Trends and Pitfalls in Adoption

Introduction

The increasing interest in adoption resulting from a variety of situations including delayed marriage, an apparent increase in infertility, and a recognition of the needs of large numbers of orphaned, abandoned, and abused children for new homes, has led to increasing legislative and judicial attention being paid to both the termination of parental rights and adoption process.

In New Jersey a variety of new concepts were brought to the adoption process through a revision of the adoption laws.¹ The new law, which was passed in December, 1993, addressed and resolved many of the traditional problems that birth parents, adoptive parents, and children had with the process, but recent developments have brought into focus new issues which need to be addressed, and the lack of a uniform national approach to adoption has also led to, often unexpected, difficulties. This article will look at some of these pitfalls and some of the solutions that have been developed and implemented around the nation to address them.

The Problem of the Missing Father -The Putative Father Registry

The enactment of the New Jersey Adoption Amendments with the increased safeguards for all parties to the adoption triad, does not prevent a "Baby Jessica" tragedy from happening in New Jersey.²

One approach to preventing this is a putative father registry. Many states have enacted putative father registries which give putative fathers the opportunity to make their interest in a child known and enables them to receive notice of an adoption, so that they can object to the adoption if they wish to establish a relationship with their child. Conversely, the registry protects adoptive parents and birth mothers from having an adoption disrupted as one who does not register may be barred from receiving notice or objecting. Fur purposes of this discussion, a "putative father" is a man who believes he may be the biological father of a child, but who is neither married to the mother, nor has legally established his paternity of the child.

Different time periods for registration are allowed in different states. A putative father registry could work as follows: in order for a putative father to receive notice of an adoption, he would be obligated to register with the registry or file a Certificate of Parentage either during the pregnancy or up to thirty days following the birth of the child. If a petition for adoption was not filed within thirty days of the birth, a longer period of time to register might be provided. If the putative father registered in a timely manner, he would receive notice of the adoption and an opportunity to contest the adoption. If paternity is established, the putative father may acquire the right to seek custody of the child or to develop and retain a relationship with the child. In some states he acquires an absolute veto over the adoption.³ However, if he does not register within the allotted time (or in some states prior to the filing of a petition for adoption) he looses the right to object to the adoption and is deemed to have abandoned the child.

Although not perfect, the registry is a solution to a variety of problems. For example, it gives the birth father an opportunity to protect his rights without having to rely upon the adoptive parents or the birth mother for information. It further assures the birth mother and the adoptive parents that the adoption will not be disrupted because of an unknown father or a father whose whereabouts are unknown who later appears on the scene. It places the responsibility with the putative father for protecting his rights, rather than other parties. It also protects the rights of a putative father more than publication, or depending on the birth mother to volunteer his identity or whereabouts.

In Oregon, for example, the registry system places the affirmative duty on a putative father to protect his interests in a child. A recent amendment states that if a putative father does not file the notice of the commencement of filiation proceedings with the Oregon State Department of Human Resources prior to the placement of a child in the physical custody of the prospective adoptive parents, he is barred from contesting the adoption.⁴

Tennessee recently amended its adoption laws including its putative father registry to require registration prior to or within thirty days after the birth of a child.⁵ The Statute further requires the birth father to file a change of address within ten days of any such change. The person who is registered has thirty days from receipt of the notice of a pending adoption or termination proceeding to file a petition to legitimate or to intervene for the purposes of establishing a claim to paternity. The failure to intervene within thirty days of such notice is grounds for termination of parental rights.

Likewise, in Illinois, the Baby Richard⁶ case has led to the enactment of a putative father registry as well as best interests legislation and additional notice requirements. In Indiana the legislature recently clarified the pre-birth notice requirement and putative father registry.⁷

In New Jersey, a Bill is presently pending which would revise the Adoption Statute and amend N.J.S.A. 9:3-45.⁸ The presumed birth father of the child who has not acknowledged paternity by executing a Certificate of Parentage within six months of a child's birth, or has not filed an action for paternity would not be served notice of the adoption. The Amendment would also change the legal standard used in contested adoptions. Under the proposed Amendment, the court would use the best interests standard. Currently in New Jersey, a birth parent must be found unfit or must have abandoned the child before the best interests standard can be considered.

