Family Law Prof Blog

Open Adoption

". . . While there are no national statistics, open adoption is increasingly common, according to Harold Grotevant, a University of Minnesota professor who is one of the leading experts in the field. He’s been doing research with 35 adoption agencies for the last two decades and says there has been a clear-cut swing from confidential to open adoptions. Susan Caughman, editor of Adoptive Families magazine, started an Ask the Experts column last year on open adoption, which, she says, now gets more queries than any other column at the magazine.

When it was time for Ms. Dailer to give birth, the baby’s father as well as the adoptive parents were there in the delivery room. The adoptive parents selected a half-dozen names then let the birth parents make the final choice. Phelan Daniel Thatcher-Keane, 7 pounds, 9 ounces, was born Sept. 29, 2001. The adoptive parents were free to leave West Virginia within a few days, but stayed a week and a half. “We sat around and told stories and got to know each other,” Ms. Dailer said."

By Michael Winerip, N.Y. Times Link to Article (last visited 2-26-08 NVS)

Vietnamese Adoptions

"Eyes like black pearls, the softest skin and little tufts of hair made it totally easy to fall in love at first sight. And that is what Julie Carroll — and Jewel McRoberts and Tommi-Lynn Sawyer — did when they saw the three tiny girls at a Vietnamese orphanage. They adopted the babies after months of waiting and then had to leave them behind because they could not obtain entry visas to bring them back to the United States.

That was almost four months ago, and the families last week began a public campaign to press the State Department to let them bring Madelyn Grace, Eden and Anabelle to the United States. Enlisting the help of the senators from California, where two of the families live, the adoptive parents argue that they have been unfairly caught in diplomatic wrangling between the American and Vietnamese governments over concerns about corruption in the adoption process that led to the suspension of Vietnamese adoptions from 2003 to 2005."

By Elizabeth Olson, N.Y. Times Link to Article (last visted 2-18-08 NVS)

Case Law Development: No Collateral Attacks on Second Parent Adoptions

Alexander Rhoads of the Iowa Divorce & Family Law Blog reports on the Iowa Supreme Court decision in Schott v. Schott,  in which the court held that a trail court could not collaterally attack the validity of a second parent adoption in a later child custody proceeding.  The case involved female partners who were parents to two children: one parent was the biological parent and the other had adopted the children.  In the custody proceeding following their breakup, neither party challenged the validity of the adoption, but the trial court found that the court granting the adoption had lacked subject matter jurisdiction and dismissed the case. Both parties appealed.

The Iowa Supreme Court held that the collateral attack on the prior adoption was error:

Even if the district court who issued the adoption decrees misinterpreted Iowa’s adoption statute, the adoptions are not void..... an adoption may only be collaterally attacked if the district court granting the adoption lacked jurisdiction over the person or subject matter, or on due process grounds by a natural parent. Since none of those circumstances exist, the districtcourt considering [the adoptive mother's]  petition was wrong to declare the adoptions invalid.

Schott v. Schott, No. 07-0610, January 18, 2008. 
Opinion online (last visited 1/21/08 bgf)

Case Law Development: Can Delays Caused by Child Protective System Provide Basis for Adoption Outcome?

Justices of the California Court of Appeals disagreed over the effect of a two-year delay in terminating a mother's parental rights and in preventing the child's transfer to Florida to reside with her aunt.  The majority opinion provides a detailed summary of the delays and difficulties in the case, summarized thus:

This is a dependency case in which a drug-addicted mother was arrested in California and extradited to Florida. Her nine-month-old daughter, who tested positive for opiates and cocaine because her mother was breastfeeding her while using drugs, was placed with foster parents. At the mother's request, her sister did everything she could to have the child placed with her in Florida, but the Florida child welfare authorities refused to expedite the process and almost a year elapsed before the Florida family obtained a foster care license. Meanwhile and inevitably, the child (now almost three years old and a complete stranger to her Florida family) bonded with her foster parents who are eager to adopt her. The dependency court, placing the child's best interests first, terminated the mother's parental rights and designated the foster parents as the child's prospective adoptive family.

The majority noted that the possibilities for mother's reunification were slim given her three-years sentence for her drug conviction.  The majority also noted the aunt's reluctance to adopt the child, her limited financial ability to secure health care for the child, and concerns regarding Florida's child protection system's ability to monitor the case.  The fact that the child had lived with the foster family in California for over two years and had never met the aunt was equally significant in the majority's analysis.

The dissent's opinion was sharply critical of an approach that did not give greater weight to parental rights and family-preferences in foster placement.  The dissent opined that, "The majority's approach gives far too much weight to the amount of time that a child resides with a foster parent, gives inadequate weight to facts that warranted placement of [the child] with her aunt's family, and ignores the insidious effect on the child welfare system of using the failure of the system itself as justification for the termination of parental rights." On the issue of the Florida system's ability to monitor the aunt's care, the dissent sharply noted,  "DFCS cited as an additional ground for denying placement with [aunt] and her family that the Florida child welfare system was not up to the job of monitoring [child's] placement with them. Although as Californians, we are confident that we do things better here than anywhere else, we doubt the citizens of Florida would share that view."

This case is a good read for any student studying the dynamics of the child welfare system.

