20 CFR 404.1101 and 404.1109

SSR 66-45

Where prior to the birth of the claimant-child her mother entered into an agreement with the wage earner and his wife in the State of Colorado to let the worker and his wife take the child after birth and keep and care for her and at their option legally adopt her, and where the worker and his wife raised the child as their own but did not legally adopt her, held, the agreement did not constitute a contract to adopt the child and therefore she is not the worker's child for purposes of entitlement to child's insurance benefits.

Prior to the birth of the claimant-child, C, her mother, M, entered into an agreement in the State of Colorado with the worker, R, and his wife, W, whereby R and W would provide M with a home and confinement expenses and M executed a written consent, in pertinent part, that R and W:

. . . may keep and care for said child in their home and further consents that they may at their option and a such time as they may choose institute legal proceedings for the adoption of said child, it being understood that the undersigned will execute any and all documents that may be required in the course of such adoption proceedings instituted. . . .

C, an illegitimate child, was born October 5, 1960, in Colorado. Pursuant to the agreement, R and W took C shortly after birth and treated her as their child. However, they did not institute legal adoption proceedings since they feared that if they went to an adoption agency, C would be taken from then due to their limited income. R died in Colorado on May 5, 1965, and W filed an application for child's insurance benefits on behalf of C.

To qualify for child's insurance benefits, C must be the "child" of the wage earner as defined in section 216(e) of the Social Security Act. She meets this definition, as pertinent to this case, if she meets the requirements of section 216(h)(2)(A) of the Act.

Section 216(h)(2)(A) provides, as applicable to this case, that in determining whether an applicant is the "child" of a deceased insured individual, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. In a State whose laws provide that where a foster parent has been given permanent custody of a child in return for a promise to adopt the child and give the child inheritance rights, but fails to do so, such promise may, after the foster parent's death, be enforced to the extent of permitting the child to share in the foster parent's estate. Where there is such an agreement, having as its basis a contract to adopt, the principle of "equitable adoption" is brought into issue. (See SSR 64-27, C.B. 1964, p. 6.) The State of Colorado recognizes the principle of "equitable adoption" by reason of a parol contract of adoption (In Re Stoiber's Estate, 72 P.2d 276 (Colo., 1937)).

In the Stoiber case, the court quoted with approval the Missouri decision in Rauch v. Metz, 212 S.W. 357, 362 (Mo., 1919, which stated:

There is, however, no principle of law more firmly settled in this State than that that relation may be created by the acts and undertakings of the parties fully executed on behalf of the child.

While Colorado would recognize the principle of "equitable adoption," such an adoption must be proven by clear and convincing evidence of an express or implied contract to adopt.

The consent agreement signed by C's mother provided only that R and W could keep and care for the infant in their home and, at their option, could institute proceedings to adopt her. The mother also agreed to execute all necessary documents if adoption was later decided upon. The agreement gave to R and W merely the right to rear the child and, if they so desired at some future date, to adopt her, but they did not obligate themselves to do so. Under these circumstances, there was not a sufficient contract to adopt on the part of R and W to establish an "equitable adoption" of C which could give her rights of inheritance in R's estate under the laws of Colorado.

Accordingly, it is held that C does not qualify as the "child" of R and is not entitled to child's insurance benefits based on R's social security earnings record.

Back to Table of Contents