September 01, 2013

Permanency to Majority: The Potential Cost of Older Parent Adoptions

Dawn J. Post

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 that adoptions sometimes don’t work out. This three-part article series looks at broken adoptions. The first looks at one cause of broken adoptions—the death or infirmity of an older adoptive caregiver. The second and third articles explore creative approaches to curbing broken adoptions—reinstating parental rights after an adoption is finalized, and reinvesting adoption bonuses to fund critical postadoption and mental health services after an adoption is finalized.

I recently represented a 16-year-old special needs young woman in a broken adoption case. Four years earlier her adoptive father had a stroke, requiring him to live in a nursing home. At that time, the young woman’s birth mother re-entered her life, creating a great deal of confusion and behavioral issues. Last year her adoptive mother was diagnosed with Alzheimer’s disease, requiring the help of a full time nurse’s aide. Fortunately, her adoptive sister filed for and obtained guardianship of her. 

In the child welfare field, changes in policy goals and objectives to speed permanency for children in foster care have increased adoptions. While no federal standards govern data collection on broken adoptions, attorneys for children who regularly practice in family court frequently see cases in which adopted children return to family court or to the foster care system. They may be subjects in abuse/neglect, custody/guardianship, voluntary placements, persons in need of supervision (PINS), or delinquency cases. 

Related factors associated with broken adoptions include: age of the child or adoptive parent; behavioral and emotional issues of the child; prior placement history; sexual abuse history; attachments to siblings; attachment to the birth parent; prenatal drug and alcohol exposure; and the lack of services and resources to properly address these issues.  They may also include organizational and institutional failures in the child welfare, mental health, education, health care, and legal communities. 

Data Needed on Broken Adoptions

As I thought about the revolving doors of family court and the lack of reported numbers on this issue, I discovered that no one in New York City was capturing these numbers including my office, the Children’s Law Center of New York (CLCNY).1 Some of the difficulty was because children’s names may have changed and different case numbers were assigned after they were adopted and returned to court. Frequently, a broken adoption only becomes known if volunteered by the adoptive parent or child or if it is included in the text of the filed petition. Indeed, it appears that only Florida tracks children returned to the system during or after the adoption.  

The desire to obtain statistics on broken adoptions was multifold. In part, the statistics might confirm what I had surmised based on anecdotal evidence: that broken adoptions are a significant and unspoken issue, not only for the children whose lives are disrupted time and again, but for the system as a whole. In addition, the statistics could inform a meaningful policy discussion that could minimize the number of cases where children re-enter the system as a result of broken adoptions. Identifying the characteristics of such cases is key to determining the steps to take to avoid the broken adoption. Thus, while statistics only reveal part of the picture, I believed it was critical to see what numbers I could find, even on a smaller scale.  As a result CLCNY conducted a six-month case study to examine cases of broken adoptions and the children who return to Family Court in guardianship cases.2 

Age a Factor in Broken Adoptions

The CLCNY study revealed the underlying cause of the broken adoption in most cases was due to either death (53%) or infirmity (22%) of the adoptive parent. In P.F.M’s case, his 68-year-old maternal grandmother adopted him when he was an infant. P.F.M. often slept with his grandmother in the hospice bed when her health declined and his daily activities were affected. P.F.M. was born addicted to drugs and had been diagnosed with ADHD when he was five. Following the death of his grandmother, while dealing with untreated feelings of loss and grief, P.F.M. was passed from one adult to another amidst allegations of neglect.

In another case, A.G.F. was placed in a residential treatment center for psychiatric treatment and behavioral issues by the nonkinship adoptive mother when the mother became ill. The adoptive mother was too ill to care for A.G.F. any longer and wanted to move to her biological daughter’s home out-of-state leaving A.G.F. behind. A.G.F.’s behavioral issues coincided with the adoptive mother’s physical decline. A social worker at the residential treatment center located a biological aunt and arranged for her to be a discharge resource and to file for guardianship, because A.G.F. struggled with the sudden abandonment in the hospital and search for a placement resource, stating in a written note to her attorney, “I can be a good person if you get to know me. If I put my mind to something, I can do it.”

P.F.M.’s case was typical of other cases in the study, identifying a trend: with the death of the family matriarch, the family unraveled, and the children frequently started experiencing repeated and multiple displacements. Although the age of the adoptive parent was learned in only a few cases, some of the specific ages of the adoptive parent in relation to the child at the time of the adoption were startling: a kinship 66-year-old placement resource adopting a four year old; a nonkinship 67-year-old placement resource adopting an infant; and a nonkinship 71-year-old placement resource adopting a nine year old. 

Many children described caring for their elderly adoptive parent when their health declined. For example, in K.M.’s case, her adoptive mother was in and out of the hospital undergoing various treatments and surgeries and was frequently on bed rest over the course of seven years following K.M.’s adoption at the age six. The average age of the child at the time of the death of the adoptive parent was 12.5.

