Tuesday, November 06, 2007

Part 2 of Accountability to Families of Origin: Before Adoption: Protecting the Rights of Vulnerable Families of Origin--Workshop 1.2

The following are detailed notes. They do not constitute the exact words of the speakers, but a--hopefully accurate--summary of the ideas of these presentations and questions. If any of the panelists or attendees take issue with any of these summaries, please let me know so that I can correct them.

Because the notes on this Workshop were so lengthy, I divided the notes into separate posts. This post is the second of two from Workshop 1.2.


Ethics and Accountability Conference
Sponsored by Ethica and Evan B. Donaldson Adoption Institute
October 15-16, 2007

Bullet points for discussion during this workshop:
  1. Do current practices, even when handled carefully, create for some expecting women/couples, a sense of obligation to go forward with the adoption?
  2. What are the most appropriate ways to cover expectant mothers' expenses so that risks of coercion or exploitation are minimized or eliminated?
  3. What is the role of open adoption arrangements in planning for adoption? Should contact agreements be explored in all situations? Should they be enforceable?
  4. Is it ethical to search out children to place for adoption and what role should professionals play in this endeavor?


Lynn Franklin is a birthmother who was reunited with her birthson, a book author, a current board member of the Evan B. Donaldson Institute, an eleven year board member of Spence-Chapin, and an elected “lifetime” Honorary Director of Spence-Chapin.

Sania Metzger is director of policy for Casey Family Services, the direct service agency of the Annie E. Casey Foundation. She works to influence and track policies at the local, state, and federal levels. Ms. Metzger is on the Board of Directors for Prevent Child Abuse America and the Center for Family Representation.

Dr. Teresa “Tesi” Kohlenberg M.D.is a child psychiatrist, who had previously worked as a developmental pediatrician with teenage mothers and the urban poor. She is an adoptive parent, a co-founder of Guatemala Adoptive Families Network which promotes ethical practices in Guatemalan adoption, and finally a contributor to various adoption books.

Annette Appell is a law professor who has authored multiple articles, books chapters, etc. on adoption. She serves on the editorial board of the Juvenile and Family Court Journal and the Adoption Quarterly, and has extensive experience representing representing children and parents involved with the child welfare system, including providing legal representation in termination of parental rights cases and adoption proceedings.

To read the notes from Part I of this workshop go to Part I of Accountability to Families of Origin: Before Adoption: Protecting the Rights of Vulnerable Families of Origin--Workshop 1.2

The Part I notes included presentations by Sania Metzger and
Tesi Kohlenberg.

Part II includes a presentation by Annette Appell and Questions discussed by panelists and the audience. These follow here.

Annette Appell

  • BTW, germane to Sania Metzer's topic: Nevada has just passed a law that allows children to petition to reinstate their parent’s parental rights.

  • My topic is: Domestic legally enforceable post adoption contracts
    • What they are, what their characteristics are
    • Why enacted and what people who deal with them say about them

