The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Adoption is meant to be permanent. The reality is adoptions sometimes don’t work out. This three-part article series looks at broken adoptions. The first article (Sept 2013 CLP) looked at one cause of broken adoptions—the death or infirmity of an older adoptive caregiver. This article explores one approach to curbing broken adoptions—reinstating parental rights after an adoption is finalized. The third article will explore reinvesting adoption bonuses to fund postadoption and mental health services after an adoption is finalized.
A few years ago, I observed a custody case involving adoptive parents, a legal guardian, and a biological mother. The child had been adopted from foster care when she was about three years old. When she reached adolescence, she began acting out, disobeying her adoptive parents’ rules, and staying out late.
The year before, the adoptive parents arranged for her siblings’ adoptive mother to file for guardianship of her. The case returned to family court because the legal guardian no longer wanted the young woman in her home. While the three adults argued and postured about how they did not want the teen and should not be forced to take her back into their homes, a fourth woman—the biological mother—begged for the chance.
The teen’s mother overcame the addiction that caused her children’s removal, had a stable residence, and was employed in a drug and alcohol rehabilitation facility. However, the court advised her that she lacked standing to seek custody since her parental rights had been terminated. The court dismissed her custody petition. The court refused to vacate the letters of guardianship observing the legal guardian had the right to decide where the teen stayed and with whom, including the biological mother. As the parties left court, the legal guardian angrily proclaimed, she “ain’t coming back to my house.”
Such cases prompted me and a colleague to study broken adoptions in family court and explore the issue in a more systematic way. I began hearing anecdotally of more cases at my office, The Children’s Law Center New York (CLCNY)1, involving broken adoptions in custody and guardianship cases.
The CLCNY office conducted a case study to capture the experiences and stories of the child clients to provide context and a clearer picture of what causes broken adoptions. CLCNY conducted a six-month case study to examine broken adoption cases and the children who return to family court in guardianship cases. Full study results were reported in “The Revolving Doors of Family Court: Confronting Broken Adoptions.”2 Some results:
The underlying cause of the broken adoption in most cases (75%) was death (53%) or infirmity (22%) of the adoptive parent. In the remaining cases, abuse and neglect allegations were cited in the petition as a primary or contributory factor for filing by the petitioner, or were raised during the petitioner and child interviews, as the underlying cause of the broken adoption in 25% of the cases, with physical abuse and punishment described most frequently.
Although behavior was not cited as the primary reason for the broken adoption, either because we took a client-directed approach in information gathering or because adoptive parents did not want to acknowledge it was the reason for returning the child, it was cited as a contributory factor in 43% of cases.
Postadoption services (services such as mental health treatment provided from foster care placement and after adoption finalization as a formal referral to an agency offering postadoption services) were in place at the adoption finalization in 12% of cases in the CLCNY case study.
However, 27% of the children in the case study had a pre-existing physical, mental, or emotional condition before the adoption, suggesting that 15% remained underserved when the adoption was finalized. While New York City Children’s Services was involved in many cases in the study, their role was limited to finding a new placement for the child. There were no efforts by New York City Children’s Services in the CLCNY cases to offer services to stabilize adoptive placements.
Biological Family and Parent Involvement Postadoption
In 75% of cases involving a broken adoption, the immediate biological family (parent, sibling, aunt, uncle, or grandparent) remained involved in the child’s life, either consistently or intermittently. This figure was startling because 58% of the cases involved nonkinship adoptions. It was also startling because all the adoptions would have taken place before passage of the postadoption contact agreements legislation in New York, which allows communication or visitation between the biological parent and child.
All of the children the CLCNY attorneys interviewed said that, despite how young they may have been when they were adopted, they always knew who their biological family members were and where to find them. Curiously, even parents whose rights were terminated and who had not overcome the issues that originally brought the children into foster care were used by the nonkinship adoptive parent as babysitters and as a visiting resource for children as they grew up.
