Open Adoption Not "Enforceable"

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Grandmother turned away after agreeing to adoption
By Kathleen Allen
Arizona Daily Star
Tucson, Arizona | 12.27.2009

It took 74 years for Lyn Tornabene to build a life she treasured. It took a year for her to lose it all.
In late 2004, her only child died unexpectedly. Wendy, a 37-year-old single mother, left behind a 2-year-old son.
Less than three months later, Tornabene's husband, Frank, died after a long struggle with pulmonary fibrosis.
Wendy had not made arrangements for what should happen to her son in the event of her death. A father had never been in the boy's life. And Tornabene decided that at age 74, she couldn't raise him.
So in August 2005, the grandson she adored — her only remaining connection to her husband and daughter — was adopted by longtime family friends of Tornabene, now 79, and her daughter. It was an open adoption, and Tornabene understood that she would be part of her grandson's new family.
By the end of the year, however, misunderstandings and miscommunications soured the relationship. The boy's new family limited visits to once a month for a few hours; they canceled mediation that the lawyers had agreed on; and they eventually cut off contact altogether.
This is Tornabene's story of how she lost it all, and what she learned along the way. By speaking out, she says, she hopes others can escape the heartbreak that consumes her.
•••
On Nov. 19, 2004, Tornabene and her daughter planned to visit preschools.
Wendy didn't answer her door. Her car was in the driveway, and the front door was locked.
Tornabene started to panic. She called a family friend to see if she had heard from Wendy. She hadn't but rushed over to be with Tornabene. Rural Metro broke into the house.
"She was dead," says Tornabene, the grief rising from deep in her chest with great, gulping sobs. Her grandson "was in his high chair, watching TV. He turned around and said, 'Hey, baby,' which was his new thing."
Lyn held the boy, then handed him to the friend, who offered to watch him while Lyn went home to break the news to her husband. Despite their age difference, the women had been friends for years — Tornabene says she considered her a second daughter. When Wendy moved to Tucson, the two also became close.
The night Wendy died, the friend and her husband came over and said they wanted to adopt the boy. The Tornabenes weren't ready to make that decision, but they did agree that the boy should stay at the couple's house for the time being. He knew and loved them and their children. He would be comfortable there.
Ten days later, the cause of Wendy's death was determined: Sudden Adult Death Syndrome, usually defined as cardiac death of an apparently healthy young person.
"Frank used to sit in that room there, howling at night," Tornabene says, pointing to a small, book-packed library in her elegant, art-filled home. "We both howled a lot. There's no way to deal with it. There's no way."
The boy stayed with the family friends through the holidays, as Frank's illness progressed. They brought him back after the new year.
"I don't remember very much from that time," Tornabene says. "I remember sitting here a lot; I remember people coming and going — and I remember giving away her clothes.
"We had put her house on the market. Frank didn't want anything out of it. We sold her car. . . . Wendy had a lot of life insurance, a house and a car. So suddenly there was an estate for (the boy). I had to become guardian or custodian or something."
Then, in early February, Frank succumbed to his lung disease.
"There were all sorts of legal things going on all the time, and after Frank died, it got so complicated. And so terrifying," says Tornabene.
"Maybe I would die and leave (my grandson) and he would be a foster child. I wanted to adopt him. I had gone to court to become his legal guardian — whatever it was I could be — and the lawyer said, 'You're too old to adopt him. They'll never let you do it. I'll try if you want, but it will take a long time.' And I was afraid I would die, as everybody was dying, and (he) would be left alone.
"I had nannies here 24/7 so that if anything ever happened, he would be taken care of."
Adoption seemed the right thing to do. People from around the country — cousins, friends, strangers — expressed interest. But Wendy had wanted her son brought up in the West. And the couple who had been helping so much were good friends — the woman had been with Wendy in the delivery room.
Tornabene would place her grandson in a loving family that lived close by. She would be able to see him, and shower him with her love.
Adoption proceedings began.
•••
Under Arizona law, when a child is placed for adoption, the parental rights of both birth parents are severed.
"They cannot make decisions for the child, no legal rights, no physical custody," says Patricia "Pogo" Overmeyer, a Tucson attorney specializing in family law who was not involved in Tornabene's case.
