Adoption

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Periodically I am asked questions about name changes for children or whether a mother is obligated to use the biological father’s last name for the child (answer: she’s not). A child’s last name is obviously an important and complicated issue that relates to the child’s identity and understanding of their history and parents. Mishandling a child’s last name can have emotional and legal repercussions for the child later in life.

A recent case out of Lawrence County in Pennsylvania highlights the standards used to consider whether changing a child’s name is in their best interests. The case In Re: Jessica Benegasi Foore involved a petition by the mother to remove the last name of the child’s biological father (“Foore”). The Court agreed on the basis that the child did not have a relationship with her father, thus there was no risk of alienation or interference with that relationship, but also because the name change would mirror that of her mother and half-sibling. The court considered that sharing the same name as the other members of her family would make the transition into school easier and provide her with better emotional security. The court also recognized that the father’s name carried with a negative connotation and poor reputation.

The considerations made the court in this case are not exhaustive, but provide a good insight into what facts make for successful name change petitions.

In Re: Jessica Benegasi Foore, C.P. Lawrence County, No. 70097 of 2011, M.D. (C.C.P. July 17, 2013).

 

A South Carolina attorney was recently disciplined for failing to have an active email address.

Despite characterizing herself as “retired” and not having a client in thirty years, the South Carolina Disciplinary Board still found that she “poses a substantial threat of serious harm to the public and to the administration of justice” for repeatedly failing to comply with the Court’s rule about having an active email address.

This case got me thinking about my practice, particularly my frustration with the tiny but hardcore group of attorneys who refuse to use email. One more than one occasion, I have had to take extra measures to hand deliver, courier, or Federal Express a document or correspondence to an attorney who does not use email. This has cost my client extra money to accommodate someone who is a rare exception in an industry that has accepted email, faxes, and smartphones (albeit, begrudgingly at times).

In one situation, I hand delivered a copy of a sizable responsive pleading to an attorney’s office. Faxing wasn’t an option and mailing would not work due to the forthcoming weekend. Though I could have served the document on the attorney at our hearing and been in complete conformity with the rules, I wanted to give the attorney the courtesy of having the pleading in advance. Had he used email, he would have had the PDF Friday afternoon to peruse at his convenience over the weekend. No good deed goes unpunished, however, and though his practice methods made service before the end of business on Friday virtually impossible (or, alternatively, cost prohibitive to the client), he nevertheless wrote a letter to tell me my hand delivery on Monday morning, in advance of the hearing, was “offensive.”

I scanned the letter into the system for future reference and dropped it in the recycle bin.

I recognize that some attorneys feel email is the scourge of the 21st century. The incorporation of email into smartphones makes us tethered to work around the clock. But in an industry that is essentially about customer service, it seems irresponsible – and in South Carolina, a breach of professional responsibility – not to have an active email account to communicate with clients, counsel, and the Court. To the best of my knowledge, no attorney in Pennsylvania has been disciplined for not having an email address or, even minimally, a fax machine. I can only speculate that it is a matter of time before a client – having become frustrated by being limited to either in person visits, phone calls, or “snail mail” letters – finds a new attorney or worse, files a disciplinary complaint against them.

 

My colleague, Aaron Weems, blogged in the beginning of May about the Supreme Court’s decision to hear the case of Adoptive Couple v. Baby Girl.  The Supreme Court issued an opinion in that matter of on June 25, 2013.  At issue in this case was the application of the Indian Child Welfare Act (“ICWA”) to a South Carolina Adoption Case.

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A couple, with the consent of the biological mother, adopted a child.  The biological father was estranged from the biological mother and the child.  Therefore, under South Carolina law, the adoptive parents did not need the consent of the biological father and proceeded with the adoption.  However, the biological father learned of the intended adoption and objected.  The basis for the biological father’s objection was that he was a registered member of a Native American Tribe, qualified for protection under the ICWA and the ICWA barred the adoption.  The South Carolina Supreme Court agreed and placed the child with the biological father.

The Supreme Court of the United States reversed and remanded, interpreting the ICWA narrowly to apply only in situations in which a Native American family’s break-up would be precipitated by the involuntary termination of a parent’s rights.  In the case before the Court, there was no existing familial unit to be broken up by the termination of the biological father’s parental rights, and, therefore, the ICWA was not applicable.

