May 19, 2009

Due Process in Adoption? Hardly

Due Process in Adoption? Hardly
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

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

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

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.

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