  • Legally enforceable post adoption contracts
    • Seem to be under the radar--even adoption workers don't know much about them
    • New development in adoption law
    • First statute was in 1990 and now 20 states have statutes that allow some form of post adoption contact that is enforceable
    • Allow birthrelatives and parents to enter into a post adoption contact agreement prior to the adoption
    • These agreements have the possiblity for modification in a court of law by either party after the adoption
    • They are also enforceable by a court of law
    • But they can never provide grounds for the termination of the adoption
  • These are called adoption contact agreements (ACA) and the legislation that enables them, adoption contact statutes (ACS)
    • Adoption contact is good name because this is exactly what these legal documents facilitate
    • Contact agreement is part of the adoption itself in most states
    • These legal documents are incorporated directly into the adoption decree or else referred to in the adoption decree itself
    • Statutes appear to have been adopted to protect adoptees’ interest in openness and to provide guidelines and formality to something that is already happening which is open adoption by agreement between birthparents and adoptive parents
    • The idea was to make clear by statute what was enforceable and what was not enforceable
      • The truth is that there are many adoption lawyers who don’t understand what the effect of an agreement is between a birthfamily and an adoptive family
      • The odds are that unless an open adoption agreement is made in a state in which there is one of these adoption contact statutes, that the open adoption agreement is not enforceable by law
  • There are now at least 20 states with adoption contact statutes
    • They vary from state to state, but many are almost identical in many respects
    • By definition, these contracts can not be entered into unless the adoptive parents agree
    • Each statute indicates who must approve of the agreement in order for it to enforceable later
    • There is chart provided in the conference CD’s that analyses the provisions in various state ACS's (fleasbiting will try to get permission to reprint the chart here)
    • All but 1 require agreements to be in writing—as a contract, a part of the relinquishment, or the court order
    • All provide for enforcement of the agreement unless there are grounds not to enforce them or grounds to modify
    • None provide for a vacation for the adoption or relinquishment for a breach in the agreement
    • Statutes vary as which adoptions these are available for, who may have contact, and what the grounds for breach or modification are
    • 13 of 20 apply to all adoptees, 4 restrict contact to kids in foster care, 1 restricts them to step parent adoption, 2 require that children have a “significant attachment to the birthparent” to apply
    • All permit birthparent contact but some restrict its application to those who voluntarily relinquish children, but in some states if parental rights are terminated they can’t be a part of this provision (another goofy thing)
    • Some statutes allow other relatives to be included, like siblings, extended family (a good thing)
    • Most require court approval of the agreement
    • Most include enforcement standard as to when it is and isn’t enforceable, can be modified, etc.
    • Some provide that the “best interest of the child”—not my favorite legal statement as it is vague--standard must be applied to all modifications and enforcement
    • The better ones are those that require a chance in circumstances, agreement of parties, etc. in order for the agreement to be modified
    • Some statutes require that the placing agency approve the post adoption contact
    • Some require mediation between parties before modification can be added or enforcement provisions of the statute kick in
  • The preceding is the "black letter law" of these agreements; there is to date no litigation arising out of these particular agreements; but there is one case percolating in CA
  • It is amazing that there are no social scientists studying these agreements
  • The speaker did a survey of 17 of these states in order to find out why these had been enacted, what was going on to bring them to be enacted, etc.
    • I contacted 3 people in each state: these included various state officials, child welfare workers, adoption workers, someone representative of parents, and/or adoption attorneys
    • I found that the child welfare public sector was behind the statute in most states, pushed to get it enacted
    • Most said they did not know what the original/primary push was for these statutes, although most said that that they guessed that the child’s interest in open adoption was a prime motivating factor, as well as the rise of open adoption with post adoption agreements which had no legal clarity as to what they meant and what was or wasn't enforceable
    • It was surprising to me how very little internal infrastructure has developed around these statutes, in terms of training, publicity, and formal mechanisms to provide for entry into these agreements and for problems that might arise out of them, etc.
      • California and Oregon are the only ones different in this regard; these states actually have booklets describing adoption contact agreements and these booklets and information is encorporated into permanency mediations or permanency planning sessions in those states

    • No one I talked to was aware of anyone collecting data on how frequently ACA's were being filed or on how these agreements are working for those involved
    • Sources I talked to led me to believe that states seem to vary in regard to how frequently these adoption contact agreements were being used;
      • Most of those I talked to felt that adoptions might be increasing because of these contact agreements
      • Most also felt that contested appeals and contested terminations were down in the states where ACS's had been enacted--so they seemed to be reducing mid-process litigation

  • Concerns for implementation of these adoptive contact statutes included:
    • The fear that adoptive parents would be hauled into court
    • The fear that adoptive parents wouldn’t be able to adopt without being forced to enter into these kinds of agreements (that coercive thing)
    • Concern about whether birthparents would really be able to enforce ACA's
      • As we saw earlier, brithparents already have problems with access to justice and the legal system; How would they find an affordable attorney to press their cause in this situation?
      • It is not always clear how ACA's will be enforced;
      • If they have to file a cause of action to have the contract enforced there would be are fees—can birthparents afford these court fees, etc.
  • Do these ACA's really have any teeth at all down the road?
  • There was also the concern that these ACA's not be used as settlement tools
    • Agreements should be entered into for the best interest of the child and not for the needs of the various adults involved—though it’s hard to separate those out sometimes
  • Basic questions we might ask are:
    • Do these agreements add any value to adoption? Or open adoption?
    • Are they enforceable? Costs and benefits?
    • What safeguards can be put into place with open or informal adoption, primarily for birthfamilies, for children, for AP’s


Question 1: For the states that have these legally enforceable post adoption contact agreements—what sanctions are in place if someone breaks the contract?

