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Child Adoption Law
Seton Hall Unversity School of Law
Levine, Craig R.

FRAMEWORK FOR ADOPTION
 
I          INTRODUCTION
A.      History
1.       The MA legislature passed the first adoption statute in 1851. Didn’t exist at C/L.
2.       Overruled centuries of English precedent and legislation which prohibited the absolute, permanent, and voluntary transfer of parental power to third persons.
3.       The traditional status of adoption allocated benefits between the giver and taker, while the MA statute distinguished the adoptee as the prime beneficiary.
B.      Current Status of State Adoption Laws
1.       Adoption law is purely statutory. It is a creature of the state – mostly state law, some fed.
2.       60% of adoptions are by relatives.
3.       All states have statutes providing for the adoption of children.
4.       Efforts at nationwide uniformity have largely failed.
a)       Only 5 states have enacted substantial portions of the 1969 Revised Uniform Adoption Act.
b)       Only 1 state (VT) has enacted substantial portions of the Uniform Adoption Act.
C.      Definition
1.       Adoption is the legal process of creating a parent-child relationship.
2.       By adoption, an individual acquires new parents.
3.       Adoption process terminates the legal rights and responsibilities (e.g., custody and support) of the natural parents and creates new legal rights and responsibilities in the adoptive parents.
D.      Voluntary v. Involuntary Termination of Parental Rights
1.       A biological parent may choose to relinquish a child for adoption. Need consent.
a)       Crt may order termination of parental rights if the crt finds by clear and convincing evidence that the parent has
(1)     Voluntarily executed an affidavit of relinquishment of parental rights
(2)     And termination is in the child’s BI.
2.       Or a biological parent may have his or her parental rights terminated judicially b/c of some act of parental misconduct (e.g., abuse, neglect, nonsupport, abandonment). Do not need consent.
E.      Selection Standard for Adoptive Parents
1.       Best Interests of the Child: Guiding standard in adoption is the BI of the child.
a)       Several factors are relevant in a “best interests” determination:
(1)     Preference for relatives
(2)     Race
(3)     Sexual orientation
(4)     Age
(a)     Courts may consider the age of a prospective adoptive parent. However, age may not be the sole reason for denying a petition w/o a determination that such denial would be in the child’s BI.
(5)     Divorced co-petitioners
(6)     Preference for Infertile
(7)     Disability of Adoptive Parent
(8)     Indian Child Welfare Act (ICWA) of 1978
F.       Revocation of Consent
1.       UAA § 2-408: parent may revoke consent w/in 8 days of child’s birth (absent fraud or duress) or any time if consent obtained by fraud or duress
2.       Consent given before a judge (rather than to an agency) is immediately effective.
3.       Many states invalidate pre-birth consent.
II       WHO MAY ADOPT A CHILD
A.      Same-Sex Couples
1.       Some states prohibit or restrict adoption by same-sex couples.
a)       FL is the only state that prohibits gay and lesbian individuals (singles) to adopt
2.       Half of States: need to terminate CP’s (natural mother’s) rights in order for partner to be able to adopt [b/c they are not married, thus not a stepparent adoption]; only one can be the legal parent
3.       In the Interest of Angel Lace M. (WI 1994): Angel was born and H and W adopted her. H and W got divorced and H has not been in Angel’s life for the past 4 years. W and Angel moved in with GF and the two women shared equally in raising Angel. GF and W engaged in civil ceremony but WI does not recognize S-S marriage so not legally married. GF wants to adopt and H consented to the termination of his parental rights.
a)       Rule: To grant an adoption, the proposed adoptive parent must meet the statutory requirements before a BI test can be applied (i.e., the person needs to have standing to petition to adopt a child). The parent must qualify as a party who may adopt, and the proposed adoptee must be eligible for adoption.
(1)     In order for the adopter to qualify,
(a)     He/she must be the husband or wife of the parent of the minor.
(i)       Not satisfied here.
(b)     Or be an unmarried adult.
(i)       Satisfied.
(2)     In order for the adoptee to be eligible for adoption, both parents’ parental rights must have been terminated. Stepparent adoptions are the exception.
(a)     Here, H’s rights were terminated but not W’s. GF can only adopt if W terminates her parental rights to the minor. If GF adopts, then W’s parental rights would be terminated.
b)       Holding: This adoption is not permissible.
B.      Single Persons
1.       Some states permit single persons to petition to adopt a child.
2.       Most states require married couples to petition jointly unless the petitioner is the child’s stepparent. Thus, two unmarried adults may be unable to petition jointly to adopt a child even if neither adult is a biological parent of the child.
C.      Foster Parents
1.       No-adoption by foster parent agreements have been found unenforceable recently.
2.       Some states grant a statutory preference to foster parents who have cared for the child for a specified period of time, though the court retains ultimate authority to grant or deny the adoption petition in the best interests of the child.
D.      Grandparents
1.       The child’s relatives hold no due process right to adopt the child after the birth parents’ deaths or after termination of the birth parents’ parental rights.
2.       The relative’s blood relation to the child, however, is a factor to consider in determining the BI of the child.
3.       Some states create a preference in the relative’s favor.
4.       In re Peter L. (NY 1983): Court rejected the contention that in the absence of a statutory preference, a fit relative takes precedence, as a matter of law, over adoptive parents selected by the agency holding custody of the child.
E.      Stepparents
1.       Most stepparents do not adopt their stepchildren b/c they cannot unless the parental rights of the noncustodial biological parent are terminated by consent or a contested proceeding.
a)       Nonetheless, stepparent adoptions are the most common type of adoption today.
2.       But in an uncontested stepparent adoption, most adoption acts exempt such adoptions from requirements relating to confidentiality, home studies, probationary periods, etc.
3.       UAA Article 4. Adoption of Minor Stepchild by Stepparent
a)       Stepparent has fewer requirements b/c adoption merely formalizes de facto parent-child r-ship.
b)       Majority: The CP is allowed to retain parental rights, the adoptive stepparent acquires the status of a legal parent, and the non-CP’s relationship to the child is cut off for most purposes.
(1)     The non-CP’s rights must be terminated by:
(a)     Non-CP’s consent or
(b)     Involuntary Termination (due to neglect, abuse, abandonment)
(i)       Saw this a lot w/ unmarried fathers
c)       By allowing post-adoption visitation by noncustodial former parents, siblings, or grandparents, the UAA may encourage an increase in the number of stepparent adoptions (encourages natural fathers to consent).
(1)     Note: UAA allows PAC agreement (in a sense, an open adoption) but limits it to stepparents. UAA is silent on PAC outside the stepparent context.
d)       Even in the absence of a PAC agreement, UAA allows court to order adoptive parents to give former grandparents and siblings to have visitation w/ the child.
(1)     This runs into the Troxel problem (14th A right to raise child; defer to parent’s decision re: who can see child b/c it is presumed that parent is acting in the BI of the child; can only be rebutted by harm to the child)
4.       Oftentimes, mom will say to ex-husband: “I will let you go financially – child support arrearages – if you relinquish your rights to the child so that her stepfather can adopt him or her.”
a)       Should this be permissible under the law?
(1)     It is not allowed under the law b/c it is too close to babyselling. Mingling monetary and familial relations too much.
F.       Miscellaneous Issues Re: Adoption Applicants
1.       Older Applicant:
a)       Courts determine older persons’ petitions to adopt in accordance with the best interests standard b/c the adoption statutes do not establish a max permissible age.
b)       Nee

