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[URL="http://www.njesq.net/index.php?option=com_content&view=article&id=173:20090518-adoption&catid=6:this-issue&Itemid=17"]Due process in adoption? Hardly [/URL]
Monday, 18 May 2009 07:29 William H. Mild III
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Adoption is generally perceived as a positive thing hope, love and new beginnings. We prefer not to dwell on the negatives that usually precede an adoption ח anguish, anger and severing of family ties. The purpose of this piece is to look at the due process implications of making a child available to be adopted. I am not addressing the process whereby the New Jersey Division of Youth and Family Services may obtain involuntary termination of parental rights because of abuse, neglect and/or other parental unfitness. Although some of the concerns expressed herein are also applicable to intra-family adoptions and approved agency placements, this piece will focus on the adoption process arising out of non-agency placements with potential adoptive parents who are not part of the childs original family, commonly referred to as private placements or private adoptions.
The parent-child relationship has long been recognized as a fundamental interest in which parent and child are each protected by the due process requirements of access to counsel, notice and a higher burden of proof җ clear and convincing, rather than mere preponderance. For instance, see In re Gault, 387 U.S. 1 (1966); Crist v. NJDYFS, 135 N.J. Super. 573 (App. Div. 1975); NJDYFS v. Wandell, 382 A.2d 711 (J.& D.R. Ct. 1978); Santosky v. Kramer, 455 U.S. 745 (1982).
As a custody or termination proceeding inevitably affects fundamental interests of both parent and child, both are indispensable parties, Bruno v. Mark MaGrann Associates, 909 A.2d 768 (App. Div. 2006). Because contact with other family members can also be important, grandparents and siblings have been granted a limited statutory right to apply for visitation, N.J.S.A. 9:2-7.1.
Private adoptions are almost always based upon the voluntary relinquishment of birthparents and their consent to an adoption. Relinquishment is a difficult, emotion-laden process for birthparents. Many relinquishing parents are unmarried and in their teens and early 20s. Many are immature, nave, depressed and economically dependent upon their own parents for physical necessities and guidance. Parents of birthparents often feel acute embarrassment at an out-of-wedlock pregnancy and push birthparents toward relinquishment. Other relatives, clergy, teachers and family friends may convince a vulnerable birthparent that the child will be better off with an adoptive family with more to offerӔ. Suggested reading is Ann Fesslers The Girls Who Went Away: The Hidden History of Women Who Surrendered Children for Adoption in the Decades Before Roe v. Wade. Very few relinquishments are ғvoluntary in any cheerful sense.
To be valid, a surrender document cannot be signed by a birthparent before the birth of the child or within 72 hours of the birth. It is the rare birthparent who can afford access to independent legal counsel in a private adoption. Only the adoptive parents have an attorney and it is their attorney who prepares all the documents. The formal surrender document may contain waivers of counseling, legal representation and/or further notice concerning the adoption proceeding. The adoptive parentsԒ attorney will probably give the birthparent(s) a Notice of Intention to Place which formally advises the birthparent(s) that they will receive no further notice of subsequent proceedings and will have no right to object to the adoption unless he/she files a written objection with the Surrogate of the county within 20 days, or 35 days if a nonresident. The Notice of Intention to Place process relies entirely upon the integrity of the adoptive parents attorney and offers an opportunity for fraud, if the particular attorney is so inclined and especially if the birth parent(s)or the adoptive parents reside outside of New Jersey. The Notice of Intention to Place becomes the basis of what is essentially a default judgment of adoption. The attorney represents only the adoptive parents, not the birthparent(s) or the child at a time when independent legal counsel is urgently needed.
However well-intentioned, the adoptive parentsҒ attorney who explains legal documents to a birthparent has an inherent conflict of interest. Regardless, the birthparent(s) is/are typically dependent upon the adoptive parents attorney to explain the documentsҒ contents and answer any legal questions.
