Please note: This article has the perspective of domestic adoption, particularly of foster care. Some of the information below may also apply in international adoptions. However, those interested in adopting older children internationally should do additional research and work with their agencies to understand how consent to adoption applies in specific countries or circumstances.
Many people who are just considering foster adoption for the first time may not realize, depending on their age and location, kids may have the right to consent to their adoption. For some kids in foster care, this is fine—they want permanence, safety, and a forever family. But for some kids, it is not straightforward. Adoption is an emotional business. Read on for more information about adoptee consent laws through the United States, and some of the factors that may prevent a child from consenting to their own adoption.
Laws Across the United States
As of the writing of this article, all but one state, including the District of Columbia, have laws that at least reference an adoptee’s consent to or notice of the adoption proceedings. Louisiana is the only state that does not reference it. The age of consent varies from 10 to 14. Several states (Alabama, Idaho, Illinois, Kansas, Missouri, Montana, New Jersey, New Mexico, South Carolina, Tennessee, and Utah), make allowances for the mental capacity of the child. In many other states (Alaska, Arkansas, Delaware, Florida, Hawaii, Kentucky, New Hampshire, New York, North Carolina, Ohio, Oklahoma, South Carolina, Texas, Vermont, Virginia, and West Virginia), the court can choose to make an exception to the requirement for adoptee consent if this is in the child’s best interest. Wisconsin requires a child aged 12 or older to be given the notice to attend the adoption hearing. Colorado requires counseling for the child prior to giving consent.
It sounds good, but why wouldn’t a child want to be adopted? Every child should want a permanent family, right? Well, it’s not as simple.
What Does It All Mean?
Many kids may not have all of the right information about adoption—about what happens legally, what it means, and how it affects their relationship with their birth family. They may expect things to work in a way they’ve seen on TV or in the movies, even though these depictions might not be accurate, or at least true for their situation. They may have been told things that aren’t true by others who are speaking out of their own ignorance or even fear. And in cases where they don’t know what to expect, they make assumptions to fill in the gaps, instead of asking questions that might help clear up misunderstandings.
Adoption, and especially navigating the relationships within adoption, is extremely complex. It’s sometimes hard for adults to really wrap their head around all of the nuances and the details, so it is even truer for a child or teenager. Talking to someone who has experience in explaining adoption to a child can be extremely helpful. It can be an adoption-competent therapist, or a social worker, or even a lawyer or child advocate. The important thing is to ensure that before a child can make a big decision, that they receive all the information they need first.
In cases where a potential adoptee’s consent is required to move forward with the adoption, a discussion has likely taken place to expand the idea of adoption for quite some time. Once reunification no longer appears to be feasible, the plan for the child may change to adoption. If the child is already living with a possible adoptive family, either a foster family or kinship placement, the discussion about adoption will naturally be about that family. But what if the child’s current placement is not an adoptive resource? Perhaps the family is not a long-term good fit, or they are primarily interested in fostering and not adopting. In those cases, the initial discussion is more about the general idea of adoption, rather than being adopted by a specific family. While consent would be sought for adoption by a specific family, children may be resistant to the possibility. In time, they may consent to adoption by a specific parent or parents, but initially resistant to the general idea. It can make identifying an adoptive resource even more complex, as potential adoptive families may need to be willing to accept the placement of a child who will never consent to adoption.
Holding On to What They Know
Many kids who have lived in an unstable home for years, especially children that have been in and out of the foster care system, may find it difficult to trust that a new family is truly a forever option. Past history has taught them those things do not exist. The system, as flawed as it is, is all they know, and this may seem safer than the unknown. The very thing that makes adoption so important, permanence, can also be the greatest cause for uncertainty. Building trust can take many years, no matter the timeline of the specific case.
Hurting the Birth Family
The older a child is, the more likely they have some ties to biological family members, even if these ties are just memories. Also, many kids who have experienced neglect or abuse have experienced a kind of role reversal with the parent, where they become the ones taking physical and emotional care of their mother or father. They may have survived this far by trying to please the parent or to get their attention. No matter what level of abuse or neglect they’ve experienced, kids tend to be fiercely loyal to their birth parents. Therefore, they may worry that a desire to be adopted will be seen as a betrayal. They may also hold on to hope that their birth parent can be a safe option and be reluctant to let that ideal go.
