Legal Aspects of Adoption

The adoption of a child is the most important legal proceeding in which a person can ever engage.  As such, proper legal advice is essential. This is true no matter which type of adoption is being pursued.

The types of adoption are (1) domestic agency adoption, (2) domestic independent (non-agency) adoption, and (3) intercountry adoption. Within domestic agency adoptions, the subcategories are public agency adoption and private agency adoption. While intercountry adoption can be either agency adoption or independent adoption, it is useful to keep it as a separate category since it is unique in many ways.

From a legal point of view, every case must be either an agency adoption or an independent (non-agency) adoption. What makes a case one or the other is the way in which the parental rights pass from the birth parents to the adoptive parents. In an agency case, there are two steps. First, the birth parents' rights are relinquished to an agency. Second, the agency consents to an adoption by a particular adoptive parent or parents. In an independent adoption, there is only one step. The birth parents give consent directly to a particular adoptive parent or parents.

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1. Domestic Independent Adoption

In this country, more newborns are placed through independent adoption than through private agency adoption. While it is difficult to determine why so many birth parents now choose independent adoption, they do report some reasons consistently. These reasons include (1) a perception by birth parents that agencies are profit oriented and bureaucratic in their treatment of birth parents, (2) a desire by birth parents to play an active role in the selection of the adoptive parents, and (3) a desire on the part of birth parents for the child to go directly into the physical custody of the adoptive parents rather than into temporary foster care.

There are four states which prohibit independent adoption and require that all adoptions be agency adoptions. Even in those four states, parties are able to achieve what is, in spirit, an independent adoption:  the adoptive parents and birth parents identify each other without intervention by an agency and then arrange for the parental rights to be relinquished through an agency so that the adoption becomes a "directed agency adoption."

In an independent adoption, the birth parents and adoptive parents usually make an initial contact with one another by such means as word of mouth and newspaper advertising. The laws of some states allow individuals who are not licensed as child-placing agencies to match adoptive parents with birth parents. Even if adoptive parents do not use an intermediary, they frequently consult with an attorney when they commence their search for birth parents. That attorney will advise the adoptive parents on ways to search for birth parents and the laws which are applicable in a particular situation.

State laws usually control the adoption processes. In addition, when two or more states are involved, parties must comply with the Interstate Compact on the Placement of Children (ICPC). The ICPC applies whenever a child is brought from one state (the sending state) to another state (the receiving state) for the purposes of adoption. The ICPC requires an application for approval before a child can be transferred into the receiving state. The process requires submission of various documents, including a preplacement assessment of the fitness of the prospective parents. The ICPC official in the sending state may require that the parties comply with some aspect of the law of the sending state before the official will approve the transfer of the child.

The applicable law on most points will be the law of the state in which the adoptive parents reside. When the birth parents reside in another state or give birth in another state, it is possible that some aspects of the law of that other state will also apply. Proper legal counsel on these points is essential.

There are certain emotional and financial risks associated with independent adoptions. When birth parents initially agree to place a child for adoption but later change their minds, the adoptive parents undoubtedly suffer emotionally. Even if the child is not yet born when the birth parents change their minds, the adoptive parents have formed emotional ties with the birth mother and the expected child. If the child has already come into the physical custody of the adoptive parents, the emotional trauma will be even greater.

It is rare for the laws of a state to allow a birth parent to give a binding consent to an independent adoption before the birth of the child. In addition, states mandate various minimum waiting periods after the birth before a consent can be signed. Some states require waiting periods that range from 48 hours to 10 days. States also have varying laws governing whether or not birth parents are permitted to change their minds for a period of time after giving consent. Some states make the consents immediately irrevocable upon signing; others allow birth parents to revoke consents for short periods.

When one of the birth parents is not cooperating in the adoption plan by signing a consent to adoption, it is usually necessary to take alternative steps to terminate the rights of that birth parent. If that birth parent can be located, a court order will normally be delivered to him which requires him to come forward by a certain date if he is interested in parenting the child. If he cannot be located, it is usually necessary to publish a notice in the newspaper. Once sufficient time has passed from the newspaper publication, the court will be legally able to terminate the absent birth parent's legal rights.