The Problem of Whose Law to Apply

A perplexing issue remains as to which state's law should determine a birth father's rights in a multi-state situation. Even the proposed Uniform Adoption Act (Act) does not address this dilemma⁹. Of course, should the Act be adopted by each state (which is highly unlikely), this will largely moot the issue. Where the insemination, domicile of birth father and birth mother, place of birth of the child, domicile of the adoptive parents, location of placing agency may be in different states, which state's law should govern the birth father's rights, potentially creating rights or duties for him in excess of those imposed or granted by his own jurisdiction's law?

In some jurisdictions the birth father must either register or live with the birth mother in order to have any rights, and more and more states are adopting putative father registries and enacting legislation pertaining to the rights of the unwed birth fathers in an adoption.

In Arizona, for example, a biological mother is now required to execute an affidavit naming all potential biological fathers. Each of these fathers must be served by legal process with a notice containing specified information including the birth mother's pregnancy and her intent to pursue an adoption. Once the biological father receives this notice he is required to institute a paternity action within thirty days. If he does not, he looses his standing as a parent and his consent to the adoption is no longer necessary.¹⁰ In addition, to adjust to a potential problem of a birth mother failing to identify the correct birth father, Arizona established a putative father registry.¹¹

Many states have added provisions that the putative father's consent to adoption/termination of parental rights could be implied where he has not legally established paternity and has not registered as a putative father with the appropriate state agency.¹² Various jurisdictions have had widely disparate holdings about the rights of birth fathers. For example, in Arizona, the Supreme Court concluded that a birth father must take concrete steps to establish the legal or emotional bonds of a parent-child relationship, before he may attain constitutional protection.¹³ In another case, the Arizona Supreme Court ruled that where the birth father did not take any action before the child was three and a half years old, and had reasonable grounds to know he might have fathered a child, he should have protected his parental rights by investigating the possibility and acting appropriately on this information.¹⁴

In a Colorado case, the Court determined that although Colorado law prohibited a birth parent from challenging an adoption more than two years after it has been entered, the law did not apply in a case where the birth father's rights had been terminated through fraud.¹⁵

Wrongful Adoption - The Other Side of the Law

Recently, Sixty Minutes presented a segment about two birth fathers who filed claims against a California lawyer and the birth mothers who placed the children for adoption out of state.¹⁶ The birth mothers in these cases traveled to California from other states and each placed her child with Canadian couples.

In one of these cases, a multi-million dollar verdict was entered in favor of a birth father against a birth mother and others, including California counsel, for wrongful deprivation of parental rights.¹⁷

According to the California lawyer, the facts were as follows: the birth mother, a thirty year old unmarried kindergarten teacher, residing in Huntington, West Virginia became pregnant in October, 1990 by a recent medical school graduate she had gone out with periodically for some years. They had never lived together, nor had he contributed to her support. In fact, the alleged birth father urged her to have an abortion.

Embarrassed and humiliated, the birth mother left West Virginia and visited friends and relatives in other states while she considered her options. While visiting her aunt, who was a nun in Minnesota, she decided on adoption. The birth mother and her mother went to Los Angeles and sought out the services of the attorney. The birth father opposed the adoption. The birth mother, however, determined that adoption was the best plan for her child.

The birth mother selected a young lawyer and his wife who lived in Edmonton, Alberta, Canada. At the time, Alberta statutes did not provide for notice of guardianship or adoption proceedings to unwed fathers unless they had lived with the mother for one year before birth. The adopting couple went to Los Angeles, met the birth mother and her parents and received the child from the hospital pursuant to a State Department of Social Services health facility discharge form identifying the adopting parents as prescribed by California law. The adoptive couple filed for adoption in Canada.

The birth father subsequently filed a petition in Cabell County, West Virginia Circuit Court requesting a paternity test and declaration of paternity. The birth father requested and obtained an Ex Parte Injunction from the County Court enjoining the birth mother from placing the child.

The birth father located the adoptive parents in January, 1992 and hired Alberta counsel to oppose the still pending adoption. The petition was denied and the adoption was granted.

In July, 1992 he filed an action for damages in the County Circuit Court in West Virginia alleging a conspiracy to deprive him of his parental rights, intentional infliction of emotional distress, deprivation of civil rights and outrage.

