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Adoption Law
University of Dayton School of Law
Huffman, Mary Kate

Adoption & Assisted Reproduction
Judge Huffman, Summer 2013
Reasons for adoption:
·         Take care of children with no parents
·         Allow those unable to have children the opportunity to do so
·         Take the burden of caring for the children off the State
·         Allow opportunity for the birth parents
 
English Common Law
·         No authorization for adoptions traditionally
·         Saw no need to allow for adoption, could put them to work
·         System was based on blood-lineage (don’t want bastards in the family)
·         Poor children would be apprenticed
 
Troxill – Parental Autonomy
·         Inherent Liberty interest in due process clause
o   Parent’s right to make decisions for their children
o   State’s interests are inferior to the parent’s interests
·         Parent’s rights against others
o   The parent alone has the liberty interest; all other parties’ interests pale in comparison
§  What the parent wants is not the be-all-end-all
§  It is the primary, overriding factor
·         In a traditional relationship, the mother and father are the only ones with an interest in the child
o   Parental rights must be recognized and protected; not severed easily
o   Those rights must be terminated before adoption can be authorized
 
Smith – Foster Rights
·         Foster parents are not meant to be “quasi-parents”
o   Meant to be a “stop-gap” for the child
o   Foster rights born out of a contract, so the State is involved from start
o   Recognizing equal rights would create a dilemma in hierarchy of rights
·         Liberty rights are limited because competition can’t be allowed
o   Born out of genetics, not a relationship
o   Parents have a constitutionally protected right not easily severed
o   Other people who care for and have an interest in the child do not have equal rights
 
Jurisdiction Hierarchy
·         Home state jurisdiction (last 6 months) – infants don’t meet this criteria
·         Where the adoptive parents have lived for the last 6 months
·         Where the adoption agency is located
·         Minor and prospective parents are physically present in the state, the child has been abandoned and there’s some emergency
o   Emergency must involve physical risk to the child, not to protect parents from state law
·         If no other state is found under 1-4, anywhere is fine, but must still meet state’s requirements to adopt
 
PARENTAGE
 
When parents are unmarried:
·         Child only has a legal mother
·         Father must do certain things to prove he is the father
 
When parents are married:
·         Both are presumed to be the parents of the child
 
Stanley – Biology Plus
·        

effort at completing the case plan
o   If parents are not making that substantial effort towards their case plan, the State can find the parents unfit
·         Termination of Parental Rights (TPR) Proceeding
o   Unfitness stage – Court makes a determination of parent’s unfitness
§  “You know it when you see it” standard
§  Focus on liberty interest
o   Best Interests stage – Court determines whether TPR would serve the child’s best interests
§  Money alone is never sufficient reason for TPR
§  Focus on the child’s interests
 
Santosky – Evidence Standards
·         Mathews v Eldridge Balancing Test
o   Private interests affected by the proceeding
o   Risk of error created by the State’s chosen procedure
o   Countervailing governmental interest supporting use of the procedure
·         Parental rights require proving by “clear and convincing evidence” to be terminated by the State
o   Many states only require this standard for the unfitness stage
o   Between competing natural parents (mother v father), the states use the “preponderance of the evidence” standard