Chavez v. Shea

525 P.2d 1148, 185 Colo. 400, 1974 Colo. LEXIS 936
CourtSupreme Court of Colorado
DecidedJuly 29, 1974
Docket26395
StatusPublished
Cited by7 cases

This text of 525 P.2d 1148 (Chavez v. Shea) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chavez v. Shea, 525 P.2d 1148, 185 Colo. 400, 1974 Colo. LEXIS 936 (Colo. 1974).

Opinions

MR. JUSTICE HODGES

delivered the opinion of the Court.

Appellant’s application for financial assistance under Colorado’s Aid for Families with Dependent Children (AFDC) was denied by the Saguache County Department of Social Services. The appellant, Emilia Chavez, who is not related to the child and had never complied with the statutory procedures for adoption, sought assistance on the basis that she had equitably or culturally adopted the child. The assistance was denied on the ground that the aid was available only to specified relatives including statutorily adoptive parents. The State Department of Social Services after a hearing affirmed the action of the county department. The district court affirmed. On appeal from the judgment of that court, we likewise affirm.

Under the AFDC program established by the Social Security Act of 1935, funds are made available for a “dependent child” by the Federal Government, on a matching fund basis, with the participating state administering the program in conformity with the Act and regulations of the Department of Health, Education, and Welfare. (HEW)

The federal AFDC statute provides that aid may be given for a dependent child, (with certain qualifications not pertinent here), who is living with one of the listed relatives. 42 U.S.C. § 606(a)'. Appellant argues that she falls within that list of eligible relatives.

We note that 42 U.S.C. § 606(a) does not list “adoptive parent” as a specified relative. Among others, it mentions [403]*403“father” and “mother.” However, HEW has promulgated a rule which states that a child may be considered living with one of the relatives specified in the Act if his home is with “persons who legally adopt a child. ...” 45 C.F.R. § 233.90(C)(v)(3). That regulation does not further define “legally adopt” but states that the term is to be defined “in accordance with state law.” The appellants in their reply brief suggest that the definition of adoptive parent must come from Colorado law.

In implementing the federal act, the General Assembly of Colorado enacted 1971 Perm. Supp., C.R.S. 1963, 119-9-l(4)(b). This statute provides that a specified relative includes an “adoptive mother.” Rule 4233.1 Vol. IV, Colorado manual of Public Assistance uses the term “adoptive mother” without further definition.

We note that the General Assembly has supplanted 1971 Perm. Supp., C.R.S. 1963, 119-9-1 (4)(b) with a new provision. See Colo. Sess. Laws 1973, ch. 340, 119-3-3(5)(b) at 1178. The effective date of this provision was July 1, 1973 which was after the application in this case on February 19, 1973. Although the parties argued the case on the basis of the later statute, the two statutes are identical with reference to the provisions pertinent to this case.

I.

The appellant argues that under the laws of Colorado, a person may become an adoptive parent by (1) statutory adoption pursuant to the Colorado’s Children’s Code, (2) cultural adoption, (3) equitable adoption, and (4) adoption under the doctrine of in loco parentis. We hold that, except in a very limited and unique situation discussed later, the only method of legal adoption under the laws of Colorado is pursuant to the Children’s Code.

Appellant maintains that she culturally adopted David under the Spanish custom of “crianza.” Although we accept the testimony that she considered herself morally bound to raise David in the same way as her son, the fact remains that David was never adopted pursuant to the Children’s Code. [404]*404Appellant has cited no Colorado case in which this court has recognized cultural adoption as being a legal adoption.

Appellant further contends that under the laws of Colorado, a person may legally adopt a child under the doctrine of equitable adoption. In Barlow v. Barlow, 170 Colo. 465, 463 P.2d 305 (1969), we held that where there was “an oral contract to adopt a child, fully performed except that there was no statutory adoption,” the child could be held equitably adopted for purposes of intestacy. The holding was further limited to the laws in effect prior to the passage of the Children’s Code.

We declined to extend this doctrine of equitable adoption in First National Bank of Denver v. People, 183 Colo. 320, 516 P.2d 639 (1973). This court has never applied the doctrine to factual situations other than those involving succession to an estate.

This case is clearly distinguishable from Stanley v. Secretary of Health, Education, and Welfare, 356 F. Supp. 793 (W.D. Mo. 1973). In Stanley, the court found that under the laws of Missouri, the child was equitably adopted for purposes of receiving OASDI benefits. The court therein specifically noted that “Missouri law is exceptional for its very liberal ‘equitable adoption’ doctrine.”

Appellant further argues that under Colorado law, a person who stands in loco parentis is an “adoptive parent.” Appellant cites no Colorado state court cases. Leyerly v. United States, 162 F.2d 79 (10th Cir. 1947) does not apply Colorado law but involves a federal act which specifically provides insurance benefits to “persons who have stood in loco parentis ...” 38 U.S.C. § 801(f). None of the statutes or rules involved in this case mention the term in loco parentis. Furthermore, the cases cited by the appellant from other jurisdictions concern insurance benefits payable to beneficiaries who have stood in loco parentis to the insured.

We conclude, therefore, that under Colorado law, the only method of legal adoption, except in the very limited situation, already discussed, is through the Children’s Code.

II.

Appellant next argues that the state is imposing a burden [405]*405on applicants not required by the federal statute by requiring an “adoptive parent” to fulfill the statutory requirements of adoption. In Arizona Department of Public Welfare v. Department of Health, Education, and Welfare, 449 F.2d 456 (9th Cir. 1971), it was held that under the supremacy clause, Arizona’s requirement that a specified relative other than the parent obtain a court order of custody of the child prior to receiving aid, was invalid. That court read 42 U.S.C. § 606(a) to require aid to be given to an otherwise qualified uncle, for example, without the requirement of a court order.

In our view, the Arizona Department of Public Welfare case is clearly distinguishable from the fact situation here and thus, is not persuasive in support of the appellant’s argument. As discussed above, Colorado law requires statutory procedures prior to legal adoption.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re the Adoption of Baby T.
709 A.2d 1381 (New Jersey Superior Court App Division, 1998)
Matter of the Adoption of a Child by NEY
630 A.2d 835 (New Jersey Superior Court App Division, 1993)
Herrera Ex Rel. Mota v. Glau
772 P.2d 682 (Colorado Court of Appeals, 1989)
Pierce v. Pierce
645 P.2d 1353 (Montana Supreme Court, 1982)
People in Interest of PD
580 P.2d 836 (Colorado Court of Appeals, 1978)
Petrafeck v. Industrial Commission
554 P.2d 1097 (Supreme Court of Colorado, 1976)
Chavez v. Shea
525 P.2d 1148 (Supreme Court of Colorado, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
525 P.2d 1148, 185 Colo. 400, 1974 Colo. LEXIS 936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chavez-v-shea-colo-1974.