INTRODUCTION
In considering adopting in Massachusetts, there are several issues, which warrant thought, namely:
- Why do I need an attorney?
- At what stage of this process should I seek out an attorney?
- What would an attorney do for me as I go through this process?
- Can an attorney help me find a child to adopt, or birth parents who want to make an adoption plan?
- If I must go through a licensed agency to adopt, then why do I need an attorney anyway?
Why should I consult a lawyer?
There are many issues, which may crop up as you proceed toward an adoption, which could result in a failed placement or a disruption. A lawyer who specializes in adoption will be familiar with those issues, anticipate dilemmas and advise you accordingly. You may be able to avoid many of the situations, which could cause an adoption to unravel. Your attorney can advise you as to the various types of adoption that are legal in Massachusetts, the process that you may use to achieve your desired type of adoption and guide you toward an agency and resources that can help you once you have determined the type of adoption that is right for you. Not all agencies are alike. There are many licensed agencies in Massachusetts and each has their various strengths in particular types of adoptions.
What is so complicated about an adoption?
Adoption involves the termination of the birth parents' rights. Sometimes both of the birth parents may participate in the plan, and other times, only the birth mother. The birth mother may not have named the birth father, or the birth father may be unknown. Sometimes, the named birth father is not the biological father, despite the representations made by the birth mother. Each of these situations presents a potential legal risk to the adoption and the security of the placement. Your attorney will advise you of the risks involved and help you determine whether the placement is an appropriate one for you. Sometimes, communications break down and a potential contested adoption looms. In this situation it is critical for the adopters to have their own independent legal counsel.
Additionally, adoption laws vary from state to state. The birth parents may be from another state and generally; their rights are terminated in accordance with the laws of their home state. Their rights may be quite different from birth parent rights in Massachusetts. The laws of the birth parents' home state may allow the birth parents an opportunity to change their mind, not only after placement, but also after executing some form of termination. You should be made aware of the significance of these laws. Your attorney will be able to help you, by having a network of adoption attorneys that he or she has worked with in other states.
When should I seek out the advice of an attorney?
Should I wait until I am presented with a potential placement? If you are considering adoption, now is the time for you to consult a qualified adoption attorney. There are many particulars that your attorney should be able to help you with even at this early stage.
First, your attorney will be able to educate you not only as to adoption law in Massachusetts, but also as to the various agencies available and the services offered to meet your needs.
Second, your attorney will advise you of the delicate do's and don'ts particular to adoption and Massachusetts law.
Third, your attorney can advise as to the various types of adoptions permitted in Massachusetts, and which agency can best meet your needs.
Fourth, prior to becoming clients of an agency, you will be expected to sign a contract and various forms with the agency. Your attorney should review all of the documents that you will be expected to sign. It is vital for you to know and understand what is expected of you, and what you can expect of the agency.
Fifth, once you become clients of an adoption agency, you must remember that the agency's attorney represents the agency, not you. You should have your own attorney who will be loyal to you and help you accomplish your goal of adoption. The agency must do what is in the best interests of the child and sometimes that may conflict with what you consider to be the best interests of that child: placement with you!
Can an attorney help me find a child to adopt, or birth parents who want to make an adoption plan?
One of the basic things you must know and understand about Massachusetts law, is that Massachusetts is an agency state. That is significant. Massachusetts is only one of a few states in the United States that requires adopters to go through an agency and be sponsored by the agency to finalize their adoption. Birth parents must also utilize the services of the agency.
In other words, private adoption is prohibited in Massachusetts unless it meets one of these exceptions as enumerated in General Laws Chapter 210 §2A (B), (C),or (D). Unless the petitioner, (the adopter) is a blood relative, the stepparent of the child, has been nominated in the will of a deceased natural parent of the child as a guardian or an adoptive parent,1 a licensed agency must be involved in the process. In fact, General Laws Chapter 210 §11A imposes a civil fine for making such placements without a license and criminal sanctions for accepting payment for placing a child.2 So, your Massachusetts attorney may advise you and be a great wealth of knowledge, but your attorney cannot "find" you a birth parent or a child to adopt.
What law governs adoptions?
1 MASS. GEN. L. Ch. 210 §2A (B), (C), (D)
2 The fine for offering to place, locate or dispose of children for adoption is not less than one hundred dollars and not more than one thousand dollars. Accepting payment for such placement is punishable by a fine of not less than five thousand and not more that thirty thousand dollars, or by imprisonment in jail or house of correction for not more than five years, or both. MASS. GEN. L. Ch. 210 §11A.
Adoption in Massachusetts is governed by statute, M.G.L. c. 210 and regulatory requirements as promulgated by the Office of Health and Human Services, Office for Child Care Services.3
What types of adoption are allowed in Massachusetts?
