What Constitutes a Legal Risk Adoptive Placement?
My inquiry into legal risk adoptive placements revealed that there is no precise definition or universally accepted description. A "legal risk" placement may be a "temporary placement of a child in a prospective adoptive home, prior to finalization of the adoption, before the parental rights of the biological parents have been terminated." A legal risk adoptive placement might be that the birth parents have signed an affidavit of consent to the adoption, but that the birth mother is still entitled to withdraw her consent." At least one adoption professional explained that a legal risk placement is where a child is placed in a potential adoptive family where the parental rights of one or both birth parents remain intact. The legal risk comes in the event that one or both of the birth parents chooses to withdraw consent to the adoption, thus leaving the adoptive family with a false expectation for the future.
A legal risk adoptive placement differs from other types of adoption in that it acknowledges that the birth parents’ rights may end at any time, but this does not occur until the adoption is finalized. Examples include the cases in which a birth mother’s parental rights could not be severed due to a lack of paternity. The Court in In re Adoption of Oliver B . explained that "[w]here marital status is unknown, as in the present case, the putative father registry would enable a putative father to claim paternity without having the certainty of parenthood. The alternative would allow a mother to place her baby for adoption, and to prevent the father’s access by merely not listing his name on the birth certificate."
According to the Miracle Babies non-profit organization, as many as 50% of adoptions fail; that is, they disrupt or dissolve before the adoption is finalize. The most common reason for disruptions is "when the biological mother revokes her consent, there is a common argument that she signed under duress." Examples are cases where a "mother is being abused by the biological father, and/or forced to give up the baby."
There are three reasons for the "legal risk" nature of legal risk adoptions: (a) cases in which the biological parents were not married to each other the entire duration of the pregnancy or birth, resulting in a lack of authority for the biological mother to consent to adoption; (b) cases wherein the biological mother has an unknown father; and (c) cases where the biological parents are cognizant of the pregnancy but have not yet made any general or specific plan to place the child for adoption.
Why Adoption Risks Arise
Legal risk is a part of an adoptive placement. Several different factors can contribute to a legal risk situation. In some states, in order for a child to be eligible for adoption there must have been a showing that the biological parents cannot or will not take care of the child. For these states, in some cases the parents may have had their parental rights terminated voluntarily or terminated involuntarily. The termination of parental rights often occurs when there is evidence of abuse or neglect. When a child comes into the foster care system, oftentimes it takes months or years for effort to be made to terminate the parental rights. During this time, if a prospective adoptive parent knows that the state has plans for the child to be adopted, the child is considered to be in a legal risk placement. If that is the case, the prospective adoptive parents must understand that the likelihood of the placement being contested is quite high. The agency placing the child may have indicated that health issues may be involved and that there is likely a birth family history of health issues.
Another situation may involve placing an older child in an adoptive home, and where there is no parental consent. This situation may involve several different types of scenarios. One scenario may be where the child was originally intended to be adopted by a foster family and the foster family chose not to move forward with the adoption. If the child was to be placed elsewhere, then a legal risk situation may be created. Another situation may involve a contested voluntary relinquishment situation. That type of situation is typically filed by the biological mother of the child because the child’s father is not in the picture and the child is born out of wedlock. Birth fathers have 20 days from the time that he is served with the notice of adoption to contest the adoption. That 20-day statutory period can be extremely stressful for an adoptive family.
Managing and Avoiding Legal Risks
It cannot be overemphasised enough that if you get the legal framework right this should help you to avoid the risk of a contested adoption at a later stage. Although the Court of Appeal, for example in Re M 2000 had made clear that any piece of incorrect or incomplete documentation could not be allowed to vitiate the whole of the proceedings, there is something unsatisfactory in files containing incorrect documentation and the judge not being able to be sure whether he/she has been given the full and proper picture. The better option by far is to get matters correct at the outset and then you have no need to worry.
This does not however let you off doing your own independent due diligence checks. These should include asking the local authority to send over copies of all the documents the local authority has seen and received relating to the adoption so far (for example the medical, criminal records, references etc) also asking for the original passport, the birth certificate or evidence of guardianship, asking for details of the applicants’ addresses so that they can be checked at companies house and their credit rating can be checked as well as the financial situation in order to recompense the local authority for the child’s maintenance, education, care, upbringing etc if the placement is unsuccessful. Similarly the adoptive couple will need to obtain the same checks on the local authority/agency making the placement. The adoption agency will usually confirm that they have seen the paperwork from the local authority and the adoptive couple can check up with the local authority to ensure this is the case. It may well be that the papers you have on the file do not match what the agencies say they have. It may be that they are not telling the truth about their rigorous checks which are required by the Adoption Agencies Regulations 2005 or about their having seen the medical reports for example. Carry out your due diligence – it can save a lot of trouble and hassle later on.
Legal Risk Considerations for the Adoptive Parent
Legal risk is a term that impacts adoptive parents and has specific meaning not only to adoption triadis but also to adoptive parents as they consider how much risk they are willing to take (or not take) in their adoption journey.
First, consider the various stages of development of a child with regard to "legal risk." A child at the point of waiting for a parent’s relinquishment or to proceed with an independent termination where the termination is likely then can be said to be at high legal risk. On the other hand, a child who has already been relinquished to an agency or a termination has already been completed is said to be "legal risk free."
