Transcript PRIVACY ISSUES IN ADOPTION

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Expectation of Privacy/Desire or Need for
Information
Desire for Parental and Family Autonomy/
Receptiveness to Expanded View of “Family”
Birth Parent Ability to Choose/Adoptive Parent
Enhancement of Placement Chances
Realities and Practicalities, including Impact of
Social Media
Best Interests of the Child
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State laws require that medical/social non-identifying history about
birth parents and information about the adoptive child be provided
to adoptive parents in adoptions of children public agencies.
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Private agencies and adoption attorneys also provide information
on the medical and genetic background of children they place.
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Many states provide for retention of birth parent medical
information in a state registry that may be periodically updated. |
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Challenges to information gathering/access:
Lack of accurate, complete information (especially in intercountry
adoptions)
› Complex family histories
› Gaps in records
› Incomplete disclosure
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Please select the statement with which you most strongly agree:
A.
Adoptive parents, as the legal parents of the adoptive child,
have the sole right to determine who should have a
relationship with the child. Courts and legislatures should not
interfere with this right.
B.
There are some circumstances under which post-adoption
contact is beneficial to a child. It is helpful for all members
of the adoption triad to have some form of agreement on
post-adoption contact and to have statutory parameters for
such agreements, but courts should not have enforcement
power over the agreements.
C.
Under most circumstances varying degrees of openness are
appropriate and adoptive children, adoptive parents and
birth parents can benefit from post-adoption contact. State
legislatures should set guidelines for these agreements, and
courts should be able to enforce them.
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Open adoption
is____________________________________________
______________________________________________
_____________________________________________.
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There is a continuum of openness in adoptions,
ranging from:
› Closed—confidential adoption
› Semi-open—mediated terms; limited contact
› Open—full disclosure; ongoing relationship between
birth parent(s) and adoptee
And many levels in between…
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It is estimated that 60-70% of domestic adoptions
provide for some type of post-adoption contact, as
compared to 1% twenty years ago, because:
› Wider inclusion of birth parents in making choices for their
children
› Many adoptions involve children whose attachments to
birth relatives are desirable and beneficial
› Birth parents often participate in selecting the adoptive
family and may base their decision on the willingness of
the adoptive parent(s) to allow contact
› Communication with birth relatives provide adoptive
parents access to information about their child’s medical,
social, and cultural history
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Why Have Contact?
› Openness encourages adoption
 Makes adoption consent easier to obtain
 Accommodates more options
› Availability of open adoption empowers
birth mothers
› Contact with birth parent(s) is can be
beneficial to all members of adoption triad
› Impracticality of closure
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Concerns about contact:
› Openness discourages adoptions
 Adoptive parents fear intrusion by birth parent(s)
 Potential for disputes discourages adoptive parents
› Contact may not be in the best interest of
children whose relationship with birth parent was
traumatic
› Some birth parents may not be able to maintain
appropriate relational boundaries
› Potential for increased burden on courts from
enforcement actions
Laws of most states deal with post-adoption
contact by birth parents or relatives in some
fashion
 Laws of many states recognize agreements
for such contact by statute
 Laws of a few states disapprove of such
agreements (e.g., UT, CO and RI)
 Laws of some states allow for such
agreements, but do not permit them to be
enforced (OH) or are silent on how they are
to be enforced (NV)
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Availability of Open Adoption Agreements
› Limited to Public Agency -_______________________________________________________________
_______________________________________________________________
› Limited to Private Agency-- available only in non-public agency
adoptions
› Limited by Participants – I.e., grandparents or siblings only
› Unlimited/Voluntary TPR or Relinquishment Cases -- available in
all adoptions, whether public or private agency or independent,
in which birth parent(s)’ rights were voluntarily terminated or birth
parent(s) gave consent
› Unlimited -– Not limited to specific type of adoption, and not
dependent on whether birth parents’ rights were voluntarily or
involuntarily terminated
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Requirements for Valid Agreement (Varies Among Jurisdictions)
› Required consents, approvals or recommendations, which may include
those by:
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Adoptive parent(s)
Birth parent(s)
Adoptee, if over specified age
CASA or GAL appointed for adoptee (already appointed, or
appointed specifically for this purpose)
Court
If adoptee is in agency custody, representative of agency
Other biological relatives of adoptee, if parties to
agreement
Knowing and voluntary
Written instrument executed by parties
Fair and reasonable terms
Entry or approval by court
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Terms of Agreement (Varies Among Jurisdictions)
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Acknowledgement that the adoption is irrevocable, regardless if parties abide by
the terms of the open adoption agreement
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Acknowledgement that agreement gives parties right to seek its enforcement,
modification, and/or termination
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Acknowledgement that TPR, relinquishment or consent to adoption are
irrevocable, regardless whether parties abide by the terms of the open adoption
agreement
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Acknowledgement that parties must make good faith attempt to mediate or
engage in other alternative dispute resolution prior to seeking enforcement,
modification or termination of agreement
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Provisions relating to nature (visits, letters, calls, etc.), frequency, and timing (present
or future) of communication and/or contact, to who will be permitted contact
(birth parent(s), siblings, other biological relatives), and to maintenance of birth
parent(s)’ medical histories.
