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Class NameInstructor NameDate, Semester

Family Law for the Paralegal2nd Edition

Wilson

Chapter 14:Adoption

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Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

Explain what adoption is and the purposes it serves.

Identify various types of adoption.

Distinguish between an open and a closed adoption.

14.1

14.2

14.3

12

Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

List the major steps in the adoption process.

Discuss the rights of wed and unwed biological parents in the adoption process.

Explain what a putative father registry is and the purposes it serves.

14.4

14.5

14.6

12

Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Cont.

Identify circumstances in which parental rights may be terminated.

Identify who must consent to an adoption and what the characteristics of an effective consent are.

Explain what a safe haven law is.

14.7

14.8

14.9

12

Class NameInstructor NameDate, Semester

LEARNING OBJECTIVESAfter this lecture, you should be able to:

Explain when an adoption may be challenged and by whom.

Describe the role of the paralegal in an adoption case.

14.10

14.11

Learning ObjectiveAfter this lecture, you should be able to:

14.1Explain what adoption is and the purposes it serves.

• Adoption is the judicial process by which a new parent-child relationship is created and an adoptive parent assumes the legal rights and duties of a biological parent.

• It is essentially a two-step process in which an existing parent-child relationship (usually between a child and one or both of his or her birth parents) is terminated and a new relationship is judicially created, in effect, a birth by legal process.

• An adoptive parent may be a stranger to the child, a relative, a step-parent, or a known but unrelated adult as is usually the case in an adult adoption.

• The adoption may and, in some states, must be coordinated by a state-approved public or private agency, and in the ART context may be facilitated by a contractual agreement enforceable in the courts.

What is adoption and what purposes does it serve?14.1

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• Adoption has existed for centuries. It initially served to meet the needs of adults wishing to maintain political power, and ensure heirs and the orderly transfer of wealth. Today its primary purpose is to protect children and ensure their futures within the context of a family unit.

• Once finalized, the relationship between the adoptee and adoptive parent is as permanent as the relationship between a child and a biological parent and it does not end with a parent’s death or divorce. It can only be terminated by court order. 

• Adoption brings to the child a wide range of benefits including, for example, the right to be supported while a minor, the right to inherit by and through the adoptive parents, the right to receive worker’s compensation benefits for dependents, and the right to bring a wrongful death action on the death of an adoptive parent.

What purposes does adoption serve?14.1

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Learning ObjectiveAfter this lecture, you should be able to:

14.2 Identify various types of adoption.

• Agency adoption: an adoption facilitated by an agency licensed by the state that is essentially responsible for all phases of the adoption process

• All states permit agency adoptions and many require that an agency facilitate the adoption except in the case of a step-parent or close family member.

• Independent adoption: sometimes called private, designated or identified adoption, an independent adoption is usually facilitated by a third party such as a physician or an attorney, rather than by a licensed state agency but it still must be approved by a court

• A majority of states permit independent adoptions but some do not because of concern that they are not as carefully regulated or screened as agency adoptions.

What are the five major types of adoption?14.2

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• International adoption: an adoption in which a child residing in one country is adopted by a resident of another country

• This is a highly specialized area of practice in which careful attention must be given to complying with the laws governing adoption in both countries including immigration laws. (See Paralegal Application 14.1 Do You Want to Learn More About International Adoption? on pages 488-489.)

• Equitable adoption/adoption by estoppel: refers to a situation in which prospective adoptive parents accept a child into their home and raise the child as their own without ever finalizing the formal adoption process

• The courts in some states will treat this situation as if the adoption actually took place especially when adoptive parents die without a will and an effort is made to deny the child’s inheritance claim.

What are the five major types of adoption? (continued)14.2

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• Illegal/black market adoption: an adoption brokered by an individual who collects a substantial fee for locating a child who is transferred from one person or couple to another without formal legal process

• “Baby selling” is prohibited in all states and such “adoptions are likely to be considered void if challenged at a later date.

