Martha Blair, on Behalf of Barbara Brown v. Joseph Califano, Secretary of Health, Education and Welfare , 650 F.2d 840 ( 1981 )

EDWARDS, Chief Judge.

This is an unusual appeal from denial of social security benefits. Martha Blair is the grandmother of a child, Barbara Brown, born in 1963. Barbara has lived with her grandmother since infancy and aside from occasional visits with her mother has been entirely supported and cared for by Mrs. Blair and her husband. The Blairs’ claim, as advanced in the proceedings before the Secretary of HEW and in the United States District Court for the Eastern District of Michigan, is that under the doctrine of “equitable adoption,” Barbara should be regarded as the child of Martha Blair and her husband under 42 U.S.C. § 402(d). .

There is no dispute in this case as to the fact that Raymond C. Blair was a wage earner who was entitled to social security disability benefits at the time this application for benefits for Barbara Brown was filed.

The sole issue in this case concerns the application of the following section of the Social Security Act:

In determining whether an applicant is the child or parent of a fully or currently insured individual for purposes of this subchapter, 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 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 is or 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.

42 U.S.C. § 416(h)(2)(A).

Under this section the parties agree that Michigan law concerning the doctrine of equitable adoption is applicable here and that Michigan recognizes such doctrine. The disagreement hinges on whether or not the doctrine of equitable adoption in Michigan requires proof of economic consideration flowing from the child to the adopting parents generally in the form of services performed by the child.

This case was heard in the first instance by an Administrative Law Judge with appellant unrepresented by counsel. The natural mother did not appear and testify although there was a report concerning her statement that it was understood that the grandparents would raise the child as their own.

In the District Court proceeding, the case was dealt with initially by a Magistrate who recommended either granting benefits or remand for a full factual hearing while appellant was represented by counsel. We adopt the Magistrate’s report as the factual posture of this case:

Barbara Brown was born to Plaintiff’s daughter, Judith, and James Brown in October of 1963. When Barbara was two months old, she was taken to live with Plaintiff (her grandmother) and her grandfather because her father refused to take care of her (Tr. 38-39, 88). After being shifted back and forth between her parents’ home and Plaintiff’s home, Barbara was permanently left in the Plaintiff’s custody at age five months (Tr. 38, 86). At this time, Barbara’s parents took their son from Plaintiff’s custody, but left Barbara in her care because the father thought it would be “too much trouble to raise two children” (Tr. 86, 39), In 1966, Plaintiff became the legal guardian of Barbara.

Plaintiff and her husband supported Barbara from the time she was five months old until 1972, when Plaintiff’s husband became disabled (Tr. 42). Plaintiff has been receiving ADC for Barbara since 1972 (Tr. 42).

The child calls Plaintiff and her husband “Momma” and “Daddy” although she knows that Judith is her natural mother (Tr. 43, 121, 123). Plaintiff enrolled Barbara in school (Tr. 118), had her baptized and enrolled in Sunday School (Tr. 119), and took care of her medical needs (Tr. 120).

The whereabouts of Barbara’s father, James Brown, are unknown. He and Barbara’s mother are divorced and he is believed to have remarried (Tr. 40). Barbara’s mother had two other children by James Brown (Tr. 41). She has not taken Barbara from the Plaintiff’s home since the child was five months old. She does not come to visit the child or call her on the telephone (Tr. 100) but she has seen Barbara during the time Barbara has been living with Plaintiff because Judith returns to her parents’ home temporarily when she is out of funds (Tr. 48).

Barbara’s mother has made statements in the past that would indicate her intent to relinquish her rights to Barbara to her parents. On March 26, 1974, she stated the following to the Social Security Administration:

“It was understood that my father would raise Barbara as his own daughter. I would have no objections to their legal adoption of Barbara, and have told them this many times.” (Tr. 88-89).

On March 6, 1975, Barbara’s mother sent a letter to Plaintiff which read as follows:

“To Whom It May Concern

My daughter Barbara Rene Brown has been living with my parents since the day she turned five months old. I wouldn’t want her to be any place else. As her mother, I give all rights to my parents to adopt my daughter, as she couldn’t have a better home, with myself or anyone else.” (Tr. 110).