Appell: There are no sanctions. There is no way to enforce these agreements except to have the court say that the contract is enforceable and order that it be followed; and then, of course, you would have the sanctions of a court order not being followed--contempt of court.

Question 2: AP’s who have adopted from Guatemala come to me. They are in contact with their child’s Guatemalan birthfamily. The family is quite poor and lives in a village without clean water, etc. The adoptive family is in a position to provide these things to the village but are concerned about the ripple effects--the ethical issues--it will have on other families living in the village. Will intervening in that community cause the perception that they are encouraging/incentivizing other families to place their children for adoption?

Kohlenberg: The rate of adoptive family involvement on that level with birth families is still very small, though significant, and it has not created an expectation among Guatemalan families of support. The upside is that if the help is post adoption and is directed at a group rather than individuals, then it is not a quid pro quo. All of us have been careful not to make any kind of commitment or hint of help before the finalization of our adoptions. We who are involved thus talk about the impact that gifts have on quality of our relationships and the view of people there (in Guatemala) who assume that all of us are wealthy. The power and wealth differential complicates things.

Question 3: Can you address bullet #2 for this session which states: "What are the most appropriate ways to cover expectant mothers' expenses so that risks of coercion or exploitation are minimized or eliminated?

Kohlenberg: I’m not sure in an international context where you’re talking about people who are living on a few dollars a day, that it is possible to cover birthparent expenses without providing an incentive for relinquishment. It is a real conundrum without elegant answers.

Franklin: Audience?

Social worker from audience: IA and domestic are different, but even within domestic adoption things are different from state to state. There are 50 ways of doing things because each state is different. Some states have more vulnerable than others, some states have birthparents with more rights, etc. I think it is time for us to move forward with some national solutions. Until that happens we've got a real problem about how we are going to take care of the expenses of birthfamilies.

Joan Hollinger: I am a 15 year veteran of futile efforts to acheive uniformity in adoption laws, I sympathize with your plea for uniformity and national standards for expenses for birthparents. I don't think it's about to happen. Although perhaps it should. Although always the price for uniformity tends to be a move towards the lowest common denominator. It's often a much higher price when you balance it with a diversity from one state to another. Because some states really get it, but many don't. We have to balance uniformity with diversity.

On the expenses question, let me report to you that on the just issued interim rules from the Department of Homeland Security on the actual processing of immigration petitions and VISA applications in Hague countries (The Hague is, of course, still a hope; but the promise is now that the Hague will be up and running sometime in 2008), they actually try to address the question of distinguishing between the convention's prohibition on unlawful financial gain, exploitation and the like... and reasonable compensation on the other--and they do suggest that the standards for compensation should be related to the country in which the expenses are being incurred. This is an attempt at contextualizing and avoiding excess. They actually do give a working list of allowabale expenses--which is ironically taken from this proposed Uniform Adoption Act and therefore may not make much sense in other countries...but is an interesting starting point.

Having to do with the ability to request that AP's pay for their own travel expenses, their own homestudy expenses, their administrative costs, and legal fees and the like, but also to permit either contributions to or reimbursement of birthrelated expenses and childcare expenses. And those don't necessarily have to be child specific, but can be child general. I think that is a postitive direction. To avoid pitfalls to which you are so incredibly sensitive. That is, you don't want money going to a particular family prefinalization or post finalization. And you certainly don't want an expectation that the water supply will be cleaned up by the Smiths who took one child from this particular village. On the other side, making a commitment to developing a "custom of the trade" where it was understood and expected that prospective adoptive parents would make contributions that would be used for childcare, prenatal expenses, early infant care, and some recovery expenses of biological families without it being tied to a particular family. I favor that and don't think it's unethical or raises as many ethical problems as the underhanded deals.