What are the five major types of adoption? (continued)14.2

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Learning ObjectiveAfter this lecture, you should be able to:

14.3Distinguish between an open and a closed adoption.

• Closed adoption: The traditional model, a closed adoption is an adoption in which biological and adoptive parents essentially know nothing about each other, and adoptees have no access to their original birth certificates or identifying information about their biological parents. The general rule is that once an adoption is finalized, a new birth certificate is issued and an effort is made to protect the privacy of the birth parents and the security of the new adoptive family unit.

• Open adoption: An open adoption is an adoption in which biological parents, adoptive parents, and adoptees have varying degrees of contact with each other.

• Increasingly states are providing for the release of information to adoptees under special circumstances (such as medical emergencies) and/or when the adoptee reaches the age of majority (usually 18).

What is the difference between an open and a closed adoption?14.3

14

Learning ObjectiveAfter this lecture, you should be able to:

14.4 List the major steps in the adoption process.

• Adoption is a creation of statute and is subject to governing state and federal laws. Each state has enacted its own procedures and practices which vary considerably from state to state.

• The steps are carried out by several individuals whose roles and relationships vary depending on governing law and the facts of each case: biological parents, adoptive parents, attorneys, agency personnel, third-party facilitators, and the courts.

What are the major steps in the adoption process?14.4

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• The basic process in virtually all states includes the following:

– Determine the rights of the biological/legal parents

– Terminate the rights of the biological/legal parents by consent or involuntary termination

– Identify potential adoptive parents and adoptees

– Conduct home studies (See Exhibit 14.1 on page 510 of the text.)

– Determine proper jurisdiction and venue

– File petition for adoption (See Exhibit 14.12 on pages 512-514 of the text.)

– Serve notice on all interested parties

– Conduct a preliminary hearing

– Issue an interlocutory decree granting temporary custody to the adoptive parents

– Arrange preadoption placement with the adoptive parents

– Issue final decree

– Consider challenges to the decree, if any

What are the major steps in the adoption process? (continued) 14.4

17

Learning ObjectiveAfter this lecture, you should be able to:

14.5Discuss the rights of wed and unwed biological parents in the adoption process.

• The biological mother: Her rights are essentially established at birth. She can choose to place her child and consent to adoption or her rights may be terminated by clear and convincing evidence.

• The married father: Under the marital presumption, if no other father has been legally established, the married father’s parental rights must be surrendered or terminated for the adoption to move forward.

• The father whose identity or whereabouts are unknown: A diligent search must be made to identify and locate the father and proof of the effort may be required by the court. A failure to conduct a proper search can result in a later challenge to the adoption on the grounds the father did not receive proper notice. 

What are the rights of biological parents in the adoption process?14.5

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• The nonmarital biological father: Under common law, the unmarried father had no rights to intervene in an action to adopt his child. His rights in the contemporary adoption context are shaped by a series of U.S. Supreme Court cases.

• The Court has established that fathers of nonmarital children have constitutionally protected rights under the Equal Protection Clause and a privacy interest in the children they have sired such that their rights cannot be terminated without notice and an opportunity to be heard.

• But their rights are neither automatic nor unlimited. Under the biology-plus rule, an unwed father’s rights are entitled to constitutional protection only if the father grasps the opportunity to develop a relationship with and accept responsibility for his child.

• The extent of demonstrated commitment that must be shown by the unmarried father varies by state.

What are the rights of biological parents in the adoption process? (continued)14.5

20

Learning ObjectiveAfter this lecture, you should be able to:

14.6Explain what a putative father registry is and the purposes it serves.

• A putative father is a man who is believed to be (or believes himself to be) the father of a child but who was not married to the mother when the child was born and whose paternity has not yet been established by legal process.

• A putative father registry is a vehicle available in one form or another in a majority of states that is designed to protect a putative father’s parental rights by giving him notice of a pending adoption proceeding without his having to rely on the birth mother or prospective adoptive parents for such information.

• When a putative father registers, he is registering his intent to assert his rights and responsibilities as a parent. If he registers within a specified time period, he will be given notice of a proposed adoption of his child and petition for termination of his parental rights.