In Re Lauren Z, California Court of Appeals, January 11, 2008
Opinion online (last visited January 14, 2008 bgf)

Man Who Alleged He was Denied Adoption Because of Obesity Prevails

A Jackson County Missouri judge has given custody of adoptive Baby Max to a man who claimed that his obesity was the reason he had been denied custody previously in the adoption case.  Gary Stocklaufer and his wife, Cindy, had sought adoption of the child of Mr. Stocklaufer's cousin after bringing the baby to Missouri.  However, the court had removed Baby Max from the Stocklaufers and placed him with another couple for six months, who also have been trying to adopt him.   

Stocklaufer had claimed that the judge had denied his opportunity to adopt the child because he was obese, weighing 550 pounds.  Mr. Stocklaufer has recently lost over 200 pounds after undergoing gastric bypass surgery.  However, in ruling that custody of Baby Max be returned to Mr. and Mrs. Stocklaufer, the judge said the prior removal of the child had nothing to do with Mr. Stocklaufer's weight but was because the couple did not follow proper procedures when moving the child into Missouri from another state.

Read the Kansas City Star article or watch KCMB new footage on the case.  (Last visited January 8, 2008 bgf)

Case Law Development: Maine Supreme Court rules Lesbian Couple may Adopt

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child.  The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result.  "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree."  In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to  broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA  (Maine Supreme Court August 30, 2007)
Opinion online (last visited August 30, 2007 bgf)

In related news, see the Rocky Mountain News story on the first same-sex Colorado couple to adopt after the passage of legislation permitting unmarried couples to adopt.

Oklahoma Will Not Appeal 10th Circuit Same-Sex Adoption Decision

The Oklahoma State Department of Health will not appeal further the decision of the United States 10th Circuit Court of Appeals triking down a 2004 law aimed at same-sex adoptive parents.  (See Family Law Prof post on the decision) Tom Cross, the state Health Department's deputy general counsel, said the agency could not meet the requirements to have the 10th Circuit reconsider its opinion. The agency does not believe that the U.S. Supreme Court would take up the case, he said.

Read the Tulsa World article (last visited August 18, 2007 bgf)

Case Law Development: Tenth Circuit Holds that Oklahoma Must Recognize Same Sex Adoptions of Other States

The United States Court of Appeals for the Tenth Circuit has upheld a district court judgment that a state law barring recognition of adoptions by same-sex couples already finalized in another state is unconstitutional. The case involved three same-sex couples who had adopted children in other states.  These three families brought suit against the state of Oklahoma seeking to enjoin enforcement of the adoption amendment, naming the governor, attorney general and commissioner of health in their official capacities.  The court held that "final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause."

Finstuen v. Crutcher (US App 10th Cir. August 3, 2007)
Opinion online  (last visited August 10, 2007 bgf)

Foreign Adoption Agency Problems

"Perched on the coffee table of Terry and Barb Sonnentag's Monticello home is a book of photos devoted to a child they may never see again. Willy, a 5-year-old Kenyan, grins brightly in one of the pictures. He is atop Terry's shoulders, ready to leave an orphanage for life with his new American family.

But two weeks after Terry Sonnentag landed in Kenya in December to plan Willy's departure, the family's dream fell apart.

The lawyer retained in Kenya by Reaching Arms International, an adoption agency in New Hope orchestrating the adoption, turned out not to be a lawyer. Soon after, Kenyan officials informed Sonnentag that he had to stay six months to complete an adoption, not the three weeks he had been told. Then came the crushing blow: Reaching Arms didn't even have the credentials to do Kenyan adoptions.

"I was stunned," Terry Sonnentag said. "We had put our faith in them completely.""

By Patricia Lopez, Star Tribune Link to Article (last visited 4-15-07 NVS)

Case Law Development: Preference for De-Facto Parent Applies in Adoption Case rather than Placement with Relatives

The California Court of Appeals weighed the application of preferences for relatives versus caregivers in child protection cases in deciding whether a 10-year-old girl should be removed from the home of her de-facto parent and placed with her maternal aunt in Oregon.  The trial court had ordered the girl removed from her de-facto parent, placed her with her aunt with an adoption plan, and terminated the girl's parental rights.  Both the girl and her de facto parent appealed.  The court of appeals reversed, holding that the preference for placing children with relatives did not apply in this case because the child was already placed with the de-facto parent and no new placement was necessary.  While the de-facto parent had not yet been able to have the court designate her as a "prospective adoptive parent" (which provides more procedural protections), she intended to adopt the child, so that the caretaker preference standards should have been applied.  Aunt had argued that the caretaker preference could not come into play until after termination of parental rights, but the court of appeals concluded that the preference arose whenever adoption became the permanency plan.  The court concluded that the trial court had preferred placement with the aunt because it had misunderstood the impact of the relative placement and remanded for consideration of the de-facto parent's application "on a level playing field."

The case would make a fascinating case study, both for the careful legislative interpretation necessary to decide when each preference applies, and for consideration of the importance of timing and procedural posture in child protection cases. 

In re Lauren R., Cal. App. 4th District (March 19, 2007)
Opinion on web (last visited March 20, 2007 bgf)

Adoptive Parents Invest More In Children?