Birthparents, like the public at large, generally understand that they are surrendering a child to be adopted and raised within a substitute family without interference. They do not realize, however, that they are de facto, as the childs legal guardian, also surrendering the childҒs right to know and be part of his or her original family.
They do not understand that their signature will, following completion of the adoption, lead to the permanent sealing of their childs original birth certificate, well beyond the scope of their parental rights, which normally ғexpire when the child becomes an adult. The childԒs adoption record, including the childs original birth certificate, will remain sealed against the child for the rest of his or her life, unless he or she can sustain the burden of proving to a court that there is ғgood cause. As ԓgood cause is not defined, the outcome will likely depend upon the personal predilections of the judge. See Backes v. Catholic Family & Community Services, 509 A.2d 283 (Ch. Div. 1985), which denied access to sealed medical or genetic information because the adult adopteeԒs mental condition was deemed insufficiently pathological.
Unless the adoptee is later able to learn his biological identity by some other means, the long-term effect of relinquishment is to strip the adopted person of his or her natural identity, including their genetic and medical background and their family and ethnic heritage, for their entire lifetime. None of this is explained in the surrender documents the birthparent(s) are given to sign. Indeed, the attorney for the adoptive parents has no reason or obligation to explain it.
The right to obtain a copy of ones own birth certificate is routinely exercised by all citizens, unless you were adopted. Although parent-child relationships are supposed to be fundamental and constitutionally protected, childrenҒs relationships with their parents, grandparents, siblings and other family members are routinely and permanently severed, first, by the inadvertent effect of the unrepresented birthparent(s) signature on surrender documents and, second, by a courtҒs judgment of adoption. The child has no guardian ad litem, attorney or other qualified person to represent and protect his or her interests and the adoption statute does not require it.
In fact, the only time the adoption statute requires the appointment of a guardian ad litem in a private adoption is if the court-appointed agency recommends a child be removed from the home of the proposed adoptive parents, N.J.S.A. 9:3-48a(2)(c). Apparently, our legislature sees no need for a guardian ad litem before a private placement is made.
After the surrender papers are signed, the child is placed with the adoptive parents who are required to file a Complaint for Adoption within 45 days of receipt of the child, according to N.J.S.A. 9:3-44. Neither the complaint nor any notice thereof is served upon the birthparent(s) if they were given a Notice of Intention to Place and failed to file a written objection. Upon the filing of the complaint, the court is required to fix a date for a preliminary hearing and to appoint an approved agency to investigate and submit a written report. This presents the agency with a bit of a fait accompli because, by this time, the child has been in the adoptive home approximately 45 days.
At the preliminary hearing, assuming the agency report is favorable to the adoptive parents, the court terminates the birthparent(s) parental rights, schedules a final hearing and appoints an approved agency to supervise and evaluate the continuing placement of the child. If the final report of the approved agency recommends that the adoption be granted and the court is satisfied that the best interests of the child will be served thereby, the court may dispense with the final hearing and enter a judgment of adoption immediately.
It seems to me that a significant number of New Jersey adoptions, particularly private adoptions, are on shaky legal ground. A courtҒs termination of parental rights based primarily upon the Notice of Intention to Place and the report of the approved agency is considerably weaker than the clear and convincing evidenceӔ required to pass constitutional muster. Birthparents should not have been expected to navigate these labyrinthine statutes without independent counsel. Without counsel, birthparents have virtually no way of knowing the long-term effect of their relinquishment and the post-adoption sealing of the courts file, including the childҒs original birth certificate, pursuant to N.J.S.A. 9:3-52.
The child is an indispensable party and requires independent counsel to protect his or her own fundamental rights and interests including adult rights and interests ח from being needlessly compromised.
Due process in adoption? Hardly.
William H. Mild III served for 23 years as a deputy attorney general within the New Jersey Division of Law representing the Division of Youth and Family Services in numerous guardianship and civil child abuse/neglect cases. He retired from the Division of Law in 1999.