In this most recent U.S. Supreme Court term, the Court has heard two cases involving the domestic relations of a state.  In addition to the arguments on same sex marriage, on April 16th, the Court also heard argument on the adoption of a three-year girl.  The law at issue is the Indian Child Welfare Act. 

The Act, passed in the 1970’s gives Indian tribes exclusive jurisdiction over any child custody proceeding involving a Native American child who resided or was domiciled on Native American land.  The Act was passed to address the removal of Native American children by public and private adoption agencies and it places priority on allowing the child to grow up in the traditions of their culture by allowing the tribe and the child’s relatives a say in the placement of the child.  What is unusual about this Act compared to most state’s custody laws is that is significantly broadens the class of individuals that have standing to raise issues about the adoption.  Most states limit standing to the biological parents and, under some laws, the grandparents of the child.

 

The Indian Child Welfare Act, in this instance, was applied to overturn the adoption of a girl by a South Carolina couple.  The girl, now three years old, was returned to her biological father in Oklahoma, a member of the Cherokee Nation, after he sought to overturn the adoption based on the natural mother’s failure to obtain his consent.  The case made its way through the entirety of the South Carolina legal system and sided with the natural father on the basis of the Act, despite identifying the adopting parents as “ideal parents” – small comfort to them, no doubt.

 

The adoptive couple’s appeal is based on two questions:

 

(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law, and;

(2) Whether ICWA defines "parent" in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

 

The second question is interesting due to the case law in various states as to whether or not unwed biological fathers have the same decree of protections as mothers.  In Pennsylvania, any adoption requires the voluntary or involuntary termination of both biological parents’ rights, and both parents are protected under Pennsylvania’s child custody law; marital status is irrelevant and updates to the custody statute made it (parental) gender neutral.  This does not presume that complications can occur in instances where paternity is not established, but generally, adoptions in Pennsylvania require notice of an attempt to terminate parental rights and afford the biological parents the opportunity to contest the termination.

 

The Supreme Court’s decision in this case may result in the clarifications to existing law as to the definition of “parent” under the Act and the extend of the scope the Act has for addressing the adoption of Native American children where the proceeding otherwise satisfied prevailing state law.  The Act, as a Federal statute, would preempt the laws of the states where the adoption occurred so ultimately the Supreme Court will render a decision fairly narrow in scope as to whether the Act applies to this adoption and, if so, the overturn of the South Carolina adoption would be upheld.

 

It is worth remembering that nuanced, debated legal issues impact the actual lives of people.  The parents that raised this child from infancy until she was three were abruptly taken from this child’s life; the father of the child may never have known the mother put his daughter up for adoption and is now trying to forge a relationship with the child.  Whatever the Court’s decision, one side will be bitterly disappointed and likely never to see this child again.  

I am currently in the process of finalizing an adoption for a grandmother and her grandson.  The grandmother initially came to me in 2009, but she unfortunately suffered a stroke and could not complete the adoption process.  However, she is now healthy and anxious to legally "formalize" her relationship with her grandson, so that he can have consistency and stability in his life.  I am happy to be able to assist in bringing a family together.

I have been impressed throughout this process by the grandmother’s fortitude and her determination to get better so that she can care for her grandson.  She knows that family is important, and she is taking the necessary steps (which are sometimes difficult) to provide for her family.  Not only is she formalizing their relationship legally, she is getting her grandson the emotional help he needs to feel comfortable and safe in her care.   There are many resources available for those in her situation, and she has been smart to utilize them.

For those of you learning more about the process, check out the following links: 

http://www.adoptpakids.org/FiveThings.aspx

http://www.adoptpakids.org/EightSteps.aspx

One of the more nettlesome public policy questions courts are forced to address is when and under what circumstances are the rights of a child’s parent to be terminated.  The right to procreate and to enjoy the comfort of one’s off spring has long been considered fundamental as a matter of constitutional law.  But how is this right meaningful in a world where a parent has been or will be incarcerated for a substantial portion of the child’s minority?  This is the question a unanimous Supreme Court sought to answer In Re: Adoption of S.P.    