Another way to think of this concept of legal risk is to consider it a continuum of risk ranging from high risk for a child that is about to be relinquished or where the termination is likely to a low risk situation where the relinquishment has occurred or a termination has already taken place. Just as high risk exists at one end of a continuum for legal risk, so does NO risk on the other end of the continuum.
Regardless of where a particular child lies on the continuum, it is important for adoptive parents to understand what it means for them to acquire, or not acquire, this legal risk. There is no right or wrong answer to this question for any particular family – it is deeply personal.
There is therefore no correct answer because there are pro and cons to both sides of the legal risk issue for prospective adoptive parents to consider. With regard to timing issues and risks, those pros and cons are considered below.
PROS:
The main benefit of living with "legal risk" is that a child has been identified earlier for an adoptive family. Further, a birth mother is making a decision to place her child now, has been counseled as to the process, aware of what is required of her, and is committed to placing her child now . The birth mother may feel an urgency to place her child as soon as possible. Additionally, if an adoptive family chooses legal risk situations, they may have the option of choosing only situations where a health history is provided which is very specific.
CONS:
The negative side of waiting for legal risk to dissipate is that an adoptive family will have to wait longer before having a situation identified for them. On the financial side, adoptive families are usually required to pay money to an adoption agency for a high legal risk child, versus a no legal risk child. While each agency and each circumstance is different, the general rule is that more money is paid for legal risk placement than for no legal risk placement.
An additional risk adoptive families may face when working with children who are "legal risk" is that it may result in the situation changing on a rapid basis. Maybe the birth mother decides she wants to parent or the situation was rescinded. This can be both heart breaking and financially depleting, because even though adoption agencies have safeguards in place to try to ensure that the situation will be "a go" before they expend or request significant funds from adoptive parents, money can still be lost in the process.
Also, prospective adoptive parents who are working with legal risk placements will likely have to wait longer for their finalized adoption. Because a child’s relinquishment or termination has not occurred, there may be postponements in court, delays as a relinquishing or terminating birth parent decides not to go through with the process, or the birth father may assert his legal rights. All of these issues can result in a situation where the adoption is delayed. This is not to say that it will occur, but that sometimes it does. As with the other risks listed above, the perfect connotative or negative description will vary by circumstance. For some, the risk may be acceptable, for others it is not.
Role of the Agency and the Social Workers
The placement of a child in an adoptive home presents risks in terms of the loss of birth parent (or other relative) rights, but also requires consideration of potential physical risks to the child, and the potential for abuse and negligence claims against the adoptive parents and their agencies.
Adoption agencies and social workers can assist in evaluating both the specific attributes of the child placed with a family, and the fitness of prospective adoptive parents. Although the services of well-trained adoption professionals cannot eliminate all risks, they do minimize risks for adopting parents.
Properly trained social workers or adoption agencies are able to provide substantial information regarding the physical, emotional and medical background of the child being adopted. This assists the court in determining the best interests of the child, and presents substantial information to the adoptive parents on their decision regarding adoption. Factors in this evaluation include age, race, gender, level of communication skills (written and oral), intellectual ability, trauma experienced, medications, religious background, alcohol or drug exposure, educational concerns, attachment issues, and environmental exposures.
Adequate information about the manner in which each biological parent of the child was able to fulfill parental responsibilities under the law also allows the judge to make a proper decision. This includes details about whether proper financial support was provided for the raising and care of the child, whether there was proper supervision of the child, whether any physical or sexual abuse of the child occurred (and if so, the circumstances), and whether each biological parent either voluntarily acted to relinquish their parental rights, or whether they either had parental rights terminated or lost custody of the child involuntary through court action. The degree and nature of each parent’s prior involvement is important in setting out the probative value of consent or relinquishment, and the level of risk to the child in placing them in the household of their parents, given their particular life histories.
Adoption social workers also evaluate for protection of the public, including safety to other family members such as siblings, safety to members of the community, and working with juvenile and justice centers for disposition of delinquent and criminal child abuse matters.
Success Stories and Lessons
Overcoming legal risks in an adoptive placement can be difficult, but it’s doable. I was the attorney for a young, single woman adopting a newborn privately through the county. As is often the case, the birthmother’s parental rights were severed at birth and the birthfather signed a Denial of Paternity so he could not come back later to claim his rights. Everything was done according to the law, so we thought all was as it should be.
Fast forward many months and the birthparents were married (never registered as such) and had children of their own. At the same time, someone told the birthfather when he saw his signature on the Denial that he had the right to get out of that agreement. At that point, the birthfather was represented by counsel and sought to get his children back.
I took the case to the end with the client, and she proudly took her little boy home that day . The attorney for the Biological Attorneys did not represent my client, yet agreed to let me take the case to trial, which is quite unusual. My client’s adoption was in no way compromised or at risk, yet we won the legal battle for the children.
More than two years later, the new family returned to Texas, and I again represented the birthparents seeking to adopt those children back into their lives. A Hall County judge had denied their request twice before, yet I explained the facts of the case, and he granted the adoption.
Today, the Biological Attorneys see the children whenever they return home to North Georgia to visit their grandparents. Lessons to be learned:
• Do things right the first time or the second time.
• If you can’t get it done the first time, get it done the second time.
• Don’t give up; never give up.