 Expectation of Privacy/Desire or Need for Information  Desire for Parental and Family Autonomy/ Receptiveness to Expanded View of “Family”  Birth Parent Ability to Choose/Adoptive Parent Enhancement of Placement Chances  Realities and Practicalities, including Impact of Social Media  Best Interests of the Child

 State laws require that medical/social non-identifying history about birth parents and information about the adoptive child be provided to adoptive parents in adoptions of children public agencies.  Private agencies and adoption attorneys also provide information on the medical and genetic background of children they place.  Many states provide for retention of birth parent medical information in a state registry that may be periodically updated. |  Challenges to information gathering/access: › Lack of accurate, complete information (especially in intercountry adoptions) › Complex family histories › Gaps in records › Incomplete disclosure

Please select the statement with which you most strongly agree: A. Adoptive parents, as the legal parents of the adoptive child, have the sole right to determine who should have a relationship with the child. Courts and legislatures should not interfere with this right. B. There are some circumstances under which post-adoption contact is beneficial to a child. It is helpful for all members of the adoption triad to have some form of agreement on post-adoption contact and to have statutory parameters for such agreements, but courts should not have enforcement power over the agreements. C. Under most circumstances varying degrees of openness are appropriate and adoptive children, adoptive parents and birth parents can benefit from post-adoption contact. State legislatures should set guidelines for these agreements, and courts should be able to enforce them.

 Open adoption is____________________________________________ ______________________________________________ _____________________________________________.  There is a continuum of openness in adoptions, ranging from: › Closed—confidential adoption › Semi-open—mediated terms; limited contact › Open—full disclosure; ongoing relationship between birth parent(s) and adoptee And many levels in between…

 It is estimated that 60-70% of domestic adoptions provide for some type of post-adoption contact, as compared to 1% twenty years ago, because: › Wider inclusion of birth parents in making choices for their children › Many adoptions involve children whose attachments to birth relatives are desirable and beneficial › Birth parents often participate in selecting the adoptive family and may base their decision on the willingness of the adoptive parent(s) to allow contact › Communication with birth relatives provide adoptive parents access to information about their child’s medical, social, and cultural history

 Why Have Contact? › Openness encourages adoption  Makes adoption consent easier to obtain  Accommodates more options › Availability of open adoption empowers birth mothers › Contact with birth parent(s) is can be beneficial to all members of adoption triad › Impracticality of closure

 Concerns about contact: › Openness discourages adoptions  Adoptive parents fear intrusion by birth parent(s)  Potential for disputes discourages adoptive parents › Contact may not be in the best interest of children whose relationship with birth parent was traumatic › Some birth parents may not be able to maintain appropriate relational boundaries › Potential for increased burden on courts from enforcement actions

 Laws of most states deal with post-adoption contact by birth parents or relatives in some fashion  Laws of many states recognize agreements for such contact by statute  Laws of a few states disapprove of such agreements (e.g., UT, CO and RI)  Laws of some states allow for such agreements, but do not permit them to be enforced (OH) or are silent on how they are to be enforced (NV)

 Availability of Open Adoption Agreements › Limited to Public Agency -- _______________________________________________________________ _______________________________________________________________ › Limited to Private Agency -- available only in non-public agency adoptions › Limited by Participants – I.e., grandparents or siblings only › Unlimited/Voluntary TPR or Relinquishment Cases -- available in all adoptions, whether public or private agency or independent, in which birth parent(s)’ rights were voluntarily terminated or birth parent(s) gave consent › Unlimited -– Not limited to specific type of adoption, and not dependent on whether birth parents’ rights were voluntarily or involuntarily terminated

 Requirements for Valid Agreement (Varies Among Jurisdictions) › Required consents, approvals or recommendations, which may include those by:  Adoptive parent(s)  Birth parent(s)  Adoptee, if over specified age  CASA or GAL appointed for adoptee (already appointed, or appointed specifically for this purpose)  Court  If adoptee is in agency custody, representative of agency  Other biological relatives of adoptee, if parties to agreement › Knowing and voluntary › Written instrument executed by parties › Fair and reasonable terms › Entry or approval by court

