     Case: 14-10014      Document: 00512756692         Page: 1    Date Filed: 09/04/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 14-10014                                FILED
                                  Summary Calendar                       September 4, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
WOODROW WILLIAMS, II, on behalf of Z.D., a minor,

                                                 Plaintiff-Appellant
v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-686


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Woodrow Williams, II (“Williams”) brings this action on behalf of Z.D., a
minor, under § 405(g) of the Social Security Act (“SSA”), 42 U.S.C. § 405(g)
(2006), challenging the Commissioner of Social Security’s (“Commissioner”)
decision to deny Z.D. child’s insurance benefits on the basis that Z.D. was not
the equitably adopted child of Williams. The issue before the court is whether



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-10014
the Commissioner’s decision that Z.D. was not the equitably adopted child of
Williams and therefore not entitled to child’s insurance benefits was supported
by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)
(“The Commissioner’s decision is granted great deference and will not be
disturbed unless the reviewing court cannot find substantial evidence in the
record to support the Commissioner’s decision or finds that the Commissioner
made an error of law.” (citations omitted)). Upon review, we affirm the lower
court’s decision.
      Williams was found to be disabled and entitled to disability benefits
under the SSA. Under the SSA, an individual is entitled to child’s insurance
benefits on the earnings record of one who is entitled to disability benefits if
the individual 1) is an insured person’s child, 2) is dependent on the insured
person, 3) applies for child’s insurance benefits, 4) is unmarried, and 5) meets
certain age requirements. 20 C.F.R. § 404.350(a) (2007). The only requirement
at issue here is whether Z.D. qualifies as Williams’s child.
      To qualify as an insured person’s child, one must be “a natural child,
legally adopted child, stepchild, grandchild, stepgrandchild, or equitably
adopted child.” § 404.354. Williams is not a natural or legally adoptive parent,
and no longer step-parent, of Z.D. Thus, Z.D. can only qualify for child’s
insurance benefits if he qualifies as an equitably adopted child. Because the
law of the state where the insured has his or her permanent home at the time
of his or her application applies, § 404.359, and Williams resided in Texas at
the time Z.D. applied for child’s insurance benefits, the administrative law
judge correctly applied Texas law to decide the case.
      Under Texas law, an equitable adoption, or adoption by estoppel,
requires a clear, unequivocal, and convincing showing of an agreement to
adopt. Cavanaugh v. Davis, 149 Tex. 573, 583, 235 S.W.2d 972, 978 (1951). The
agreement need not be a formal one, or even one that uses the word “adoption”
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                                  No. 14-10014
in the formal sense. Broussard v. Weinberger, 499 F.2d 969, 970 (5th Cir. 1974)
(citing Smith v. Sec’y of Health, Educ. & Welfare, 431 F.2d 1241, 1245 (5th Cir.
1970)). Once such an agreement has been found, Texas courts then consider
factors such as “assumption by the child of the surname of the adopting
parents, habitual use by the adopters of the term son or daughter in referring
to the child, habitual use by the child of such terms as ‘mama’ and ‘daddy’ in
addressing or referring to the adopters, and the existence of a relationship of
love and affection between the adopters and the child.” Smith, 431 F.2d at
1244.
        We need not proceed to consider these other factors in the instant case
because of the substantial evidence indicating an absence of an agreement to
adopt. Indeed, the record indicates that Jennifer Wood, Z.D.’s natural mother,
was not willing to enter into an agreement to adopt, and Williams has
acknowledged this. Even though she left Z.D. with Williams prior to their
divorce, she has since sued to obtain custody, has exercised her court-awarded
visitation rights, and has paid child support. There has not been an
abandonment by the natural parent as in the cases that Williams relies on to
support his position. See Broussard, 499 F.2d at 970 (finding equitable
adoption existed when natural mother abandoned child and never tried to
reclaim him, and grandparents took care of child without assistance from
natural mother); Smith, 431 F.2d at 1244 (finding that natural mother had
abandoned children before proceeding to other factors “to verify the existence
of an adoptive relationship”); Reed ex rel. Reed v. Chater, 925 F. Supp. 466,
467-68 (E.D. Tex. 1996) (finding that natural mother left child in plaintiff’s
care and testified that plaintiff took over her parental duties and rights); Moore
v. Heckler, No. H-83-6403, 1985 WL 71821, at *1-3 (S.D. Tex. Oct. 29, 1985).
There is also no indication that Z.D.’s natural father, Robert Densmore, has
agreed to adoption. Because there was substantial evidence regarding the lack
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                                No. 14-10014
of an agreement to adopt, and thus a lack of an equitable adoption, it was
appropriate for the district court to adopt the magistrate judge’s findings and
affirm the Commissioner’s final decision. The district court’s judgment is
AFFIRMED.




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