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Child Adoption Law
SUNY Buffalo Law School
Oreskovic, Johanna

Spring 2008
 
Adoption Law
 
February 5, 2008
Introduction to and Overview of Adoption
Brief History of Adoption in the US
adoption was around as an informal means of raising other people’s children
formalized in the 1850s in the US; formalized in the legal realm
because adoption was is relatively unknown at common law, the adoption statues are usually strictly construed
two periods: progressive era (1900s-1950) and post 1950-present
Progressive Era
rapid urbanization , immigration, and industrialization
lot of children were abandoned as a result
at turn of the century, many of the places that cared for orphans were private or religious institutions
ex. Baker Victory Services of Buffalo
pg. 2-3: the first adoption law on record – Massachusetts (compared to current NYS law, this is very short)
this law states who can adopt (section 1); section 6 states that adoption children have no inheritance rights and all other consequences in terms of inheritance the adoptive child cannot take property the way the biological heir can
section 7 – severing parental rights of biological parents
court given latitude to inquire into the circumstances of the adoption and the husband and wife could bring up the child so that the adoptive relationship was not meant to be a relationship of servitude
very minimum legislation/regulation – bound to lead to abuses
orphan trains – an attempt by humanitarian organizations in the eastern cities to send them out to the Midwest where they could work on farms and become working citizens; many birth parents used orphan trains as a means of temporary foster care (therefore orphan trains were not necessarily parents intending on giving up their parental rights)
baby farming – process by which birth mothers were paid to become pregnant or relinquish by intermediaries – people were having children for the purpose of selling them to childless couples; significant amount of baby farming occurring for a means of financial; this financial incentive is a problem throughout domestic and international adoption throughout time
problems led to some sense of a need for minimum standards; began to see creation of legal standards and the professionalism of the social work field of
so there begin to be certain baselines for the adoptions; provisions for annulment (now called disruption) of adoptions
example: Minnesota Adoption Law of 1917
now we are currently seeing lots of disruptions in international adoptions – many children are disabled, etc. so parents may disrupt the adoption because it is just too much for the parent to handle
development of the profession of social work came about around the time the laws of adoption were being created; social work started with “wealthy” women who did “friendly visiting” who would sometimes try to rescue orphans from poor people and place them with wealthy friends
one of the things social work did in order to legitimize itself as a profession was that it began to graft onto Adlerian and Freudian concepts of psychoanalysis and social workers began to take control of screening the potential adoptive parents to see that they were not only secure financial but to make sure they were mentally stable to adopt and discover underlying issues and reasons for adopting
idea of the homestudy developed around this time which still exists today; must be done by a certified social worker in order to get a sense of the home and check out the adoptive parents
there are several problems with the homestudy: a lot of room for subjectivity, people can prepare for the home study and alter the “feel” of their home, adoptive parents are subject to all kinds of scrutiny, quite a bit of concern about whether the mother (or parents) have resolved any infertility issues; all kinds of issues about standardization and subjectivity
now what we have in homestudies are walk-throughs and prospective parents have criminal background checks
homestudy – minimum standard for protection of children
other issues throughout adoption history have been matching and sealing of confidential files
the idea behind matching was that you wanted to make the adoptive family as much as possible like a biological family; this created circumstances where parents never told their children they were adopted (up until the 70s/sexual revolution being an illegitimate child was a huge stigma from which many adoptive parents wanted to shield their adopted children)
often records were sealed, particularly after WWII and what this meant in effect was that the adopted child never could learn birth origins and the biological parent couldn’t find out what happened to their child – but this was considered to be in the best interests of all parties
what we see even now is a very strong movement towards open records
but for a long time confidentiality and sealed records were the norm
matching was guided by the concept of eugenics; a lot of eugenics presumptions played into matching – intelligent healthy parents were “entitled” to healthy intelligent children; what happened what that adoption was for the white middle class, children of color were rarely placed and disabled children were institutionalized rather than adopted
interesting: infertility in the higher/upper middle class seems to be higher than in lower class
so went from farming children to minimum standards of adoption
1950 – present:
beginning following the Korean war, we began to see trans-racial adoptions; Korean adoptions began by Oregon couple who believed in rescuing children of American servicemen who were left in korea; even now the largest cohort of children adopted are from Korea
in the 60s and early part of 70s there was the emphasis of transracial children; white families adopting black children; more of a conscious attempt made to place children across race lines
there was more single parent adoption and more special needs adoption
following the roe v. wade decision there was a stunt in international adoptions
be on the lookout for Hague covention; also, one of the largest suppliers for adoptive children has been Guatemala – system in Guatemala is organized by attorneys, there have been longstanding allegations of baby farming, kidnapping, etc, at the moment 5,000 kids in Guatemala have been referred to US parents but after the US joins the Hague convention, Guatemala has to be compliant with Hague Convention and if not the children cannot be adopted from them; a country who is Hague compliant can only conduct international adoptions with other countries who are Hague compliant
top countries from which children are adopted: china, Russia, korea, Guatemala
real spike in international adoptions has occurred since 1990
other issues/concepts to be aware of:
psychological implications of adopted children – very critical for children coming out of orphanage care, etc.
attachment disorders – most significant issue
lack of attention to children
“failure to thrive”
insufficient care
stunted emotional development
there is a cycle of bonding and attachment that occurs between caregiver and child; pattern of sympathetic interactions whereby child learns basic trust; what tends not to happen in orphanage settings is the sense of reciprocity because the children don’t really have caregiver
what early literature found consistently that early deprivation of human interaction has profoundly devastating psychological impacts for children; attachment issues become very significant if child is adopted after six months
adopted population can in some aspects be very different from biological populations of children
driving force behind moving from orphanage care system to foster care system
overall psychological health of the adopted population is another series of issues
tend to be higher incidents of psychological problems in the adopted population
up for debate though…
adopted parents are usually wealthier and upper middle class – therefore they may have more ability to send the children for diagnosis
there is a general sense that adopted children are “damaged” and this is a prejudice that works against the children
adoption institution is not without its problems
domestic adoptions have been falling steadily since 1970s – more single mothers keep their children, availability of abortion/birth control
on the domestic side there are two systems operating in tandem (1) child welfare system and (2) grey market in private adoption – prospective adoptive parents market themselves to birth parents ( look in the want ads of the newspaper!) – this private adoption market is very active throughout the United States
In NY, attorneys by law cannot facilitate adoptions because it is seen as baby brokering
private adoption eras is very minimally regulated
there has been much more of an emphasis lately on FAMILY PRESERVATION (what would it take to k