Pursuant to the Regulations, there are several recognized categories of adoption:
Domestic Adoption
Domestic Adoption refers to that broad category of the adoption of children who have been born in the United States. Should the child be born outside of Massachusetts, then, except in rare circumstances, compliance with the Interstate Compact on the Placement of Children is mandatory.
International Adoption
An International Adoption is the adoption of children who have been born outside of the United States. It is crucial that the parties comply with the laws of the foreign country in addition to receiving American Embassy approval to leave the country with the child and Immigration and Naturalization Service approval to bring the child into the United States.
Traditional or Closed Adoption
An adoption is considered traditional or closed where birth parent(s) and the adopter(s) have only non-identifying information about each other, such as religion, family background, health and socio-economic background.
Identified or Designated Adoption
An identified or designated adoption is where the adopters, or someone on their behalf locate birth parent(s) who are willing to make an adoption plan for their child. The child may be surrendered directly to the agency, or if the child is in another state, then in accordance with the laws of that state with the understanding that the child be placed with the designated adopters. This placement, like any other, is contingent upon the family completing a successful Adoptive Parent Assessment (known as a Home Study) and the Post Placement Supervisory Period. The Home Study may be waived if the placement meets one of the exceptions as enumerated in General Laws Chapter 210 §2A (B), (C),or (D).
Open Adoption
An open adoption is an adoption where more than non-identifying information is exchanged between the birth parent(s) and the adopters.
The Identified or Designated Adoption, is a form of open adoption. More often than not, the adopters have actively sought the birth parent(s) and have had various communications with each other. The communication may range from contact through a facilitator, agency, or direct contact. The parties, whether it be during the pregnancy, at the time of labor and birth, and/or subsequent to the placement, generally determine the form of communication, nature and extent.
Legal Risk Adoption Placement
Legal Risk Adoption Placement occurs when a child is placed in a pre-adoptive home, for the purposes of adoption, but the child is not yet legally free for adoption. In such circumstances, there are degrees of risk:
The necessary surrenders have not been executed by either one or both of the birth parents;
The Court has not acted upon a Petition To Dispense With Parental Consent to Adoption, pursuant to General Laws Chapter 210 §3.
There may be an outstanding issue because the child may be of Native American Heritage.
How can a Massachusetts attorney help me if I decide to look outside of Massachusetts?
Your Massachusetts attorney can help you in this process in many ways.
First, your attorney may be a resource for you and be able to recommend a particular agency, attorney or intermediary out of state and then work closely with your resource to ensure that you are protected in this process.
Second, should you decide to advertise on your own, you may do so, but only in states that permit advertising. Massachusetts does not permit advertising. Should you decide that you will do some advertising yourself in states which allow you to advertise, some newspapers require a letter from your attorney as to representation as a means of vouching for the prospective adopters.
When you do find a birth mother or birth parents who are looking to make an adoption plan, your attorney should be able to refer the prospective birth parents to an attorney and/or agency in their home state who specializes in not only adoption, but are familiar with the intricacies of an identified adoption and the compliance with the Interstate Compact on the Placement of Children.
As to securing an appropriate referral source, if your Massachusetts attorney is a member of the American Academy of Adoption Attorneys, then he or she will have a network of attorneys across the United States and in Canada who specialize in adoption. To be a member of the Academy, the attorney must qualify by completing a particular number of adoptions and or be recognized as an expert in the field and then be recommended by an Academy member.
What is the Interstate Compact on the Placement for Children and how does it affect me?
When a child is born out of state, but comes into Massachusetts for the purposes of adoption, compliance with the Interstate Compact on the Placement of Children is mandatory. The Compact regulates the placement of children born in one state, and placed for adoption in another. One of the purposes of the Compact is to ensure conformity with both the sending state's and the receiving state's public welfare laws.4 Failure to heed the Compact can result in fines and penalties and jeopardize the finalization. At one time it was thought that it a violation of the Compact would automatically preclude the finalization of your adoption. However, a recent Maryland Court of Appeals case held that a violation of the Interstate Compact would not automatically render the adoption invalid. The non-compliance must be judged under the best interest of the child standard. It that case, the Court found that it was for the child's benefit to remain in the adoptive placement.
Failure to follow the Compact could jeopardize the agency's license. Additionally, in any challenge to surrender, or an adoption, nothing should be out of place. Compliance with the ICPC is just one more of those items, which should be carefully regarded.
What should I know about birth parent expenses?
Whether you are dealing with birth parents from Massachusetts, or birth parents who plan to come to Massachusetts to give birth, the Massachusetts regulations will apply and are very strict as to what expenses may be paid to birth parents.