What goes for the birth parents goes for the birth grandparents. But where parents may have some recourse — for instance, including visitation privileges in the adoption papers — grandparents do not.
"The grandparents become, legally, strangers to the child," says Tucson attorney Ann Haralambie, a certified family law specialist who also was not involved in this case.
Tornabene had her usual lawyer — who hadn't done an adoption in some time — represent her. She trusted him, and she didn't ask many questions.
She admits to her naivete, and curses it.
•••
It felt like everything was happening fast.
"I signed the documents," she says. "But I didn't know that I was giving up my legal rights — I had no idea."
Tornabene had a visitation agreement drawn up, but it was never signed — her attorney told her it wouldn't hold up in court.
That wasn't really a concern. They all got along so well. In August, right before the adoption, Tornabene and the adoptive family went together to Coronado in the San Diego area. The Star is not naming Tornabene's grandson or his family to protect the child's privacy. They declined to comment for this story.
"There was an understanding from the beginning that I would be part of the family," Tornabene says. "In a lot of our e-mail exchanges, I was called 'Grandma Lyn.' "
On the early August day that her grandson legally joined another family, a photo shows everyone — including Tornabene — smiling. It looked like one big, happy family.
•••
When school started in September, the boy's mother would drive him there, and Tornabene or the nanny she retained would pick him up.
He would stay at his grandmother's house until his mother got home from work. Tornabene still feared she would die while caring for her grandson, so a nanny was always at the ready.
Soon, things started to change.
For starters, the boy's mother admitted to being uncomfortable with the nannies Tornabene continued to employ.
"There was a lot of hazy stuff, and it began to decline," Tornabene says.
"I was grieving beyond measure. I don't think I was ever easy to get along with on any of these matters. I know I wasn't."
Tornabene asked her lawyer to initiate mediation with her grandson's parents. Lawyers for both parties agreed, but the parents canceled.
"I just wanted to know what I could do — what was I doing wrong?" says Tornabene.
The final blowup, she says, came when she got a call from her grandson's school. He was running a high fever, and they couldn't reach the baby-sitter, who was staying with the children while their parents were out of town.
By the time Tornabene reached the school, her grandson's fever had hit 105. She wrapped him up in a blanket and rushed him to the doctor.
"When I got there, there were four calls from (his mother) saying I should take him home directly from the doctor's office," says Tornabene.
But she had a sick child who she felt needed her attention. So instead of taking him to his home, she took him to hers.
His mother called several times. He needs his own bed, Tornabene remembers her saying. "He's so sick, and he's asleep," she says she retorted.
Things got ugly.
"Finally I said, 'Why don't you call the sheriff,' and hung up," she says. "When he woke up he was feeling so much better and his fever was down. The nanny took him home. But that incident really did it."
Looking back, Tornabene recognizes that she escalated a damaged relationship into an all-out feud.
"I had just lost my daughter and my husband," she says. "I didn't react the way I would under normal circumstances."
Lawyers got involved. At one point, the boy's parents agreed to supervised visits at a neutral site — two hours once a month.
A report by the supervisor from an August 2007 visit — their first — speaks of the bond between Tornabene and her grandson:
"... Gave each other a lot of hugs and kisses .... Talked to each other. ... Child sat on grandmother's lap and put his arms around her neck as she read to him . ... Made music together. ... Danced around the playroom. ... When it was time (to go), child said, 'Are you sad? Are you mad at me?' He laid his head on grandmother's chest; he hugged her again and again. ...He asked a lot of questions: 'Will we do this again? When will I get to visit you again?' ... Told grandmother he loved her, he put his arms on grandmother's shoulders and around her neck and he touched her eyes."
After two more visits, the parents stopped them without an explanation, she says. She later learned from their lawyer that his parents said he came home upset from their visits.
More lawyers. Tornabene tried to reverse the adoption but says she decided it was not the best thing for her grandson. When she felt his parents were saying untruths about her, she sued them for slander. The suit was later dropped.
"I didn't want money," she says. "I wanted to see my grandson."