d on experts, etc.
***Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence. A “clear and convincing evidence” standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. Determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts
Conchita J. case
very long case – actual reported case is about 45 pages long
many interesting issues exist in this case…
case comes before the family court in Queens county in 2005
child first taken from biological mother in 1997
all of the services, and decision, turns on the fact that the mother does not have a home and if she does she refuses to tell the agency of her address; her transience and not planning for the child are pivotal in the decision
mother argues that the agency has prejudice against people of color and that the agency is not doing what they should be doing; what she is doing basically throughout her testimony is fighting the system rather than attempting to regain custody and control of her child
the mothers actions are bizarre
the child, Portia, has become close with her foster family and has thrived in foster care; she expresses the desire to be adopted by her foster mother
she is a bright child and is in a very exclusive NJ boarding school and is an honor student; she has been with her foster family since 2001 and they want to adopt her
the child doesn’t want contact with her birth parent (or even her brother)
clearly there is a huge amount of evasiveness on the part of the mother
pg. 52 – first neglect petition had to do with the mother leaving her children at a homeless shelter; this indicates the mother probably has no social ties (friends or family) or possibly is a victim of domestic abuse
Contrary to the mother’s contention, the Family Court properly determined that she had permanently neglected the subject child (see Social Services Law § 384-b [7] [a]), who had been in the petitioner’s care for several years. The petitioner established, by clear and convincing evidence (see Social Services Law § 384-b [3][g]), that during the relevant time period, it had fulfilled its duty to exercise diligent efforts to strengthen and encourage the parent-child relationship (see Matter of Star Leslie W., 63 NY2d 136, 142; Matter of Sheila G., 61 NY2d 368, 383), and that despite these efforts, the mother had unjustifiably failed to plan for the child’s future (see Matter of Jamie M., 63 NY2d 388, 393; Matter of Jennifer R., 29 AD3d 1005, 1006-1007; Matter of Alicia Shante H., 245 AD2d 509, 510; cf. Matter of Michael Dennis C., 121 AD2d 535, 536). Furthermore, under the circumstances, the court properly determined that the best interests of the child would be served by terminating the mother’s parental rights and freeing the child for adoption by her foster mother (seeSocial Services Law § 384-b[3][k]; Matter of Dabari S., 29 AD3d 593, 594; Matter of Ashey Lorraine R., 22 AD3d 671, 672; Matter of Juanita F., 291 AD2d 496).
what do you do about a situation like portia, how could it have been better handled?
is termination of parental rights the best situation?
should we have looked at the mother who clearly has problems and be a bit more sympathetic?
in this case, the child will be ADOPTED
sometimes there are very murky situations and