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I found thistobe very intersting. AND very true.
For the adoptees ...where is the due process....those of us from the clo9sed era are put into a "witness protection program" all for the "protection" of everyone les in the situation. From bmom, to aprents, to the agency's and society in general. Everyone wants it to be a "feel good" thing all around .
And with all ofthatI still feel adopton is very necessary in may cases BUT I really wish the true needs of the people most impacted...adoptees and bmoms..would be better served. The general idea of honesty and understanding(especially forthe babes) would save a lotof peole a lot of pain.
This thread has gotten me thinking - about several things. When I first read through the article I was relieved that we had worked with an agency, that our son's first mom had her own SW and counseling (even thought it was supplied by the agency), and that in our state we were required to hire a guardian ad litem for our son. I then went on to pat myself on the back that we have all of his first mom's info - full name, birth date, medical history (that she could provide), a social history written in her own hand, and all the medical records from his birth (his and hers).
Then it hit me - that is only part of the picture. A tiny part of his story. His first mom was adopted by a family member, and only has limited knowledge of her maternal side of the family (almost nothing). On top of that, she did not name the birthfather on his OBC, so we don't know anything about him. If she chooses to contact us again in the future (I am hopeful that she will), I will encourage her to consider giving us his name at some point. If she doesn't - I hope she can and will explain her decision to our son in her own words. He deserves the truth from the person who lived it, and made that choice.
I mourn the loss of his history, before he even knows that it is missing. I just hope that we can find a graceful way to answer his questions the best we can, and that in the future we might out more.
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Courtney,
Thank you for understanding the need to know. It really is convoluted sometimes.
I think the biggest problen isn't so much that we don't know, there are lots of people that have questionable backrounds, its the fact we are told we CAN'T know. Not even a name. If you have a name ..and ...pertintent records , you have somewhere to start.
In the case of your son, you have his bmom's name and info, you still have the chance to find out about his bfather. Not sure, but I assume his bmoms records are also sealed and even if she or your son later in life wanted they can't....because of incredubily invalid reasons...IMO.
Your son is an adorable little boy but he just may grow up to not care!!!!(some men are like that..lol)
I thinkthat was the point of this articule...there is no due process when a human being identiy is allowed to be sealed before they are able to have any say....when it is THEIR idenity, their records, their heritage...butwe are not allowed to know. It makes no sense to me. The reasons given are lame ...IMO....and it totaly objectivies the "child"...that becomes grown up
Courtney,
Thanks for jumping in...but your son has some information and you are willing to get more if the chance is offered...for that I thank you even if your son never wants to know...he has that option thanks to what you did...back in Dpen's and my time that option to gather info was never provided to our parents...no contact between the parties whatsoever.
The court opened my records due to health issues. One of the things that came of it was the ability to create a part of my family tree and it has been so helpful, but I love doing family trees and have also done my dads and am working on my moms. It simply provides me with a sense of who and what I am because of all of them.
I will never understand why our records have to be sealed for all time. As it is done under the guise of the "best interests of the child" it seems like it would cease to be sealed once the child reached the age of maturity...some how it does not work that way and it is simply wrong.
Kind regards,
Dickons
Dpen,
I don't believe they were sealed in the interest of the child. I also don't believe they were sealed in the interest of the birth parents. I understand that when there has been state legislative action towards open records the agencies find a birth parent or two to stand up for "privacy" issues. As a birth mother, I cry "BS". Privacy isn't about birth parents nor is it about adoptive parents; IMO if the adoptee wants access to his/her records there should be NO question.
What's amazed me the most from this thread was the definition of a "legal fiction" which are set for "the advancement of justice". Where's the justice here?
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Very interesting thread. Has there ever been any research on this topic of 'right-to-privacy vs. right-to-know'? Eg. The historical reasons as to why this practice emerged. What legal challenges have been addressed and upon what grounds/assumptions? What are the risks, pros/cons on all sides - i.e. if identifying documentation is disclosed?