Question 3: Sania Metzger to Joan Hollinger: In your attempt to develop uniform adoption standards, did you also consider the need for ensuring the need for representation for prospective birthparents?

Joan Hollinger: Absolutely. One of the concerns I've had domestically is how infrequently birthparents are represented in their dealings with private agencies. This is a question about domestic adoption. It is a question about how infrequently birthparents have legal representation in their dealings with private agencies. And the private agencies, which have historically been very negative about the role of lawyers in this whole system, I think, fail to acknowledge their own conflict of interests in a lot of domestic adoptions. They are representing both birthparents and adoptive parents. Biological parents are often not aware that they do have a legal right--that they should have independent representation in a relinquishment to a private agency. These national standards did propose all of that. But is easy to write model legislation--not so easy to get it passed and implemented.

Question 4: From Claudia Corrigan D’Arcy of Musings of the Lame, a domestic mother who lost her child to adoption 20 years ago: As far as expenses for expectant parents, expenses need to be taken out of the equation completely—expenses for expectant parents need not to come from agencies; they need not to come from PAP’s; they just need to come from somewhere else. It's a fault of our society that we don’t have a society that honors the mother/child bond; a society that doesn’t give women who have a lack of resources, the support they need to make a decision, a decision really based on what their feelings are--not just based on--"oh they're going to give me this or that." Adoption turns out to be the solution to these problems—the happy one that makes things feel good temporarily, but not feel good in the long run.

Lynn Franklin:Which goes to the point of what we were talking about with coersion...

Claude: Oh, it’s totally coercive. The combination of putting the expectant parents together--the relationship between expectant parents and the PAP parents, etc...

Lynn Franklin: Some places try to attract expectant mothers to come to facilities with all the amenities or come to another state.

Claude: To take you away from your family, to the people who look down on you and put you in a little cocoon.

We need to separate the money, and the decision--separate it out--the expectant parent resources here and adoption there. They need to be separated by a great divide. They can’t be related to each other. If we separate out the money and resources from the decision, the money and resources do appear.

Question 5: From an adoption agency worker: We are a small/medium sized agency that does both domestic and IA placements and we don’t ask for money for expectant mother expenses from PAP’s. There are typically plenty of resources out there for expectant moms, and as good social workers we should be able to tap into them. We don’t need to be asking for birthmother expenses at all. We’ve never had to spend much of our own money. But when we do spend our own money for these expenses, it’s a cost of doing business—it's part of a service and does not and should not come from PAP’s. If a small agency can do that, anyone can. As far as IA is concerned--the finders’ fees in Guatemala, is an issue that needs to be addressed, but I also think that when we say that the finder gets that $6000 to $10,000 per case, that is not exactly accurate. We have to consider how many bio mothers the finder had to work with to find that one child—did she work with 20 to find one or how many? It's a huge lack of transparency but, I don’t think we can say--Oh, she got $6,000 or $10,000 per child. That’s not completely accurate. We have to look at the context of these numbers too.

Kohlenberg: I get your point, but OTOH--and there are several other hands--6 to 10 thousand dollars is a enormous—a huge—amount of money and there is really no way to do that calculus that makes me happy. It makes more sense to have women in need have access to independent people who are NOT involved in the business of adoption who can direct them to services. The complex question is that women who have agreed to relinquish ahead of time get access to a level of prenatal and birth care that is not generally available to the general population of poor people in Guatemala or in other countries. Even that is an issue. Whether you call that finder’s fee $6 or $10 or $3 thousand dollars, it is out of control and it has to stop.

Questioner: Yes, I agree. $3600/$3500 as a cap in Guatemala as a solution is dead in the water. Another issue that is appalling is that agencies are actually supposed to counsel birthmothers. There should be a division there. An important question is one that asks whether adoption agencies should be allowed to counsel expectant mothers at all. We have looked at other options as an agency—the possibility of referring to outside counselors--to CARENET or others. We shouldn't be doing the counseling because we stand to benefit financially when an adoption plan is made. I think that is a terrible conflict of interest that should be stopped completely.

