[dpen6]

Due process in adoption? Hardly

Monday, 18 May 2009 07:29 William H. Mild III
http://www.njesq.net/templates/ja_pu...mailButton.png http://www.njesq.net/templates/ja_pu...rintButton.png

Adoption is generally perceived as a positive thing — hope, love and new beginnings. We prefer not to dwell on the negatives that usually precede an adoption — anguish, anger and severing of family ties. The purpose of this piece is to look at the due process implications of making a child available to be adopted. I am not addressing the process whereby the New Jersey Division of Youth and Family Services may obtain involuntary termination of parental rights because of abuse, neglect and/or other parental unfitness. Although some of the concerns expressed herein are also applicable to intra-family adoptions and approved agency placements, this piece will focus on the adoption process arising out of non-agency placements with potential adoptive parents who are not part of the child’s original family, commonly referred to as private placements or private adoptions.
http://www.njesq.net/images/stories/...8/BillMild.jpgThe parent-child relationship has long been recognized as a fundamental interest in which parent and child are each protected by the due process requirements of access to counsel, notice and a higher burden of proof — clear and convincing, rather than mere preponderance. For instance, see In re Gault, 387 U.S. 1 (1966); Crist v. NJDYFS, 135 N.J. Super. 573 (App. Div. 1975); NJDYFS v. Wandell, 382 A.2d 711 (J.& D.R. Ct. 1978); Santosky v. Kramer, 455 U.S. 745 (1982).
As a custody or termination proceeding inevitably affects fundamental interests of both parent and child, both are indispensable parties, Bruno v. Mark MaGrann Associates, 909 A.2d 768 (App. Div. 2006). Because contact with other family members can also be important, grandparents and siblings have been granted a limited statutory right to apply for visitation, N.J.S.A. 9:2-7.1.
Private adoptions are almost always based upon the voluntary relinquishment of birthparents and their consent to an adoption. Relinquishment is a difficult, emotion-laden process for birthparents. Many relinquishing parents are unmarried and in their teens and early 20s. Many are immature, naïve, depressed and economically dependent upon their own parents for physical necessities and guidance. Parents of birthparents often feel acute embarrassment at an out-of-wedlock pregnancy and push birthparents toward relinquishment. Other relatives, clergy, teachers and family friends may convince a vulnerable birthparent that the child will be “better off” with an adoptive family with “more to offer”. Suggested reading is Ann Fessler’s The Girls Who Went Away: The Hidden History of Women Who Surrendered Children for Adoption in the Decades Before Roe v. Wade. Very few relinquishments are “voluntary” in any cheerful sense.
To be valid, a surrender document cannot be signed by a birthparent before the birth of the child or within 72 hours of the birth. It is the rare birthparent who can afford access to independent legal counsel in a private adoption. Only the adoptive parents have an attorney and it is their attorney who prepares all the documents. The formal surrender document may contain waivers of counseling, legal representation and/or further notice concerning the adoption proceeding. The adoptive parents’ attorney will probably give the birthparent(s) a Notice of Intention to Place which formally advises the birthparent(s) that they will receive no further notice of subsequent proceedings and will have no right to object to the adoption unless he/she files a written objection with the Surrogate of the county within 20 days, or 35 days if a nonresident. The Notice of Intention to Place process relies entirely upon the integrity of the adoptive parents’ attorney and offers an opportunity for fraud, if the particular attorney is so inclined and especially if the birth parent(s)or the adoptive parents reside outside of New Jersey. The Notice of Intention to Place becomes the basis of what is essentially a default judgment of adoption. The attorney represents only the adoptive parents, not the birthparent(s) or the child at a time when independent legal counsel is urgently needed.
However well-intentioned, the adoptive parents’ attorney who explains legal documents to a birthparent has an inherent conflict of interest. Regardless, the birthparent(s) is/are typically dependent upon the adoptive parents’ attorney to explain the documents’ contents and answer any legal questions.
Birthparents, like the public at large, generally understand that they are surrendering a child to be adopted and raised within a substitute family without interference. They do not realize, however, that they are de facto, as the child’s legal guardian, also surrendering the child’s right to know and be part of his or her original family.