"Adoptive parents invest more time and financial resources in their children than biological parents, according to a new national study challenging arguments that have been used to oppose same-sex marriage and gay adoption. The study, published in the new issue of the American Sociological Review, found that couples who adopt spend more money on their children and invest more time on such activities as reading to them, eating together and talking with them about their problems.

''One of the reasons adoptive parents invest more is that they really want children, and they go to extraordinary means to have them,'' Indiana University sociologist Brian Powell, one of the study's three co-authors, said in a telephone interview Monday.

''Adoptive parents face a culture where, to many other people, adoption is not real parenthood,'' Powell said. ''What they're trying to do is compensate. ... They recognize the barriers they face, and it sets the stage for them to be better parents.''

Powell and his colleagues examined data from 13,000 households with first-graders in the family. The data was part of a detailed survey called the Early Childhood Longitudinal Study, sponsored by the U.S. Department of Education and other agencies." AP, N.Y. Times Link to Article (last visited 2-20-07 NVS)

International Adoption Host Programs Suspended?

"During the two weeks that Marino and Debbie Prozzo welcomed a Ukrainian orphan in their home, they fell head over heels for a 7-year-old child they may never be able to adopt. While the Prozzos were giving Alona Malyovana her first bubble bath, teaching her to use the remote control, and buying her a pink velvet dress trimmed in bunny fur, the chaotic system of adoption in Ukraine was growing more chaotic. The director of Ukraine’s new Department for Adoptions resigned, leaving the fate of the nation’s 90,000 orphans in limbo. A new application process required foreign families to quickly update security clearances and other time-sensitive information. Prospective parents anxiously scanned the State Department’s Web site and bulletins from the embassy in Kiev for clarification of rules and rumors.

Hosting programs, like the one that brought Alona to an American family this Christmas, showcase older children, generally from orphanages in former Soviet bloc nations. The programs have long been hailed as an effective marketing tool by adoption experts, who say 8 of 10 families would not adopt these children without a trial run. In the largely unregulated world of international adoptions, these programs often lead to happily-ever-after, but sometimes end painfully. Ukraine and Russia place formidable obstacles in the path of parents, among them inaccurate information about children’s availability and health status. Multiple families can wind up competing for the same child. And children themselves know they are auditioning for what the industry calls their “forever families.” Then there is an entrenched system of favors — requests for cash or gifts from facilitators, translators, judges and others who handle the mechanics of adoption overseas.

Conditions in both countries have grown so unsettled, some agencies have suspended hosting programs, and the debate is growing about the ratio of risk to reward. Do the many success stories for older orphans make up for the heartbreak when adoption is thwarted?" By Jane Gross, N.Y. Times Link to Article (last visited 1-15-07 NVS)

Foreign Adoptions Decline

"After tripling over the past 15 years, the number of foreign children adopted by Americans dropped sharply in 2006, the result of multiple factors which have jolted adoption advocates and prompted many would-be adoptive parents to reconsider their options. The consequences could be profound for the ever-growing numbers of Americans interested in adopting abroad. Already, some have had their hopes quashed by tightened eligibility rules in China; adoptions from Africa, where millions of children have been orphaned by AIDS and wars, could increase if those from China and Eastern Europe continue to decrease.

Declines were recorded last year in nearly all countries that recently have been the top sources of adopted children -- China, Russia, South Korea and Ukraine among them. Increases from less familiar alternatives -- Ethiopia, Liberia, Haiti and Vietnam -- partly offset the drop, but some experts believe the era of constantly surging foreign adoption has ended." Associated Press, N.Y. Times Link to Article (last visited 1-10-07)

10th Circuit Hears Arguments on Oklahoma's Law Refusing Recognition of Adoptions by Same Sex Parents

The 10th Circuit Court of Appeals heard arguments this past week examining the constitutionality of the Oklahoma Adoption Invalidation Law.  The Act, passed in 2004, would ban state officials from recognizing a same-sex adoption.  Same-sex couples anywhere with legally adopted children would lose their status as parents when inside Oklahoma.  The United States District Court for the Western District of Oklahoma struck down the law in May, finding that the law "By its refusal to recognize and give effect to a valid judgment, from another court of competent jurisdiction, which established their status as parents of their respective children, the Amendment violates the Full Faith and Credit Clause of the United States Constitution, the Equal Protection Clause and substantive due process rights." 

Finstuen v. Edmondson, 2006 U.S. Dist. LEXIS 32122  (May 19, 2006)

District court opinion
LAMBDA Principal Brief on appeal (last visited November 20, 2006 bgf)

Adoptive Children Want More Information About Birth Parents

According to the BBC News service, a new report by children's rights director for England, Dr Roger Morgan, says that adopted children want more information about their birth family and why they were adopted. Accordindg to the report, these adopted children feel badly informed about the process. Dr Morgan is calling for them to be given more support. He surveyed 208 adopted children, aged from six to 22.

Read the BBC Report (last visited November 20, 2006 bgf)

Major New Report on Birth Mothers

A major new report on adoption was released this last week.  The Evan B. Donaldson Adoption Institute issued a report devoted to birth mothers, whom it described as ''the least understood and most stigmatized participants'' in the adoption process. The report focuses on U.S. mothers who voluntarily place infants for adoption -- an estimated 13,000 to 14,000 such adoptions occur annually. Most of this country's roughly 135,000 adoptions each year are from foster care; the next biggest category is overseas adoptions.  The report urges that mothers deciding to place their infants for adoption deserve better counseling, more time to change their minds, and more support in trying to keep track of the children they relinquish.