Question 6: From Suz Bednarz of Wrong My Wrongs I affirm and validate what Claudia says. To have agencies involved in the crisis is coercion. Expenses? None should be given. Yes, that is drastic. I agree that agencies and PAP’s have to be taken out of the equation. I say this as a mom who lost her child to adoption in 1986 under threat of a promissory note. They actually had my parents sign a promissory note when I was in the maternity home for 6 months. When I tried to change my mind and keep my baby, they actually threatened to sue me and my parents for all of the fees for the care that they had provided me. Actually, I had been in the home, but I was working while in the home, and so I shouldn’t have owed them anything. I say this by way of saying that the adoption industry uses finances as another thing to hold over your head in order to get your baby—promissory notes, threats of lawsuits, and things other than cash.

Question 7: From David K of The Adoption Agency Checklist: Adoption is mostly international and interstate, and doesn’t usually stay within states. States have proven to be ineffective regulators. They either don't have the regulations on the books or else they don't have the will to enforce them. Joan Hollinger has said that when we look to have Federal regulations, we end up with the lowest common denominator; but she also said that there were states that do "get it." Why can’t everyone in the reform community benchmark the states that do "get it" and make that the goal of Federal legislation--and we all get behind it?

Appell: Federal regulation... The question is who will make the uniform laws because the Feds won’t regulate here. Fortunately or unfortunately. It's the way laws are made that is at fault. This organization--theNational Conference of Commissioners of Uniform Laws may help here.

David K: In the post Masha Allen hearings, you may have a Federal government that is more inclined to regulate.

Lynn Franklin:Acting as Moderator who wants to return the conversation to the bullet points that have not yet been explored in the midst of a discussion that is clearly going elsewhere: We want to talk about the role of open adoption agreements, but we haven’t yet talked about open adoptions...

Suz Bednarz: I want to add one more comment on expenses. In terms of supplying expense money for expectant mothers, the first place we ought to go is back to the families—the mother’s family, the father’s family, the extended family—and hold them accountable. And only then when they can’t help, should we go beyond them to look for help elsewhere. By forcing extended families (in the domestic context)to get involved, you are forcing them to deal with the situation—instead of giving them an easy out by having them send the mother away or getting an agency involved. You put the family into crisis mode instead of doing intervention, and you get the family involved. It lends itself to preserving the family.

Metzger: What Suz says points again to the urgent need to reform our child welfare financing programs. We know that the overwhelming amount of money--close to $6 billion annually--is available for “out of home placements.” Yet only 11% of that amount is available to "shore up" families on the front end--to preserve families and keep adoption from being necessary.

As a society we are making political decisions that do not work to preserve families, but, in fact, are working against them. As a society we make decisions to not preserve the family and opt instead for adoption.

We should want to maintain family integrity. Finances need to be made readily available so that when adoption decisions are made, they are not made out of financial necessity. The finances need to be available in individual situations to preserve families.

Question 8: We appreciate the birthmother comments. I’m Concerned about Guatemala and the global situation. If we can’t come together as a nation and determine adoption standards and strategies that are uniform and work in OUR country, how could we possibly hope to do so in a wider international context? Or in the Hague? We know the kinds of adoption related situations in which people have been vulnerable for years... and yet, they still exist. We have to clean our own house and come together on standards. This is important. This is a human rights issue. We can’t have 50 states doing 50 different things. And we think that we have best practices? And we think that we can inform other countries on what THEY should do?

Alexandra Yuster of UNICEFAll of this is the reason that it is interesting to consider IA and domestic adoption together. I want to respond to the points that Joan made as to the appropriateness of using some of the fees paid for IA for before adoption expenses and other projects in the birthfamily communities.

On that I’d like to issue a big caution.

If you funnel money into the community through the adoption system rather than through the child welfare system, then you are privileging and promoting that aspect--the adoption aspect--of the child welfare system. You are giving money to support the bureaucracy that supports the movement of children into intercountry adoption and out of their home countries, rather than into solutions that are in-country--like domestic adoption.

You are using your money on things other building than the child welfare system to keep kids from coming into the adoption system in the first place.

