Adoptions: This Was Not the Outcome Expected

Outcomes in adoption matters are just like life, regardless of the care, preventative measures and good intentions, the outcome may not be what was expected. This article shall address some of the issues which may either cause the adoption to unravel, or disrupt, and how to best address them.

Rights of Biological Parents and Adoptive Parents
Until the biological (1) parents’ rights are properly terminated, either voluntarily, or by judicial decree, the prospective adoptors (2) have no rights to the child, nor the right to make decisions on behalf of the child, mother or father. It is irrelevant that the mother and/or the father may have decided to make an adoption plan, and even chosen prospective adoptors prior to the time when their rights are to be terminated.

Unless and until a father’s name appears upon the child’s birth certificate, all decisions are deemed to be made by the mother. The law recognizes her as having sole legal and physical custody of the child. M.G.L. Ch. 209C §2. Massachusetts makes no provision for a pre-birth surrender. Moreover, the rights of the parents may not be terminated until four calendar days after birth. M.G.L. Ch. 210 §2.

Prospective adoptors must be cautioned to assume nothing until after the birth of the child, and the mother has entered into an adoption plan with the agency, who will then have the authority to place the child with them. Until such time, the expectant mother (3) and if involved, the expectant father must be given the utmost respect and deference to all of their decisions. Examples would include, an agreement that the prospective adoptors agreed that the prospective adoptors may be present during labor, and/or delivery. Expectant mother may change her mind, at any point. The best practice is to allow the expectant mother privacy. The quickest way to alienate an expectant/birth mother is to attempt to ignore that she gave birth to the child, this is her child until she determines otherwise, overrule a decision, or make decisions unilaterally. Likewise, similar behavior may also provoke the father.

Clearly, until or unless the father of the child establishes his paternity, absent mother’s assent, the father has no rights which will allow him to play a part in any decision making. However, unless it is clearly inappropriate to involve father because of a history of abuse and/or violent crime, father should be encouraged to participate.

The more involved both parents are in making the plan for adoption for the child, the more secure and better the placement. In such circumstances pertinent information may be exchanged with the prospective adoptors, and perhaps the establishment of some form of post adoption contact. M.G.L. Ch. 210 §6C. The purpose of post adoption contact is for the benefit of the child, not as an enticement to the parents to surrender the child for adoption.

Proving a Parent is Unfit in Contested Adoptions
Birth Father’s Challenge to the Adoption
For a child to be free for adoption, parental rights of both parents must be terminated. M.G.L. Ch. 210 §2; §3. Should a birth mother and/or birth father not consent to the adoption, if, either the Department of Children and Families or the licensed private adoption agency having custody of the child believe it is in the best interest of the child to be adopted, a Petition to Dispense with Parental Consent is filed with either the Juvenile Court or the Probate and Family Court (“Court”). M.G.L. Ch. 210 §2; M.G.L. Ch. 119 §24. The Court must determine whether the best interests of the child will be served by granting the petition for adoption, without parental consent. M.G.L. Ch. 210 §3.

M.G.L. Ch. 210 §3 and M.G.L. Ch. 119 §24, are the controlling statutes. M.G.L. Ch. 119 §24 refers to M.G.L. Ch. 210 §3, (4) for the standard to determine whether granting the Petition to Dispense with Parental Consent, or an Adoption Petition, without parental consent.

M.G.L. Ch. 210 §3 is set out in the Appendix. The standard of proof is by clear and convincing evidence. The seminal case being Stantosky v. Kramer, 455 U.S. 745 (1982).

Although M.G.L. Ch. 210 §3 (c) “…the court shall consider the ability, capacity, fitness and readiness of the child’s parents …” the courts have focused on parental unfitness or unwillingness to assume parental responsibility. Petition of the Department of Social Services to Dispense with Consent to the Adoption, 389 Mass. 793, 452 N.E.2d 497 (1983). Logically, if the parent lacked the ability and capacity and readiness to parent the child, hence the parent would be unfit.