Adoptive parents should consult with an attorney when they commence their search for birth parents. That attorney will either advise the adoptive parents on how to search for birth parents or actually match the adoptive parents with specific birth parents when state law permits. In most states, the attorney for the adoptive parents is ethically prohibited from simultaneously representing the birth parents. Because of this prohibition, there are some situations in which the two parties will assert that the one attorney involved is representing only the adoptive parents and that the birth parents simply have no legal representation. This approach is ill-advised because it presents dangers to all of the parties. It is a far better practice to insist that the birth parents retain separate counsel to represent their interests.
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2. Domestic Agency Adoption

Agency adoptions in this country can be accomplished either through a public agency or through a private agency. The main difference between the two is the method by which the parental rights of the birth parents are terminated. In public agency adoptions, the termination is generally involuntary.  The precipitating factor is often abuse or neglect of the child by a birth parent, but not necessarily. The event which precipitates the termination may be some other event; but it does not usually involve a voluntary decision by a birth parent to relinquish his or her parental rights.

In the above section on independent adoption, voluntary and involuntary legal methods for terminating the rights of birth parents were discussed. In general, the same legal methods are applicable to agency adoptions except the legal document signed by a birth parent is normally called a relinquishment instead of a consent. As in independent adoptions, it is sometimes necessary to terminate non-participating birth parents by delivering a court order to that birth parent or by placing a notice in a newspaper.

Because of the above, public agency adoption commonly involves older children. Private agency adoption is more likely to involve younger children, even newborns, since a birth parent will usually make a voluntary plan in advance with the agency.

In an agency adoption, it is important to clarify who is being represented by the attorneys who are involved. With respect to the agency attorney, that attorney is ethically prohibited (and prohibited by statute in some states) from providing any legal advice to either the birth parents or the adopting parents. That attorney represents the agency's interests, which are different than and potentially in conflict with the interests of the birth parents and the adoptive parents.

The emotional and financial risks associated with independent adoption were discussed above. In an agency adoption, at least in the traditional model, the emotional risks are eliminated by the child going into foster care and staying there until the legal risk period has passed. In other words, the child does not enter the adoptive parents' home until after the legal rights of the birth parents have been irrevocably terminated. Today, many agencies make what are known as "legal risk" placements which involve a child going into the home of the adoptive parents before the birth parents' legal rights have been terminated. The primary reason for doing this seems to be a desire by the birth parents to avoid foster care and a willingness by the adoptive parents to assume risk in order to experience early bonding with the child.
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3. Intercountry Adoption

When children of another country are adopted by citizens of the United States, the controlling law is the law of the child's country of origin. Normally, the adoptive parents will receive a final decree of adoption granted in the foreign country by the court or other authority which grants such decrees under the foreign country's laws. A few countries have systems which confer legal authority on the adoptive parents to finalize the adoption in the courts or the home country of the adoptive parents.

In either of the above scenarios, the action by the foreign country, which results in making the adoptive parents the legal parents of the child, does not serve to make the child a U.S. citizen. Consequently, a visa must be obtained for the child to enter the United States. In addition, the child must go through the naturalization process in order to become a U.S. Citizen
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4.  Home Study

After the consent to adoption by the birth parents, the adoptive parents are required to follow court procedures which will lead to a final decree of adoption. Whether accomplished before or after the placement, the courts will require that the adoptive parent undergo a home study.

State law dictates whether an individual social worker, a private licensed child placing agency, or a public social service agency may perform the home study. The process is designed to evaluate the adoptive parents to assure that there is nothing in their homes or backgrounds which would be contrary to the best interests of the child.

If the prospective adoptive parents have something in their background such as a health problem or involvement with law enforcement authorities, the best approach is for the adoptive parents to be totally open and honest during the home study process. It is unlikely that anything in an adoptive parent's background would have as much of a negative effect as would the perception by the home study evaluator that the adoptive parent is not being honest.
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5. Conclusion

While adoption is a critically important legal proceeding, prospective adoptive parents need not be alarmed by some of the horror stories in the media. With proper legal advice and careful planning by the adoptive parents, adoption is a wonderful way of building a family.
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Uniform Adoption Law Offers Hope

With a few exceptions, adoption is controlled by state law rather than Federal law. Each state has its own body of law on adoption. It is typical for the laws of the various states to conflict on fundamental points. As a consequence of this, interstate adoptions are presently plagued by uncertainty. This fact has been brought to the public's attention by the recent contested adoptions which have received media attention.