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Agreement that adoptive parent(s)’ ability to move within or out of the state shall
not be impaired
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Options for Court Approval/Entry of Agreement
› Jurisdiction
 Court entering adoption decree
 Court entering TPR order
› Method of Entry/Approval
 Agreement not entered or approved by court—agreement
negotiated and executed by parties as independent contract
 Court may enter order approving agreement independently
of adoption decree
 Court may incorporate agreement by reference in adoption
decree, but not merge in adoption order; agreement survives
as independent contract
 Court may enter agreement as part of order terminating
parental rights
 Court may enter agreement as agreed order of parties
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Examples of Standards/Criteria Supporting Court Approval
› ______________________________________________________
› Wishes of child over a certain age
› Adoptee and birth parents lived together for substantial period
of time
› Adoptee has significant bond with birth parents or other
biological relatives
› Adoption is by adoptee’s foster parent(s)
› Adoptee voluntarily relinquished because birth parent(s) could
not provide adequate parenting
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Modification/Enforcement of Agreement—Various Options
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Jurisdiction
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Court approving, or entering order relating to agreement, retains jurisdiction
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If agreement is ordered by one court as part of TPR, and a different court actually enters
adoption decree, either court may be designated to retain or assume jurisdiction over
enforcement of agreement
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If agreement is not entered or approved by court, enforcement may be by means of
separate action in contract (action for breach, specific performance, etc.)
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Agreed order of parties may be enforced by motion or petition filed with court entering
order
Pre-requisites for enforcement/modification
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Good faith attempt to mediate or engage in other alternative dispute resolution made
prior enforcement action being filed
Criteria for determining whether agreement should be enforced/modified
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Best interests of child
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Enforcement would be detrimental to child
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Enforcement would undermine adoptive parent(s)’ parental authority
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Due to a change in circumstances, enforcement would unduly burden one or more of the
parties
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Who may petition for court-ordered contact (varies state to
state)
› Grandparents
› Birth parents
› Siblings
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Policy against:
› Absolute parental rights of adoptive parent
› Preference for non-conditional TPRs
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Policy for:
› Bifurcation of TPR and adoption proceedings may prevent effective
negotiations for agreements
› Adoptee’s need for familial contact may outweigh absolute rights of
adoptive parent
› Importance of preservation of sibling relationships
› Jurisdictional/administrative barriers to cooperative agreements
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Conflicts of Laws
Quets v. Needham, 682 S.E.2d 214; 2009 N.C. App. LEXIS 1169 OAA entered in
FL not enforceable in NC because (1) it was not incorporated into the
adoption decree, so it was not a judgment subject to full faith and credit,
and (2) it was not enforceable as a contract, under the rule of comity, as it
was contrary to NC law, which provides that agreements between a person
consenting to an adoption and adoptive parents are not enforceable.
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Motions to Set Aside TPRs
In re M.B. & S.B., 921 N.E.2d 494; 2009 Ind. LEXIS 1479
Mother voluntarily agreed to TPR subject to ongoing contact with children.
An order was entered terminating visitation rights after TPR without notice to
mother. The Indiana Supreme Court denied motion to vacate TPR order,
holding mother was improperly granted visitation rights: Indiana's open
adoptions statutes were not followed, and unless all provisions are satisfied, a
voluntary TPR may not be conditioned upon post-adoption contact
privileges. However, because the State agreed to the visitation provision and
trial court noted that mother was expressly reserving a visitation right,
Supreme Court concluded it would be inequitable to hold that mother's
voluntary relinquishment of her parental rights was not subject to ongoing,
conditional visitation privileges.
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Enforcement/Modification
C.O v. Doe, 2007 Minn. App. Unpub. LEXIS 1119
Biological father contended district court abused discretion in
terminating PACA because no exceptional circumstances
occurred justifying modification or termination and t he was not
given an evidentiary hearing. Appellate court found that terms
of PACA required each party to meet certain conditions, and
that there were contractually defined consequences for failure
to meet those conditions; with a few exceptions, father violated
multiple provisions of the PACA, which provided a proper basis
for the district court's conclusion that exceptional circumstances
had arisen that made modification of the agreement in the
child's best interests, including his repeated threats to the
adoptive parents and to the child's safety and liberty. Further,
father failed to attend an adoption class to learn more about
the process of adoption and did not attend substance-abuse
support classes, in violation of the agreement.
