Table of Contents Table of Contents 2 Table of Authority 2 Statement of Jurisdiction 2 Question Presented 2 State of the Case 2 Facts 2 Procedure 2 Summary of the Argument 2 Standard of Review 2 Argument 2

Table of Contents
Table of Authority

Statement of Jurisdiction
This court has jurisdiction to hear this case under Texas Government Code § 22.220, which authorizes appellate review of all civil cases within its district or county courts.

Question Presented
In Texas, adoption by estoppel is proven when the adoptive parent agreed to adopt the child and the child conferred benefits on the parent. Kim Griffin agreed to “raise [Elliot Griffin] as one of her own” and acted accordingly. In addition, Elliot spent significant money and time in handling Kim’s estate after she died. Did the trial court err in deciding that there is no genuine issue of fact in this case as a matter of law?

Statement of the Case
Procedural History:
Plaintiff-appellant Elliot Griffin, brought suit against defendants – appellees, Amber Griffin, Lester Griffin, and Steve Griffin, all of whom are Kim Griffin’s natural children, in Harris County District Court, reclaiming a fair share of Kim Griffin’s estate as a child adopted by estoppel. The defendants denied the request and filed a motion for summary judgment, asserting that Elliot was not adopted by estoppel and therefore could not inherit from Kim.

The trial court granted the defendants’ motion for summary judgment. The plaintiff appealed this decision to the Fourteenth Court of Appeals of Texas.

Facts:
Elliot Griffin was Kim Griffin’s nephew. Elliot’s natural mother, Ruby Morrison, gave him to Kim when he was four. Defendant Amber Griffin admitted in his affidavit that when Ruby asked Kim to adopt Elliot, Kim responded affirmatively that she “will do whatever [she] need[s] to raise Elliot as one of [her] own.”

Kim acted as she promised and held Elliot as her son in every public and private way. She gave Elliot her last name, Griffin, and told everyone that Elliot was her son. She signed him up for school and other activities by listing herself as Elliot’s “mother” instead of “guardian.”

Abandoned by his teenage single mother, it is not surprising that Elliot had a hard time adjusting. He admitted that his relationship with Kim was troubled. He was a rebellious child and sometimes behaved angrily and violently. However, nothing in the record indicates that he ever hurt Kim.

Kim died intestate last year. Assuming that he would gain little financially, Elliot had spent a significant amount of time and over $4000 handling Kim’s estate. Later, it was discovered that Kim’s house was built on top of an oil pipeline and her estate would be entitled to a cash payout for damages, which would amount to at least $350,000. As soon as the defendants learned the information, they replaced Elliot as estate administrator and asserted that Elliot had no right to inherit from Kim since he was not Kim’s natural child.

Summary of the Argument
The doctrine of adoption by estoppel protects non-statutorily adopted children’s legal right to inherit from their adoptive parents. To establish adoption by estoppel, one has to prove the following two elements: (1) agreement to adopt - the adoptive parent agreed to adopt the child, and (2) child performance - the child conferred benefits on the adoptive parent.

The district court should not have decided whether Elliot Griffin was adopted by estoppel on summary judgment. Evidence exists that Kim Griffin responded affirmatively to Elliot Griffin’s mother’s request to raise Elliot as “one of [her] own” and subsequently acted as she promised. Although Elliot was not an ideal son, he called Kim “mom” and conferred posthumous benefit on Kim by handling her estate under the assumption that he would gain little financially. These facts suggest that there are at least genuine issue of material fact as to both the “agreement” and “child performance” elements of adoption by estoppel.

Standard of Review
Summary judgment is appropriate only if there is no genuine issue of material fact. Whether the district court properly granted summary judgment and decided that Elliot Griffin was not adopted by estoppel by Kim Griffin is a question of law that should be reviewed de novo.

Argument

Summary judgment was inappropriate because genuine issues of fact exists that Elliot is Kim's child under adoption by estoppel.