A few of the factors, in and of themselves constitute grounds for dispensing with consent; namely, abandonment; conviction of murder or voluntary manslaughter or an assault constituting a felony which resulted in serious bodily injury to the child or another child of the parent. M.G.L. Ch. 210 §3(c).

Although the burden of proof lies with the petitioner, the respondent must be just as astute in proving their fitness. Courts need more than the facts of the case, to ensure the reasoning of the court was based upon the evidence presented in the event the judgment is appealed. The best evidence presented is from a qualified expert. Experts are essential in determining such factors under the statute as:

  • Because of the lengthy absence of the parent, or the parent’s inability to meet the needs of the child, the child has formed a strong, positive bond with his substitute caretaker, the bond has existed for a substantial portion of the child’s life, the forced removal of the child from the caretaker would likely cause serious psychological harm to the child and the parent lacks the capacity to meet the special needs of the child upon removal. M.G.L. Ch. 210 §3(c) (vii).
  • Whether there has been a willful failure to visit the child. M.G.L. Ch. 210 §3(c) (x).
  • Whether a condition is reasonably likely to continue for a prolonged, indeterminate period and the condition makes the parent or other person whose consent is required, unlikely to provide minimally acceptable care of the child. M.G.L. Ch. 210 §3(c) (xii).

There are also instances where a birth mother who has executed an adoption surrender may seek to revoke her surrender. This is an extremely formidable task for several basic reasons, but not insurmountable. Such grounds may be mistake of law, fraud, duress, undue influence, lack of capacity, or impropriety on the face of the surrender, or in the execution of the surrender,

If the court determines parental consent is not needed, because the parent has been found unfit, the court must still determine whether the plan proposed is in the best interests of the child.

Should the birth parent succeed in having the surrender revoked on any of the grounds as set out above that does not preclude the prospective adoptors from filing a Petition for Adoption. M.G.L. Ch. 210 §1. The burden is then on the Petitioners, now the prospective adoptors to prove the parent’s unfitness by clear and convincing evidence.

Tackling Third Party Challengers
As stated above, in accordance with M.G.L. Ch. 210 §1, any person of full age, may petition the court for leave to adopt as his child another person younger than himself. However, there are some statutory exceptions. The person to be adopted may not be the husband or wife, or brother, sister, uncle or aunt, of the whole or half blood of the petitioner. M.G.L. Ch. 210 §1. In a third party challenge, the focus is then on whether the petitioners have the ability, capacity, fitness and readiness to assume parental responsibilities. M.G.L. Ch. 210 §3(c). Each factor for determining fitness would apply, and in making that determination, should there be no issue of fitness of any of the competing petitioners, the court would have to weigh heavily each petitioner’s plan for the child to determine which is truly in the child’s best interests, and how that comports which the child’s health and safety. M.G.L. Ch. 210 §3(c).

Often times, if appropriate, the competing petitioners may enter into a co-guardianship agreement, or an Agreement for Post-Adoption Contact or Communication, (“Agreement”) in accordance with M.G.L. Ch. 210 §6C; D & E. One caveat: parties should enter into post adoption contact, only if it is truly in the child’s best interest; with the implication that there is an established relationship between the child and the parties to the agreement; a meaningful one, that, should contact or communication be halted or disturbed, it would be harmful for the child. M.G.L. Ch. 210 §6C; D & E may have originally been implemented to appease birth parents as an offering in settlement. Nevertheless, the Agreement is NOT for the parents, but for the child. If all parties cannot approach the terms of the Agreement from a child-centered perspective, it will fail.

Procedures for Dissolution of Adoption
Unfortunately, there are times when the placement and finalization of a child for adoption fails because of a variety of reasons. Often times, the child may be extremely disruptive, destructive, and a harm to himself and/or members of the family. In such cases, the best course of action is to contact the agency that assisted in the placement of the child. Additionally social services agencies may have resources as well. The best result is finding a family who has the ability to assist this child, and is willing to take on the responsibility.