Read the full report (last visited November 20, 2006 bgf)

Adoption Month

November is National Adoption month.  The week of thanksgiving was established as National Adoption Week in 1976 by then-President Gerald Ford. In 1995, President Bill Clinton expanded the period of observance from one week in November to the entire month.  A number of states lawmakers have also made separate declarations for their state and around the country, celebrations, public education events and news stories have focused their attention on adoption.

Read this year's presidential proclamation (last visited November 20, 2006 bgf)

Regulations to Implement Hague Convention on Intercountry Adoptions Considered

The United States is in the final stages of implementing new, federal-level standards in light of the anticipated U.S. ratification of the Hague Convention on Intercountry Adoptions.  The Convention was discussed at a November 14 hearing before the House International Relations Subcommittee on Africa, Global Human Rights and International Operations.  The Hague Convention on Intercountry Adoption is a formal international agreement designed to ensure transparency in adoptions to prevent trafficking, kidnapping, smuggling and baby-selling.  The United States has signed the convention and is moving toward formal ratification in 2007. The Intercountry Adoption Act of 2000 (IAA) is the implementing mechanism established to carry out the functions required under the convention.  The IAA was enacted into law on October 6, 2000. A regulatory framework currently is being put in place to comply with the provisions of both the convention and the IAA to move the United States toward formal ratification.

Read the Department of State press release on the testimony before the committee or check out the State Department's website on the Hague Convention on Intercountry Adoptions  (last visited November 15, 2006 bgf)

Guatemalan Adoptions

"Guatemala, where nearly one in every 100 children is adopted by an American family, ranks third behind much larger nations, China and Russia, when it comes to providing babies to American couples. The pace of adoptions and the fact that mothers here, unlike in other places, are sometimes paid for their babies have brought increasing concern and the prospect of new regulation that may significantly reduce the number of Guatemalan babies bound for the United States next year, or end it altogether." By Marc Lacey Link to Article (last visite 11-8-06 NVS)

Case Law Development: Sufficiency of Evidence of Child's Objection to Adoption

When courts give older child the right to object to adoption, what evidence provides sufficient proof of an objection?  The California Court of Appeals explored the difference between a child's objection and mere statements of preference in affriming termination of a mother's rights to her 16-year-old son. 

California law permits the court to find termination of parental rights detrimental to a child if a child 12 years of age or older objects to termination of parental rights. The law requires the  juvenile court to consider the child's wishes, to the extent that they are ascertainable, though the evidence need not be in the form of direct testimony at the parental rights termination hearing, as the child's wishes, attachment and feelings may also appear in an agency's reports.

In this case, the court concluded that the evidence was insufficient to demonstrate son's unequivocal objection to the termination of parental rights:

He instead repeatedly asserted his preference for adoption. [Son] testified he felt comfortable living with his aunt and uncle and had known them since he was a child. When asked if he wanted to be adopted, he replied "[y]es." In response to the question, "Would you want to be adopted if ... you couldn't ever see your mom again?" he replied no and stated he would like to see [Mother] again. ... He explained he was "okay" with the idea of living with his aunt and uncle until he was an adult because they made him feel safe. He further expressed wanting his sister to live with him and hoped she would be adopted by his relatives. Moreover, the Agency's reports showed that throughout the dependency, [Son] wanted to be adopted by his relatives. [He] described his caregivers as his second parents. When the social worker asked him where he wanted to live, he stated he wanted to live with his aunt and uncle. He further said he was willing to be adopted by them.

The court concluded that these statement were not objections but, instead, "the statements appear to reveal an internal conflict between his hope to be adopted and live in a stable and loving environment, and his hope to see [Mother] again."   The court reaffirmed the standard of best interests of the child as ultimately governing the determination of whether a parent's rights should be terminated.

In re Christopher L, 2006 Cal. App. LEXIS 1608 (October 16, 2006)
Opinion on the web (last visited October 24, 2006 bgf)

Woman Attempts to "Unadopt" Son

"A woman is taking the unusual step of trying to unadopt her 15-year-old son, saying she learned of his troubled past only after he molested two younger children. "You don't want to throw somebody away," said Helen Briggs, a longtime foster mother. "But sometimes you have to."

Briggs, 57, said she did not know that the boy had lived in five foster homes since he was 16 months old, or that he had been physically abused by his alcohol- and drug-addicted biological parents and was possibly psychotically bipolar."I did not know any of that," Briggs said. "They just told me he was hyperactive."

