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Johnson v. Johnson9/14/2000
the reliance. There is no evidence that Madonna Johnson would not have cared for her grandchild absent a promise from Antonyio Johnson to adopt.
E.
[ ] Suggesting a contract to adopt may have existed is improper because such a finding seeks to impose an equitable remedy when there exists a legal remedy. However, on remand, in order to impose a support obligation, the district court must explicitly find there was consideration. The district court must also find there was detrimental reliance and estoppel. Further, the objective manifestations of contractual intent must prove, by clear, cogent, and convincing evidence that a contract was in fact formed. This heavy burden must remain intact on remand.
VIII.
[ ] As noted by the vast majority of authorities, equitable adoption is a remedy used only for intestate succession. The majority states, at 9, "The doctrine is an equitable remedy to enforce a contract right and, therefore, it is not intended to create the legal relationship of parent and child, with all its attendant consequences, and does not effect a legal adoption" (citing 2 Am. Jur. 2d, Adoption § 53 at 930 (1994)). The very next sentence of the source, omitted by the majority, states, "The need for the doctrine arises when the adoptive parent dies intestate; the doctrine is invoked in order to allow the supposed-to-have-been adopted child to take an intestate share. It is not applicable where the decedent dies testate." 2 Am. Jur. 2d, Adoption § 53 at 930 (1994) (citations omitted).
[ ] The majority, at 9, suggests the term equitable adoption "bears almost no relationship to a statutory legal adoption." Rather, the theory is used as "an equitable remedy to enforce a contract right and, therefore, it is not intended to create the legal relationship of parent and child, with all its attendant consequences." Id. However, as noted above, in every instance in which equitable adoption was applied by this or other courts, the deceased or equitable parent must always, as a condition precedent, have had a parent-child type relationship with the person seeking to enforce a purported contract right. This prerequisite, as implied in the equitable adoption title, is absent here. Further, as a derivative form of adoption, this Court should defer to the legislature to implement social policy change rather than circumvent the protections and statutory requisites imposed by the legislature for a statutory adoption.
IX.
[ ] The majority, at 39, offers a recitation of the facts of this case that may be used to support application of the theory of equitable adoption. Upon the majority's remand, the district court must also consider the negating factors omitted by the majority. " cts of human kindness referable simply to an undertaking to rear and educate a helpless child do not necessarily bolster a claim that an equitable adoption occurred, and that the acts of and conduct proved should be of such character that they are unmistakably referable to an adoption contract." Locke, Annotation, Modern Status of Law as to Equitable Adoption or Adoption by Estoppel, 97 A.L.R. 3d 347, 358 (citation omitted). Other circumstances omitted by the majority checklist include: "Existence of adoption contract between natural and foster parents; atural parent's surrender of custody of child;" and numerous other factors. 2 Am. Jur. 2d, Adoption § 55 at 933 (1994).
[ ] An equitable adoption agreement must be decided on all the facts and circumstances of the case. Id. at § 54. "To apply the doctrine of equitable adoption, the contract to be enforced must be definite and certain, be free of fraud, duress, and misrepresentation, be equitabl
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