What is Adoptive Placement?
Adoptive placement is a legal term that refers to the process in which a child is placed in the care of an adoptive family. This process can take many different forms depending on the type of adoption, but in every context, it includes the key step of placing a child with his or her adoptive parents. It is a step that is often taken days, weeks, or even months after the birth of the child with whom the family wants to be connected.
The placement process is typically not an easy one, as the birth mother must get to know the adoptive family before she makes the most difficult decision of her life to share a child she has carried for months with people she did not even know existed before she got pregnant. As you can probably imagine, the entire experience is emotionally and psychologically taxing, and that’s putting it lightly.
After birth, the agency or facilitators will move the child into the home of the adoptive family. They’ll arrange for relevant counseling and parenting classes , and begin to prepare them for the official adoption of the child and the required steps to finalize it.
In an open adoption, the birth mother and the adoptive parents will have a relationship that allows them a level of involvement in the other’s lives. Cantor says this could involve "photos and letters throughout the year, and contact be between the families during designated visits." A closed adoption does not involve any direct contact between the two families, but the level of openness is a negotiation that occurs during the placement process.
It is important to understand the concept of adoptive placement if you are an individual or family looking to foster or adopt a child. Understanding the basics of this process, especially in how it relates to your specific situation, will help you when considering a decision to seek adoption or to become more involved in the adoption process.
Forms of Legal Risks in an Adoption
There are a number of legal risks which can arise in an adoptive placement. Potential risks may include, but not be limited to, the following (which are neither mutually exclusive nor exhaustive): contested or denied adoptions, lack of necessary parental consent, revocation of consent, rights of birth parents, rights of adoptive parents, and particularly with regard to ordinary adoption (including not just agency/court programs but also private direct placement), the failure of an adoption agency (or a direct private placement attorney) to conduct a proper home study prior to placement. In situations in which the agency/court does conduct a proper home study before placement, no one anticipates problems, and adopts take place without a hitch. In a minority of cases, however, problems can arise, and the end result can be a contested adoption, a denied adoption, or even the revocation of consent. (Note: contested adoptions and revoked adoptions are discussed in their own blogs.)
Legal Risks Faced by Potential Adoptive Parents
When seeking to adopt a child, prospective parents should be aware of the legal requirements for all adopting parents in the state in which they live and intend to proceed with adoption. This discussion is a general overview of legal requirements, but the final step in adoptions may fall under federal or state jurisdiction, so this overview cannot address local customs. Prospective parents should confirm that all requirements are met in order to avoid legal complications.
A person who is adopting a child may not have committed certain crimes. Generally, criminal disqualifications include felonies involving sexual conduct and violent abuse of children and fiduciary failures by a fiduciary. In many states, people who have been convicted of offenses involving greater than two years in prison, or who have been designated a dangerous offender are not permitted to adopt a child. Likewise, persons found culpable for child abuse and sexual offenses, domestic violence, other violent or sexual crimes, and drug or alcohol crimes are disqualified. People who have abused drugs or alcohol or who have been placed on years of probation are disqualified in many states. Robbery, carjacking, vehicular assault, conspiracy, fleeing from police, and flight risk areas disqualify candidates as well.
Home studies and background checks are common requirements for adopting parents. A home study generally includes a physical site inspection of the home in which the child will be placed, confirmation that the home or apartment exceeds local minimum size and safety requirements, and proof that the proposed child will have a separate area of the home for sleeping and activities. Other requirements include the date of the most recent fire drills performed in the home, emergency exit routes, availability of a fire extinguisher, and carbon monoxide detector, whether the home is equipped with a working smoke detector, and whether chemicals are located in a secure location.
Background checks of the asking parents are common ground for disqualification. Like general criminal disqualifications cited above, many states will consider criminal history, active criminal investigations, guilty plea arrangements, pending chemical abuse issues, and false representations in the application.
Dealing with Adoption-Related Legal Risks
To effectively manage your legal risks, you should consider the following:
1. Work with an experienced adoption attorney.
You should enlist the services of an experienced adoption attorney who can help you identify the potential legal issues and risks associated with your particular situation. You might find that your attorney has also been personally involved in adoption; that experience could be invaluable to your process.
2. Be informed about the adoption laws in your jurisdiction.
You should have a basic understanding of the adoption laws and regulations in your jurisdiction—as well as those jurisdictions affected by the adoption—so that you are adequately prepared to respond if a complication arises. You must educate yourself, especially when it comes to potential risks.
3. Seek out educational resources.
You should continue to inform yourself beyond your legal counsel’s advice by availing yourself of other educational resources and networking opportunities. Online forums and support groups, local adoption agencies and websites for local adoption networks can provide a wealth of information that may help you to feel more confident throughout the process.
4. Build solid lines of communication with your adoption attorney.
Maintaining clear channels of open communication with your adoption attorney is critical. Make sure your adoption attorney is aware of all developments in the matter, including family dynamics that might affect the process. Don’t hesitate to interface with your attorney as new developments unfold.
Roles of Agencies and Attorneys
The intersections between adoption law and child welfare law are not limited to the courts, and the law does not exclusively regulate relationships between people. As the life circumstances of biological parents, adoptive parents, foster parents, and the children they strive to care for become ever-more complex, and more differences in political and legal regimes emerge in different areas of the world, legal professionals are increasingly finding themselves involved in resolving issues related to adoption. Primarily, their job is related to legal representation, and as such, the analysis of ethical issues will have a relational focus in this Section. But other types of professionals involved in adoption also increasingly find themselves engaged on a daily basis with issues at the adoption law/child welfare law interface .