Continue Reading PENNSYLVANIA DRAWS A LINE WHERE INCARCERATION MEETS TERMINATION

A recent article in USA Today by Sharon Jayson highlights some of the changes in how Americans are adopting children. Referring to work by Mr. Adam Pertman, author of Adoption Nation: How the Adoption Revolution is Transforming Our Families – and America, Ms. Jayson highlights recent statistical data indicating that 40% of American adoptions involve multi-racial or multi-ethnic children and parents, and that 84% of foreign adoptions by Americans involve children of different races and ethnicities than the adopting parent(s).

Mr. Pertman’s update of the 2000 version of his book considers the trends in American adoptions over the past decade such as the fall-out from the failed Haitian infant adoptions which led to increased transparency in foreign adoptions. Higher profile adoptions (not surprisingly, a picture of Angelina Jolie and her kids are attached to the article) by celebrities such as Madonna embodied the kinetic pace of foreign adoptions from a few years ago and it appears the pendulum has swing in the other direction as foster-care adoptions are now increasing while inter-country adoptions are declining.

The article also addresses the effect of “color blind” adoptions: adopting parents attempt to raise adopted children without consideration of the child’s race or ethnic background. While “color-blindness” may be an admirable goal within the household, Gina Samuels, a University of Chicago professor in their School of Social Service Administration and herself a bi-racial adopted child, suggests that families do children a disservice by not addressing the differences of race.  By not allowing these children to address these differences within their household, they are not becoming adequately equipped to deal with the issue of race in the larger world. Ms. Samuels stressed, however, that seeing and experiencing the world differently due to race is not an impediment for family members being able to relate to one another.

Adoption issues seem to be cresting lately with the Arkansas Supreme Court striking down a law that banned unmarried couples living together from adopting children. Though the obvious effect of this decision is that an individual living with a same-sex partner may now adopt a child, it also applies to heterosexual relationships and eliminates an impediment family-members were running into when they tried adopting their nieces, nephews, and/or grandchildren.

Currently, Mississippi and Utah ban the adoption of children by unmarried, co-habitating people.  Virginia is considering amending the state law to permit same-sex couples to adopt children. Finally, the adoption laws in Michigan are gaining increasing amounts of publicity as the state courts have ruled that unmarried individuals may file joint petitions to adopt.

In a landscape where parties of all orientations and relationships are co-habitating, state courts and legislatures appear to be taking a hard look at their current laws and whether certain prohibitions on classes of parties applying for adoptions is truly reflective of the “best interests of the child” standard many, if not most states, operate under.

Under Pennsylvania law, an individual stands “in loco parentis” to a child where he or she assumes the obligations of parenthood. In order to sustain an adoption petition predicated on a party’s standing in loco parentis, the child’s placement with that party must be with the agreement of the child’s biological parents.

In the Superior Court case In Re: Adoption of BRS, the Court ruled that foster parents did not have standing to argue in loco parentis in their attempt to adopt a minor child. The minor child’s biological parents were both incarcerated at the time she was born. At that point, she was taken by the Jefferson County Children & Youth Services and placed in foster care with a couple who were also caring for her half sister. Although the initial permanency goal of CYS was reunification with the parents, CYS eventually petitioned the Juvenile Court to change the goals to adoption and identified the foster parents as candidates for adopting the child.

Having received this authorization, the foster parents initiated the adoption process and sought to terminate the parental rights of mother and father. The father moved to quash the petition and assert his parental rights over the child.

Though the foster couple fulfilled the duties of parents since the birth of the child, custody, for the purposes of in loco parentis, did not run with them but, rather, Jefferson Child & Youth Services. Because CYS had stepped in and taken custody of the children, the biological parents had not agreed to the placement of the children with this couple as would be required for the foster parents to assert the in loco parentis argument. As a result, the foster parents did not have the requisite standing to utilize the adoption process to terminate the natural parents parental rights and the Superior Court ruled that the foster parents did not have custody or stood in loco parentis to the child as it applies to filing a petition to involuntarily terminate the natural parents’ rights.

The distinction in how custody and in loco parentis is defined is critical to parties serve as foster parents to a child, related or unrelated, and wish to seek the adoption of that child. If the child is placed through a government agency such as Child & Youth Services, then they would be advised to seek the separate agreement of the natural parents to retain custody of the children or, in the alternative, position themselves in such a way that they may assert other arguments for the adoption of the child without being adversely affected by being agency appointed foster parents.