 Terms of Agreement (Varies Among Jurisdictions) › Acknowledgement that the adoption is irrevocable, regardless if parties abide by the terms of the open adoption agreement › Acknowledgement that agreement gives parties right to seek its enforcement, modification, and/or termination › Acknowledgement that TPR, relinquishment or consent to adoption are irrevocable, regardless whether parties abide by the terms of the open adoption agreement › Acknowledgement that parties must make good faith attempt to mediate or engage in other alternative dispute resolution prior to seeking enforcement, modification or termination of agreement › Provisions relating to nature (visits, letters, calls, etc.), frequency, and timing (present or future) of communication and/or contact, to who will be permitted contact (birth parent(s), siblings, other biological relatives), and to maintenance of birth parent(s)’ medical histories. › Agreement that adoptive parent(s)’ ability to move within or out of the state shall not be impaired

 Options for Court Approval/Entry of Agreement › Jurisdiction  Court entering adoption decree  Court entering TPR order › Method of Entry/Approval  Agreement not entered or approved by court—agreement negotiated and executed by parties as independent contract  Court may enter order approving agreement independently of adoption decree  Court may incorporate agreement by reference in adoption decree, but not merge in adoption order; agreement survives as independent contract  Court may enter agreement as part of order terminating parental rights  Court may enter agreement as agreed order of parties

 Examples of Standards/Criteria Supporting Court Approval › ______________________________________________________ › Wishes of child over a certain age › Adoptee and birth parents lived together for substantial period of time › Adoptee has significant bond with birth parents or other biological relatives › Adoption is by adoptee’s foster parent(s) › Adoptee voluntarily relinquished because birth parent(s) could not provide adequate parenting

 Modification/Enforcement of Agreement—Various Options › Jurisdiction  Court approving, or entering order relating to agreement, retains jurisdiction  If agreement is ordered by one court as part of TPR, and a different court actually enters adoption decree, either court may be designated to retain or assume jurisdiction over enforcement of agreement  If agreement is not entered or approved by court, enforcement may be by means of separate action in contract (action for breach, specific performance, etc.)  Agreed order of parties may be enforced by motion or petition filed with court entering order › Pre-requisites for enforcement/modification  Good faith attempt to mediate or engage in other alternative dispute resolution made prior enforcement action being filed › Criteria for determining whether agreement should be enforced/modified  Best interests of child  Enforcement would be detrimental to child  Enforcement would undermine adoptive parent(s)’ parental authority  Due to a change in circumstances, enforcement would unduly burden one or more of the parties

 Who may petition for court-ordered contact (varies state to state) › Grandparents › Birth parents › Siblings  Policy against: › Absolute parental rights of adoptive parent › Preference for non-conditional TPRs  Policy for: › Bifurcation of TPR and adoption proceedings may prevent effective negotiations for agreements › Adoptee’s need for familial contact may outweigh absolute rights of adoptive parent › Importance of preservation of sibling relationships › Jurisdictional/administrative barriers to cooperative agreements

 Conflicts of Laws Quets v. Needham, 682 S.E.2d 214; 2009 N.C. App. LEXIS 1169 OAA entered in FL not enforceable in NC because (1) it was not incorporated into the adoption decree, so it was not a judgment subject to full faith and credit, and (2) it was not enforceable as a contract, under the rule of comity, as it was contrary to NC law, which provides that agreements between a person consenting to an adoption and adoptive parents are not enforceable.  Motions to Set Aside TPRs In re M.B. & S.B., 921 N.E.2d 494; 2009 Ind. LEXIS 1479 Mother voluntarily agreed to TPR subject to ongoing contact with children. An order was entered terminating visitation rights after TPR without notice to mother. The Indiana Supreme Court denied motion to vacate TPR order, holding mother was improperly granted visitation rights: Indiana's open adoptions statutes were not followed, and unless all provisions are satisfied, a voluntary TPR may not be conditioned upon post-adoption contact privileges. However, because the State agreed to the visitation provision and trial court noted that mother was expressly reserving a visitation right, Supreme Court concluded it would be inequitable to hold that mother's voluntary relinquishment of her parental rights was not subject to ongoing, conditional visitation privileges.

 Enforcement/Modification C.O v. Doe, 2007 Minn. App. Unpub. LEXIS 1119 Biological father contended district court abused discretion in terminating PACA because no exceptional circumstances occurred justifying modification or termination and t he was not given an evidentiary hearing. Appellate court found that terms of PACA required each party to meet certain conditions, and that there were contractually defined consequences for failure to meet those conditions; with a few exceptions, father violated multiple provisions of the PACA, which provided a proper basis for the district court's conclusion that exceptional circumstances had arisen that made modification of the agreement in the child's best interests, including his repeated threats to the adoptive parents and to the child's safety and liberty. Further, father failed to attend an adoption class to learn more about the process of adoption and did not attend substance-abuse support classes, in violation of the agreement.