There are troubling jurisdictional questions. West Virginia asserted jurisdiction over a California lawyer, all of whose activities in the case took place in California, whose birth mother client was living in California, where the child was born, and ultimately placed for adoption.¹⁸ The lawyer was listed in the West Virginia Yellow Pages. This listing, however, did not produce this case.

Under California Adoption Law, at the time the placement occurred, the mother of a child born out of wedlock had exclusive control over the custody of the child, including the power and right to place the child for adoption, to the exclusion of any rights of the child's father solely by reason of his paternity.¹⁹ Under the California Civil Code an unwed father must receive the child into his family, either before birth by cohabitating with the mother, or after birth by the child physically entering his home, before he could achieve presumed father status with custodial rights.^20,21 Accordingly, California courts must look at a father's efforts to act like a parent both pre-birth and post-birth. If those efforts are insufficient to elevate his rights to those of the mother, his rights will be determined at a best interests hearing and will most likely be terminated.

The West Virginia court instructed the jury that the UCCJA applied and that West Virginia was the "home state" and the exclusive forum where the child's custody could be litigated.^22,23 It further instructed the jury that the Interstate Compact on the Placement of Children (ICPC) applied, and the attorney and the birth mother had violated the ICPC by failing to make an application for placement through the West Virginia Compact Office, not withstanding the fact that she was not there when the baby was born and West Virginia was therefore neither the sending state, nor the receiving state.²⁴ Further, Alberta was not a signatory to the ICPC.

In another case, an Ohio couple's wrongful adoption claims were barred in part by the applicable statute of limitations.²⁵ The Supreme Court of Ohio was the first state supreme court to recognize the tort of wrongful adoption.²⁶ In that case plaintiffs, the adoptive parents of a minor child, claimed that the defendant, the Tuscarawas County Department of Human Services (DHS), was negligent in providing medical care for the child, causing him to have a more advanced state of cancer than at the time he was originally diagnosed. They further alleged that because of the cancer's advanced state the child suffered from depression and oppositional personality disorder, which were foreseeable results of cancer of the central nervous system. The adoptive parents averred that prior to the placement, employees of DHS recklessly stated the child was in perfect health.

Plaintiffs sought damages to compensate the child for present and future pain and suffering and to compensate them for present and future medical and special educational expenses that they incurred. The defendants moved for summary judgment which the trial court granted and the appeals court reversed in part.

In a recent Connecticut case, the court determined that employees of an out of state adoption agency which conducted workshops within the state for the purpose of inducing Connecticut residents to enter into a contract with the agency for locating and placing a child with the couple, were individually liable as they had sufficient contact with the state to permit jurisdiction over them in a suit for breach of contract.²⁷ This included employees who did not take part in the seminars. The court held they had sufficient contacts with the state to permit jurisdiction over them.

The Rhode Island Supreme Court extended the tort of negligent misrepresentation to the adoption context and further held that the extension of tort to adoptions did not violate public policy.²⁸ In this case the adoptive parents brought an action against the employees of an agency alleging wrongful adoption. Although indicating that the biological mother suffered from learning disabilities due to head trauma, it did not disclose the fact that the child's biological mother and grandmother were intellectually limited and that the child the couple adopted was mentally retarded and severely disturbed. The Court ruled that where an adoption agency does make representations, it has a duty to do so in a non-negligent manner and where the agency breaches that duty, a claim for negligent misrepresentation may be brought.

In Massachusetts, the Supreme Judicial Court directly addressed the issue of wrongful adoption.²⁹ The adoptive couple alleged that the Department of Public Welfare misrepresented and fraudulently concealed the medical and family history of a child, who they placed and was subsequently adopted by them. The adoptive couple was not told by the social worker responsible for the child's adoption that the birth mother was a committed patient at Worcester State Hospital with a diagnosis of schizophrenia and that the child herself had been diagnosed with developmental problems.

The jury awarded the adoptive parents 3.8 million dollars in compensatory damages. This award was later reduced to $200,000. The Court allowed liability for wrongful adoption for claims based both on intentional and negligent misrepresentation to the adoptive parents. The court ruled that an agency has an affirmative duty to disclose to adoptive parents information about a child that will enable them to make a knowledgeable decision about whether to accept the child for adoption.