l prior to the birth of her child.
5.       Vela v. Marywood (TX 2000): Agency told biological mom that she could have sharing plan and visit child after adoption, that it would be like having 2 mothers. That is the only reason mom signed the affidavit of relinquishment. Now knowing that the sharing plan is legally useless, she wants her child back. 
a)       Duty of complete disclosure encompassed obligation to tell bio mom the entire truth about the ramifications of the sharing plan and make her fully aware that it lacked legally binding effect
b)       Duty of complete disclosure arose from two sources:
(1)     When agency made a partial disclosure about the post-adoption plan, it assumed duty to tell the whole truth and
(2)     Mom placed special confidence in agency, who by virtue of counseling relationship occupied a position of influence. Agency bound to act in good faith and w/ due regard to mom’s interests.
c)       The relinquishment affidavit was wrongfully procured b/c the agency’s stmts and omissions to mom constituted misrep’n, fraud, or overreaching.
d)       Once a child-placing agency undertakes to counsel an expectant mother w/ regard to her alternatives upon the birth of her child, the agency must provide her w/ complete info re: those alternatives. It may not leave the mother to speculate on the consequences of the action upon which she and the agency have agreed.
e)       The relinquishment is void b/c not voluntarily signed. So no need to address BI.
f)        Note: Even assuming Vela knew the agreement was unenforceable, could she have changed her mind? YES, within 192 hrs (8 days) according to the UAA § 2-408. Half of states give natural parents 14 days or less to revoke relinquishment of parental rights. After that, it is irrevocable. Others give longer, even up to the date that the actual adoption decree is given out.
6.       Note: BI of child is not a consideration where mom revokes consent b/c it is her fund’l right unless she is deemed unfit or knowingly waives right.
B.      Independent Adoption/Private Placement (Gray Market)
1.       Not regulated by state
2.       Birth parents make child available to the adoptive parents, often w/ the aid of an intermediary (usually atty or OB). In most, but not all, states these intermediaries must be licensed.
a)       Atty or OB cannot receive finder’s fee. Can only receive $ customarily charged for these services. Birth mom cannot receive more $ than her expenses.
3.       The major difference b/w private and agency adoptions is that in private adoptions birth parents are more involved in selection of the adoptive parents.
4.       Most adoptions of infants are private adoptions.
5.       As w/ agency adoptions, the adoptive parents in a private adoption generally must formalize the adoption in a court proceeding. As part of that process, the state must conduct an investigation into the suitability of the adoptive parents. Homestudy required but not as rigorous.
6.       Parents’ Relinquishment: 75% of states say that relinquishment of parental rights can be revoked w/in 14 days. But some of these JXs lengthen this time period for independent adoptions b/c these are less regulated and want to protect birth parents.
Intermediary’s Role: Private adoptions often performed through an intermediary (“baby broker”) such as atty or physician. This independent placement is known as “gray