We need to have a discussion about how fees should be used and about how fees can be lowered. A discussion about how can adoptive families can contribute to welfare of birth families and their communities and contribute to ALL options for children, not just one solution--the international adoption one.

Franklin: In other words, when money comes into the child welfare system through adoption, then that money is used to maintain the institutions to do with adoption, rather than to promote the infrastructure that would prevent children from coming into non-family care in the first place.

Question 9: I worked in Child welfare for a long time—over 20 years--and now I work with Headstart. In this new position, I can get into the homes before the problems happen. I now work one on one with moms. I have been working 2 years with some moms at high risk for losing their children. I have been to Guatemala and the difference is amazing. We are putting lots of money into helping those in America, but we are still failing to keep our own kids out of the foster care system. It will take even longer to make progress in a place like Guatemala. To be able to get anywhere near what America has, it will mean these Guatemalan kids will be 28 or 29. Can we have a series of doable steps? What can we do in 1 year, 2 years, or whatever....

Question 10: Kevin Kreutner of Guatadopt.com: I am an AP. We contribute into the system; we all want to see the fees go down. But to try to say that somehow by us, by the fees that we pay, by that going to support the biological mothers, to ensure that they have appropriate prenatal and postnatal care--that that is somehow a negative thing... to me just seems wrong--in fact it seems and I apologize for the word choice, but it seems “assinine”. To suggest that this is something that is wrong--that these women are able to receive prenatal care.... If you don't have this, if these women do not receive care there will be more children being born unhealthy and not receiving the care that they need. It seems that it is good that women receive prenatal care to help head off trouble. Without it more children will be born with more problems. And I'll be the first to admit that I try to be a globalist--I try to look beyond national bounds--we adopted from another country and I don't think the domestic versus international is as big of an issue as is ensuring permanency, happiness, a loving environment, and all those things in the CRC [Convention on the Rights of the Child]. I just really can't understand the debate and I've read it from the [???] report and other reports. How can it be wrong to provide prenatal care to ANY woman who needs it?

Kohlenberg: What comes from what pot? AP’s say if I had taken the $27,000 that we had spent to adopt and given it to an aid agency in Guatemala, I could have affected the lives of 200 families for 10 years or whatever--pick your number. Not a real thing. People don’t give. It doesn’t work that way. I understand the point of thinking that funding taken off the top could be applied more broadly--that idea has an appeal to me. I agree with Kevin that providing basic services to anyone is hard to argue with--especially where those services are the difference between survival and not.

But it's also true that in some situations these services do incentivise an interaction. That is a problem.

But OTOH, part of my concern about the UNICEF gestalt is that we go for an ideal world and in the meantime we don't do anything messy... But we are a long way from an ideal world here. And children in families that we know and love--not just the ones that live in our homes, but the ones we know in our extended family in Guatemala--are facing problems. And they can't wait for the revolution.

Question 10: From Desiree Smolin of Fleasbiting:I am the parent of children who were basically stolen from their birthfamily. There was a finder paid to find them. There was a lot of money involved. I guess when it comes to this workshop, one of the titles is "vulnerable families." There is nobody protecting the families. When you've put lots of money into a country that is very poor and you have people who are very motivated to find chidlren, they go out to the villages and they find children. They look for the vulnerable families. They step in and they make them dependent, and then they take the children. So my question is, as long as there's money involved--and there's a lot of money--and there's no one protecting the family, they are going to be taking the children. Who is watching the agencies? Who is watching those who are in the middle between the birthfamilies and the adoptive families? Because everybody gets hurt if there nobody watching those in the middle. I mean we did find our children's birthfamily, they were reunited, but there's no justice in it. Anywhere. As long as there is money involved there has to be somebody watching. And as far as the money, all the laws in the world won't do anything, if there's nobody enforcing the laws. India has a $3500 limit on how much money can go into India with an intercountry adoption. Right now--I know someone who wrote to an agency and asked how much money would be paid to India for an intercountry adoption and they were told it would $11,000. And $3500 is the limit! They are breaking the laws. And there is nobody--NOBODY--watching. They are getting away with it. There is nobody watching.


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