Should a suitable family be found, the process is basically the same as in any adoption. The prospective adoptors should have a home study, geared to their parenting a child with specific special needs. The agency conducting the home study must ensure that the family has the capacity to serve the needs of this child well. It is critical that there be full disclosure of all health related risks. It is very beneficial that the child and prospective adoptors spend significant time together, at different time intervals so the prospective adoptors can assess as best as possible their ability to parent the child, and set into place various resources to assist them.

If this is an interstate placement, there must be compliance with the Interstate Compact on the Placement of Children (“ICPC”) and; it is wise to check with the receiving state on what additional documentation, if any, will be required to approve the placement. Furthermore, another critical element will be who will take financial responsibility should the adoption disrupt. Massachusetts will not allow either the parents or the prospective adoptors to do so. Massachusetts prefers either the agency or attorney of the sending state to sign the ICPC 100A. The reasoning is clear: Massachusetts does not want to be responsible for a child from another state; in such high risk circumstances that another disruption may occur.

Withdrawal of Consent
Should a birth parent seek to withdraw consent, according to Massachusetts case law, she/he may only do so, with the permission of a Probate and Family Court Judge. In re Surrender of Minor Children, 344 Mass. 230 (Mass. 1962) (5). In doing so, the birth parent must file a Petition to Revoke Surrender, and establish that there was procedural impropriety on the face of the surrender; in the execution of the surrender; the execution of the surrender was conditional; or fraud, undue influence, mistake of law, or incapacity which prevented her/ him from understanding and voluntarily, and unconditionally, signing the surrender, thereby making it void. M.G.L. Ch. 210 §2.

It is critical at this point, if the child has been placed with a family, for the agency to make an assessment and determine whether the child should be removed from the home, and placed in temporary foster care. The assessment is based upon the likelihood of success on the merits, and whether keeping the child in the current placement is in the best interests of the child.

To Appeal, or Not To Appeal
The first step in handling any appeal is to file the notice of appeal timely. The notice of appeal must be filed within 30 days from the date of the date of the entry of the judgment, with the clerk for the lower court. Mass. R.A.P. 3, 4.

Once the notice of appeal has been filed, in addition to complying with the other applicable rules of appellate procedure, Mass. R.A.P., a determination must be made as to whether there will truly be any likelihood of success on the merits. To prevail on appeal, the appellant must demonstrate the judge abused his/her discretion, made an error, or was wrong as a matter of law.

In adoption matters, as in all child custody cases, the filing of the appeal does not stay the judgment. Absent the allowance of a stay, a court may act on the basis of a decree dispensing with consent to adoption. M.G.L. Ch. 210 §2A; §3. There is no right of an automatic stay of the order dispensing with the need for consent. Adoption of Duval, 46 Mass. App. Ct. 916, 706 N.E.2nd.312 (1999). Because Petitions Dispensing with Consent are grounded in custody and there is no automatic stay, Mass. R. Dom. Rel. P. 62(g) (ii), the Appellant must demonstrate to the Appeals Court, irreparable harm, should the stay not be allowed, and a likelihood of success on the merits.

1. Another party to the adoptive triad may be the legal father to child. If the mother was married at the time of birth, her lawful husband in the legal father, and his rights, in Massachusetts take precedence over the biological father, and any alleged father.
2. For simplicity sake, the term prospective adoptors shall refer to any single, married, or couples in a significant relationship, seeking to adopt.
3. It is this author’s opinion that the terms birth mother and birth father are inappropriate, until after the birth of the child and the plan for adoption is in process. Until the mother gives birth, and her plan for the child is adoption, she is NOT a birth mother. Likewise, for the father, if he is participating in the plan. Until such time, as with all pregnancies, the mother and father are expectant parents.
4. M.G.L. Ch. 210 §3, attached in Appendix.
5. Nevertheless, there have been rare and extreme circumstances when the agency who took the surrender may determine it is in the best interests of the child for mother’s surrender to be revoked, prior to any court intervention.

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