Virginia policy mandates that caseworkers provide "full, factual information" about a child to adoptive parents. State child welfare advocates would not comment on the case because of confidentiality rules." AP CNN.com Link to Article (last visited 10-9-06 NVS)

Madonna Adopts Boy in Malawi

"Pop diva Madonna adopted a young boy in Malawi on Wednesday and moved ahead with plans to fund a center for 1,000 orphans, many of whom lost parents to        AIDS in the impoverished African nation. The "Material Girl" and an entourage arrived in the Malawian capital Lilongwe by private plane early on Wednesday and were quickly whisked away to an undisclosed location in a fleet of cars and trucks. Government officials said the 48-year-old singer, already a mother of two, chose the one-year-old orphan from among 12 children specially chosen prior to her arrival in the country, which has legions of children orphaned by the AIDS epidemic." By Mabvuto Banda, Reuters, Yahoo News Link to Article (last visited 10-4-06 NVS)

Recent News and Scholarship on Transracial Adoptions

The New York Times reports that a growing number of white couples are pushing past longtime cultural resistance to adopt black children. In 2004, 26 percent of black children adopted from foster care, about 4,200, were adopted transracially, nearly all by whites. That is up from roughly 14 percent, or 2,200, in 1998, according to a New York Times analysis of data from the National Data Archive on Child Abuse and Neglect at Cornell University and from the Department of Health and Human Services.

Read the NYT Article (last visited August 17, 2006 bgf)

The past year has produced some provocative scholarship on the subject of transracial adoption by family law professors. 

• Solangel Maldonado, Discouraging Racial Preferences in Adoptions, 39 U.C. Davis L. Rev. 1415  (2006)
  Drawing on the rich literature on cognitive bias, Professor Maldonado debunks the myths about domestic and international adoptions and shows that racial preferences, even if unconscious, play a role in many Americans’ decisions to adopt internationally. She  proposes that the law discourage adoptions based on racial preferences by requiring that Americans seeking to adopt internationally, while there are available children in the United States who meet their non-race-based criteria, show non-race-based reasons for going abroad. (read the article)
• Tanya Washington Loving Grutter: Recognizing Race in TransRacial Adoptions, 16 Geo. Mason U. Civ. Rts. L.J. 1 (2005)  Professor Washington examines the available social science data that examines the success and failings of transracial adoptions.  She argues for a mandatory racial competency training program designed to preserve and promote the best interest of transracial adoptees and analyzes the constitutionality of such a program. (George Mason U Civil Rights Law Journal)

Several articles appeared in the The Boston College Third World Law Journal Symposium Issue on Black Children and their Families in the 21st Century, including:

• Twila Perry, Transracial Adoption And Gentrification: An Essay On Race, Power, Family And Community, 26 B.C. Third World L.J. 25 (2006)

Professor Perry argues that both transracial adoption and gentrification represent contexts in which, in the future, there may be increasing competition for limited resources. Professor Perry argues that in any such competition, Blacks will increasingly find themselves at a disadvantage stemming from the consequences of institutionalized racism. Professor Perry urges increased government involvement to preserve Black families and to protect Blacks against the displacement that often results from gentrification. (read the article)

• Michele Goodwin, The Free-Market Approach To Adoption: The Value Of A Baby, 26 B.C. Third World L.J. 61 (2006)

Professor Goodwin argues that the current adoption model in the United States resembles an unregulated marketplace in children.  She explores this marketplace and the way in which race, genetic traits, and class are implicated in adoption processes, resulting in higher fees associated with the adoption of children with desirable traits.  She proposes two mechanisms by which the government could regulate the adoption market -- price caps and taxation and advocates greater transparency and information in the adoption process to protect the welfare of children who might otherwise be exploited in an unregulated adoption market. (read the article)

• Angela Mae Kupenda, Seeking Different Treatment, Or Seeking The Same Regard: Remarketing The Transracial Adoption Debate, 26 B.C. Third World L.J. 97 (2006)

Professor Kupenda urges a remarketing of the transracial adoption debate to reflect a request based on sameness, not difference. The request is not one for different treatment for black children. Rather, it is for black children to be given the same regard that is given to white children. This request is illustrated with the story of a black couple seeking to adopt healthy, fat white babies. (read the article)

Finally, for some broader perspectives on adoption, including transracial adoption, you may want to check out Barbara Bennett Woodhouse's article Waiting for Loving: The Child's Fundamental Right to Adoption, 34 Cap. U.L. Rev. 297 (2005) or Professor Lynn D. Wardle's article Parentlessness: Adoption Problems, Paradigms, Policies and Parameters, 4 Whittier J. Child & Fam. Advoc. 323 (2005)

(All links last visited August 17, 2006 bgf)

Case Law Development: State Statute of Limitations Applies to Actions under ICWA

The Alaska Supreme Court has held that the state''s one-year statute of limitations applies for claims brought under § 1914 of the Indian Child Welfare Act to challenge adoptions.  Congress did not include a generally applicable statute of limitations in ICWA. It specified a two-year statute of limitations for one class of ICWA claims, those brought under § 1913(d) (consent procured by fraud or duress).  In this case of first impression, the court rejected Father's argument that the silence in the federal statute should be read to indicate that no statute of limitations applied to his  § 1914 ICWA challenge.  The court disagreed, finding that, while no case has be decided that determined whether a state statute of limitations should apply in the absence of a limitations period in the federal statute, in interpreting many other federal statutes, courts regularly borrow state statutes of limitations. 

ICWA is remedial legislation and must be liberally construed in favor of Indians, but we do not think that an interpretation of ICWA that would completely disregard Indian children's interests in finality and stability would be consistent with Congress's intent in enacting the statute. We therefore hold that Alaska's one-year statute of limitations provides an appropriate balance between the important federal rights of Indian tribes and families and the best interests of adopted children.