They do not understand that their signature will, following completion of the adoption, lead to the permanent sealing of their child’s original birth certificate, well beyond the scope of their parental rights, which normally “expire” when the child becomes an adult. The child’s adoption record, including the child’s original birth certificate, will remain sealed against the child for the rest of his or her life, unless he or she can sustain the burden of proving to a court that there is “good cause.” As “good cause” is not defined, the outcome will likely depend upon the personal predilections of the judge. See Backes v. Catholic Family & Community Services, 509 A.2d 283 (Ch. Div. 1985), which denied access to sealed medical or genetic information because the adult adoptee’s mental condition was deemed insufficiently pathological.
Unless the adoptee is later able to learn his biological identity by some other means, the long-term effect of relinquishment is to strip the adopted person of his or her natural identity, including their genetic and medical background and their family and ethnic heritage, for their entire lifetime. None of this is explained in the surrender documents the birthparent(s) are given to sign. Indeed, the attorney for the adoptive parents has no reason or obligation to explain it.
The right to obtain a copy of one’s own birth certificate is routinely exercised by all citizens, unless you were adopted. Although parent-child relationships are supposed to be fundamental and constitutionally protected, children’s relationships with their parents, grandparents, siblings and other family members are routinely and permanently severed, first, by the inadvertent effect of the unrepresented birthparent(s)’ signature on surrender documents and, second, by a court’s judgment of adoption. The child has no guardian ad litem, attorney or other qualified person to represent and protect his or her interests and the adoption statute does not require it.
In fact, the only time the adoption statute requires the appointment of a guardian ad litem in a private adoption is if the court-appointed agency recommends a child be removed from the home of the proposed adoptive parents, N.J.S.A. 9:3-48a(2)(c). Apparently, our legislature sees no need for a guardian ad litem before a private placement is made.
After the surrender papers are signed, the child is placed with the adoptive parents who are required to file a Complaint for Adoption within 45 days of receipt of the child, according to N.J.S.A. 9:3-44. Neither the complaint nor any notice thereof is served upon the birthparent(s) if they were given a Notice of Intention to Place and failed to file a written objection. Upon the filing of the complaint, the court is required to fix a date for a preliminary hearing and to appoint an approved agency to investigate and submit a written report. This presents the agency with a bit of a fait accompli because, by this time, the child has been in the adoptive home approximately 45 days.
At the preliminary hearing, assuming the agency report is favorable to the adoptive parents, the court terminates the birthparent(s)’ parental rights, schedules a final hearing and appoints an approved agency to supervise and evaluate the continuing placement of the child. If the final report of the approved agency recommends that the adoption be granted and the court is satisfied that the best interests of the child will be served thereby, the court may dispense with the final hearing and enter a judgment of adoption immediately.
It seems to me that a significant number of New Jersey adoptions, particularly private adoptions, are on shaky legal ground. A court’s termination of parental rights based primarily upon the Notice of Intention to Place and the report of the approved agency is considerably weaker than the “clear and convincing evidence” required to pass constitutional muster. Birthparents should not have been expected to navigate these labyrinthine statutes without independent counsel. Without counsel, birthparents have virtually no way of knowing the long-term effect of their relinquishment and the post-adoption sealing of the court’s file, including the child’s original birth certificate, pursuant to N.J.S.A. 9:3-52.
The child is an indispensable party and requires independent counsel to protect his or her own fundamental rights and interests — including adult rights and interests — from being needlessly compromised.
Due process in adoption? Hardly.
William H. Mild III served for 23 years as a deputy attorney general within the New Jersey Division of Law representing the Division of Youth and Family Services in numerous guardianship and civil child abuse/neglect cases. He retired from the Division of Law in 1999.http://www.njesq.net/images/stories/njesqinprint4.jpg