At the same time, many adoptive parents repeatedly referred to biological families, even in front of their child, as “bad” or “evil” and referred to the child as having “bad genes.” Such labels were undoubtedly absorbed by children as reflections of themselves and could have contributed to behavioral issues when they reached adolescence and faced issues around identity and feelings of grief and loss.
When I looked at the petitioners and their relationship to the child, biological family members constituted the largest petitioning group (62%), followed by adoptive family members or parents (26%), and unrelated individuals (11%). Breaking the data down further, I compared cases in which children were adopted by nonkinship families and there was no agreement for continued contact between the child and biological parent but a biological family member was the petitioner in the guardianship proceeding (44%).
Can Biological Parents’ Regain Custody Postadoption?
Although New York’s custody statute does not restrict the type of individuals who may apply for custody of a child, in a line of cases the court found biological parents whose parental rights have been permanently terminated due to neglect lack standing to later seek custody.3 In one instance, the court noted:
Once Tiffany A.’s parental rights were terminated, she became a legal stranger to the children and they became wards of the state, and once the children were adopted by their foster mother, pursuant to DRL § 117(1)(a), the natural parent was “relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child[ren].” In the words of the Court of Appeals, adoption is unlike other custody proceedings because it “leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child’s religious, educational, emotional, or physical development. For all practical purposes, the parent no longer exists.”4
In 2007, a Kings County referee awarded guardianship to a biological mother nearly 10 years after the child was freed for adoption.5 In that case, the court held a biological parent could obtain this relief upon showing “that the circumstances precipitating the child’s placement in foster care had been resolved.”6 Further, the petitioner had “establish[ed] by substantial evidence that the child would suffer serious harm if the parent was not awarded custody.”7
In the CLCNY study, V.P. was born with a positive toxicology to cocaine and was immediately placed into nonkinship foster care. He was eventually diagnosed with cerebral palsy, was wheelchair bound, and required 24-hour care. After the biological mother was incarcerated for selling a controlled substance, she surrendered her parental rights and V.P. was adopted by his foster mother. After the adoptive mother’s death, her daughter moved from Maryland, obtained custody of V.P., and remained in New York with him in the adoptive mother’s apartment.
When the adoptive mother’s daughter was later diagnosed with terminal cancer and was being evicted from her apartment, the biological mother stepped forward and applied for guardianship. The biological mother had been clean since her release, had obtained a bachelor’s degree and was about to start in a master’s program, and held a clerical job at the same company for five years. She had maintained contact with V.P. after his adoption, visiting in the adoptive parent’s home. While V.P. was in his biological mother’s care under a temporary order of guardianship with supportive services, the biological mother attended to V.P.’s special needs. Following an investigation by New York City Children’s Services and drug testing of the biological mother, she was granted a final order of guardianship. However, this order was arguably deficient.
In practice, while some judges or referees will automatically dismiss the case at the first appearance for lack of standing, many will allow the petition to survive and will grant a custody order despite the standing issue and prevailing case law. It depends on the judge or referee who handles the case.
In addition, as CLCNY’s study shows, despite prior involvement by New York City Children’s Services in termination of parental rights proceedings, New York City Children’s Services may later place the child in the biological parent’s home when a broken adoption occurs. As a result, judges or referees may be more likely to issue a custody order despite the standing issues. New York City Children’s Services has long recognized that birth parents may be a viable option for permanency for a child previously freed for adoption. A 2003 agency memorandum outlining the guidelines for adolescent cases recognized:
In certain special cases, the best permanency resource for a young person who has been freed for adoption may be a member of the child’s birth family, including a parent from whom the child has been freed. Sometimes, a parent’s situation has changed significantly since the time of the termination proceeding and a bond between the youth and his birth family continues.
These are not cases in which an appeal is likely. Generally no one else wants the child or the adoptive parent consents. However, there should be a legal mechanism allowing biological parents to care for their child if a broken adoption occurs.