In the Matter of Adoption of Erin G., 2006 Alas. LEXIS 117 (August 4, 2006) bgf

August 4, 2006, Decided

Indiana Supreme Court Lets Gay Adoption Stand

Indiana's Supreme Court denied transfer of a court of appeals decision that allows unmarried couples, including those of the same sex, to adopt children through a joint petition that gives both partners equal custody.  The April ruling by the Indiana Court of Appeals had overturned a lower court's ruling that state law limits adoption to married couples and individuals.  In a dissenting opinion from the denial of transfer, Judge Dickson argued that "by denying transfer in this case, we are missing a valuable and important opportunity to minimize uncertainty and confusion until such time as the legislature provides explicit superceding reclarification."

In re Adoption of M.W.,  2006 Ind. LEXIS 675 (August 3, 2006)
Opinion on the web  (last visited August 9, 2006 bgf)

Read the LA Times article on the case (last visited August 9, 2006 bgf)
Thanks to Professor June Carbone for the news tip!

Case Law Development: Father's Consent Necessary to Adopt Child Born to Common Law Marriage

In a case presenting interesting possible intersections between the adoption code and common law marriage doctrine, the Alabama Court of Appeals held that an aunt and uncle seeking to adopt their nephew had failed to prove that they had obtained the consent of the child's father to the adoption.  The child had been removed from the parents as an infant.  The child's paternal aunt and uncle took custody of the child and obtained a default judgment terminating mother's parental rights.  In their adoption action, they argued that father's consent to the adoption was unnecessary because he had failed to timely register in the putative father registry. However, father claimed he and mother were married.  The court noted that registration as a putative father is necessary only if a child is born out of wedlock, so that if indeed father was married to mother, his consent to the adoption would be required. In a footnote, the court comments that, because common law marriages in Alabama are co-equal with ceremonial marriages, "if the father and the mother, as the father contends, were married by either means, and the child was born "during the marriage," not only would Alabama's paternity law deem the child to have been born to the father, but Alabama's Adoption Code would also classify the father as a "presumed father" whose consent to a proposed adoption of the child would be necessary."

S.J.S. & J. v. B.R. & S., 2006 Ala. Civ. App. LEXIS 457 (July 28, 2006) bgf

Case Law Development: Death of Biological Parent Severs Step-parent/Step-child Relationship for Purposes of Adoption Statute

After her father died and shortly after she turned 18 years old, Daughter consented to her adoption by Stepmother.  Daughter's biological mother objected.  The probate court granted the adoption and the Alabama Court of Appeals reversed.  Alabama adoption statutes authorize adult adoption of persons related by blood or affinity.  The court noted that Daughter's affinity relationship with her father's wife was extinguished upon the death of the her father.  Thus, the court held that "Daughter, at the time of the purported adoption, was not a "stepchild by marriage" of the stepmother" under Alabama statutes.

In a concurring opinion, Judge Murdock noted that the biological parent's constitutional rights were implicated by allowing an adoption in this instance based solely on the consent of the Daughter.  "The fundamental nature of the parent-child relationship and the importance of the family in our society, however, belie the notion that a child, merely by turning 19 years of age, can, without the consent of his or her parent, unilaterally sever the parent-child relationship." 

Justice Bryan's concurring opinion provided some additional guidance for Stepmother and Daughter: "...most assuredly no court order or the lack of a formalized judgment of adoption can deter the nonlegal relationship of love and affection between the daughter and the stepmother. Moreover, the daughter and the stepmother may accomplish many of the results they may be attempting to achieve through adoption by other legal avenues, such as utilizing wills, living wills, powers of attorney, trust agreements, and various other legal mechanisms."

Hays v. Hays, 2006 Ala. Civ. App. LEXIS 352 (June 23, 2006) bgf

Kidnapping or Adoption? Woman Offers to Buy Child for $6,000

"A wealthy woman accused of kidnapping a 7-week old baby was adopting him, her lawyer said, but police claim she took the baby after his teenage mother rejected her offer to buy him. Annette Pinkard, a 47-year-old real estate professional from the Dallas, Texas, area, is being held in Texas along with her cousin, Sylvia Nunn, 53. Authorities say the women saw Devon Calloway with his mother, Dominique Calloway, 17, at a store last month and offered to buy the child for $6,000. Calloway said that though tempted, she refused the offer, but let the women drive her home." CNN.com Link to Article (last visited 6-4-06 NVS)

Indiana Supreme Court to Review Gay Adoption Issue – Some Legislators Push Legislation to Bar Gay Adoption

The question of whether adoption of children by gay parents is legal is being taken to the Indiana Supreme Court by that state’s Attorney General.  Last month, the Indiana Court of Appeals ruled 2-1 that gays may adopt and that decision is now on appeal.  Regardless of the ruling by the State Supreme Court, some legislators are “pushing to ban gays and lesbians from adopting.”  However, proponents of banning gays and lesbians from adopting, are not seeking to ban gays and lesbians from being foster parents.  Source.  Time Evans, Indianapolis Star, courier-journal.com. Please click here for the complete story (last visited June 4, 2006, reo).