• Subscribe

I found thistobe very intersting. AND very true.

For the adoptees ...where is the due process....those of us from the clo9sed era are put into a "witness protection program" all for the "protection" of everyone les in the situation. From bmom, to aprents, to the agency's and society in general. Everyone wants it to be a "feel good" thing all around .


And with all ofthatI still feel adopton is very necessary in may cases BUT I really wish the true needs of the people most impacted...adoptees and bmoms..would be better served. The general idea of honesty and understanding(especially forthe babes) would save a lotof peole a lot of pain.

[RavenSong]

Dpen6 - thank you for sharing this important (IMHO) article. It has so many logical, valid points. It's given me much to think about today.

I was trying to think back to 1972, when I relinquished my newborn son. I remember feeling sad when the caseworker told me that his OBC would be sealed in Sacramento and that no one would ever be able to access it. I wanted to ask for a copy before they "sealed" it, but I was afraid to ask her for one. (I had a real fear of authority figures when I was a teenager.)

When my son turned 18, I was able to send a complete copy of both of our medical records from his birth. Thru a series of "fortunate coincidents", he and his parents were given a copy of his OBC that was laying in my hospital chart...evidently not all copies of his OBC were sealed, thank God. (And thank God for a director of medical records who just happened to be an adoptive mom and who knew both my son and his father...since they all worked at the same hospital where DS was born!)

I don't understand how our society can deny anyone access to their own birth information. That should be their birthright, regardless of whether they were subsequently adopted or not. As a birthmom, I've always stood up for open records and adoptee rights. I haven't testified in Sacramento for quite some time, but I think the time has come to become politically active once again.

[dpen6]

Raven,

I so agree.

This articule for me just made it so pratical and real that what I have been feeling, the swirling iof feelings regarding the fact that OBC and all records are sealed, has been valid. All my life I have been told that itbetterfor theadoptee, the bmom(privacy) and tha apatrents(as not to have interfenrce) that itis hards to bring to the surface the absurdity of it. Keep tellingsomebody theparty line and maybe they will believe it!

It was't until I had my own children did i realize how horrible itis to keep this information from the very person its about. The ARROGANCE of a society who thinks they know better...grrrrrr

Ok, I think this might bewhere my anger is coming from...LOL.

As mostof you know my adoption experiance was pretty good. Brought up in a typical family, for the most partaccepted as ther's and found bmom who really didtry to make it right. BUT because of the genreal societal expecatations I could not bring the 2 families together in my mind, to help me feel "good enough" while my mothers were alive...theyare both dead...WASTED TIME!!!!

Because everyone elses opinions were more important then what I needed! AND i internalzied it, made it real, so therfore I was not important...everyone else was....I was last on the totem pole!

And itcontines today for others.....

[Dickons]

Great article Dpen,

Very valid, very true and I feel the rights of adoptees are basically zero in the legal process of adoption. Interesting that there is a bill in NJ to allow adoptees (after one year for birth parents to file non disclosure requests (talk about inequality)) to access the NON CERTIFIED long form of their birth certificate, this bill has passed the senate 3 (?) times but failed in the Assembly...due to not the birth parents crying out against it but other specific interest groups crying out against it.

I just read a post from an adoptee's family trying to find their dads birth family - dad was born in 1944 and even though he is now official retirement age, he still cannot access his own birth certificate...begs the question of when are adoptees considered adults doesn't it? Sure they can be soldiers for their country, be productive citizens, even vote, drink alchol, drive cars, have kids of their own who can access their birth certificates, but still they are considered the child of the adoption that was sealed so long ago (in this case 1944) chances are their birth parents have long since passed away...makes my head spin and you are correct, it is also one of my main issues of being an adoptee, we are never allowed to be adults with the same rights as other adults...yet we were born in the same country...under the same constitution yet we are not 'real'...

Thanks for posting this, it is a subject that shows how unequal the system truly is.

Kind regards,
Dickons

[dpen6]

Dickens,

It boggles my mind how crazy it is. It doesn't matter what the circumstanses were, it doesn't matter how good our parents were, or who they are.....none of that changes if we are allowed to access our own records but to the policy makers it seems THEY think its does matter.

It all brings to mind on who the adoption is about/ Maybe we are considered something to be afraid of, as in invading the people who are resposible for our exsistence, privacy, or in some way hurting the people who brought us up.

This is why I feel minimized, this is why I bring thethesurface the feeelings of theperson adopted. Ithas NOTHING to do with relationships and everything to do with practicality. Our relationships with our aparents, bparents aregoing to beasdiffernt as the peole involved.

But at thevery least give us the respectof being able to access who were legally and humanly before we were adopted. How the heck does that hurt anyone else?

Its amazing to methat the peole that are making the rules can stand above us and tell us what is right for us...hmmm wonder how much of a pay off they are getting...



sad how it all probably boils down to money.

[ripples]

In the State of Queensland, Australia, the Department of Child Safety was reviewing the possibility of opening up adoption records. I'm not sure what the outcome was, but I do know that they solicited opinions from the general public and adoption-related groups regarding the key question: right-to-privacy versus the right-to-know.

[dpen6]

ripples,

What was the outcome?

I have a feeling it was the privacy thing...as in the person adopted can't know who they are born from because of the embarrassemnt to the bmom.

You know, I think for somethats an excuse, I think for some its not about privacy at all but an attempt to keep things in the status quo. iIt really does give power to those that are on the periphery of adoption as opposed to those that are the most impacted.

