The 1994 Uniform Adoption Act: The Wrong Model for Positive Change

The National Conference of Commissioners on Uniform State Laws (NCCUSL) is comprised of more than 300 lawyers, judges, and law professors who draft proposals for uniform laws, and encourage states to enact the measures. In 1953, NCCUSL approved its first Uniform Adoption Act. Only two states substantially adopted the provisions. Between 1953 and 1980, NCCUSL produced four more model adoption acts, none of which achieved widespread acceptance. If child and adoption advocates (including the Child Welfare League of America, Adoptive Families of America, the Joint Council on International Children’s Services, and NACAC - North American Council on Adoptable Children) have their way, NCCUSL’s latest Uniform Adoption Act, approved in August of 1994, will meet a similar fate - and for good cause.

The Uniform Adoption Act of 1994 contains laudable goals. It seeks to set a template for adoption law and promote the integrity of adoption finalizations. Unfortunately, if enacted as currently written, this law would have the overall effect of strongly favoring infant adoptive parents,, short changing birth parents, and discounting adoptees’ needs as they reach adulthood. NACAC believes in adoption law uniformity, but cannot support a model act that so clearly benefits some members of the adoption community at the expense of others.

Following is a list of some of the Act provisions which particularly concern NACAC:

It is troubling that an act which so often references the "best interests of the child" does not explicitly define that phrase. Many states define "best interests" in custody sections of their divorce statutes, and a few in their termination of parental rights (TPR) statutes. The 1994 Uniform Adoption Act blindly leaves the definition of that important phrase up to the agency’s and/or the individual judge’s discretion - a dangerous precedent. As NACAC has learned through its Collaborative Court Education Project, some agency and court personnel are swayed by economic factors instead of the child’s attachments or needs. Some judges flatly refuse to terminate parental rights; others believe certain children are unadoptable. Only a clear "best interests" definition can counter these human biases.

The Act allows "another person", not just lawyers and agencies to facilitate adoptions for parents, legal guardians or agencies [Section 2-102(b)]. In short, anyone could assist in "locating or transferring legal and physical custody of the minor to a prospective adoptive parent." We worry that, without standards or licenses such as those required for pre-placement evaluators, facilitators may fraudulently promote adoptions or otherwise abuse the law’s better intentions.

To its credit, the Act requires that potential adoptive parents receive a positive evaluation (home study) before adoptive placement, and undergo a second investigation prior to the final court hearing. Regrettably, the first home study may be completed up to 18 months before a child is placed in the home, and while the Act standardizes evaluations for potential parents, it fails to provide for practical parenting preparation. Prospective parents would be better served if the evaluation included an educational component that taught applicants adoption-related parenting skills. Furthermore, we believe that the cost of conventional pre-placement evaluations should be borne by the adoptive parents, not the state; state funds are needed for placing special needs children.

Thought the Act purports to prevent unnecessary court action, one potential source of litigation lies in the Act’s tendency to facilitate adoptions by severely limiting birth parents’ rights. For example, birth parents cannot sign a consent or relinquishment until their child is born. Once signed, the consent is revocable only until the child is 192 hours (eight days) old unless individuals who executed the consent can establish "by clear and convincing evidence" that the consent was obtained "by fraud or duress" [Section 2-408(b)(1)]. To make matters worse, the Act largely ignores the need for birth parent counseling. Between the abbreviated revocation period and lack of counseling, a birth mother in the throes of post-partum blues may easily make a hasty, uninformed decision that will later lead to litigation. It also appears that if a child is adopted at an older age (more than 8 days old) there is no revocation period.

The Act also limits notice to putative fathers. While NACAC generally supports limitations on the rights of uninvolved fathers, this Act may end up creating additional Baby Jessica cases because it allows for legal risk placements. According to Section 2-101(b), "a parent having legal and physical custody of a minor may place the minor for adoption, even if the other parent has not executed a consent or a relinquishment or the other parent’s relation to the minor has not been terminated."

Fathers entitled to notice under this Act include current and former spouses, men who believed they had legally married even though the marriage was invalid, judicially determined fathers, or men who signed a document that had the effect of establishing their parentage. A father who meets these first tests must also have provided financial support and tried to marry the birth mother after the birth, or "received the child into his home and openly held out the minor as his child" [Section 2-401(a)(1)(i-iv0].