Next Chapter in a Three-way Ongoing Custody Dispute

A Florida judge ruled Monday that a boy who spent the first 3½ years of his life with a Florida couple should permanently live with his biological father in Maine.  The boy had been raised since he was a newborn by a couple in Florida who had never completed the adoption process.  In January 2005, the boy was placed with his biological mother and stepfather.  Seven months ago, the boy was placed with his biological father, after allegations of abuse by his stepfather, with this most recent opinion affirming that custody decision.

For a series of articles on the ongoing dispute, including video footage, see Jacksonville, Florida News 4 reports  (last visited May 23, 2006 bgf).

Case Law Development: Unmarried Biological Father's Consent Required For Adoption If Paternity Uncontested in Other Prior Proceedings

The Florida Court of Appeals reversed a trial court's order of adoption without securing the consent of the biological father.  The child and Mother had both tested positive for cocaine at the child's birth.  As a result, the state initiated dependency proceedings and identified Father as the biological father, without objection. 

In an effort to avoid the dependency proceeding, Mother's parents brought an action to adopt the child, to which Mother consented.  The trial court found that Father's consent was not required because he had not timely registered in the putative father registry.

The court of appeals reversed, finding that the trial court erred in determining that the Florida statutes requiring registration in the putative father registry is the sole method of preserving an unmarried biological father's rights.  Rather, the court held, a court must obtain consent to adoption from any man who qualifies as a father under any of the statutory sections of the statute.  "Thus, subsection (b)5 [the putative father registry] is not a default provision under which all unmarried biological fathers must qualify to protect their parental rights -- it is merely one statutory method among five to identify a child's father."  The court went on to note that father's consent was required because he met the statutory section in which paternity has been "established by court proceeding." "The phrase "established by court proceeding" is not limited to a formal paternity adjudication under chapter 724, Florida Statutes (2004). Rather, any time a court makes a factual determination as to the identity of a minor child's father, and the determination is material in the proceeding before the court, that proceeding qualifies as a "court proceeding" under subsection (b)3."

The dissent argues that the majority's conclusion that father's consent was required under the adoption act was "unsupported by the facts, directly contravenes the expressed legislative intent set forth in the Florida Adoption Act, and directly conflicts with prior case law from this court as well as overwhelming precedent from around the country."

B.B. v. P.J.M. & K., 2006 Fla. App. LEXIS 8011 (May 22, 2006)
Opinion on the web (last visited May 23, 2006 bgf)

Case Law Development: Federal Judge Rules Oklahoma Gay Adoption Law Unconstitutional

On Friday, a federal judge sitting in Oklahoma struck down a two-year-old amendment to Oklahoma law that prohibited state officials from recognizing same sex adoptions from other states or countries. The judge found that the amendment violated the Full Faith and Credit Clause of the United States Constitution, the Equal Protection Clause and parties substantive due process rights. He observed that the Amendment to the Oklahoma statute was passed to allegedly “halt the erosion of the mainstream definition of the family unit and to protect Oklahoma children from being targeted for adoption by gay couples across the nation and to ensure that children are raised in traditional family environments.”

The judge wrote that “the Amendment targets an unpopular group and singles them out for disparate treatment. . . . Thus, to the extent the Amendment has a disparate impact on homosexual individuals seeking recognition of out-of-state adoptions, it violates the Equal Protection Clause of the Constitution and must be set aside.”

The judge also ruled that because the effect of the Amendment is to interfere with the parent Plaintiffs’ rights to make decisions related to the care, custody, and control of their children, Plaintiffs have established the Amendment infringes on a fundamental right.  Furthermore, the defendants failed to produce evidence showing a compelling state interest to be served that justifies the infringement by the state on the fundamental right. A copy of the Federal District Court opinion may be ownloaded here.pdf

Federal Court Declares Unconstitutional Missouri Law Cutting Adoption Subsidies

For Andrea Euer, a federal court ruling issued Monday means she'll no longer lose sleep wondering if her adoptive mother would be forced to return her to foster care to make ends meet.  Andrea, 14, of O'Fallon, is among about 2,000 children adopted from foster care in Missouri whose parents stood to lose support checks of at least $225 a month under budget cuts proposed last year by Gov. Matt Blunt. But those cuts, and the law that authorized them, were ruled unconstitutional Monday by U.S. District Court Judge Scott O. Wright of Kansas City, who said the subsidy cuts wrongly severed contracts signed between the state and parents at the time of adoption, while purporting to save the state money that probably would never materialize.... John Amman, a law professor at St. Louis University who helped argue the case, described the ruling as an unqualified victory. He said other states should be warned that cutting subsidies poses severe legal perils.
"We do hope that this sends a message to the rest of the country," he said.

Read the St. Louis Post Dispatch article by Matt Frank (last visited May 2, 2006)
The case is E.C., J.L., J.C., T.G., B.G., & A.G. v. Sherman, 2006 U.S. Dist. LEXIS 27506 (May 9, 2006)

To read a copy of the order itself, Download permanent_injunction.pdf (bgf)

Case Law Development: Standard of Review of Good Cause Deviation from Placement Preferences of the ICWA

The Kansas Court of Appeals adopts a "substantial abuse of discretion" standard for review of trial court decisions on a good cause deviation from the preference for placement with Native Americans in the Indian Child Welfare Act.  The court reviewed the decisions of other states and concluded that "our standard of review of the good cause finding to deviate from the Indian Child Welfare Act's placement preferences is substantial abuse of discretion. Substantial discretion is abused when the district court fails to properly apply the ICWA factors in making its findings of fact rendering the findings clearly erroneous."