In my opinion, for one, the lack of disclosure is potentially putting adopted people and their offspring at medical risk if life threatening illnesses are not made known (there've been threads on this web site in other forums about the issue of lack of access to medical records).
While I appreciate each of our individual opinions, I'd be interested to hear more about the research that's been done in this area as this appears to boil down to a human rights issue.
However, as is the case with many legal issues - there aren't likely to be any clear cut answers since everyone on all sides of the debate will stand up and claim it's 'their' human rights that are being breached and therefore should be protected first and foremost above anyone else's.
Ripples,
I did a quick search and stumbled upon the following.
[url=http://www.adoptioncrossroads.org/Access0999.html]Access News - Issue 51[/url]
I also found the letter written by John C. Sonne, M.D. back in 96 to be very valid and well written that brings up even more to think about.
By the way, as to the medical issue...I'm one of those cases and the disease I have may also be the reason my son died...according to my doctor, but yet, until you have issues and many times it is far to late to help with that issue, the courts still get to play that magic trump card of being the ones who get to decide if it is valid enough to break the seal...wonder how they decide like the article Dpen posted ponders on.
Kind regards,
Dickons
paigeturner
What's amazed me the most from this thread was the definition of a "legal fiction" which are set for "the advancement of justice". Where's the justice here?
Paige,
Following link will show you a non-adoptive use of 'legal fiction' at it's worst but the article is 30+ pages long but wow...very very scary.
[URL="http://www.fear.org/history/Kochan_ReformingPropertyForfeitureLaws.pdf"]http://www.fear.org/history/Kochan_ReformingPropertyForfeitureLaws.pdf[/URL]
I am sure there are many such issues where 'legal fiction' plays a role, in this instance it truly is legal fiction when no charges are laid but assets are kept.
Kind regards,
Dickons
Very interesting stuff. I think about this stuff, and I can't help but wonder why my knowing my birthparents name was such a big deal. My aparents were supportive in my reunions. My Aparents were older when they adopted. When I reunited with Bmom, my Adad told me he was glad. I'll never forget him saying to me, "Now, when your mom and I are gone, you will still have family." My amom told me once that she and my adad had agreed before they ever adopted that if we wanted to know our biology they would accept that and help us. They understood the need for biology, and, heck, they were just as curious to know our biology.
I know not all aparents are like that, but really what would it have hurt for the actual names of my biological parents to be available to my Aparents to share with me when I was old enough to understand. I mean, if all Aparents went into adoption understanding that adopting a child would include the knowledge that the child would someday have to be told who the BPs were, maybe there would be a few less adoptees finding out they were adopteed later in life, etc. Maybe there would be a few less adoptees dealing with identity issues. Maybe some AParents would think about their decision to adopte alot more before doing it. If there were not secrets, how much stress and anxiety would be taken away from all involved.
You know, my Bmom never even knew for sure I had been placed. Even though things haven't worked out between she and I, I know that was always a concern and worry for her. Can you imagine the difference it could have made in her life if she had just known that, I, had indeed benn placed with parents.
It's not like everyone didn't know I was adopted. It wasn't a secret in my adoptive family. I always knew I had two mothers; one who gave birth to me, and one who was "Mommy". It's also not like my Bmmom didn't know she had given birth to me. She might have been able to put it out of her mind, but she knew she had a child. My Bdad too, though he didn't know his child was a daughter, he knew he had helped in creating a child. I don't want to cross a line here, but I would imagine, that even though they (Bmom) were told all that stuff BPs were told, wouldn't it always be in the back of their minds that someday the relinquished child might possibly find them? There isn't a doubt in my mind both my BPs, though surprised, were most definitely not that shocked that I found them. Heck, even my Bdad, whom my Bmom hadn't told about my actual birth, wasn't THAT surprised to find out he had a daughter.
