barbara J. E~, cited above, and cases cited therein.

The contractual elements which Guam courts would likely require appear to have been satisfied in this case. The natural parents and the M~ have stated that they entered into an express oral contract whereby the natural parents relinquished Mehlanie absolutely in return for the M~'s promise to adopt her. The circumstances surrounding the surrender and the conduct of the parties during the ensuing years further substantiate the claim that an unqualified adoption agreement was made at or about the time of Mehlanie's birth. Therefore, were Guam courts free to apply their own law, it is our opinion that a valid equitable adoption would be found. Pursuant to section 257 of the Guam Probate Code, an adopted child succeeds to the estate of her adoptive parent to the same extent as a natural child. Mehlanie, therefore, would qualify as the wage earner's "child" under section 216(e) of the Act.

If, however, the parties agreed that performance would take place in the Philippines, or if an alternative place of performance was not specified or anticipated at the time of agreement, Guam Civil Code section 1646 would require application of Philippine law. Our preliminary research suggests that Philippine law does not recognize the concept of equitable adoption. (See GC opinion re Feliciano N. N~, D-10063, July 7, 1964, which indicates that as of 1951 there was no provision for equitable adoption in the Philippines. We conferred informally with the law librarian at the Library of Congress, who opined that the relevant law likely remains the same today.) Accordingly, if newly developed facts show that Philippine law governs interpretation of the agreement, you may wish to resubmit the case to us for further definitive research on current Philippine law respecting adoption of children.