Volume 18, Number 7
By Harlan Tenenbaum
Joyous, excited, enthusiastic, and bursting with gratitude-these are not the typical descriptions applied to clients in family law. More often than not, we as family law practitioners deal with troubling, difficult, and highly negative emotional issues; and at times our clients' behavior may reflect this. Every once in a while, however, adoption-that breath of fresh air in the world of family law-makes an appearance on our doorstep, and we smile. In my opinion, there is no greater pleasure in family law than participating in a successful adoption.
There are two common kinds of adoption. One involves relatives-usually step-parents-who adopt the child or children of the person to whom they are married. The other involves a child or children who are unrelated to the adopting parents. Adoption by relatives is the most common type in the United States. Of the approximately 120,000 adoptions completed each year in this country, roughly half are step-parent or relative adoptions; 35,000 are adoptions through foster care; and the remaining 25,000 adoptions are handled by private agencies and lawyers.
According to the National Council for Adoption, approximately 1 million couples are looking to adopt at any given time in the United States, and an overwhelming majority seek newborns. There are approximately 45 couples for every eligible Caucasian infant, 1.5 couples for every bi-racial infant, and less than 1 couple per each available African American infant. The relative low number of domestic adoptions, compared with the number of people seeking to adopt, helps to explain why many individuals and couples seek to build their families by adopting children from abroad. Last year more than 16,000 foreign children were adopted by individuals and couples residing in the United States. This number represents nearly a 15 percent annual increase in the number of children being adopted from outside the United States.
Regardless of whether an adoption is a step-parent adoption, domestic adoption, or international adoption, each shares certain legal similarities. Adoption is the permanent legal transfer of all parental rights and obligations to a child from one person or couple to another person or couple. In order for those rights to be transferred, the rights of the biological parent(s), also known as birth parent(s), must be terminated, either voluntarily or involuntarily; and the adoptive parent(s) to whom the rights transfer must be qualified to adopt. Once those rights are transferred, adoptive parents then have the same rights and responsibilities as birth parents.
Birth Parent Considerations
The procedure for terminating a birth parent's rights varies from state to state and country to country. Involuntary terminations can occur when a birth parent abandons or fails to plan for the child, to support a child, is in jail, or, as is the case of many newborn placements, simply does not appear to contest termination of parental rights. Contested termination hearings can be very messy. It is incumbent upon the lawyer or agency to do its best to locate the birthparent(s) and obtain consent to the termination, which is the ideal situation. Even where a termination is voluntary, however, certain issues need to be considered.
In domestic adoptions, one must determine whether anyone has used undue influence, duress, or improper pressure in the relinquishment/termination procedure, including parents, friends, relatives, doctors, or acquaintances. A birth parent should not be under the influence of any drug, medication, or substance that might affect reasoning or judgment and, thus, the legality of the relinquishment procedure at the time it occurs. The birth parent should be asked to review the reasons for wanting to make an adoption plan and how these reasons affect the child and the individual. The birth parent's rights, even the right to parent the child, should be reviewed and explained, as should services and resources for financial assistance in the community that could be available if the birth parent chooses to parent the child.
The lawyer or agency also should discuss with the birth parent the finality of the termination decision, terms of consent to the adoption, and the birth parent's right to consult with others such as a lawyer, physician, clergy person, or counselor. The birth parent also should be informed that certain laws or future changes to the law may make it possible for the child to receive information about the birth parent's identity, and the birth parent's rights regarding such disclosures should be reviewed. The birth parent should sign a statement certifying that each of the above points was covered and indicating that his or her rights and obligations were understood. The lawyer should keep a record of the birth parent's comments, emotional state, and all significant responses during the relinquishment process.
Working with Prospective Adoptive Parents
Prospective adoptive parents must be determined to be qualified to adopt, usually through a favorable home study. Social workers at licensed adoption agencies perform the home study after the family applies to an agency and passes a preliminary screening process. In most cases, a home study is not an inquisition-like review of each and every aspect of a prospective adoptive parent's life. It simply determines whether the prospective adoptive parent can provide a life and home filled with love and opportunity for a child. Thus, the home study is both a process and a document.