So here we all were, my Aparents, my Bparents, and me all living with this big secret that someone said was in all our best interest. I have a news flash for those, who made that decision that records must be sealed for "privacy". AS an adoptee with heredityary medical issues, thanks a lot for nothing! Sheesh, seriously, how much more could we all, meaning me and my adoption situation, be screwed up by just knowing the truth about who we all were. I just don't get why it had to be such a big freakin secret. In the end the truth came out anyway for all of us. We are all still alive, a little more battered for it, but we will get through and go on. Maybe I'm just clueless, but I think if those records had never been sealed, we would "all" have been much, much better off. WE didn't need the privacy. We needed the knowledge and the peace of mind.
Dang, Dpen, I think you triggered something in me. lolSealed records just stink. They stunk in 65 and they stink now. I gotta go calm down. Thanks for posting this.
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Yes, sealed records do suck. I am starting the battle to get mine open and and already frustrated and bitter about the whole process.
All of our situations are a bit different but we're all mostly in the same boat and it would be nice to be able to tie up some of the loose ends in our lives.
There YA GO shadow!1
Now let us know you you reallllllllly feel! LOL
I hear ya loud and clear....I think the trigering comes from the fact that for most of lives we have "understood" the societal reason to keep us where it was felt we should be...but as adults our eyes open and its like HUH???? I do understand that way back then the stigma of being an unwed mother and an illegitmate child was the purpose for sealing records, I also understand that itwas felt AT that time that the aparents should't have any interfernce and should be able to parents "As if they wereborn to you" I do understand it was supposedly for the best interst of everyone invovled...so as a result I grew up beleiving it to be true. That I was illegiamte...there needed protection, I needed to be "just as if" and my bfamily didn't matter. That worked until my mid to late 20's when I started having my own children.
Then the reality set in a gradually the whole sealed records thing is nothing short of absurd. the only time I see it as approariate in todays world is if their is a danger to the child...but that child should have total access when they become an adult.
DPen, exactly.
...and one more thing, while I'm on a role...
The ironic thing in ref to the whole illiget thing? I was looked down on for that even thogh I was adopted. It seemed to me people just assumed that if you were adopted, well, you must be one of those, uhm, words that start with a B that I wont type, children, whether you were or not.
The whole thing is just stupid...uhm... to be blunt.
I know it's not really just that simple, but every child has a right to know the names of their bio parents at some point in their life. I don't care who you are. I wont even attempt to get into the medical issues. O.K. I gotta stop before I type something that might offend someone.
DPen, you ready to march on Washington D.C. yet. I'm right there with ya! Let's go! We could storm the place....Ooops, I was born in the 60's. I forget sometimes I wasn't really there. lol Ha, what about a sit in at the senate house? I know I'm being silly now, but if I were twenty years younger?
I'm getting tickeled here...wonder what my bio parents were smoking when, well, you knoww, that makes me like this? lol I'd ask them, if they would talk to me about all this adoption stuff, but they don't seem to understand, it isn't a secret anymore, and it's O.K.
...dang sealed records! Oh, boy, did you ever hit a nerve, Dpen. lol O.K. I feel better now. lol
Bastard Nation is planning a protest for open records in Philly during the NCSL meetings in July. They will also have a booth set up in the exhibition hall. I can't remember the details, but it should be on their website. I'll be there. Not for BN, but for my job. Let me know if you're going and I'll buy you a cold beverage.
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Hey Paige, not sure if your post was directed at me. JIC, I wont be there, but if I were, I'd take you up on that.
I've been thinking a lot about what I could do to help in this whole sealed record thing. I'm not anti adoption, just hate the whole sealed record thing.
Hey paige,
Thanks for the offer of a cold beverage!!! Wish I had the freedom to storm washington and hit Philly but I don't!
I habe written a few letters.
If your ever in the Boston area, let me know