Relative Preference Policies

The Adoption Assistance and Child Welfare Act of 1980 directs states to give preference to relatives of the adoptive child3 which may frequently be a grandparent. In New York, the law is clear that the age of the adoptive parent shall not be the dispositive factor in determining whether a child’s best interests would be served by the adoption. “[T]he age of the prospective adoptive parents is one of many factors considered, but it is not decisive. There is no statutory requirement in the law, nor any criterion established in the decided cases respecting the disqualification to adopt on account of age.”4 “Applicants accepted for adoption study shall be at least [18] years old. The agency shall not establish any other minimum or maximum age for study or acceptance.”5 

The policy arguments in favor of allowing older adults to adopt are integrally related to determining a child’s best interests. Challenges to foster care placements and adoptions based upon age are, in my experience, frequently met with charges of discrimination and ageism. Accordingly, courts have reviewed actuarial life expectancy tables and considered the probabilities of the child being raised by the adoptive parent to majority6 and reasoned that “‘[a]ge is not a matter of chronology but of physiology’” and “[t]here are young older people just as there are old younger people.”7 In addition, the courts recognize the trauma to a child by removing the child from the only home the child has ever known.8

Role of Backup Resources

When adoptive parents are over age 60, judges in New York City require that before the adoption the foster parent identify a “backup” resource. A backup resource is a person who expresses a willingness to be responsible for the child if the adoptive parent becomes unable to do so due to death, illness, or some other circumstance. 

However, this is a promise, not a legally binding commitment. Backup resources go through the same criminal clearances as adoptive parents. The rationale is that the availability of strong backup caretakers, who may have substantial interaction with the child and would take the child and raise the child to majority should the adoptive parent not live long enough to see the child grown, eliminates the issue of age as being a bar to the adoption. 

Certainly, the vision of a backup resource stepping forward to care for the child sometimes works out as intended. Upon the death of A.P.’s grandmother, who had adopted A.P. at age four when she herself was 66 years old, A.P.’s aunt immediately took over A.P.’s care and filed for guardianship. A.P. described her adoptive experience as “virtually growing up in two homes” and expressed “there is no place [I] would rather be” than at her aunt’s home at the time of finalization of the guardianship. However, the reliability of the backup resources is questionable. Significantly, considering the reliance on identifying and clearing a backup resource for the finalization of the adoption, to ensure stability and permanency for children adopted by older caretakers, only around 20% of the petitioners from the study were the actual identified back-up resource from the adoption in the CLCNY case study.

Conclusion

While considering age is a challenging and controversial issue, family court stakeholders should evaluate more critically adoptions of young children by elderly adoptive parents to ensure that they will be available to raise the child to the child’s majority. This way, the child will not be put in a position of taking care of the adoptive parent through emotional or physical decline or being left without a caretaker. In addition, efforts should be made to make the role of the back-up resource a legally binding commitment rather than just a promise. Only then can the child achieve true permanency.   

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 of these cases were filed during the relevant time period, only 15 were used for this study due to the amount of information obtained. Many of these cases were dismissed without prejudice by the second court appearance due to the nonappearance of the petitioner. 

A series of questions were developed for the study and information was compiled from the interview notes, court chronologies, and reports contained 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. These interviews were conducted to obtain missing or incomplete information. 

During summer 2011, the CPIC intern, provided by Harvard University for this project, gathered and sorted the information from the active cases. She also conducted a cold case review of 35 closed guardianship cases which involved broken adoptions, compiling the results into a spreadsheet from which data points could be run based upon a series of questions. 

The questions were developed through the following process: CLCNY attorneys, social workers, and interns reviewed the data, brainstormed about the trends and issues, and submitted proposed questions for the data points to be run on. This data allowed us to begin talking about the issue with the various stakeholders in a very concrete way and is helping lead us to creating mutually reinforcing activities.

Endnotes

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. For full results of the case study, see Dawn J. Post and Brian Zimmerman. “The Revolving Doors of Family Court: Confronting Broken Adoptions.” Capital University Law Review, Spring 2012. 

3. 42 U.S.C. § 671(a)(19) (2006) (“[T]he State shall consider giving preference to an adult relative over a nonrelated caregiver when determining a placement for a child, provided that the relative caregiver meets all relevant State child protection standards.”).

4. In re Michael D., 322 N.Y.S.2d 532, 533–34 (App. Div. 1971) (describing a case with adoptive parents who were 59 and 47 years old). See also In re Infant S., 370 N.Y.S.2d 93, 94–96 (App. Div. 1975) (describing a case with adoptive parents who were 57 and 63 years old.).

5. N.Y. Comp. Codes R. & Regs. tit. 18, § 421.16(b) (2011).

6. In re Infant S., 370 N.Y.S.2d at 96.

7. In re Jennifer A., 650 N.Y.S.2d 691, 692 (App. Div. 1996).

8. Ibid. at 693.