Turning to the trial court's decision in this case, the court noted taht the trial court had based its decision on two factors: "the unavailability of suitable families offered by the Tribe for placement" and the birth mother's preference as to the child's placement. Concluding that it was not an abuse of discretion to find that good cause existed to deviate from ICWA's placement preferences on theses bases, the Supreme Court affirmed the placement. 

In re Adoption of B.G.J., 2006 Kan. LEXIS 22 (April 28, 2006)
Opinion on the web (last visited April 29, 2006 bgf)

Catholic Church Ends Adoption Services in Massachusetts

It is reported that the Catholic Charities of Boston is ending its adoption program in Massachusetts for good. Its says that it will not renew a contract with the state social services department because it would be required to follow state anti-discrimination laws that says the agency could not refuse to work with same-sex couples. Source. Eyewitnessnewstv.com. To read the complete story, please click here (last visited April 30, 2006, reo).

Case Law Development: Indiana Court of Appeals Says Gay Couples May Adopt

An Indiana appeals court ruled Thursday in favor of allowing same-sex couples to jointly adopt children. In a 2-1 decision, the Indiana Court of Appeals ruled that Indiana law did not bar adoption of an infant girl by a lesbian couple. Prior to this decision, adoptions to unmarried couples were granted only if the child was the natural offspring of one partner or had already been adopted by one partner in the pair. 

The majority wrote that the “primary question we must resolve is one of statutory interpretation, namely, whether the Indiana Adoption Act permits an unmarried couple—any unmarried couple, regardless of gender or sexual orientation—to file a joint petition for adoption.” After reviewing Indiana’s adoption statutes, it concluded that “It is apparent to us that in enacting [the adoption statutes], the legislature was requiring married persons to petition jointly . . .. But it does not follow that in placing this requirement upon a married couple, the legislature was simultaneous sly denying an unmarried couple the right to petition jointly. Indeed, . . . there is nothing in the Adoption Act that suggests that to have been the legislature’s intent.”  Source.  Christopher Curtis, PlanetOut Network, gay.com. For the complete news story, please click here (last visited April 15, 2006, reo). The Indiana Court of Appeals Opinion in this case may be obtained by clicking here (last visited April 15, 2006, reo).

Report Finds No Child-centered Reason to Prevent Gays and Lesbians from Becoming Adoptive Parents

The Evan B. Donaldson Adoption Institute Released a Report Friday that finds there that there is no child-centered reason to prevent gays and lesbians from becoming adoptive parents. The report examined the issues, laws and practices relating to gay and lesbian adoption and parenting, and considered the available studies spanning the last several decades. The Institute says that the effort represents "one of the broadest, most thorough reviews and analyses to date on gay/lesbian adoption and parenting."  The report is a part of a larger, more detailed project that will be completed and released in several months. The Institute also says that the report is an overview designed to inform and “provide context for the often-fractious debate over gay/lesbian adoption currently taking place in our country; and, most important, to provide information that can be used to shape best practices that focus on providing boys and girls in the child welfare system with safe, committed and enduring families.” According to the Washington Post, the report was funded by the Gill Foundation and the Human Rights Campaign, both active in gay-rights causes. However, The Donaldson Institute's executive director, Adam Pertman, told the Washington Post that the financial sponsorship did not influence the report's findings. Sources. AP, David Crary, Washingtonpost.com. Jeanne Howard, Evan B. Donaldson Adoption Institute, adoptioninstitute.org. Please click here to read the Washington Post article.  Please click here to take you directly to the Donaldson Adoption Institute Report. (last visited March 25, 2006, reo).

San Francisco Archbishop Says Adoption of Children by Same-Sex Households Conflicts with Catholic Teachings – Indicates Adoption Program must be “in Synch” with Church’s Views

San Francisco's archbishop, George Niederauer, while not barring placing minor children for adoption with same-sex couples, has indicated that this conflicts with Roman Catholic teachings on homosexuality.  The archbishop has asked the social services arm of the Archdiocese of San Francisco to bring its adoption program ''fully in synch" with the church's views while continuing to find homes for hard-to-place youngsters. According to newspaper reports, a spokesman for the Archbishop stated that ''Our teaching on marriage and family life precludes these kinds of adoptions. 'We need to find another way to help this vulnerable population.” Source:  AP, Lisa Leff, Boston Globe, boston.com. For the complete story, please click here (last visited March 25, 2006, reo).

Commentary: How Can a Man Protect His Paternity Rights When Mother Wants to Place the Child for Adoption?

The New York Times ran a story in its Sunday, March 19 edition entitled “Unwed Fathers Fight for Babies Placed  for Adoption by Mothers.” (See our analysis of March 20 about the story.)  In part in response to that article, readers may find Michigan family law attorney Jeanne Hannah’s views of the father’s registry statutes in various states of interest.  Source:  Jeanne Hannah, Updates in Michigan Law, typepad.com. For Ms. Hannah’s views on state registry provisions, please click here (last visited March 20, 2006, reo).