In Pennsylvania a wrongful adoption matter was brought by adoptive parents who sued a state agency and a private child placement agency for fraudulently and negligently failing to reveal the history of physical and sexual abuse which had been inflicted upon the child placed for adoption.³⁰ The Pennsylvania Supreme Court recognized that the traditional common-law causes of action grounded in fraud and negligence applied to the adoption setting. The Court held that adoption agencies have a duty to disclose fully and accurately all relevant non-identifying information. The Court, however, did not impose an affirmative duty to investigate the adoptee's mental and/or physical health.

In another Pennsylvania action, the adoptive parents filed an action in fraud and negligence against the county adoption agency alleging that it failed to reveal the mental illness and alleged drug and alcohol abuse of the biological parents of the adoptee. ³¹ However, in this case the court held that the action was barred pursuant to the Pennsylvania code which excludes liability for conduct which constitutes a crime, actual fraud, actual malice, or willful misconduct in the case of a local government agency.

This year Virginia added a provision to its code, which makes it a felony for any person knowingly and intentionally provide false information, material to an adoptive placement, under oath and in writing. The code calls for punishment by imprisonment of not less than one year, nor more than five years, and at the discretion of the jury, confinement in jail for not more than twelve months and a fine up of $1,000, either or both.³² The statute includes penalties for all parties, including clients, attorneys, adopting parents, birth parents and employees of agencies.

Legal Malpractice

New Jersey recently addressed legal malpractice in the context of adoption.³³ The novel issue in this matter was whether damages for emotional distress were recoverable where an attorney was retained to pursue non-economic claims. The court answered the question in the affirmative and denied the defendant-attorney's motion for summary judgement.

The defendant-attorney's alleged malpractice arose from having served the adoption complaint on the birth parents, thereby erroneously disclosing to them privileged information, including the name and address of the adoptive parents and the adoptee.³⁴ Plaintiffs claimed that the breach of confidentiality caused them to suffer severe emotional distress. The attorney argued in a motion for summary judgment that case law precluded recovery for emotional distress under these circumstances as a matter of law.³⁵ Plaintiffs argued that the Gautam case, which articulated this standard, was not controlling because their claim was not predicated upon an economic loss. Instead they contended that the improper disclosure of privileged information severely damaged their emotional and mental well being and that these circumstances be deemed "extraordinary" as contemplated by Gautam.³⁶

The court reasoned that since no economic claim was impaired by counsel's alleged negligence that the "suit within a suit" framework typically utilized in adjudicating legal malpractice actions had no application in the matter. The court further reasoned that consequently without the ability to seek redress for emotional distress damages, negligent counsel have "virtual immunity" for any malpractice committed when retained for non-economic purposes.³⁷ The court held that such a result would be contrary to the public interest and accordingly denied defendant's motion for summary judgment.³⁸

Indian Child Welfare Act

Another pitfall for the uninformed, is the implication of the Indian Child Welfare Act (ICWA). Two basic elements are required for the application of the ICWA: the child must be an Indian child as defined by the ICWA,³⁹ and the proceeding must be a child custody proceeding as defined by the ICWA.⁴⁰ All adoptions, including stepparent adoptions are included under the ICWA.⁴¹ The tribe in which the child is a member or eligible for membership must be a Federally recognized Indian tribe. A list of Federally recognized Indian tribes is published annually in the Federal Register. Although no ICWA cases specifically address what it means to be "eligible" for membership, the safer course of conduct is to treat a child as an Indian child once any suggestion of Indian heritage has been raised, until a negative determination on the Indian status has been obtained.

An attorney must advise clients when they are considering adopting a child that the ICWA must be followed scrupulously in order to avoid future problems. Any adoption involving an Indian child is a high risk adoption, which means that there is an increased chance that the adoptive placement might be disrupted.

