Due Process in Adoption? Hardly

In May of 2010, William H. Mild III, retired attorney, forwarded this published version of his May 18, 2009 article: Due Process in Adoption? Hardly. With  his permission, this may be freely distributed.

Text version follows these two pages.

Used by permission.

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NJ ESQ  — New Jersey Legal Sustenance

Due process in adoption? Hardly

Monday, 18 May 2009 07:29 William H. Mild III

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 — 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 child’s 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 — 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, naïve, 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 offer”. Suggested reading is Ann Fessler’s 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 “voluntary” 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 parents’ 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 parents’ 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 documents’ 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 child’s legal guardian, also surrendering the child’s 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 child’s original birth certificate, well beyond the scope of their parental rights, which normally “expire” when the child becomes an adult. The child’s adoption record, including the child’s 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 “good cause.” As “good 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 adoptee’s 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 one’s 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, children’s 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 court’s 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 court’s 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 evidence” 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 court’s file, including the child’s 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 — 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.