In many jurisdictions around the world, adoption only occurs in connection with the bona fide care, treatment, and furtherance of the welfare of the child. Accordingly, it is not surprising that on a daily basis, social service professionals, taking a hands-on approach, determine the suitability of placements of children in foster care or with respect to adoption. Where placement is pursued, it is adopted/foster parents and/or certain adoption agencies that are charged with the responsibility of interfacing with the government and legal authorities that oversee child welfare and adoption laws. While the roles of the various professionals may differ, there are several ways in which these professionals interface with adoption law and child welfare law. They include: Interfacing with the Courts; Parent-Child placements; Interfacing with the Parties from inception of Adoption through to adoption finalization; and Interfacing with Law Enforcement.
Example Cases of Legal Risks in Adoption
The following are examples of "real life" adoptions and the legal risks that were present in each. These examples can help guide an adoptive parent on the importance of legal representation in adoptions.
CASE STUDY #1: A Colorado case is being appealed to the Colorado Court of Appeals. The trial court found that biological parents had abandoned their newborn child, but the appellate court reversed, finding that due process protections had not been met. After eight months in foster care, the biological parents’ rights were terminated due to abandonment.
However, another County filed a Petition to intervene in the adoption and argues that they are a necessary party because they contracted with Denver County to handle the adoption of this child. Denver County denies this allegation. Basically, once the adoption has been finalized, there is no further legal basis for standing to challenge it. The parents petitioned the juvenile court to vacate its adoption order and submit the case to arbitration. This petition was denied and the issue was appealed. We await the Court of Appeals decision. The lesson in this case is that conflict can last for years and the party with deep pockets can have the upper hand when litigation is concerned.
CASE STUDY #2: In Michigan, the agency’s contract with Michigan Department of Human Services (formerly Family Independence Agency) requires check-ins every 6 months with the birth parents. In addition, in Michigan, a person whose parental rights have been terminated does not lose their right to communicate with the children if the communication is alleged to be inappropriate.
Because each state has a unique set of laws, Ohio adoptive parents should file for an adoption hearing as soon as possible after all parties agree to the adoption. The Green card will show that the adoption has taken place. The birth parents can attempt to set aside the adoption decree under Ohio Rev. Code 3107.125 but we have never seen this happen.
CASE STUDY #3: Adoptive parents traveled domestically to the State of New York to file an adoption Petition. However, upon arrival at the adoption agency, the birth parents changed their mind and retained counsel to contest the adoption. The New York attorney recommended that the adoptive parents wait for 6 months before the adoption proceeds. Had the adoptive parents brought counsel with them to the adoption agency, this could have been avoided.
CASE STUDY #4: An Ohio birth mother avoided seeking post-natal medical care for fear that she would be turned over to Children’s Services. She and the potential adoptive parents secretly exchanged information about the health status of the infant and agreed that the visit would be on hospital grounds. While it is important for pre- and post-natal care to occur, the adoptive parents should not assist in hiding the birth parents from Children’s Services. In fact, the potential adoptive parents may be asked by Children’s Services about their knowledge of the whereabouts of the birth parents.
Take-away: Just because your adoption consultant or social worker recommends a particular adoption agency, you are free to choose the agency you want. Your attorney should review the adoption agency agreement because some agencies have their own set of agency rules and regulations. At the very least, the website or agency should state whether they are Hague accredited.
Resources for Adoption Legal Risk
To help minimize the risk of legal issues, various resources are available to intended adoptive parents, including online resources, books, support groups, and legal aid. For online resources, the Archibald Project offers a comprehensive overview of adoption law by state, including a discussion on intermediaries, private adoptions, and costs. The blog at an Adoption Law Advocate has a wealth of information on adoption-related legal risks, along with links to other resources. The Adoption Resources Network also offers information about the adoption process in every state (not all adoption laws are created equal) and other articles, including on red flags in adoption. The Child Welfare Information Gateway provides detailed information about the steps involved in an adoption, the types of adoption, and how to avoid possible scams. Family and Child Services of Ottawa documents how to safeguard against fraud when hiring an intermediary to assist with an adoption. Books can be a great way to learn more about the risk of legal issues in an adoption , as well as how to prepare for navigating the process. Two books dealing with private adoptions include the New Adoption Advocacy: A Professionals Guide to Representing Parents and Children by Robert Podnos and New Adoption Advocacy: An Adoptive Parents Guide to Finding a Lawyer by Robert Podnos and Lisa Hayes. Support groups are also available for prospective adoptive parents. For example, The Bonding Addition is a blog that covers the experiences of adoptive parents throughout the adoption process, from waiting on an adoption to dealing with any risks of disruption. Local legal aid organizations may be able to provide assistance, including specifically for individuals with limited incomes who may be indigent. The local bar association usually can help locate legal aid organizations. In addition, adoption agencies can be a resource for to intended adoptive parents regarding how best to avoid any legal risk when moving forward with an adoption. Agencies may have staff in the state where the adoption will take place and may also be able to provide information about how legal risks can be avoided, such as what steps can be taken to safeguard against an adoption disruption.