The overwhelming majority of adoptions require the voluntary or involuntary termination of the biological parental rights before the adoptive parents may formally and legally adopt a child. (If the birthparents are deceased and relatives have custody of the child, then the relatives may provide voluntary consent to an adoption, or, in some cases, a court may terminate their legal rights.)
In many cases, termination of parental rights is voluntary, and the birthparents willingly relinquish their parental rights by signing the appropriate consent forms. (The time frame during which birthparents can "change their mind" about adoption after signing consent forms varies greatly from state to state; however, after the adoption is finalized, it is extremely difficult to overturn an adoption.)
Most birthparents who voluntarily make an adoption plan for their children do so when their children are infants or not older than toddlers; however, some parents feel compelled to take this action when the child is older. If the child has been in foster care for many years, the social worker may ask the parents if they wish to transfer parental rights so the child may be adopted.
In other instances, the state may request that parental rights be terminated by petitioning the court for permission to end these rights so the child could be adopted. Often the children have been in foster care for several years, and social workers have determined that the birthparents cannot adequately assume their parental responsibilities.
Courts understandably take the genetic ties of the children to the biological parents very seriously, and judges insist on strong supporting evidence before terminating any parental rights.
At least one and often many court hearings will precede any involuntary termination of parental rights. The ADOPTION AND SAFE FAMILIES ACT OF 1997 (ASFA) provides additional guidelines for when parental rights should be terminated. Many states have changed their laws in response to ASFA and some states have set specific circumstances under which termination of parental rights must be initiated. (See chart on page 272) For example, if a child is abandoned, procedures to terminate parental rights must begin immediately in Alabama, Alaska, Connecticut, Georgia, Indiana, Iowa, Illinois, Kansas, Maine, Maryland, Michigan, Minnesota, Missouri, Nebraska, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, West Virginia and Wisconsin. If a parent had murdered another child, termination must be started immediately in Alabama, Connecticut, Georgia and Illinois.
When Termination Is Not Required
In some unusual cases discussed by attorney Emily Patt, a child may be adopted without any voluntary or involuntary termination of the parental rights of the biological parents.
In a 1985 case in Alaska, the parents of the child wished to retain their parental rights and also allow a third person to adopt the child. The three individuals had shared parental duties. The court decided to allow the adoption, and the child then had three lawful parents, rather than two.
In a 1987 California case, two women applied to adopt a child through the department of social services. Their petition was granted. One of the women had previously adopted a child, and she and her partner wished to share legal and parental responsibilities. The court initially decreed that the adoptive mother must terminate her parental rights before her partner could adopt; however, the Superior Court overturned that decision and granted the adoption.
Delays in Terminating Parental Rights
The ADOPTION ASSISTANCE AND CHILD WELFARE ACT OF 1980 mandated a court hearing be held once the child was in foster care for 18 months. The child may be returned to the family of origin, may continue on in foster care or may be placed in institutional care or recommendations may be made to begin proceedings to terminate parental rights. In addition, in many cases, the court will delay making a decision at all.
Very few children are adopted after a mere 18 months of foster care, and it is far more likely the child will have been with foster parents for at least two or three years before court action has been taken to terminate parental rights. It is hoped that ASFA will change this.
There are many reasons for this delay, including a shortage of social workers, job turnover of social workers, judges' possible dislike of terminating parental rights, birthparents' statements that they will change and become "good parents" and a myriad of other factors. Attorneys handling termination cases may be inexperienced. In addition, if a lower court refuses to terminate parental rights, the action may not be pursued to a higher court, but in some cases, the highest court in the state may decide for termination of parental rights when lower courts were reluctant to take such action.
Grounds for Termination of Parental Rights
When the state seeks to terminate parental rights, the child was usually neglected, abused or abandoned by the birth parents or the birthparents suffer some mental or physical incapacity, making it impossible for them to provide normal parental care. In addition, no relatives have been identified who are willing to assume permanent custody of the child.
Some states recognize physical or mental illness (particularly mental illness) in the birthparent as sufficient grounds for terminating parental rights, but judges in other states may not recognize mental illness as sufficient grounds to terminate.