Please select the statement with which you most strongly agree:
A.
The integrity of the adoptive family and the privacy interests of
the birth parent(s) require that birth records be sealed and that
access to identifying birth parent information should only be
available on a very strong showing of need for that information.
B.
While it is important to preserve the adoptive family’s unity and
support their family relationships, as well as to honor a birth
parent’s privacy expectation, there are limited circumstances
in which release of identifying birth parent information should
be possible without need for a court order.
C.
Access to identifying birth records should be permitted to all
adult adoptees without a court order, but subject to contact
vetoes.
D.
Identifying birth information should be available to all adoptive
persons over the age of 18 who want to see them. The only
requirements that should be imposed are those that apply to
non-adopted persons who seek their birth information, such as
filing fees or application forms.
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Concerns about allowing access to identifying
information
› Protection of birth parent(s)’ expectation of
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anonymity
Avoidance of stigma (both birth mother and
adoptee)
Avoidance of forced confrontation between birth
parent(s) and adoptee
Protection of adoptive parent(s)’ family integrity
Protection of adoptee from potentially hurtful
information
State interest in integrity of adoption process
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Why allow access to identifying information?
› Adoptee(s)’ desire or need to know about birth and
family
› Adoptee(s)’ need for medical history and other
critical information that may not be available
through records
› Desire of many birth parents for disclosure
› Support of many adoptive parents for disclosure
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Some states provide for automatic disclosure of
original birth certificate to adult adoptee
without restriction
Some states condition access on date of
adoption—i.e., only adoptees placed before
or after a specified date may have
unconditional access
Small number of states permit automatic
disclosure on, e.g., the “100th anniversary” of
the adoption
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Access may be based on permission of person
whose identifying information is sought (or in
the case of a minor adoptee, of the adoptive
parents)
Access may be based on demonstration of
“good cause” or other applicable proof
standard
Disclosure/contact vetoes are permitted by
several states
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Established in about 29 states
May be “active” or “passive”
› Passive—Both adult adoptee and birth parents (or
other birth relative) must register their consent in
order for identifying information to be shared. Parties
notified if names match
› Active:____________________________________________
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Conditions and process vary from State
to State
“My son was born, surrendered and placed in New York State in
1970. His adoptive family moved to Texas within days of his
placement. His adoption took place in Texas. When I attempted
to register with the NY registry they told me they had no record
of my son being adopted in NY and would not register me. Their
registry is only for people both born AND adopted in NY. When I
inquired as to what had happened to my son they told me it
was not their job to keep track of all surrendered children and
that I should contact the attorney who handled the adoption!
Huh? I had no attorney; I surrendered my son to the Nassau
County Department of Social Services. They also kept the fee
because they said that paid for them to search the records”
E-mail to the Even B. Donaldson Adoption Institute, 2010, from FOR THE
RECORDS II: An Examination of the History and Impact Of Adult Adoptee
Access to Original Birth Certificates
“Search and Consent” system
Separate from registry system, although
some States may have both systems
 Utilizes State trained third person appointed
to conduct searches for designated
persons and certified by court to have
access to sealed adoption records
 Intermediary makes contact, obtains
consent to disclosure (or ascertains refusal)
and reports to court or designee
 Court may provide information or
intermediary may facilitate meeting
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Jurisdictions with sealed records laws typically
apply a very high standard of proof for
unsealing records
› Compelling need
› Good cause
› Exceptional circumstances
› Promotion of child’s well being/best interests
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Standards require the balancing of all
adoption parties’ interests in disclosure
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Typical Process
› Petition filed in court that entered adoption
decree
› Determination made as to whether petition
meets proof standard
› Hearing may be required to consider
competing interests, with notice to birth
parents (sometimes through a GAL) and
adoptive parents
A new birth certificate for the child is customarily issued to the
adoptive parents after an adoption is finalized.
 The original birth certificate is typically sealed and kept
confidential by the State vital records office.
 In years past, nearly all States required a court order for
adoptees to access their original birth certificates. Now,
however, many States allow easier access to these records
 Various levels of access include:
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› Access by court order if all parties have consented
› Available upon request by the adult adoptee
› Available upon request by the adoptee unless the birth parent
filed an affidavit denying release of confidential records
› Available to persons with established eligibility to receive
identifying information through a State adoption registry
› Available when birth parent(s)’ consents to the release of
identifying information are on file