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September 19, 1962

Lucille E. MILLER, Individually and as next friend of Gertrude A. McAndrew, a minor
Abraham RIBICOFF, Secretary of Health, Education and Welfare of the United States

The opinion of the court was delivered by: DUSEN

This action has been brought under 42 U.S.C.A. § 405(g) to review the final decision of the Secretary rendered July 17, 1961, by the Appeals Council, Office of Hearings and Appeals, Social Security Administration (p. 2 of the Record attached to Document No. 4, hereinafter referred to as 'R'), insofar as it held that plaintiff, Lucille E. Miller (Mrs. Frank E. Miller), and Gertrude McAndrew, a minor, were not entitled to survivor insurance benefits *fn1" with reference to the death of Frank E. Miller for any period prior to September 1958. The Appeals Council adopted the inferences, findings and conclusions of the Supplemental Decision of the Hearing Examiner (R., p. 16), modified said decision by allowing benefits from September 1958 onward because of the amended provisions of 42 U.S.C.A. § 416(e), *fn2" but held that no benefits were due prior to that date because Gertrude McAndrew was not a 'child' under the provisions of 42 U.S.C.A. § 416(h)(2). *fn3" This determination is challenged in the instant action which is now before the court on cross-motions for summary judgment (Documents Nos. 6 and 7).

Frank E. Miller, a wage earner covered by the Social Security Act, died in 1954 and his wife applied for survivors' insurance benefits, based on an alleged 'equitable adoption' of Gertrude McAndrew by wage earner. This claim was consistently rejected. *fn4" The decision in Kilby v. Folsom, 238 F.2d 699 (3rd Cir. 1956), was agreed by counsel for the applicant and the administrative officials to state the legal principles governing the Miller claim (R., p. 16). Although it recognizes that in some cases a child may qualify for benefits on the basis of equitable adoption, the representatives of the Social Security Administration held that this doctrine was not applicable since a necessary requisite for its application (i.e., the existence of a contract or agreement to adopt) was not present. *fn5"

 Since the questions presented herein concern ultimate conclusions to be drawn from evidentiary facts which are not in dispute, this court is not bound by the legal conclusions or 'the conclusiveness of the findings' of the Administration. Electric Materials Co. v. Commissioner of Int. Rev., 242 F.2d 947, 949 (3rd Cir. 1957); Kilby v. Folsom, supra, at p. 700; Kilby v. Ribicoff, 198 F.Supp. 184, 186 (E.D.Pa.1961). Cf. Minefield v. Railroad Retirement Board, 217 F.2d 786, 787 (5th Cir. 1954).

 '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. *fn6"

 The wage earner referred to the child as 'a niece of Lucille Miller' in his income tax returns (R., p. 67). *fn7" 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), *fn8" 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). *fn9" 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. *fn10"

 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. *fn11" 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, *fn12" 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. *fn13" 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, ...

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