Adoption is ancient arrangement. It is spoken of in the Bible. Greeks and Romans, Egyptians and Babylonians all had adoption systems. Adoption is the process whereby parents are supplied for parent-less children or for those children whose parents are unable to provide for their care. It also provides children for childless couples, or in modern society for childless individuals as well.
The concept of adoption was not legally recognized in the United States until the 1850’s, with the inception of the first adoption statutes. While transfers of children to substitute parents had occurred informally since American colonial times, adoption statutes legitimized the informal adoptive arrangements which previously existed. During the early years of American society, no formal procedures existed for recording births or name changes. This facilitated an informal ability to have adoptive arrangements. Very often these informal placements were economically motivated. Farm families had great need for child labor. The advent of industrialization in the United States resulted in massive immigration to major cites where families often were unable to support or care for their children. Informal transfers of these children to other families, by either the indigent parents or the charitable institutions where parents sometimes left their children, promoted these types of placements. This situation provided the impetus for the orphan trains between 1854 and 1929.
At the same time the concept of indentured servants also existed, but this differed from the informal adoptive placement. There was some hope or expectation that children placed in informal adoptive settings would receive care, support, and perhaps education from their new home. Only if a formal will was executed, however, would the informally adopted child be permitted to share in the estate of the new parents. Indentured servitude, on the other hand, was premised solely on the concept of the child providing labor for support until he or she became an adult. Children were often treaded as chattel with adoption being little more than a transfer of title.
Indenture was abolished by the 13th Amendment in 1865 and by the Industrial Revolution which moved crafts out of the home and into factories.
As the number of informal adoptions rose, the need became greater to have a formal process for adoptions. In 1851 Massachusetts enacted the first adoption statute. Adoption pursuant to the Massachusetts statute required judicial approval, consent of the child’s parent or guardian, and a finding that the prospective adoptive family was of sufficient ability to raise the child.
In reality, the concepts discussed in the Massachusetts statute, and the later laws adopted in other states, were not implemented in the manner seen today. Between 1850 and 1930, statutes may have referred to consent, but rarely set parameters regarding when or how consents were taken. Virtually no safeguards existed for ensuring that a consent was informed and voluntary. By 1917 Minnesota required the agency or state welfare department to investigate and make recommendations to the court. While early adoption statutes required a finding of suitability on the part of the prospective adoption home, this requirement was more form than substance. Finally, while early adoption statutes created a defined relationship between the adoptive parents and the adopted child, the impact on the ties to the biological parents was unclear. For instance, under some statutes adopted children retained the right to inherit from their biological parents.
The treatment of adoption records was similarly confusing. Early adoption statutes made no provision for confidentiality or the maintenance of records. Original birth certificates were not altered or secreted in court files to prevent their distribution. As a result, adoptive families and biological parents had no legal protection with respect to intrusions upon each other’s lives following an adoption.
In the early twentieth century statutes began to address the confidentiality of adoption information as to the public at large, but not between the parties to an adoption. It was not until the 1930’s that statutes evolved which were designed to preserve the exclusivity of the adoptive home.
During the 1930’s. 40’s, and 50’s, social workers began sealing birth and adoption records. The rationale for the change in practice was guided by the attitudes, mores, and myths of the time. Secrecy surrounding adoptions was believed to protect the triad (adoptee, birthfamily, and adoptive family) members.The birth parents were protected from the stigma of pregnancy without the benefit of marriage.
The adoptee was protected from the stigma of illegitimacy and the concerns of “bad blood” which was loosely connected to what we know about genetics today, but carried with it overtones of the “sins of the father.” Secrecy would also prevent the confusion of having two different sets of parents and the conflict that might arise should contact occur.
The adoptive parents, often an infertile couple, were protected from the stigma of raising an “illegitimate” child. They were protected from dealing with their infertility and from facing the differences between being a parent through adoption vs. being a parent by birth. Closed records also precluded the possibility of birth relatives seeking out the child, an event associated with potential kidnapping.
Healthy Anglo babies were plentiful in a time when an unmarried woman had little or no choice whether to place her baby for adoption. This readily available supply of babies had ramifications on adoption practices.
Social workers had complete control over adoptive placement decisions. Services were geared toward providing the most perfect baby for adoptive applicants.
Both sets of parents were explicitly or implicitly promised anonymity. Little, if any, information was shared between them, and any “facts” supplied may well ell have been fictitious.