Even if the adoptee does not feel this tie to the biological parent, there may be other birth family relationships to consider. Are there siblings who still live with the biological parent, or who are still in foster care? The child may worry that those siblings will feel abandoned. Are there grandparents or aunts or uncles that are not an option for permanent placement, but who still maintain a relationship with the child? Navigating these relationships both before and after adoption can be really difficult, and without clear communication and agreement on both sides, the child can feel the tension of being caught in the middle.
Maintaining a Family and Cultural Identity
Like adults, kids will vary in how tied they feel to their birth family and culture. For some, this is a strong part of their identity. If the potential adoptive family is of different ethnicity or even nationality, choosing to be adopted may feel like turning their back on part of what makes them who they are.
For some children, their concern may be about changing their name. In many adoptive families, the adoptee’s last name is changed to that of the adoptive parents, and a child might not want their name to change. This name change is not a requirement, so it’s important to keep communication open about expectations.
Losing an Escape Hatch
Many older kids in foster care have experienced lots of different homes and families over their lifetimes. There can be a lot of reasons for this. Perhaps they have been placed in foster care, then returned to their parent’s care, only to be placed in foster care again. They may spend some time living with one parent, then move to another parent or family member. The parent may have romantic relationships that come and go so that even if their physical address doesn’t change, their family dynamic does. Even if they are placed in foster care, they may move between foster families. Often, the system will seek to minimize these moves between placements, but it’s not always possible.
Not all of these homes will be safe (sadly, this is true even for some foster homes) and the foster care system can become the constant and safe place. For some kids, having that safety blanket is extremely comforting. While they are in foster care, they have a social worker and court system check in on them. They have someone to call if things get bad. And since trust can sometimes take years to develop, they may fear to lose that escape hatch, just in case they need it.
They Don’t Think They Deserve It
Abuse or neglect in childhood has a real, measurable impact on a child’s development, including their development of their sense of self and their place in the world. When children cry or otherwise express a need, and that need is met, they learn that what they need matters. They learn over time as someone responds to them, that the world is a safe place. But for children who have not experienced that attachment, whose needs have gone unmet, they learn that the world is a dangerous place and that their needs don’t matter. As a result, they feel a sense of shame and internalize responsibility for others’ actions. They blame themselves for the abuse and neglect they have experienced. Having a family, having parents who love them and provide for them, no matter what, may feel like something they don’t deserve.
What Can You Do to Help?
So what happens when you love and want to adopt a child that doesn’t want to be adopted? Is there anything you can do?
Keep talking about it. There’s a lot of misinformation about adoption, so keep the lines of communication open. Even if a child has said no, check in and make sure you understand why. He may not be able to tell you, or he may not be able to articulate it, so keep checking in. Don’t assume he knows what you’re thinking or feeling either. The point here is not to coerce the child into doing something he/she doesn’t want to do, but to make sure decisions are made and opinions are formed based on true information.
Work with an adoption therapist. Not every therapist understands adoption and the complex issues that can arise when kids don’t live with their birth families. The right therapist can go a long way in explaining adoption and the need for permanence to kids in a way they can understand. The therapist can also help you, as the adoptive parent, to understand why a particular child might not want to consent to the adoption. They can help keep the lines of communication open that are so important, and give you a framework for how to discuss and say the things that need to be said.
Love the child anyway. It may sound obvious, but guardianship and long-term foster care come with their set of challenges, and not everyone is willing to work within those challenges. Kids who have been neglected or abused don’t trust quickly. This is a process that can take years, easily. Hopefully, if you’re interested in adoption, you’re already committed to staying in it for the long haul. As adults, we may think that the desire to adopt is proof of our commitment, but our kids may need to see something else from us. They need to know that we will love them unconditionally, and that means that it’s not dependent on their legal status as our child. Kids need to know that they’re worth all of it.