Cooperative Adoption: Alternative to Long Term Foster Care

Intro

Changing Nature of Adoption

Introduction

Tina entered the foster care system when she was four years old after her pediatrician reported to the child welfare agency that the child was malnourished and that he suspected physical abuse. When the agency investigated, Tina’s mother revealed that she felt overwhelmed by the day-to-day responsibilities of caring for her daughter as well as balancing the many other emotional and economic stress factors in her life. After considerable thought, she agreed that Tina was not safe in her care.

Tina was placed in foster care with a permanency plan, initially, of reunification with her mother. As time went on, however, the likelihood diminished that Tina’s mother would be able to resume full responsibility for the child in the near future. Although she visited Tina, she was unable to complete parenting classes or to provide a stable home. On the other hand, Tina was clearly bonded with her mother and the foster-adoptive parents agreed that severing that relationship would not be in Tina’s best interests.(1)

A scenario such as this has generally meant consigning a child to a lifetime of "foster care drift": movement back and forth between foster homes and a biological parent’s home. Termination of parental rights may not be justified; the child and parent/s may have a strong emotional bond and the parent may have complied at least partially with a reunification plan. Nonetheless, the child’s welfare may call for continued foster care.(2)

In an attempt to address this dilemma, at least six states(6) have crafted "cooperative adoption"(4) laws to provide for ongoing contact between adopted children and their birth parents even after an adoption is finalized.(5) Under these laws, birth parents relinquish parental rights while maintaining certain post-adoption contractual rights that include exchange of pictures and letters, phone calls at prescribed times such as holidays or birthdays, and/or face-to-face visits.

Cooperative adoption is designed to provide an incentive to parents who may realize that they cannot raise their child but who view total relinquishment of their rights as an unacceptable abandonment of the child.(6) When the approach works successfully, it allows both birth and adoptive parents to collaborate before and after completion of the adoption to ensure mutual respect for their respective roles. By focusing on permanency as the goal, the adults who care about the child cease being adversaries and become partners in developing and carrying out the plan that is best for the child. Particularly for older children, who may be very bonded with their birth parent even in the face of a difficult relationship, cooperative adoption provides an alternative to the instability to foster care.

Changing Nature of Adoption

Traditional adoption law provides that once an adoption is complete, all parental rights are transferred to the adoptive parents and the child has no contact with his or her former family. Such secrecy was designed to protect the interests of all parties in a time when adoption generally meant transferring custody of an infant born of an unwanted pregnancy to an infertile couple; the biological parent was protected from the "shame" of the pregnancy while the adoptive parents were protected from the "shame" of infertility.(7) Post-adoption contact between birth parent and child has been viewed as confusing for the child, producing conflicting loyalties to past and present families.

Even if this rationale for secrecy was once valid, however, the changing demographics of the population of adoptable children, particularly those available through public agencies, suggest that it may be valid no longer. A decrease in the number of infants available for adoption, coupled with a continued demand for adoptable children, has expanded the view of which children are "adoptable" to include some of the growing number of older children being raised in the foster care system, many of whom have emotional ties to their biological families. A court order may legally terminate parental rights, but the order will have little meaning if the child knows the biological parent’s address and telephone number. "Indeed, the adoption of older children is more comparable to marriage than birth because the adoptees come to the adoption with life experiences that they and their adoptive family must incorporate into the new relationship."(8)

Proponents of cooperative adoption cite studies suggesting significant benefits to nonexclusivity for older children in foster or adoptive care. Some research has shown that foster children who have ongoing contact with their birth parents possess a higher sense of well-being than those who do not. (9) Other studies have shown that continued visitation with the birth parent does not interfere with the child’s attachment to or sense of stability with the foster family. (10)

Statutory Approaches

In 1990 Washington became the first state to enact a cooperative adoption statute, (11) and five other states had followed by 1994.(12) Although each statute provides for enforceable post adoption contracts, they vary significantly on numerous issues. Among these are: which children can benefit from cooperative adoption? whose approval is needed? must the child be represented by counsel? what is the standard for court approval? what venue may the birth parent use to enforce the contract? what is the standard for court modification of the contract?

Some states give the child a voice in the proceeding and mandate that they be represented by counsel, while others believe that the birth and adoptive parents are the best advocates for their child’s interests. In Indiana, a child who is 12 or older must approve before the court may make the agreement binding. New Mexico’s statute directs the court to hear the child’s wishes surrounding the agreement but the child’s opinions are not determinative; the court may still approve the cooperative adoption even if the child does not assent.

States also differ on who should speak for children who are too young to have formed an opinion. Washington, Nebraska, New Mexico, and Indiana all provide for the appointment of a guardian ad litem, while Washington and Indiana specify that the agreement will not be approved without the assent of the child’s representative. The Oregon statute is silent as to the child’s participation in the proceeding, leaving the birth parent(s), the adoptive parent(s), and the court to negotiate the post adoption agreement.

Three states - Washington, Nebraska, and Indiana - charge the court with protecting the "best interest of the child." Only the Nebraska statute, however, suggests factors to be considered in making this determination, directing the court to consider the child’s ties with the birth parent and the history of their relationship. As one commentator has noted, "the laws do not prohibit the court from reviewing other factors, such as…future medical or cultural needs of the child which may be met by post-adoption contact, or support an adoptee can receive from siblings."(13) She warns that courts

should also consider the harms that post-adoption contact could cause. For example, in cases of extreme physical or sexual abuse, it may be more damaging to a child to face the future prospect of seeing his or her abuser than to face the future without knowledge of or contact with the family whose adoptive or birth parents cannot accept each other may make visits more damaging than empowering for the child."

Conclusion

Cooperative adoption can be a truly child-centered solution to the impermanence of long term foster care. Providing both continuity with the past and present as well as the security and stability of a permanent family, cooperative adoption should be made available as another custody option for families. However, cooperative adoption should not be employed at the expense of providing willing parents with the services they need to continue caring for their children.

Sunny Rosenfeld is a law student at Boalt Hall, the University of California at Berkeley, who worked as a law clerk at the National Center for Youth Law.

Reprinted with permission from the September-October 1996 issue of Youth Law News, published by the National Center for Youth Law. For subscription information contact NCYL at 114 Sansome St, Ste. 900, San Francisco, CA 94104. (415) 543-3307, fax (415) 956-9024, e-mail HN0366@handsnet.org.