Open AdoptionSettlement Tool or Best Interests?

Douglas J. Monaghan, JD, CWLSNancy A. Randall, Psy.D.

Michaud v. Wawruck2009 Conn. 407 (1988)

AGE

0 02/05/79 Baby M DOB

2.6 08/31/81 Consent TPR by mom/PC

2.11 01/06/82 TPR by dad/PC

1982 Mom v. DCYS (TPR consent by dad’s fraud)

3.7 09/16/83 Stlmt agrmt (OAVA: 2x per month for 3 hours at Wawrucks home)

Adoption by Wawrucks; visitation terminated

Michaud v. Wawruck (spec perf/breach K/fam div

9.10 12/20/88 CT Supreme Court: agrmt not void by public policy; case remanded for hrg on whether visits in best interests of child

CASE TIMELINE

STATES WHICH ALLOW PCA*:ALASKAARIZONACALIFORNIACONNECTICUTFLORIDAINDIANALOUISIANAMARYLANDMASSACHUSETTSMINNESOTAMONTANANEBRASKA

NEVADANEW HAMPSHIRENEW MEXICONEW YORKOKLAHOMAOREGONRHODE ISLANDTEXASVERMONT (Step only)VIRGINIAWASHINGTONWEST VIRGINIA

*Courtesy of Child Welfare Information Gateway, Children’s Bureau, ACYF, HHS, current to February 2009www.childwelfare.gov

STATES WITHOUT ENFORCEABLE PCA BY STATUTE*

MISSOURINORTH CAROLINAOHIO

SOUTH CAROLINASOUTH DAKOTATENNESSEE

*Courtesy of Child Welfare Information Gateway, Children’s Bureau, ACYF, HHS, current to February 2009

TERMS OF PCA (Contract):

AZ: Adoptive parent may terminate contact at any time determines not in BI

CA: (Fill blank forms w/symbols)Warning in bold face: Adoption can’t be set aside Action to set aside or modify PCA won’t affect child’s custodyCourt won’t act on petition to modify agrmt unless mediation or ADR tried in good faith

CT: Termination /adoption irrevocable even in PCA breachedAgrmt grants birth parents right to seek enforcement(Also IN, LA, MA, NH, RI, VA)

Statutorily required terms:

Common law: whatever works

TYPICAL PCA TERMS:RecitalsQuid pro quo/considerationNature of contact (visits/PO Box)Frequency of contactDuration of contact (if visits)Good faith and fair dealingReservation of discretionConsideration of best interestConsult with health care providerAdoptive parents can expandModification prohibited

Is open adoption a new phenomenon?Prior to 19th century, placements were informal

Closed adoptions becoming the norm late 19th century, becoming law in 1940s-1950s

Agencies began to be involved, and take control of the process, with birth parents having few rights

A move to more openness occurred in the 1960s-1970s

Why should we care about open adoption anyway?

Loss

Rejection

Guilt/Shame

Grief

Identity

Intimacy

Mastery/Control

Silverstein and Kaplan, 1982

Silverstein and Kaplan identified 7 core issues of adoption

Fears/Criticisms of open adoption – adopted child

If conflicts exist between adoptive and birth families, child may feel in the middle

Child may attempt to play adults against each other

Strong ties with birth family may interfere with forming strong ties with adoptive family

If contact is discontinued, another loss

Fears/Criticisms of open adoption – adopted child

Complications related to siblings being raised in the birth family

Dangers, including those due to problems which led to the initial need for placement/adoption

Difficulty explaining the relationships to others

Fears/Criticisms of open adoption – adoptive parent

Being more different

Intrusion/interference by birth parent

Child will prefer the birth parent, or want to live there

Resentment/feelings that birth parents don’t deserve it

Fears/Criticisms of open adoption – adoptive parent

Need to be perfect/being judged

Feelings of not being the “real” parent

Acceptance of relationship with people they may not ordinarily feel comfortable with

Fears/Criticisms of open adoption – birth parent

Difficult to resolve grief

Difficult to fill a lesser role for child

Feeling judged

Benefits of open adoption – adopted child

No secrecy or pretense

Realistic understanding of decision/reasons

Knowledge of birth parents’ being alive, wanting a part in their life

Acceptance by both sets of parents/extended families

Benefits of open adoption – adopted child

Relationship with birth siblings

Reduced feelings of rejection/abandonment

Access to info about identity/culture/medical/developmental info

More tied to own history

Benefits of open adoption – adopted child

Lessens loyalty conflicts

No need to search

Benefits of open adoption – adoptive parent

No secrecy or pretense

Reduces fear of unexpected appearance of birth family

More realistic understanding of birth family

Able to more fully answer child’s questions and access information when needed

Benefits of open adoption – adoptive parent

Greater sense of having the right to parent the child

Better understanding of child’s history

Benefits of open adoption – birth parent

Knowledge of how child is doing/peace of mind

Better grief resolution

Development of relationship with adoptive family

Better sense of control over relinquishment and adoption decisions

Research on Open Adoption

Minnesota/Texas Adoption Project (Grotevant & McRoy)

Berry, 1991 & 1993Siegel, 2003Barth & Berry, 1988Belbas, 1986Blanton & Deschner, 1990Meezan & Shireman, 1985Nelson, 1986Brodzinsky, et.al., 1984

Is open adoption always appropriate?

Safety considerations

Continuing effects of trauma/retraumatization

Need to respect boundaries/support adoption

Mental health issues

How do families know what is right for them?

Need to explore issues and needs

Consideration of each member of triad – strengths, needs, and challenges

Changes over time

Best interests of child paramount

How can we facilitate success?

Mutual respect

Open communication

Clear boundaries/understanding of roles

Focus on child’s needs as primary

Support available

Responses to Survey

“ I think it was easiest for birth mom to let go and not keep contact when she learned that “A” has Fetal Alcohol Syndrome. I don’t think she could handle knowing what she had done.”

“Facebook has provided a more direct and responsive connection…Since “S” is 14 now and there appears to be absolutely no potential for confusion as to what part we play in her life vs. her birthparents, we see no reason to limit it in any way.” “For “S” and “L” (birth sibling), instead of having a hunger to fill some void of information, they both have satisfactory knowledge of each other and rapport with each other.”

Responses to Survey

“The contact with Mom and her boyfriend had a negative effect. They would promise them birthday cash etc. and never send anything.”

“Maternal grandmother will talk and request contact when we run into her in a store.”

“We have no signed contract but an informal understanding that if she got mental help, she could see the children.”

Responses to Survey

“Kids were getting older, mom was doing well, so we extended Christmas visit to summer visit.”

“I would not suggest an open adoption. There is so much pain that just continues…My children are teenagers, so they deal with loyalty to their biological family. They only remember the good times and can’t understand why they can’t just live with their mom.”

Responses to Survey

“I think he has enough bad memories to carry him thru his lifetime. By being able to see and have a relationship with mom he knows that she still loves him and is just not able to take care of him…at least my son was and is able to keep in contact with people who love him the best they can. His bio grandmother died last year and we all went with him to the funeral, so he got a chance to see his family and grieve with them. That has to be important, you can’t minimize those ties.”