What is a putative father registry and what purposes does it serve?14.6

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Learning ObjectiveAfter this lecture, you should be able to:

Identify circumstances in which parental rights may be terminated.

• Prior to the 1960s, public policy favored preservation of the biological family as a priority and reunification of the family if a child was removed from the home temporarily and placed in the care of the state for some reason.

• Today under federal and state law, the focus is on permanency planning for the thousands of children in state care who have lost their parents due to death, abandonment, incarceration, and/or abuse and neglect. Permanency planning is designed to move children as soon as possible into healthy, stable, and permanent homes.

Under what circumstances can a legal parent’s rights be terminated?14.7

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• For an adoption to proceed, in most cases, the biological parents’ rights must be extinguished through voluntary consent or involuntary termination. This is usually accomplished in one of four ways.

• The parents voluntarily surrender their rights and th e court transfers custody of the child to an agency which places the child in foster care or some other residential setting pending adoption.

• The biological/legal parents consent to the adoption directly and their consents are filed with the petition for adoption.

• The biological/legal parents’ rights are terminated by the court for cause and the state is granted custody of the child pending an adoption.

• One of the parents, a third party, or a prospective adoptive parent asks the court to dispense with parental consent and release the child for adoption given the circumstances of the case.

Under what circumstances can a legal parent’s rights be terminated? (continued)14.7

25

• Because they are constitutionally protected, parental rights generally cannot be terminated without notice and an opportunity to be heard in a termination proceeding.

• Although there is no constitutional right to an attorney in a termination proceeding, most states establish such a right.

• The states generally establish by statute, administrative regulation, and/or case law the circumstances in which termination can occur given clear and convincing evidence of parental unfitness and the best interests of the child.

• Parental rights cannot be terminated simply because parents are poor, exercise weak parental judgment, are messy housekeepers, drink, or are strict or lax in discipline.

Under what circumstances can a legal parent’s rights be terminated? (continued)14.7

26

• Examples of circumstances in which parental rights may be terminated include the following:

– They are incarcerated for serious crimes against children.

– They abandon their children for a prolonged period.– They fail to support their children for an extended

period of time depriving them of the necessaries of life (food, clothing, shelter, etc.) although nonsupport alone may not be enough.

– They place the child in an unsafe environment by engaging in high risk and/or illegal behaviors in the presence of the child such as prostitution and sales of drugs and weapons.

– The fail to participate in a court-ordered family-reunification plan.

Under what circumstances can a legal parent’s rights be terminated? (continued)14.7

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Learning ObjectiveAfter this lecture, you should be able to:

14.8Identify who must consent to an adoption and what the characteristics of an effective consent are.

• Each state establishes by statute or administrative regulation the requirements governing consent to the kinds of adoptions permitted in the jurisdiction: who must consent, the form of the consent, when the consent can be given, and the circumstances under which the consent can be revoked.

• Consent rules are designed to balance the constitutionally protected rights of biological/legal parents and the rights of adoptive parents seeking to establish a new family unit with confidence.

Who must consent to an adoption?14.8

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• Absent involuntarily termination, the mother’s consent (or surrender of parental rights) is required and the father’s consent may be required depending on the circumstances (Is he married or unmarried? if unmarried has he made an effort to establish his rights and responsibilities as a father?)

• In most states, courts will consider the wishes of the child and, in some states, the adoptee’s consent may be required if he or she has reached a certain age (usually 12-14).

• Unlike a typical adoption, in a step-parent adoption, the cut-off rule does not apply to the parent who remains in the new family unit.

Who must consent to an adoption? (continued)14.8

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• The consent must be in an impartially witnessed and notarized writing that clearly identifies the child and the parental rights being terminated.

• The consent must be informed: Ideally, the parent should participate in some form of counseling and have legal advice with respect to the nature and effect of the consent.

• The consent is more likely to be deemed valid if the parent has been given copies of all documents to be signed in advance, has had sufficient time to review them and obtain advice, and understands the documents and the effect of signing.