1. Texas case law strongly favors the conclusion that Kim agreed to adopt Elliot.
Adoption by estoppel requires “agreement” – the adoptive parents agreed to adopt the child. Texas case law shows that the existence of an agreement can be proven by the adoptive parents’ verbal exchange with the child’s natural parents, conduct toward the child, and other relevant circumstances. Kim’s response to Ruby that she will “raise” Elliot “as one of [her] own” and her consistent representation of Elliot as her natural child should at least raise a genuine issue of fact whether she agreed to adopt Elliot.

a. Kim's words that she will do whatever she needs to raise Elliot as one of her own is functionally equivalent of verbally agreeing to adopt Elliot.
Where to to talk about Ramsay, when the adoptive parents said “I will adopt your child?”
The Hickey court held that an adoptive parent’s promise of “rais[ing] (the child) as my own” is functionally equivalent to a verbal agreement to adopt, even though the adoptive parent did not use the word “adopt.” In Hickey, the adoptive mother promised the child’s natural mother “to take the child and raise her as her own.” Here, Kim responded to Ruby that she “will do whatever [she] need[s] to raise Elliot as one of [her] own.” Kim’s words are almost identical to those of the adoptive mother in Hickey. Therefore, as the adoptive mother in Hickey, Kim verbally agreed to adopt Elliot.

In contract to the adoptive father L.D. in Guildry, who only promised to support and take care of the child, Kim’s words expressed her agreement to adopt rather than to support. In Guildry, L.D. told the natural mother of the child, that “I am going to see that [Betty (the child)] goes through school.” Additionally, he also promised that he would “support and take care of Betty as long as he lived and Betty lived.” There is no evidence suggesting that L.D. used the words that are functionally similar to “raise” the child “as one of my own.” Here, Kim’s words are distinct from L.D.’s. Kim affirmatively stated that she would “raise” and “as one of my own.” Therefore, Kim promised Ruby to adopt rather than to support Elliot.

Additionally, even when the evidence of verbal agreement is weak, the fact finder should still look at other circumstances when deciding whether an agreement existed. Spiers court found evidence sufficient for the existence of an agreement based on a witness’s vague recall of the verbal exchange between the adoptive parent and parent and the adoptive mother’s consistent representation of the child. The witness only remembered that the child’s natural mother meant to give the child to the adoptive mother permanently. Later, the adoptive mother was responsible for the child’s education and discipline. She also designated the child as her “daughter” in tax returns, insurance policies, and school records. Here, even if the trial court is not convinced that Kim had verbally agreed to adopt Elliot, fact finder should still look for her conduct to further investigate whether she had agreed to adopt Elliot. Therefore, whether Kim agreed to adopt Elliot raises a factual question.

b. Kim's conduct in treating and representing Elliot as her own child consistently further confirmed her agreement to adopt Elliot.
Texas case law shows that as long as the adoptive parents indicate “parent-child” relationship in some forms of official documents, represent and treat the child as their own consistently, courts will hold that the parents’ conduct further confirmed their verbal agreement of adoption. In Hickey, in addition to agreeing that she will “take the child and raise her as her own,” the adoptive mother designated the child as “daughter” and “adoptive daughter” on income tax returns. Here, Kim signed Elliot up for school and other activities by listing herself as Elliot’s “mother” instead of “guardian.” Hickey did not mention how the adoptive mother represented the child in public and private. Here, evidence suggests that Kim told everyone that Elliot was her son and acted as his mother in every public and private way. Therefore, Kim has performed beyond the standard set by the Hickey court to further confirm her agreement to adopt by her conduct.

Kim’s consistent representation of Elliot as her child defeats any possible hypothesis that she was trying to support Elliot rather than to adopt her. In Cavanaugh, Mrs. Barrow was found having an agreement to support and care for her niece Annie, rather than to adopt her. In addition to contradictory evidence regarding to the existence of a verbal agreement, Mrs. Barrow let Annie kept her natural mother’s last name for seven years, sometimes mentioned that she was trying to finish raising Annie since Annie’s mother died, and designated herself as “guardian” instead of “mother” twice in school records. Here, Kim gave Elliot her last name, she affirmatively responded to Ruby that she would raise Elliot as “one of [her] own,” and indicated herself as “mother” instead of “guardian” in all school and activity forms. Therefore, unlike Mrs. Barrow, who had mixed and unclear intention toward her act of raising Annie, Kim clearly demonstrated that she wanted to adopt Elliot rather than to support.