The parties involved were encouraged to “get on with their lives” and “put this event behind them.” Adoption was viewed as the placement and legal process, not as a permanent state. They were given no preparation to deal with future issues which were bound to arise. The very existence of these issues was denied.
Adoptees who held questions of identity, ancestry, and genetics had nowhere to turn for answers.
Adoptive parents had been assured that if they were good parents, no curiosity would exist. Therefore, when faced with questions, they often felt insecure and inadequate. If their child had questions, they had somehow failed. A Public Affairs pamphlet from 1969, “You and Your Adopted Child”, states, “Instances of extreme curiosity and concern almost never happen… However, should a youngster ever raise the question, it is important, of course, to make it very clear that a search is unrealistic and can lead to unhappiness and disillusionment.”
With the sealing of records there was also little or no legal recourse for the adoptee to access information.
Other reasons given for the closure of records, past and present, include:
- protection from intrusion into the privacy of all parties;
- protection from blackmail;
- protecting the adoptee from disturbing acts surrounding their birth - incest, rape, etc.
- enhancing the adoptee’s feelings of permanency;
- enhancing the family’s stability and preserving the nuclear family;
- encouraging the use of adoption instead of abortion, black market placement, child abuse, or neglect.
- Liberation movements: women’s liberation, civil rights movement, sexual revolution, adoptee’s liberty movement (ALMA, 1971), birth fathers’ rights.
- Birth control methods reduced the number of unplanned pregnancies.
- The legalization of abortion gave women a choice in whether or not to carry an unplanned pregnancy to term.
- Normalization of single parenthood in the dominant culture allowed women to choose whether to place a child for adoption or raise the child alone.
- Support of this choice was provided by increased welfare aids for unmarried females and head of household tax relief, as well as increased job opportunities.
- The Indian Child Welfare Act (ICWA-1978)
- National interest in ROOTS.
- Normalization of step, blended, or other family types which are not connected by blood.
- Social workers were encouraged to modify their role into one of educators for adoptive parents in order to help them recognize and cope with the differences in raising adopted children vs. raising birth children.
- Birth Parents and adult adoptees began to speak out about their experiences, their rights and their needs.
- Adoptive parents demanded more information on the children whose futures were entrusted to them.
In 1891 Michigan enacted the first statute requiring judicial investigation into a prospective adoptive home prior to the final approval of an adoption. by the 1930’s most statutes and courts required investigation of the adoptive home. These investigations had varying degrees of complexity. Today, virtually every state requires some form of investigation into the suitability or fitness of the individuals seeking to adopt. The investigation usually involves a report referred to as a home study.
Generally, home studies are conducted prior to the placement of the child with a family. Sometimes it is following the placement of a child with a family but prior to the finalization of the adoption.
Voluntary Termination of Parental Rights
“Parental” consent to an adoption is almost a uniform requirement of all adoption statutes. Consent is the most common method to achieve a voluntary termination of parental rights. Who is defined as a “parent,” however, varies from state to state.
Biological but unwed fathers had no recognized rule until the 1970’s. In many states, biological unwed fathers still do not have a presumptive right to consent or veto an adoption, but merely a constitutional right to notice and an opportunity to be heard. In some cases, the unwed biological father may have a constitutional right to consent or veto where the birth father has “earned” that right by establishing paternity following the child’s birth, or depending upon the law of the state where the adoptive placement occurred, the role of the biological father in the adoptive process may vary dramatically.
Until 1994, Arizona treated unwed biological fathers in the same fashion as biological mothers. The consent of both biological parents was uniformly required, absent incompetence, a prior termination of parental rights, or a prior consent to an agency or the DES. As of July, 1994, the definition of a “parent” was changed to distinguish a legal father, who is a presumed parent whose consent to adoption is required, from unwed biological fathers. Currently, an unwed biological father who takes no action to preserve his rights may forfeit his status as a parent, and therefore the necessity to obtain his consent to an adoption (A.R.S. Section 8-106).
Under the new law, a biological mother planning an adoption must execute a notarized affidavit, which is filed with the court, listing all potential fathers of the child. Notice must be served on each potential father informing him that an adoption is planned, and of his right to consent or withhold consent to the adoption. More importantly, the potential father is informed of his responsibility to initiate paternity proceedings within thirty days of being served with this notice if he wishes to preserve his parental status. The potential father is advised of his right to seek custody, and his responsibility to begin to provide financial support for the child if paternity is established (A.R.S. Section 8-106).