Under no circumstances may payments be made directly to a birth parent. Payments for living expenses cannot exceed $980.00 per month. Living expenses are limited to lodging, food, utilities, and clothing. Payments for a birth mother shall not be made for more than a total of eight months, including no more than six months during the pregnancy and six weeks after the child is born.
If the birth parents are from out of state and give birth in their home state, then their state's laws regarding birth parent expenses will govern.
In either circumstance, it is wise for your agency to set up an escrow account for the payment of birth parent expenses.
What about foster care once the child is born? Should the baby be placed directly?
Temporary custody of the child may be an issue. Whether the child should be placed directly in the pre-adoptive home, or in foster care pending the termination of the birth mother's rights and/or all parental rights is an issue your attorney may help resolve. Some agencies practically insist that the child be placed directly with the family as soon as possible after birth. Depending upon the circumstances of the birth parents, and the timing of the termination of their rights, this may or may not be appropriate.
Your attorney will be able to help you assess the situation and help determine whether or not in your particular case the odds and the likelihood of a birth parent not surrendering, or a birth parent coming forward and asserting parental rights.
Can I request the birth parents undergo AIDS testing and blood toxin screening?
It may be easier for you to have your attorney ask for certain services to be provided to the birth parents that are not necessarily standard services offered by the agency. Issues such as testing for aids and/or blood toxin screening may best be raised by your attorney.
You must remember that the agency assesses the situation by determining what is in the best interests of the child, not what you as the prospective adoptive parent or parents may have hoped, or wanted. Your attorney will have your best interests in mind.
Are agreements between birth parents and adoptive parents valid?
Often times, the parties may wish to enter into some form of an agreement with each other, not only during the pregnancy, but also post birth. Again, the guidance of an experienced attorney can help you avoid situations that may backfire later. The Regulations provide that birth parent(s) must be informed that the agency cannot enforce any voluntary agreements, written and/or unwritten, entered into bet ween birth parent(s) or adoptive parents.
Massachusetts law was amended to recognize and enforce post adoption contact agreements between the adoptive parents and the birth parents. However, no such agreements will be enforceable unless the agreements are found to be in the best interests of the child. Breach of the agreement will not vitiate the adoption.
Many contested adoptions are resolved with an open adoption agreement that becomes part of the court record. With the assistance of an attorney looking out for your best interests, you will have the opportunity to fully understand the implications and long range consequences and negotiate terms on an equal playing field.
How do inter-country adoptions differ from domestic adoptions?
Expect the Unexpected
An important aspect of an inter-country adoption is to expect the unexpected. There is much less control in an inter-country adoption than in a domestic adoption. Laws are subject to change at a whim and the information given to the prospective adopters may be minimal at best.
Medical Information and Background, Family Histories
Such information should include medical and social histories. Unfortunately, this information is not always reliable. Recently, there have been several cases where the information given was not accurate. Unfortunately, there is little which can be done in this area. There are some medical professionals who have the ability to assess the health of a child by reviewing medical information and viewing pictures and videotapes of the waiting child. In the very least, your pediatrician ought to confer with the pediatrician who has access to the medical records, and has examined the child in his home country before a decision is made to accept placement.
Adjustment Period
Factors such as health, age, language and previous living conditions all play a part in the child's adjustment once the child is brought to the United States. You should confer with experts, (i.e. doctor, lawyer, social worker) before you accept placement.
REMEMBER
- The Adoption Process will vary country to country.
- Some countries require the presence of both parents, should both be adopting, some do not.
- Some grant you guardianship only, requiring finalization of the adoption in the U.S.
- Some countries allow you to adopt according to their laws.
- Adoption laws and requirements may be in flux, in inter-country adoptions.
- From an agency's perspective: generally there is less information provided about the child's age, background, medical history, present medical condition.
- It is very common for the age of the child not to be accurate.
Once Back in the States, Finalize
In many cases, you will adopt your child before leaving the foreign country. However, it is strongly suggested that upon returning to the United States, the family proceed with a finalization of the adoption pursuant to Massachusetts law. Not only does this allow for an amended birth certificate to issue, finalization of the adoption in the United States gives an added "sense of security" from the ever changing policies of foreign countries.5
With that in mind, other situations may arise which would warrant you having independent counsel. The best time to go to a lawyer is before, not after, you are in legal difficulty. Preventive law can be the most beneficial practice of law.
5 MASS. GEN. L. Ch. 46 §1B does allow for a resident of the Commonwealth who is the parent of a child born outside the state to file with the town clerk of the town where the parent was domiciled at the time of the adoption the documents establishing the adoption. However, it has been the recommended practice to finalize the adoption in the Commonwealth and have the court issue the certificate of adoption to be filed with the town clerk.
|