[Dickons]

Such a good topic...I was researching how Canada has dealt with and deals with adoption and is pretty much the same as the USA. But I learned a new term used in law..."Legal fiction" which had it's being in common law which if I understand correctly, and in Canada is only upheld in Quebec, (my understanding) but yet still used in constitutional law in other provinces...hmmm it works for non adopted adults right?

So basically they use the term Legal Fiction to change our birth certificates...doesn't that make us fictional but still legally allowed to be alive, but still not equal to non-adoptees? Pretty clear to me it does...

Kind regards,
Dickons

[dpen6]

Dickins,

We have been saying we are fictional right? LOL

Talk about making it legally ok to lie.

I think I have heard that The UK has opened up all their records and I don't beleive the country has collasped because of it.

[Dickons]

Far as I know the UK is still around...still not sure why anyone needs to be protected...from ???...

I looked up the legal definition of legal fiction...so incredibly bizarre...

Legal Definition of Legal Fiction

Take care,
Dickons

[dpen6]

OMG...I was right it is legel lying...for thesake of the coursts? No for the sake of everyone else in the adoption arena...

You are so right in that I don't know who needs protection from us.

Did I ever tell you the story of my older abrother who stood in front of a judge for his records and the judge granted him the name of his bmom but told him thatif he EVER attmpted contact he would be thrown in jail.

My poor brother. criminal that he is.....

[Dickons]

I will never understand, ever...

Makes you wonder though, just how often legal fiction is and was used in the shaping of the laws and just how scary that thought really is.

Coffeemaker broke, bad coffeemaker...off to get a new one before I fall asleep from not haing my hourly infusion of coffee...

Kind regards,
Dickons

[JustCourtney]

This thread has gotten me thinking - about several things. When I first read through the article I was relieved that we had worked with an agency, that our son's first mom had her own SW and counseling (even thought it was supplied by the agency), and that in our state we were required to hire a guardian ad litem for our son. I then went on to pat myself on the back that we have all of his first mom's info - full name, birth date, medical history (that she could provide), a social history written in her own hand, and all the medical records from his birth (his and hers).

Then it hit me - that is only part of the picture. A tiny part of his story. His first mom was adopted by a family member, and only has limited knowledge of her maternal side of the family (almost nothing). On top of that, she did not name the birthfather on his OBC, so we don't know anything about him. If she chooses to contact us again in the future (I am hopeful that she will), I will encourage her to consider giving us his name at some point. If she doesn't - I hope she can and will explain her decision to our son in her own words. He deserves the truth from the person who lived it, and made that choice.

I mourn the loss of his history, before he even knows that it is missing. I just hope that we can find a graceful way to answer his questions the best we can, and that in the future we might out more.

[dpen6]

Courtney,

Thank you for understanding the need to know. It really is convoluted sometimes.

I think the biggest problen isn't so much that we don't know, there are lots of people that have questionable backrounds, its the fact we are told we CAN'T know. Not even a name. If you have a name ..and ...pertintent records , you have somewhere to start.

In the case of your son, you have his bmom's name and info, you still have the chance to find out about his bfather. Not sure, but I assume his bmoms records are also sealed and even if she or your son later in life wanted they can't....because of incredubily invalid reasons...IMO.

Your son is an adorable little boy but he just may grow up to not care!!!!(some men are like that..lol)

I thinkthat was the point of this articule...there is no due process when a human being identiy is allowed to be sealed before they are able to have any say....when it is THEIR idenity, their records, their heritage...butwe are not allowed to know. It makes no sense to me. The reasons given are lame ...IMO....and it totaly objectivies the "child"...that becomes grown up

[Dickons]

Courtney,

Thanks for jumping in...but your son has some information and you are willing to get more if the chance is offered...for that I thank you even if your son never wants to know...he has that option thanks to what you did...back in Dpen's and my time that option to gather info was never provided to our parents...no contact between the parties whatsoever.

The court opened my records due to health issues. One of the things that came of it was the ability to create a part of my family tree and it has been so helpful, but I love doing family trees and have also done my dads and am working on my moms. It simply provides me with a sense of who and what I am because of all of them.

I will never understand why our records have to be sealed for all time. As it is done under the guise of the "best interests of the child" it seems like it would cease to be sealed once the child reached the age of maturity...some how it does not work that way and it is simply wrong.

Kind regards,
Dickons