In a recent California case, the trial court ordered two year old twin girls who lived in Ohio all their lives returned to their paternal grandmother (with whom they never lived) because they were found to be Indian children. The California Court of Appeals stayed the transfer twenty minutes before the twins were to be transferred. The Court held that:

We find ourselves entirely in agreement with the comments of counsel for amicus American Academy of Adoption Attorneys who expressed the view that 'a custody hearing is required to determine the placement of a child whenever an adoption is dismissed or denied, whatever the applicable law. When a child's interests and needs are affected detrimentally by a proposed remedy for a wrong inflicted upon a parent or de facto parent, the law must craft a solution that protects the child. ...'⁴²

More than a dozen Amici are participating in the case, and to date the tribe and its supporters have petitioned this California Supreme Court for review, but the Supreme Court has not ruled on the petition. The California Court agreed with Appellate Courts in other states which have concluded that the ICWA does not apply to the voluntary adoptive placement of a child of Indian lineage unless the child is part of an existing Indian family in which one or both parents have a significant social, cultural political relationship with a tribe. However, other courts have justified the existing Indian Family Doctrine as consistent with the ICWA's policy of promoting the stability and security of Indian tribes. The minimal Federal standards are intended to prevent the unwarranted removal of Indian children from their families and troubled communities.

In a Montana case where the child was one-eighth Chippewa Indian, the parental rights of the biological parents were terminated. The child's biological uncle and the child's foster parents then sought to adopt the child. The tribe later sought to intervene in the proceedings. The trial court held that the child was not an Indian under the ICWA, but the Montana Supreme Court remanded the case for further proceedings pursuant to the ICWA and held that the tribe did not waive its right to intervene at any point in the proceedings.⁴³

In Idaho, however, its Supreme Court upheld a lower court decision that an Indian child would suffer serious emotional harm if removed from his prospective adoptive parents. Therefore, the Court ruled that good cause existed to deviate from the placement preferences of the ICWA.⁴⁴

In the Matter of Adoption of a Child of Indian Heritage the New Jersey Supreme Court ruled that although the mother had voluntarily relinquished her child to an adoptive couple and the child had never lived in an Indian environment or with an Indian family, this did not preclude the application of the ICWA.⁴⁵

In a recent New Jersey case the Appellate Division ruled that an adopted person of Indian heritage may obtain information contained in a sealed adoption record, including the identity of the natural parents, if it establishes or helps establish tribal membership so that the adoptee could avail herself of benefits under the Federal Indian Child Welfare Act.⁴⁶

Same-Sex Adoption

The New Jersey Appellate Division recently concluded that the New Jersey Adoption Laws permit the adoption of children by the same-sex cohabitating partner of their natural mother, without affecting the mother's parental rights. ⁴⁷

The Appellate Court was persuaded that because the adoption sought clearly served the best interests of the children, the judgment of adoption should be granted. New Jersey courts have always focused on the best interests of the child. This is another emerging trend throughout the nation.

Other states have recently considered the precise question in similar factual contexts. The Vermont Supreme Court noted that the precise circumstances of such adoptions may not have been contemplated during the initial drafting of the statute, but that the general intent and spirit of its statute in Section 448 (which is analogous to N.J.S.A. 9:3-50) is entirely consistent with them.⁴⁸

In New York, the state's highest court recognized the right of an unmarried partner of a child's biological mother, whether heterosexual or homosexual, who was raising the child together with the biological parent, to become the child's second parent by means of adoption.⁴⁹ The Supreme Judicial Court of Massachusetts ruled that two unmarried women could jointly adopt the child who was the biological daughter of one of the women and the biological cousin of the other.⁵⁰ The District of Columbia (DC) Court of Appeals recently ruled that two unmarried persons may jointly petition to adopt.⁵¹ The court applied a liberal construction to the adoption statute and concluded that adoption by an unmarried couple can be in a child's best interests.

Conclusion

Since non-nuclear families are a growing percentage of today's households, our courts must acknowledge and appreciate the evolution of non-traditional families in our society. The courts appear to be acknowledging that in order to have rights, each parent must undertake the correlative duties associated with it. Accordingly, in recent decisions allowing children to achieve a measure of permanency by a legally recognized relationship with both parents who are same-sex partners, and by placing greater responsibilities on unwed birth fathers, the courts appear to be using the best interests standard to promote the welfare of children. Similarly, by recognizing a cause of action for wrongful adoption courts are sending a message to those who would be less than responsible when dealing with children's lives.

Reprinted with permission from the New Jersey Family Lawyer,
a publication of the New Jersey State Bar Association

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