I recently had a conversation with Mark Miller, Esq., an adoption attorney in Florida. Our conversation began after I saw, through social media, a birth mother looking for a permanent, adoptive home for her five young children who are currently in foster care. How does this work? Parents whose children have been removed from their home, having the privilege of selecting who will parent their children? Is this morally right? Is it in the best interest of the child? Who does this benefit? Does this mean the parents (who, clearly, are not the best influence on the children) will potentially be able to have an open adoption – thus, retaining a relationship with the children? And what of the foster parents, some of whom may have put their whole hearts into helping these foster children bridge the long, expansive gap of bonding – now to have the children ripped away from their *finally* comfortable home and placed permanently with someone their estranged birth parents chose for them?

But, surely, there are benefits to an intervention! And certainly, the law must be able to step in if this is not truly in the best interest of the child. The following is a Q&A session I had with Attorney Mark Miller. His answers are specific to Florida, but may apply to several other states as well:

DENALEE: “Can you explain to us the process of a child becoming adoptable?”

MARK: “When a child is removed from a home by the state, the parent(s) is/are given an opportunity to be reunified with the child. That is the stated goal but the time period is limited and the parents have to prove to the Court that reunion is appropriate within a certain amount of time – typically one year. If the parent is unable to finish the case plan, the State then initiates the termination of parental rights petition and a trial is conducted. Holding a TPR hearing is typically the last resort. If parental rights are terminated, the child becomes available for adoption through the State. Some children are adopted by the foster parents, and others require the locating of willing-to-adopt adoptive parents. Since the parental rights of the parents have been terminated, the biological parents are out of the picture.”

DENALEE: “What benefits do children of the state receive?”

MARK: “When a child’s parental rights are terminated through the State, that child is entitled to certain benefits.  These benefits will be carried with him/her to his/her new family – insurance, stipends, access to special needs services, tuition, and other assistance. Some, if not all, of these benefits are not available if the child is adopted through the intervention process.”

DENALEE: “Would you say most foster parents wish to keep the children placed in their care?”

MARK: “Some foster parents are foster parents because they want to help children on a sort term basis and others are foster parents because they wish to adopt. It is my understanding that folks are discouraged from becoming foster parents for the sole purpose of eventually adopting.”

DENALEE: “What is ‘intervention’ and how does it work?”

MARK: “The whole concept of allowing outside parties to intervene was a) to allow the parents to have some say in what happens to the child and b) alleviate some of the backlog in the foster care system.

“So, there is period of time where a party can file a motion to intervene – post-removal from the parent’s home and pre-TPR. In other words, the State has removed the child, placed the child in foster care and the parental rights have not been terminated. By filing motion to intervene, an outside party comes into the case and says, “the mother has selected me to adopt this child and I have a valid homestudy.” Legally, the Court is limited in what it can do – by statute, the Court needs to determine (in very rough terms) if the 3rd party has a valid homestudy and if the placement with the 3rd party is in the best interests of the child.”

DENALEE: “What, then, are the positive sides of intervention? Who is pro-intervention, and why?”

MARK: “The prospective adoptive parents (the 3rd party or Intervenor) like it because the child is already born, the costs are lower, and there is relatively low legal risk.

“The parents like it because at that point they have met with and picked the family to adopt and have some control of the adoption.  Additionally, they may possibly retain post-placement contact privileges.

“The Court system likes it because it means there is one less case on the docket and the child is placed with a home study ready family.

“From a purely financial aspect, the State likes it because many of the benefits that would normally stay with a child adopted through the foster care system until the child is 18 stop upon a successful intervention. For a family to step in and privately adopt would save a great deal of money for the State. Presumably the adoptive family has the resources to provide the best care for the child.”

DENALEE: “So, it is win-win-win situation, right?”

MARK: “Well, the problem is: What about the foster parent that has been caring for the child for months or even years and all of a sudden is told that someone has intervened and the child is to be removed? They say, of course, “The child’s best interests are to stay here with us,” and “Why do these strangers, picked by the mom, get to come in and adopt now? They don’t even know the child.” “Isn’t anyone going to take into consideration what the child wants?”

“Clearly, the older the child, the longer the child has been with the ‘fosters’, the attachment level, so on and so forth, all makes a difference. Certainly, an older child that has been with a foster parent for many months and has demonstrated bonding attachment issues, does not make for an appropriate intervention.”

DENALEE: “What, then would be a perfect situation for intervention?”

MARK: “The “ideal” intervention situation is one where an infant is removed and placed with a ‘career’ foster parent (one who is not looking to adopt) and the parent decides quickly to pick a third party to adopt and intervene.”

DENALEE: “And a situation where an intervention would be disastrous?”

MARK: “The worst case scenario of situations is where a child has been placed in multiple homes over the years, experienced trauma, been with a current foster parent for a significant period of time, and has a history of difficulty bonding.”

DENALEE: “In Florida, how does this work? What of best-case, worst-case situations? Does the law step in?”

MARK: “In the ideal situation, the intervention process works as designed. In the “worst case scenario” situation, the child’s best interests would trump the parent’s desire to place the child with a 3rd party.

“Of course, it is never as clear cut to always have the ideal or worst case, it is always somewhere in the middle. The law, in Florida, is that if the birth parent has executed a valid and binding consent to an adoption, the court is also prevented from comparing the birth parents’ choice of prospective adoptive parents with other potential placements that the court or the Department might choose for the child, assuming the placement of the child is in the best interests of the child. In other words, is the placement wish of the birth parent for the child, appropriate for the child?

“The bottom legal line is that if the State believes removing a child from a current placement is significantly detrimental to the child, there should be an objection to the intervention and if the State’s concern/objection is valid, then the Court will rightfully deny the Motion to Intervene. The tricky part is to not get drawn into the ‘which home is the better home’ argument.”

Mark Miller, Esquire may be found on his website or his Facebook page.