2. Whether Elliot’s conduct satisfies the “child performance” requirement at least raises fact questions that should be submitted to a jury.
Adoption by estoppel requires “child performance” – the child conferred benefit on the adoptive parents. Precedent cases have not conclusively defined which “benefits” qualify as “child performance.” Some courts recognized specific things that a child has done for the adoptive parents, while others only demand evidence of a loving bond shared by the two parties. Under either scenario, the trial court should not engage in the qualitative analysis of Elliot’s conduct toward Kim and granted summary judgment against him. The fact that Elliot called Kim “mom” and handled her estate should at least raise a genuine issue of material fact regarding whether Elliot meets the “child performance” requirement.

a. Elliot conferred on Kim posthumous benefit by spending significant money and time handling Kim's estate and therefore should raise a genuine issue of fact regarding whether he conferred benefits on Kim.
Some courts recognize specific things that a child done for the adoptive parents. None of the Texas courts have disqualified posthumous benefits for “child performance.” Since in no precedent cases did the child perform posthumous benefit on the adoptive parents, so far, courts have only recognized benefits conferred on adoptive parents when they are alive. For example, “wait[ing] on them when they were sick,” supported them in old age by earning money and providing for them, and doing chores around the house.

Here, Elliot conferred posthumous benefits on Kim by spending significant time and over $4000 in handling Kim’s estate under the assumption that he would gain little financially. Common sense tells us that this is a type of benefit that a natural or statutorily adopted child would confer on the parents. Because no court has discussed posthumous benefit and has conclusively disqualified it for “child performance,” there is at least a question of fact regarding whether the posthumous benefit that Elliot conferred on Kim qualify as benefits for “child performance” requirement.

b. The conflict between Elliot and Kim should not invalidate the established mother-son relationship between the two since many natural parent-child relationships involve hostility and therefore a fact question should be submitted to a jury.
Some other courts have interpreted “child performance” to mean a shared bond of love and affection. The Deveroex court found adoption by estoppel when there are indications that the adoptive parent and the child had a “father-son” relationship. Here, the fact that Elliot was abandoned by his natural mother at the age of four may have made him to have a difficult time adjusting to live in a new environment. He acknowledges that he rebelled against Kim and behaved angrily and sometimes violently. However, he called Kim “mom” and had never hurt her. Elliot may not be an ideal son, but based on the fact that he lived with Kim since he was four and his belief that Kim was his mother, there should at least be a question of fact whether he held enough affection toward Kim to meet the “child performance” standard.

Elliot’s hostile attitude and conduct toward Kim does not invalidate the long-lasting mother-son relationship between the two. Conflicts exist in every natural mother-son relationship although they vary in degrees. The Garcia court found existence of adoption by estoppel despite the discord in the relationship. At some point, the adoptive father in Garcia even had the child arrested for drunken behaviors. The Garcia court ultimately held that adoption by estoppel exists based on a “long continued father and son relationship.” Similar to Garcia, the conflicts between Elliot and Kim should not definitively invalidate the established mother-son relationship between the two. Elliot started to live with Kim when he was four years old. Like the child in Garcia, who had a long-standing child-parent relationship with his adoptive parent, Elliot had a long-standing child-parent relationship with Kim. Therefore, there is at least a factual question regarding whether Elliot’s long-standing son-mother relationship can trump his unfriendly conduct toward Kim.

c. The “child performance” requirement should bear a flexible standard and be interpreted as a proxy to determine whether a genuine parent-child relationship exists.
The fact that no court has defined “child performance” requirement explicitly and definitely shows that the court has preferred to treat the requirement flexible. Furthermore, in Texas jurisdiction, whenever courts have found an agreement to adopt, they have also found performance on the part of the child. Thus, findings of conferring “benefits” and “love and affection” are apparently proxies for determining whether the child performed – believed and acted on the belief that the decedent was his parent. It is apparent that Elliot believed that Kim was his mother since he called him “mom.” Elliot definitely holds some affection to Kim. Therefore, it should be left for a jury to decide what the “child performance” expectation should be in this case based on the unique fact and whether Elliot has met the expectation.

Conclusion
Summary judgment is not appropriate because there are genuine issues of facts regarding whether each requirement of the equitable adoption can be found in this case. Based on the fact that Kim told Ruby that she would “raise” Elliot as “one of [her] own” and acted as her promised, Texas case law strongly favors the conclusion that Kim agreed to adopt Elliot. Additionally, the fact that Elliot called Kim “mom” and spent significant time and money handling Kim’s estate should at least raise a question of fact that to be submitted to a jury.