Restoring Parental Rights
In November 2010, New York implemented a provision to the termination of parental rights statute authorizing the family court to reinstate birth parents’ rights under narrow circumstances.8 These circumstances include when parental rights have been terminated for more than two years “prior to the date of filing,” the child is at least 14 years old, and “has not been adopted . . . [or] have a permanency goal of adoption.”9 The child, child’s attorney, and the social services agency to which the custody of the child was committed all have standing to file.10 However, the biological parent does not.11
The statute only permits restoring parental rights before the adoption is finalized.12 It does not apply to situations such as In re Rasheed A. or to the broken adoption cases in the CLCNY study. In fact, all 11 states with restoration of parental rights statutes limit their application to children who have been freed but who have not found permanency through adoption.13
Moving children to permanency, whether through return to a parent or adoption, is an important goal.
Although many adoptions succeed, the CLCNY study reveals broken adoptions occur for many children. Nationally, other states and courts also face this issue. In broken adoptions where biological parents are ready and able to take their children upon the loss of the adoptive parent, a legal mechanism should allow them to do so. Expanding restoration of parental rights statutes provides this legal mechanism.
Dawn J. Post, JD, is Co-Borough Director at the Children’s Law Center in Brooklyn, NY.
About the Study
From January 2011 through July 2011, CLCNY conducted a six-month case study. While 25 cases were filed, only 15 were used for this study due to the amount of information obtained. Many cases were dismissed without prejudice by the second court appearance due to nonappearance of the petitioner.
Questions were developed and information was compiled from the interview notes, court chronologies, and reports in the files. Follow-up telephone interviews were conducted by an intern from the Center for Public Interest Careers (CPIC) at Harvard University, staff attorneys, and volunteer interns to obtain missing or incomplete information.
During summer 2011, the Harvard CPIC intern gathered and sorted information from the active cases. She also conducted a case review of 35 closed guardianship cases involving broken adoptions, compiling the results into a spreadsheet; data points could then be run based on a series of questions.
To develop the questions, CLCNY attorneys, social workers, and interns reviewed the data, brainstormed trends and issues, and submitted proposed questions for the data points. This data allowed us to begin talking about the issue with stakeholders in a concrete way and and create mutually reinforcing activities.
1. The Children’s Law Center New York (“CLCNY”) is a nonprofit law firm that represents over 9,000 children per year in custody, visitation, guardianship, family offense, paternity, and related child protective proceedings www.clcny.org.
2. Dawn J. Post and Brian Zimmerman. “The Revolving Doors of Family Court: Confronting Broken Adoptions.” Capital University, Law Review, Spring 2012.
3. See, e.g., In re John Santosky, 557 N.Y.S.2d 473, 473 (App. Div. 1990); In re Tiffany H., 656 N.Y.S.2d 792, 797 (Fam. Ct., Kings Cnty. 1996); In re T.C., 759 N.Y.S.2d 295, 297 (Fam. Ct., Kings Cnty. 2003).
4. In re Tiffany H., 656 N.Y.S.2d at 795 (quoting In re Ricky Ralph M., 436 N.E.2d 491, 493 (N.Y. 1982)).
5. In re Rasheed A., No. G19009/06, 2007 N.Y. Misc. LEXIS 5853, at *1–2 (Fam. Ct. July 6, 2007).
6. Ibid., *1.
8. N.Y. Fam. Ct. Act §§ 635(a), 635(d) (McKinney 2011).
10. Ibid. § 636(a).
11. Ibid. (biological parent not mentioned).
12. Ibid. § 635(d).
13. Alaska Stat. § 47.10.098; Cal. Welf. & Inst. Code § 266.26; 2010 Hawaii Session Laws SB 2716, Act 135; 705 Ill. Comp. Stat. 405/2-28 and 705 Ill. Comp. Stat. 405/2-34; La. Child. Code Ann. Art. 1051; Sec. 16.22 MRSA § 4059; 2011 N.C. Sess. Laws, HB 382, Chap. 295; Nev. Rev. Stat. Ann. § 128.160, 128.70; N.Y. Fam. Ct. Act §§ 635-637; Okla. Stat. Ann. Tit. 10A, § 1-4-909; Va. Code Ann. § 16.1-241(K); Wash. Rev. Code. Ann. § 13.34.215.