Several of the lawyers Tornabene contacted to get visitation rights dismissed her once they realized she had signed the adoption papers.
Finally, Tucson attorney Susan Ames-Light agreed to take her case, arguing in court papers that the adoption order "failed to terminate the Grandmother's right either as a Grandmother or guardian, and only terminated the rights of the mother, who was already deceased."
Just moments into the 2008 hearing the judge turned to her. "I'm sorry for you, Mrs. Tornabene," she remembers him saying. "You have no legal rights."
•••
While her grandson's new parents declined to speak to the Star for this story, some of their complaints were documented by one of Tornabene's lawyers after he spoke with the boy's mother.
In the mother's view, the lawyer's letter to Tornabene said, "you have spread comments and rumors about them that (she) feels are very hurtful."
Among them were comments that the boy's parents had spent all his money, "e-mails that say 'if you don't do this, I'll get you,'" and the incident that ended with Tornabene telling the mother to call the sheriff.
Other complaints included the perception that Tornabene favored her grandson over his new siblings, and that he had come home upset after visits with her. "She has to run the show, and she is mean," the mother told the attorney. "She made all the wrong moves."
•••
What could have prevented so much pain?
"This is a perfect case for family mediation," family law attorney Haralambie says.
"I would say take a deep breath, apologize to the longstanding friend and say, 'This was a tough time for me. Can we back up and renegotiate this?' "
The issue is close to Haralambie's heart — she was adopted as a child.
"As an adoptee myself, I know there is a real desire on the part of many adoptees to have some kind of contact with or knowledge about the birth family," she says. "Adoptive parents who do not support that, and who actively subvert that, risk tremendous alienation of their children, especially as they get older."
She always gives would-be adoptive parents the same advice: "A birth family is not a threat to you — your relationship with your child is based on your relationship with your child."
Keeping a child and a grandparent apart could "have a long-term impact on a child," says Tucson psychologist Thomas Brunner, an expert on the developmental needs of children and adolescents. The degree of the negative effect, he says, depends on the strength of the bond.
Maxine Ijams understands the fear adoptive families may feel. She is a retired clinical psychologist who did her dissertation on the adjustment of children adopted in infancy and has adopted four children herself.
"When the adoptions were final, it was such a relief," she says of her own experience. "I knew from the beginning that the possibility of them being taken away from us was there. Every time the doorbell rang, I had an anguish and a fear it was the birth parent, who didn't want to go through with it."
But there's a danger, Ijams says, when an adopted child is denied contact with or knowledge of the birth family.
"Research shows that children at a very young age have emotional memories," she says. "The adoptive parents stand to lose in the long run. A child can grow up loving the adoptive parents but resenting not being able to see the grandmother. And if she dies, look at the resentment there."
She agrees with Haralambie — what's needed in cases like this isn't lawyers, but communication.
"I used to tell clients when they came in with things that were not going right that they first have to recognize, define their problem. And then ask themselves, 'What is my part in this problem? What am I contributing to the problem? Then what can I do about it, and am I willing to do it?' Then, do something."
•••
Tornabene has seen her grandson twice in the last two years, both times by accident.
The last time, a few months ago, he was at a grocery store with his mother.
"He planted his feet," she remembers. "He stood up and looked me in the face, and raised his hand. He stood his ground and looked at me with all the love in the world."
She dreams that someday she will be allowed to embrace her grandson again. But she isn't hopeful.
In the meantime, she wants other grandparents to learn from her mistakes.
"You had better be informed," she says. "In a moment, somebody dies and everything changes, and maybe you'll be lucky and go through life the way grandparents should.
"You're not safe, Grandma, Grandpa. The law's not on your side should anything happen to your child. You will have no advocacy at all."
But, she says, maybe, just maybe, things can change if enough people speak up.
"The point is to sound the alarm and to find compassionate people who have some power, legislative and otherwise," she says.
"I want to get grandparents' rights talked about, and get it fixed. I don't expect it will happen in time for me to see my grandson, but I want other people who are caring and loving and honoring their roles as grandparents to not be in my position."
Contact reporter Kathleen Allen at kallen@azstarnet.com or 573-4128.