Please select the statement with which you most strongly agree: A. The integrity of the adoptive family and the privacy interests of the birth parent(s) require that birth records be sealed and that access to identifying birth parent information should only be available on a very strong showing of need for that information. B. While it is important to preserve the adoptive family’s unity and support their family relationships, as well as to honor a birth parent’s privacy expectation, there are limited circumstances in which release of identifying birth parent information should be possible without need for a court order. C. Access to identifying birth records should be permitted to all adult adoptees without a court order, but subject to contact vetoes. D. Identifying birth information should be available to all adoptive persons over the age of 18 who want to see them. The only requirements that should be imposed are those that apply to non-adopted persons who seek their birth information, such as filing fees or application forms.

 Concerns about allowing access to identifying information › Protection of birth parent(s)’ expectation of anonymity › Avoidance of stigma (both birth mother and adoptee) › Avoidance of forced confrontation between birth parent(s) and adoptee › Protection of adoptive parent(s)’ family integrity › Protection of adoptee from potentially hurtful information › State interest in integrity of adoption process

 Why allow access to identifying information? › Adoptee(s)’ desire or need to know about birth and family › Adoptee(s)’ need for medical history and other critical information that may not be available through records › Desire of many birth parents for disclosure › Support of many adoptive parents for disclosure

 Some states provide for automatic disclosure of original birth certificate to adult adoptee without restriction  Some states condition access on date of adoption—i.e., only adoptees placed before or after a specified date may have unconditional access  Small number of states permit automatic disclosure on, e.g., the “100 th anniversary” of the adoption

 Access may be based on permission of person whose identifying information is sought (or in the case of a minor adoptee, of the adoptive parents)  Access may be based on demonstration of “good cause” or other applicable proof standard  Disclosure/contact vetoes are permitted by several states

 Established in about 29 states  May be “active” or “passive” › Passive—Both adult adoptee and birth parents (or other birth relative) must register their consent in order for identifying information to be shared. Parties notified if names match › Active:____________________________________________ ___________________________________________________ ___________________________________________________  Conditions and process vary from State to State

“My son was born, surrendered and placed in New York State in His adoptive family moved to Texas within days of his placement. His adoption took place in Texas. When I attempted to register with the NY registry they told me they had no record of my son being adopted in NY and would not register me. Their registry is only for people both born AND adopted in NY. When I inquired as to what had happened to my son they told me it was not their job to keep track of all surrendered children and that I should contact the attorney who handled the adoption! Huh? I had no attorney; I surrendered my son to the Nassau County Department of Social Services. They also kept the fee because they said that paid for them to search the records” to the Even B. Donaldson Adoption Institute, 2010, from FOR THE RECORDS II: An Examination of the History and Impact Of Adult Adoptee Access to Original Birth Certificates

 “Search and Consent” system  Separate from registry system, although some States may have both systems  Utilizes State trained third person appointed to conduct searches for designated persons and certified by court to have access to sealed adoption records  Intermediary makes contact, obtains consent to disclosure (or ascertains refusal) and reports to court or designee  Court may provide information or intermediary may facilitate meeting

 Jurisdictions with sealed records laws typically apply a very high standard of proof for unsealing records › Compelling need › Good cause › Exceptional circumstances › Promotion of child’s well being/best interests  Standards require the balancing of all adoption parties’ interests in disclosure

 Typical Process › Petition filed in court that entered adoption decree › Determination made as to whether petition meets proof standard › Hearing may be required to consider competing interests, with notice to birth parents (sometimes through a GAL) and adoptive parents

 A new birth certificate for the child is customarily issued to the adoptive parents after an adoption is finalized.  The original birth certificate is typically sealed and kept confidential by the State vital records office.  In years past, nearly all States required a court order for adoptees to access their original birth certificates. Now, however, many States allow easier access to these records  Various levels of access include: › Access by court order if all parties have consented › Available upon request by the adult adoptee › Available upon request by the adoptee unless the birth parent filed an affidavit denying release of confidential records › Available to persons with established eligibility to receive identifying information through a State adoption registry › Available when birth parent(s)’ consents to the release of identifying information are on file