This notice of alleged paternity may be served upon the potential unwed biological father at any time during the pregnancy. Thus, if an unwed biological father is served with this notice early in pregnancy, and fails to take action to establish his paternity, he may have forfeited his status as a parent prior to the birth of the child.
Provision is made for the potential situation where the birth mother either intentionally fails to identify the biological father, or is otherwise unable to identify him. A putative father registry was established under the auspices of the Department of Health Services. A person who is, or claims to be the father of the child can file a notice of claim of his paternity at any time either before or up to thirty days following the birth of the child.
While the statute is not explicit, the intent is that a father who is served with a notice of claim of paternity by the biological mother only has thirty days to file a paternity action. The registry is intended to be for persons who are not otherwise notified. This statute places an obligation on a person who has engaged in sexual relationships with a woman to follow up if he is concerned that the union might have resulted in a child, and the child may be placed for adoption.
The registry is searched prior to the adoption to see if a father has registered. If the putative father fails to file a paternity action or notice of claim of paternity within the appropriate time, he is thereafter barred from bringing or maintaining any action to assert an interest in the child, unless he proves, by clear and convincing evidence, that either it was impossible for him to file a claim of paternity within the appropriate time, and that he filed a notice of claim of paternity within thirty days after it became possible for him to file. Lack of knowledge of the pregnancy is not an acceptable reason for failure to file.
In an adoption proceeding where the putative father has neither consented to the adoption nor waived his rights, the petitioner must file with the court a certificate from the Department of Health services stating that the registry has been searched and that no filing has been found pertaining to the father of the child. This new law greatly enhances the security of adoptive placements.
Involuntary Termination of Parental Rights
Statutes detailing the ground upon which parental rights may be involuntarily terminated commenced in the 1970’s. In Santoski v. Kramer, 455 U.S. 745 (1982), the United States Supreme Court held that parents have a fundamental interest in the care, custody and control of their children, but not an absolute right. The due process clause of the United States Constitution requires that severance of a parent’s rights be supported by clear and convincing evidence.
Generally, state statutes view involuntary termination of parental rights as an action of last resort. Statutes normally require that efforts be made to preserve the family relationship. What efforts must be taken and to what length those efforts must go prior to termination varies from state to state. Normally, efforts must be reasonable and diligent but not futile.
Within Arizona, the grounds for termination of parental rights are as follows:
- Abandonment - a prime *** case of abandonment can be established after six months of conscious disregard of any form of parental obligations by a parent, including support, maintenance, love and care. The conduct must be intentional and normally must involve a lack of support plus a failure to communicate.
- Neglect - Neglect must be serious and continuing and involve serious mental, physical or moral harm to the child. Poverty or disreputable lifestyle, absent such harm, is not adequate grounds for termination.
- Abuse - Abuse requires serious physical or emotional harm, or sexual misconduct. A likelihood of future abuse must also be established, since termination is not intended to be a punishment to the biological parent.
- Mental Illness, Mental Deficiency, or Chronic Substance Abuse - A mental illness, deficiency, or substance abuse problem must result in an inability to parent, and must continue for a long and indeterminate period of time in order to be viable grounds to terminate parental rights.
- Felony Conviction - In addition to demonstrating a conviction and current incarceration, Arizona law requires a showing that the crime demonstrates unfitness or that the sentence be of an exceedingly long length. In evaluating the length of the sentence, the court will balance the prior parental relationship existing between the parent and the child, the age of the child, the potential of the parent to care for the child post-incarceration, and the potential for contact with the child during incarceration.
- Consent and Relinquishment - Parental rights can be severed predicated upon a valid relinquishment of the rights to a child. The rights inheritance and support continue until finalization of the adoption (this results in a voluntary termination).
- Length of Time in Out-of-Home Care - If a child is in out-of-home care, termination of parental rights can be based upon nine months of willful refusal or substantial neglect by a biological parent, or eighteen months of the demonstrated inability to remedy the problem by the biological parent with a substantial likelihood that the situation will continue. In these circumstances, if a plan for adoption exists, termination of parental rights may be considered.
With any grounds for termination of parental rights in Arizona, not only must the proponent demonstrate adequate grounds for severance, but it must also be demonstrated that evidence showing the best interest of the child is not enough to grant a termination, but is enough to deny a termination of parental rights.