If the mother does not cooperate with the father’s efforts, a "thwarted father" may succeed in blocking an adoption only if he can provide a "compelling reason" [Comment, Section 2-401] for not having performed parental duties. The prospective adoptive parents, birth mother, or agency can still try to terminate the father’s parental rights if the court can be convinced that a termination is necessary to avoid detriment or risk of substantial harm to the child. The Act grants the court broad powers to allow TPR and adoption in spite of a father’s opposition or a procedural violation of the Act itself. We question whether such decisions might not be based upon economic or class differences.

Serious statute construction problems exist in the Act’s attempts to set provisions for contested TPRs. NCCUSL states that the Act is designed to supplement states’ existing termination statutes, but as a recent NACAC survey of TPR statutes clearly shows, current U.S. termination laws are horribly inconsistent. Many states set unclear process and cite several sections that each govern TPRs. Any attempt to add another TPR process to existing statutes would further confuse an already muddled process.

To avoid further complicating this troubled system, the model Act should either: (1) deal only with voluntary consents and relinquishments related to adoption, or (2) suggest that states erase any existing TPR section in the Act. As NACAC has learned, the sorry condition of TPR statutes and court process is one key reason so many children languish in foster care, unavailable for adoption.

In an effort to speed the adoption process, the Act mandates that potential adoptive parents file a petition for adoption within 30 days after a child is placed with them. If the petition is not filed after 60 days, the placement can be terminated. However, while procedural haste for infant adoptions may promote the feeling that an adopted child was simply born to the family, persons who have adopted older or special needs children know that adoption in these cases is more like a marriage than a birth. Parents and children in special needs adoptive placements may need additional time to confirm bonding potential. Many parents cannot adequately judge in 30 days whether or not the placement is an appropriate match. In addition, families who are entitled to adoption assistance payments (which need to be agreed upon prior to adoption finalization), would be hard pressed to negotiate an appropriate contract within a month’s time. The Act should include a provision for extra time in certain situations.

The Act’s order of preference for choosing adoptive parents is listed as follows: (1) an individual who has previously adopted a sibling, (2) an individual with characteristics requested by a parent or guardian, (3) an individual who has had physical custody of the minor for six months or more within the preceding 24 months, (4) a relative with whom the minor has established a positive emotional relationship, and (5) any other individual selected by the agency. As listed, the ordering does not reflect NACAC’s or other common preference standards.

The Act also provides that "an agency may not delay or deny a minor’s placement for adoption solely on the basis of the minor’s race, national origin, or ethnic background" [Section 2-104(c)]. This anti-discrimination provision is somewhat like the recently enacted Multiethnic Placement Act of 1994, but also applies to agencies that do not receive federal funds. Moreover, in wording reflective of the earlier Senate version of the Multiethnic Placement Act, the Uniform Adoption Act strongly discourages any degree of race or cultural matching, and subjects agencies that make these efforts to possible lawsuits filed by a child’s guardian ad litem or prospective adoptive parents. As worded, the Act could effectively curtail same race parent recruitment and inhibit an agency’s efforts to find the best family for each waiting child.

Perhaps the most disappointing section of the Act deals with sealed birth records [Article 6]. Most states still have restrictions on disclosure, but the current movement is clearly toward openness in adoption. While the Act allows birth and adoptive parents to make early arrangements to facilitate contact when the child is eighteen, children of parents who do not make this provision lose the option of seeking information. If any of the four parents resists disclosure, the adoptee is condemned to a life without history; the Act mandates secrecy for 99 years and deters illicit disclosure through a system of significant fines and other legal penalties. Only birth parents, adoptive parents, and adoptees with a "compelling reason" can hope to obtain identifying information through court action. The Act so tightly controls disclosure that information gathering could become virtually impossible.

As NACAC and many others in the adoption community agree, all states should enact uniform, well written adoption and TPR laws. However, this Uniform Adoption Act is not the model to follow, at least not as currently written. Instead of catering to the wishes of adoptive parents and placement agencies, adoption legislation needs to focus on its true constituency -CHILDREN. In addition, attention must be paid to the needs of all children - including those who are older, physically or emotionally challenged, or part of a sibling group. Adoption laws should be written to protect them, not just to facilitate baby-as-commodity, infant adoptions.

Reprinted with permission from Adoptalk, Winter 1995, a publication of the North American Council on Adoptable Children, 1821 University Ave., SN-498, St. Paul, MN 55104. (612) 644-3036.

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