Some states recognize the imprisonment of a parent as sufficient grounds for termination of parental rights, but others have been reluctant to take that stance. As mentioned, the Adoption and Safe Families Act has been a major impetus in changes in state laws. According to Philip M. Gentry in his article for Child Welfare, "ASFA does not preclude an agency from making reasonable efforts under these circumstances [cited in the law]; it merely states that in such cases, such efforts "shall not be required to be made." Gentry also points out that if the child is living with relatives, the ASFA does not have to be instituted toward termination of parental rights.
He recommends that "specialized units of case workers" be assigned to work with children's incarcerated parents and suggests that visits could be made with groups of children to the prison, by bus and on the same day.
Incarceration in and of itself is not automatically grounds for termination. A 1989 article by Adela Beckerman of Sociology and Community Services at Clinton Community College in Plattsburgh, New York, described the difficulties of arranging visits between foster children and their birthparents who were in jail. According to Beckerman, 7% to 12% of the children in foster care have mothers who are prisoners.
Beckerman says prisons are usually remote from the community, and visitations are hard to arrange. In addition, prisons are not sympathetic to the needs of children and parents, do not have special facilities or separate visiting areas for children and present many other obstacles. Sometimes the problem that led to the child being placed in foster care was the parent's drug or substance abuse.
Social workers and the child welfare system have a difficult time reaching the goal of REUNIFICATION of the child with the birth family when also faced with the extreme difficulty of rehabilitating a crack addict. Another critical factor to consider is that cocaine babies may suffer a broad range of physical and neurological damage as a direct result of the drug or alcohol used by their mothers during critical stages of fetal development.
In some states, the termination of parental rights and the adoption of a child are combined together in a joint proceeding. One problem is that such joint proceedings are risky for adopting parents because they may be challenged by birthparents.
Grounds for terminating rights vary from state to state. Some states take into account the age of the child and his wishes, while others do not. In addition, some states consider the relationship the child has with foster parents, while others do not use that factor in determining termination.
Rehabilitation of Abusive Parents
One problem is the common view among some social workers that child abuse is a temporary stepping over the line. Unfortunately, there are parents who will repeatedly, knowingly and dispassionately abuse their children.
The model of the parent who loses his temper doesn't explain such cases as parents ritualistically abusing their children-binding, gagging and beating them and performing other actions with premeditation. In addition, not all parents harm or neglect their children do so for reasons of poverty.
Author David P. H. Jones contends that some families are "untreatable," and says, "In the field of physical abuse, 16-60% of parents reabuse their children following the initial incident. Sexual reabuse is estimated to occur in 16% of cases. Treatment of abusive families also aims to alter family functioning. From studies in physical abuse we find 20-87% of families are unchanged or worse at the end of treatment. In sexual abuse the equivalent figures are 16-38%."
Jones says factors particularly indicative of poor outcome to treatment are "parental history of severe childhood abuse, persistent denial of abusive behavior, refusal to accept help, severe personality disorder, mental handicap complicated by personality disorder, parental psychosis with delusions involving the child and alcohol/drug abuse."
In addition, says Jones, "Severe forms of abuse (fractures, burns, scalds, premeditated infliction of pain, vaginal intercourse or sexual sadism) are more likely to prove untreatable."
Jones adds, "The idea that some families do not respond appears to be anathema to some practitioners and researchers alike. Yet the reality for those who work in the field of child abuse is that some families cannot be treated or rehabilitated sufficiently to offer a safe enough environment in which children can live."
Adela Beckerman, "Incarcerated Mothers and Their Children in Foster Care: The Dilemma of Visitation," Children and Youth Services Review, 11 (1989): 175-183.
Philip M. Gentry, "Permanency Planning in Context of Parental Incarceration: Legal Issues and Recommendations, Child Welfare 77, no. 5 (September 1998): 543.
David P. H. Jones, MB.CHB., M.R.C. Psych, D.C. H.D. (OGST), R.C.O.G., "The Untreatable Family," Child Abuse and Neglect, 11 (1987): 409-420.
Emily C. Patt, "Second Parent Adoption: When Crossing the Marital Barrier Is in a Child's Best Interests," Berkeley Women's Law Journal 3 (1987-88): 96-133.
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©2000 by Christine Adamec and William Pierce, Ph.D. Reprinted from The Encyclopedia of Adoption, 2nd Edition (2nd Edition) with permission of Facts On File, Inc.
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