For information regarding these issues outside of Arizona, contact your State Department of Health Services.
A.R.S. Section 8-129, enacted in 1984, provides that a health and genetic history concerning the biological parents be provided to prospective adoptive parents. This non-identifying information is retained, by statute, for a period of 99 years. It may be supplemented with information supplied by any party to the adoption. This information is available upon request to the adoptive parents of the child, an adoptee of 18 years or more, the spouse of a deceased adult adoptee, the progeny of a deceased adoptee who are 21 or more years old, the birth parent of the adoptee, or other biological children of the birth parent.
Private Agency Adoptions
Services and procedures vary. Some agencies are leaning toward more open adoptions, while others continue with traditional adoption practices. While little conclusive research is available on the ramifications of open vs. closed adoptions, the debate as to which practice is preferable continues.
By the late 1970’s, some anonymous sharing of information between adoptive and birth families began occurring in Arizona. The services provided by most agencies today differ considerably from that time. Birth parents are often involved in the selection of the adoptive family. Some design the adoption plan and make decisions about the placement,. Some birth parents plan the adoption with the adoptive parents they have selected. Although typically private agency adoptions include some communication between the families, most are still through the agency that maintains their anonymity. This may be changed if, at a future date, both parties choose to have direct communication.
The role most agencies pursue in facilitating adoption plans is to assure that the adoption meets the needs of the child, who is the primary client. Agencies typically have educational and counseling components for the parties making these important decisions.
Efforts are made to place special needs children in adoptive homes. These children may be members of a sibling group, older, have medical conditions requiring special care, be mentally or physically challenged, or exhibit behavioral problems. Adoption subsidies are available for these children, when placed by an agency, to encourage their adoption and lessen the likelihood of their growing up in foster care or in institutions.
Public Agency Adoptions
The department of Economic Security (D.E.S.) handles most of the adoptions for children who come under their care due to abuse, neglect, or abandonment. Some districts will also directly handle the voluntary placements of newborns and young children when a family requests such services. In general, children adopted through D.E.S. have been in the foster care system for months or even years. Many are identified as having special needs. Typically, the child has not had contact with the parents for some time, and there is no plan for continuing or future contact.
Private or Attorney Adoptions
The distinctions between private (attorney facilitated) adoptions and agency adoptions have lessened in recent years. Until recently, agencies often had specific requirements for prospective adoptive parents including age, number of other children, length of marriage, etc. In particular, agencies often required that one parent commit to remain at home following an adoptive placement. Private adoption was an alternative to those who did not fall within all of these criteria, or who wanted to take a more aggressive role in locating a prospective birth parent who might wish to place a child with them. From a birth parent’s perspective, private adoption was sometimes viewed as a viable alternative because they wanted to feel more in control of obtaining knowledge regarding the adoptive home and the selection process.
Attorneys working in private practice provide access to most of the same services as adoption agencies. While attorneys cannot provide counseling, most attorneys skilled in the area work closely with social workers, and sometimes adoption agencies, in providing counseling support for birth parents and adoptive parents.
Perhaps the biggest distinction between private and agency adoptions in the 1990’s is cost. Agencies generally amortize their costs and have a flat fee arrangement with their clients, although non-profit agencies generally utilize some form of sliding scale approach, depending upon income levels. Thus, if a birth mother places a child post-birth with an adoption agency, the agency is able to charge its normal fee for the placement of that child without having incurred any significant expense in the process. On the other hand, the adoptive home incurs no liability in the case where the placement of a child may have generated debt to the agency that far exceeds the amount of the fee.
In the private sector, the cost of the adoption depends entirely upon the circumstances of the particular adoptive placement. Thus, if a birth mother has her own insurance or has no medical needs, the adoptive couple will not have that expense. Where a birth mother has no insurance, the adoptive couple may need to entirely assume the risk for medical expenses, with no guarantee that the birth mother will ultimately place her child post-birth. Thus, while it is possible for a private adoption to be economically far less expensive than an agency placement, the reverse may also be true.
Today, private adoption generally has a larger degree of flexibility than many agency adoptions in terms of permitting the birth parents and the adoptive home to design a plan as to how an adoption will proceed. Agencies and attorneys often act in concert to effect a positive adoption experience.
Text Courtesy of Authors, Rita Meiser, Esq. and Marcie Velen of Arizona Children’s Home Association