Eugene McAndrew. She became a member of the Miller household shortly after her birth, when her father permitted his sister to take the child to raise, his wife having died in childbirth. He told his sister, 'She's all yours' when she first took the baby (see R., pp. 39 & 40). The statement of the natural father, dated May 22, 1960, reads in part:
'However, I would like to state that I did tell my sister Mrs. Miller that when she took Trudy that I would never take her back and that she was to raise her as her own. My sister and her husband was to treat her as their own which they did; and that statement still goes * * *.' (See Exhibit 1, R., p. 16).
Frank E. Miller was the sole support of his foster child during his lifetime (R., p. 45), although her natural father sometimes gave her small gifts (R., p. 45). The child, who was four years old when the wage earner died, called him 'Daddy,' called Mrs. Miller 'Mother' or 'Mommie' (R., p. 40), and called her real father 'daddy Gene' (R., p. 80). She was known as 'Trudy Miller' in the neighborhood, but her real name was used on all legal documents and in other matters (R., p. 41). She was known as 'Gertrude McAndrew' in school and in girl scouting activities.
The wage earner referred to the child as 'a niece of Lucille Miller' in his income tax returns (R., p. 67).
She was not made a beneficiary of his insurance policy, had no interest in the Miller home, was not made a beneficiary of the estate of the wage earner (R., p. 46),
and he made no other provision for her welfare in the event of his death.
When the child was approximately a year and a half old, the Millers first asked Eugene McAndrew for permission to adopt her. This permission was refused (R., p. 40). The only reason given to the Millers by the child's father for his refusal to consent to the adoption was that he wanted Gertrude and his other daughter to have the same surname (R., p. 45).
The question of adoption was raised by the wage earner and his wife on subsequent occasions during the wage earner's lifetime, but Eugene McAndrew consistently refused to consent thereto (R., p. 72). His refusal was accepted as binding by the foster parents according to the testimony of Mrs. Miller, who testified that 'legal adoption was uppermost in our minds, but of course nothing could be done about it.' (R., p. 43). The refusal to allow adoption of the child persisted even after the death of the wage earner.
There is substantial evidence in this record to support the finding of the Appeals Council that, prior to the death of Mr. Miller in 1954, there was no agreement by him and his wife to 'treat this little girl as their own, fully as much as if she had been their natural, legitimate child.' Kilby v. Folsom, supra, at 701.
The Millers did agree with the child's father to raise her as their own and to treat her as their own for purposes of educating and raising her, but the father's consistent refusal to permit her to be adopted and the failure of the decedent to provide for her in his insurance policies and by will support the finding of the Administration that there was no agreement to treat this child as their natural, legitimate child for all purposes, including purposes of inheritance. The facts in this case are far different from those in the Kilby case, in which the natural mother (a stranger to the foster parents) gave the child to the Kilbys under a written agreement that the child was 'to be adopted by them as soon as is legally permitted' and also stated 'I do hereby relinquish all claim to the said baby girl.' The court there found that the Kilbys did many things consistent only with their showing of their intention to create the equivalent of a parent-child relationship between themselves and the child, stating that subsequent conduct is relevant in determining whether a foster parent has bound himself to give a child inheritance rights. Here the foster father did not agree that the child be given inheritance rights. His treatment of the child is as consistent with an uncle-niece relationship or a godfather-godchild relationship as with any other,
and his conduct subsequent to the taking of the child into his custody indicates that he had not bound himself to give the child inheritance rights.
In addition, no relinquishment of all claims on the child by the natural father has been proved.
The undersigned agrees with counsel for plaintiff that neither equitable nor legal adoption is required by the Kilby case, supra, and it is noted that the Hearing Examiner made clear by this language that the facts did not form a basis for finding a 'consensual agreement' that Gertrude McAndrew by treated as a natural child for all purposes (R. 17):
'* * * and what happened does not indicate a purpose to surrender the child, the child to be a child in the foster parents' family with the rights of one who has a contract to be treated as a natural child.'
AND NOW, September 19, 1962, after consideration of the foregoing Motions, oral argument, the briefs and reply briefs of counsel, and the record, IT IS ORDERED that:
(1) the defendant's motion for summary judgment (Document No. 6) is granted;
(2) the plaintiff's cross-motion for summary judgment (Document No. 7) is denied; and
(3) this action is dismissed, with prejudice.