One of the answers to the above dilemma would be to make the laws of the states more uniform. A vehicle for achieving uniformity is available. In August of 1994, the National Conference of Commissioners on Uniform State Laws (NCCUSL) finished five years of work on a new uniform adoption act. In the final vote, the act was accepted almost unanimously by the Commissioners. It is now up to the individual states to decide if they wish to implement the act or parts of the act. While there are those who disagree with some aspects of the act, the move toward uniformity is desirable.

The Act addresses every aspect of adoption procedure from pre-placement evaluation of adoptive parents, through securing consent of the birth parents, to assuring finality once the adoption process is finished.  With this scope, it is not surprising that critics will find one or more aspects with which they do not agree.  At the same time, nearly everyone agrees that there is a need for uniformity.

Consequently, the question becomes whether an act with some flaws is better than no act at all. If we as a society are truly committed to promoting the welfare of children affected by adoption, then the answer must be "yes."

Those who oppose the Act say that it is weighted against birth parents in favor of adoptive parents. Those critics contend that the Act sets up a system for expeditiously acquiring babies for adoptive families. In truth, the Act represents the fruit of a successful effort by many individuals over many years to produce a model law which reasonably balances the interests of all the parties to an adoption.

Built into the Act are a number of safeguards. For example, the Act provides that no one may adopt a child unless the adoptive parent has undergone a pre-placement evaluation. In an attempt to promote the accomplishment of such evaluations early in the process, the Act provides that no adoptive parent may advertise a willingness to adopt without first undergoing the pre-placement evaluation.

The Act does not permit a birth parent to consent to an adoption until after the child is born, and a consent to adoption is revocable up to 192 hours (8 days) after the birth of the child. More importantly, the Act does not permit a birth parent to sign a consent until the birth parent has been counseled concerning the significance of the adoption decision.

Also built into the Act are provisions requiring notice to birth fathers who are not actively participating in the adoption plan. A number of the contested adoptions which have received media attention have been caused in large part due to lax state laws concerning notice to birth fathers.

An extremely significant aspect of the Act is a provision which protects final adoption decrees from any challenge once six months have passed from the time when the adoption is finalized. Such a provision does not violate the constitutional rights of the birth parents since there is an overriding societal interest in creating permanency for adopted children.

If an adoption is contested, the Act requires expedited court proceedings. Contested cases have involved adoptive parents being ordered to give up custody of children two to three years after their birth and their placement with the adoptive parents. These situations were created primarily because of delays in the court process. The Act's goal is to eliminate such decisions in contested cases.

Other provisions of the Act address such issues as cross-racial adoption. The Act prohibits the use of racial and ethnic matching policies designed to delay or deny an adoption. Another provision deals with the question of access to adoption records. With regard to this, the drafters of the Act came down on the traditional side by sealing the records of an adoption for 99 years. At the same time, the Act would establish a registry through which birth parents and adoptees could locate one another if there is mutual consent.

In balance, the criticisms of the Act are greatly outweighed by the crying need for uniformity. The Uniform Adoption Act represents a Herculean effort by its drafters, and it provides real hope for uniformity in adoption law.
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Avoiding Contested Adoptions

In the wake of situations such as the well-publicized tragedy of cases like the Baby Jessica and the Baby Richard cases, it seems appropriate to reflect on the need for care. The quality of the professional advice that you receive may determine the success of your adoption. More importantly, the Baby Jessica case and the Baby Richard case did not have to occur and they probably would not have occurred had the adoptive parents taken a few simple precautions at the beginning.

Several important facts about the Baby Jessica case are not generally known. The adoptive parents were residents of Michigan which was at the time one of only 6 states in the country which did not permit independent (non-agency) adoption. To resolve this problem, the adoptive parents found another state (Iowa) which not only permits independent adoption but allows non-resident adoptive parents to finalize their adoption in the state where the birth parents reside. The latter factor is critical since it enables the nonresident adoptive parents to utilize the law of the other state.