The District Judge did not accept the Magistrate’s recommendation to rule in favor of the plaintiff. Instead, he held that the Michigan law of equitable adoption requires “substantial consideration” flowing from the child to the proposed parents in the form of the child’s labor and services before an equitable adoption can be recognized. The District Judge relied particularly for this proposition upon Steward v. Richardson, 353 F.Supp. 822 (E.D.Mich.1972), which in turn relied upon Wright v. Wright, 99 Mich. 170, 58 N.W. 54 (1894); Roberts v. Sutton, 317 Mich. 458, 27 N.W.2d 54 (1947); and Perry v. Boyce, 323 Mich. 95, 34 N.W.2d 570 (1948).

Our review of Michigan ease law convinces us that Steward is an incorrect interpretation of the Michigan law of equitable adoption and that consideration in the form of the child's services is not a prerequisite to an equitable adoption. The emphasis upon filial devotion in Justice Dethmers’ opinion for the Michigan court in the Roberts case points strongly in this direction. In discussing the estate of plaintiff’s stepfather, Justice Dethmers said:

When plaintiff was about five years of age her mother married Doctor Orra C. Carr, a dentist, and took plaintiff with her to live in the home of Doctor Carr, which continued to be plaintiff’s home until her marriage at age 26. She assumed the name Theris L. Carr, called the doctor “Father” and “Dad” and showed him the love and devotion of a daughter. Doctor Carr always referred to and introduced her as his daughter. He supported and educated her and showed a genuine affection for her. From the time she was a small child he told others that he was going to adopt her or, in other instances, that he had adopted her.

317 Mich. at 459-60, 27 N.W.2d 54.

It is true that in the Roberts case there was also proof that the plaintiff assisted Dr. Carr in his dental practice without compensation. But, even if the Roberts case is read as requiring this economic consideration as essential to an equitable adoption, we do not think that that view would survive the impact of Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960). The Michigan court rejected a requirement of evidence as to the value of a child’s labor to his parents as essential to parental recovery for his wrongful death. The opinion for the court said in part:

Error, then, there was. But the error into which the court was betrayed was the direct and natural result of this Court’s insistence upon the continued employment of the child-labor standard of pecuniary loss. Whatever the situation may have been in 1846, as the children brought home their wages from plant, mine, and mill, today their gainful employment is an arrant fiction and we know it. The trial judge may have been on sound ground as a matter of economics in saying that he didn’t think the deceased child had a $14,000 earning capacity. But we are not dealing in economics. We are dealing with a fiction, the fiction that under today’s conditions, not those of 1846, the minor child is a breadwinner. He is not. He is an expense. A blessed expense, it is true, but nevertheless an expense. We permit the use of the fiction that he is a wage-earner solely in an effort to accomplish a semblance of justice.

361 Mich. at 341, 105 N.W.2d 118.

While this language was not written in the context of a suit on an implied contract to adopt, it clearly does reflect a different and more modern view of the parent-child relationship than earlier Michigan cases. See also Jones v. Ireland, 225 Mich. 467, 196 N.W. 369 (1923).

We recognize that this language has been the subject of bitter and extensive judicial debate in the years since Wycko was decided. It was specifically, if narrowly, disavowed in Breckon v. Franklin Fuel Co., 383 Mich. 251, 174 N.W.2d 836 (1970). This led the Michigan legislature in 1971 to amend the wrongful death statute, M.C.L.A. § 600.2922, in effect reversing Breckon. Subsequently, the Michigan court, dealing with two cases which arose before the 1971 legislature amendment overruled the Breckon case by another narrow majority. Smith v. City of Detroit, 388 Mich. 637, 202 N.W.2d 300 (1972). The net effect of Smith and the 1971 legislative amendment is the clear vindication of the language we have quoted and relied on in Wycko.

There was ample evidence presented before the Administrative Law Judge to establish that Barbara Brown had been abandoned by her father at birth and that her mother had freely and deliberately placed her with Mrs. Blair, her grandmother, and agreed to adoption of her daughter by the Blairs. There is also moving testimony in the administrative record concerning the strength of love and affection between Barbara and Mrs. Blair which we believe under Michigan law would be regarded as substantial consideration to support an implied contract for adoption.

Under these circumstances, we hold that the decision of the Secretary is not based upon an appropriate understanding of Michigan law or upon substantial evidence and that the District Court erred in taking too narrow a view of the applicable Michigan law.

The judgment of the District Court is vacated and the case is remanded to the District Court for a remand to the Secretary for the award of benefits.