The process involves a series of office interviews that educates prospective parents about adoption and lets the social worker learn about them as individuals and/or as a couple. Relationships, family backgrounds, health status, and social and employment histories typically are addressed; and employment verification, reference letters, and criminal clearances are also typically required. The social worker usually visits the home to make certain it is a safe environment for a child. This is not a military white-glove inspection with quarters bouncing off mattresses. Social workers check to see whether a home is clean and in a reasonable state of repair; adequately heated and ventilated; and has a telephone, toilet, running water, and working smoke alarms. All of this information is then consolidated into a confidential written report.
Unfortunately, adoption can be relatively expensive. Adoptions of healthy infants and children in the United States and abroad typically cost between $5,000 and $35,000. The ABA Family Law Section's Adoption Committee, recognizing that these costs can be a tremendous burden on couples wishing to build a family through adoption, lobbied successfully to have Congress implement the Hope for Children Act, which was signed into law as part of the recent federal tax cut package. The act extends and increases the adoption tax credit to $10,000 for adoptive couples who annually earn less than $150,000. In addition, many U.S. employers offer adoption benefits to help offset these costs, most commonly by reimbursing employees for a portion of the costs, including legal fees.
For more information on developing an adoption specialty, contact the ABA Family Law Section at 312/988-5603.
Developing an Adoption Specialty
If this article has enticed you to develop an adoption specialty in your practice, how should you begin? First, join the ABA Family Law Section so that you can join the Adoption Committee. The committee is comprised of adoption experts who are eager and happy to help you develop expertise in adoption law. The American Academy of Adoption Attorneys is another resource. You also need to study your state's law. Read its statutes, decisions, and procedures regarding the termination of parental rights and adoption. Attend conferences to learn about procedures in your particular state. Key questions that practitioners must be able to answer include:
- Who can adopt-single parents or only married couples? What about same sex couples? How about adults who want to adopt other adults?
- Who can place a child for adoption? Does your state require placements to be handled by a licensed adoption agency? Can lawyers perform placements of children? What about facilitators?
- Does your state law address openness in adoption (contact between birth parents and children after an adoption is finalized)?
- What fees are allowed to be paid, to whom, and for what?
- Are birth records confidential, or are they available for examination in years to come? What are the rules regarding disclosure of identifying information?
- What are the rights of the adopted child, the birth parents, and the adopting parents?
- Who can petition for the termination of parental rights? When can petitions be filed? On what grounds?
- What is the time frame in which a birth parent can change his or her mind and disrupt the placement?
- What must a birth parent to do to voluntarily consent to the termination of his or her parental rights? What happens when only one parent consents?
- Whom does the lawyer represent? Is more than one lawyer necessary?
- When does an adoption become final?
- In an international adoption, is re-adoption in the United States necessary? Is it advisable? What, if anything, is needed under The Hague Convention on Intercountry Adoption?
Once you are comfortable with your understanding of these issues, speak to established adoption attorneys in your area. In most states, lawyers are required for different parties in an adoption proceeding, so many lawyers are not necessarily threatened by territorial encroachment and welcome the opportunity to work with other counsel. Look to see whether your state has a child advocacy program or guardian ad litem statute. Provide pro bono services to nonprofit adoption agencies or your state's division of family services.
Developing an adoption practice can also benefit other areas of a firm. Referrals come from adoptive parents, members of their extended families, and their friends, as well as from birth parents and their families. Lawyers should let adoption clients know of other services offered by their firm. If a firm prepares wills or does estate planning, what better time to let the new parents know of those services?
Harlan Tenenbaum is a partner in Tenenbaum and Tenenbaum, P.A., and the director of Adoption House, Inc., a fully licensed nonprofit adoption agency specializing in the placement of domestic newborn infants and infants and toddlers from overseas. He is the chair of the ABA Family Law Section's Adoption Committee.