What are the characteristics of an effective consent?14.8

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• The consent must be free from duress, fraud, and undue influence.

• The consent must be given according to a time frame established by statute or regulation. Although a few states permit pre-birth consents, the majority specify that consent can only be given after a certain period following birth (generally three days).

• The general rule is that a consent that is given voluntarily, knowingly, and intelligently cannot be revoked absent fraud, duress, or undue influence.

What are the characteristics of an effective consent? (continued)14.8

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Learning ObjectiveAfter this lecture, you should be able to:

14.9 Explain what a safe haven law is.

• A safe haven law is a law that allows a parent or an agent of a parent, of an unwanted newborn to anonymously leave the baby at a safe haven center, such as a hospital emergency room or police station, without fear of legal charges of abandonment or child endangerment, etc. as long as there is no evidence of abuse.

• Adoptions of babies left at safe-havens are at-risk of being challenged at a later date if a biological father asserts that he was not given notice of the birth and the adoption and did not consent to it.

What is a safe haven law?14.9

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Learning ObjectiveAfter this lecture, you should be able to:

14.10

Explain when an adoption may be challenged and by whom.

• The general rule is that adoptions are considered final but occasionally challenges do arise.

• The three most common sources of challenges are the following:

– Unwed biological fathers who never received notice of their child’s adoption (See Case 14.1 In re Doe (1994) on pages 515-516.)

– Biological parents who seek to revoke their consents– Adoptive parents who seek to abrogate an adoption

they believe was wrongfully procured by an agency that failed to provide them with accurate or sufficient information about the adoptee prior to the adoption

When can an adoption be challenged and by whom?14.10

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Learning ObjectiveAfter this lecture, you should be able to:

14.11

Describe the role of the paralegal in an adoption case.

• The paralegal’s role in an adoption case depends on four primary factors:

– The extent to which the firm where he or she is employed specializes in adoption

– The type of adoption involved– The client’s role in the litigation: Is he or

she the petitioner? Is he or she seeking to block the adoption? Is the client an agency?

– The nature and level of the paralegal’s skills

What is the role of a paralegal in an adoption case?14.11

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• In addition to the tasks customarily performed by paralegals, the paralegal may be assigned to do the following in an adoption case:

• Research state and federal statutes, case law, and procedural rules and regulations governing adoption in the jurisdiction (including research on issues such as the rights of nonmarital fathers and co-parents, effective consents, and involuntary termination of parental rights)

What is the role of a paralegal in an adoption case? (continued)14.11

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• Create websites and marketing strategies for attracting prospective adoptive parents and parents considering placing their children for adoption

• Conduct a thorough search for a biological father whose whereabouts are unknown

• Draft open adoption agreements

• Locate and draft necessary documents such as petitions, consents, surrenders, etc.

• Draft documents required if the child to be adopted is Native American

• Draft documents required by ICPC (the Interstate Compact on the Placement of Children) if the adoption involves multiple states

What is the role of a paralegal in an adoption case? (continued)14.11

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Class NameInstructor NameDate, Semester

Cont.

Chapter Summary

14.1

14.2

14.3

Explain what adoption is and the purposes it serves.

Identify various types of adoption.

Distinguish between an open and a closed adoption.

12

Class NameInstructor NameDate, Semester

Cont.

Chapter Summary

14.4

14.5

14.6

List the major steps in the adoption process.

Discuss the rights of wed and unwed biological parents in the adoption process.

Explain what a putative father registry is and the purposes it serves.

12

Class NameInstructor NameDate, Semester

Cont.

Chapter Summary

14.7

14.8

14.9

Identify circumstances in which parental rights may be terminated.

Identify who must consent to an adoption and what the characteristics of an effective consent are.

Explain what a safe haven law is.

12

Class NameInstructor NameDate, Semester

Chapter Summary

14.10

14.11

Explain when an adoption may be challenged and by whom.

Describe the role of the paralegal in an adoption case.