The above circumstances presented a somewhat unique situation and therefore made the need for experienced legal counsel more important. The attorney retained by the adoptive parents to represent them was apparently not experienced since he took the birth mother's consent too soon after the birth. Iowa has a 72-hour waiting period but the consent in this case was signed when only about 40 hours had passed. This defect rendered the birth mother's consent legally insufficient (and probably void) from the outset.

Another problem resulted from the fact that a separate attorney was not retained to represent the birth mother. An experienced separate attorney for the birth mother could have explored with the birth mother her commitment to the adoption and the importance of accurately identifying the birth father. While there are no safeguards which can completely eliminate the risk of a birth mother lying about the identity of the birth father (as the birth mother did in this case), involvement by an experienced professional could have drastically reduced the risk.

What is most critical to an analysis of the Baby Jessica case is an understanding that the birth mother's revocation of her consent and her revelation of the true identity of the birth father occurred when the baby was about 4 weeks old. At that point, the adoptive parents were presented with a situation in which they had no consent at all from the actual birth father and only a legally invalid consent from the birth mother (because it was signed too early). From that point on, the adoptive parents never had any realistic chance whatsoever of adopting Baby Jessica.

The Baby Richard case involved adoptive parents and a birth mother all living in Illinois. The birth mother was well aware of the birth father's identity since he was her fiancé who had lived with her until shortly before the birth. Despite this, the birth mother refused to identify the birth father. Knowing this, the adoptive parents still elected to proceed with the adoption. The birth parents reconciled with one another shortly after the birth and the birth father vigorously asserted his parental rights. Although the ensuing court battles lasted about four years and although the adoptive parents won at some of the stages, the birth father eventually prevailed and the child was returned to him and the birth mother. As in the case of Baby Jessica, the Baby Richard case was one where the adoptive parents were destined to lose because the adoptive parents did not proceed with care at the beginning stages.

Prospective adoptive parents can best protect themselves from problems by following some basic precautions, including the following:

(1) Educate yourself. There are many books available which describe the adoption process. Read as many of them as you can. Not every theory in every book is valid but, as you read more books, a common thread will emerge concerning what practices are best. Better yet, attend classes presented by support groups. In the D.C. Metropolitan area, there are excellent classes presented by FACE, Families for Private Adoption (FPA), and RESOLVE.

(2) Select an experienced adoption attorney and follow his or her advice. Here again, the local support groups are an excellent resource.  Members who have used a specific attorney will be able to give you a reference based upon first-hand experience. Another resource is the American Academy of Adoption Attorneys which has over 250 members from around the country. The Academy has a membership directory which lists the attorneys both alphabetically and geographically by the states in which they practice. The directory can be obtained free of charge by writing to the Academy at P.O. Box 33053, Washington, D.C. 20033-0053.

(3) With the advice of your attorney, determine which state law will apply to your case and follow the law religiously. The application of a particular state's law to your case (state laws are all different) should not be an afterthought, but a part of your initial planning. Those laws will control the methods you use at the outset when searching for birth parents and dictate which expenses you can legally pay.

(4) Address the birth father issue at the very beginning of your discussions with any birth mother. Failure to properly address the birth father issue is the primary cause of problematic adoptions. Most of the time, the birth father will not assert an interest in parenting the child and the law of your state will provide a legally sufficient way to protect yourself by terminating the birth father's rights. If the birth father does wish to parent the child, the situation is one you should not pursue. Either way, it is in your best interest to determine the birth father's position as early as possible.

While our hearts go out to the individuals involved in the Baby Jessica case and the Baby Richard case, those situations are certainly not representative of the vast majority of adoptions. No birth parents or adoptive parents who are considering adoption should allow these situations to deter them. If they proceed using good adoption practices, they will be rewarded by the process.

Mark T. McDermott

Law Office of Mark T. McDermott
Suite 800
910-17th St., NW
Washington, DC 20006
202-331-1440
202-331-1442 (FAX)

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