Opinions and Commentary

Good Intentions Gone Awry..Politically Correct Obstacles to Adoption .
May 5, 2013
Recently, our Supreme Court heard argument in a lawsuit that pits the rights of an Indian tribe on behalf of one of its adult members against the rights of adoptive parents.  A federal law (the Indian Child Welfare Act, commonly called ICWA) grants certain rights to Indian tribes to preempt parental decisions regarding placement of children for adoption.  The idea is to maintain tribal integrity and provide cultural security for Indian children, who suffered the tragic history of being removed forcibly and for no good cause from the Indian community and placed with white families.  
In the case before the Court, an Indian father failed to comply with state law in asserting his rights to parent a child, a two year old called Veronica,  who had been placed at birth with an adoptive couple by the birth mother.  The father had voluntarily surrendered his parental rights in exchange for being excused from child support obligations, but later claimed that his understanding was that the birth mother would parent the child.  The birth mother placed the child for adoption. He successfully claimed that ICWA trumped the state’s law and therefore the child, now two years old, was returned to him from the adoptive home the child had thrived in since birth.  
As a former adoption attorney, the facts of this case sound familiar.  More than once my first contact with a client was a panicked phone call from a courtroom in Oklahoma, or New Mexico, asking me what this “ICWA” law was and why this long-awaited child in their arms was going to be taken away.   Had these adopters been properly advised at the first hint that the child had Indian eligibility, I would have warned them off the placement.   In this case, however, the adoptive parents did not have independent counsel to advise them of the risk.  Their lawyer was also representing the adoption agency.
But the much bigger question is this.  At what point do we sacrifice a particular child on the altar of the greater social good? Other altars… race-matching when it comes to placement of children of color, or national pride when it is applied to stop international adoption, are justified with the same sanctimonious ethic that underlies obstacles to placement of children of eligible tribe members.  These obstacles have literally resulted in the abandonment and in some cases, death of children in institutions and on the streets around the world.
 We can all acknowledge that the policy objective of ICWA has great merit, addressing as it does both tribal integrity and reparation for the loss suffered in the past.  But whether it is tribal integrity,  or preventing fraud and abuse in the adoption industry, or addressing the inextricable twining of poverty and neglect, the everyday fact is, the rights of individual children are being sacrificed to our grand and good objectives.
While we walk the road to recruiting safe and effective permanent homes within the child’s ethnicity and culture,  attacking poverty, embracing openness in adoption…all roads which deserve our 100% effort and commitment.. there is an individual child like Veronica  who will be torn from the only family they have known, a family that includes not just parents, but also aunts, uncles, cousins, maybe siblings unless we first honor a paramount premise.  That each and every child is entitled to a permanent, safe, stable family, and that right trumps everything else.
The fact is, I don’t care about this birthfather and his rights.  I don’t care about the rights of the birth mother or the rights of the adoptive parents either.  They are adults.  They can grieve, mourn, go to court, speak for themselves, writ, vote, etc..  And what “rights” do adults have in children anyway?  Unless children are still considered chattel as historically they were, the concept of a human having a “right to” or owning another human is perverse.
All I care about is the child.  We should start to make the child’s right to a safe permanent home the paramount guide to these difficult decisions.  Will this result in  “unfair” outcomes to a particular parent?  Yes it will.  I don’t care.  A child who has been in a safe, secure, home and has thrived there is not living with “strangers”, she is living with family and she deserves to stay there. 

When Adoption Comes Home to Roost
February, 2013

We adoptive parents have absorbed the message and lived the reality.  My two came to me as baby girls in the olden days, when background information on their birthfamilies was minimal.   What “I’m adopted” means to your kid changes on her personal schedule, toddlerhood to childhood to adolescence to those oh-so-fun teenage years.  The needs and moods and attitudes and levels of curiosity move in and out and up and down within and through all those stages with no obvious triggers other than normal development.   

The years proceed with  “ I love you Mommy !” exclamations, which emerge as spontaneously as    “I wish I were born in your tummy”  to  “Why did my Mommy give me to you?” to  “You can’t tell me what to do ..you aren’t my real mother !”.

There are some great books with plenty of advice on answering these questions and raising the adopted child, and I certainly relied on those and deep breathing exercises (okay, and a little chardonnay) to get me through those years.

 But the stage I did not see coming was the 20’s.  The opportunities for long, consoling bedtime hugs and general snuggling are pretty much gone, although when they are home they seem to think they still fit on my lap, which is equal parts comical and lovely. The angst now arrives via text message instead of in those pre-sleep tearful conversations.  Because now their friends are getting married, even having children.  And the baby showers and wedding planning and dreaming seem to have as much if not more  impact than the awkward and sometimes mean schoolyard questions did.  These grownup triggers for them lead to the big question..what will my adult family life be? Will I adopt?  If I have children, will the emotional balance I have worked out fall off kilter? 

 Through the years I was able to locate and contact both girls’ birthfamilies using my skills as an adoption lawyer, so the stage was set for them in terms of deciding what if any contact they wished to have.  That huge part of their lives is now well out of my hands and in theirs.  I have to exercise the discretion muscle and not ask too many questions for fear of invading their privacy while remaining available as a sounding board.  But their future family lives will be impacted by their decision on how to incorporate their history, and that too is a tough one.

So do not think once those sweethearts  are adults you get to step off the adoption tightwire. Instead, prepare to be wearing a blindfold from now on.  And grab those hugs every time you get a chance.

July, 2012

SOMEONE GET ME SOME OXYGEN!

I may faint..the popular media are at it again.   A  new series on Oxygen network unfortunately entitled “I’m Having Their Baby” (actually, you are having YOUR baby and are deciding whether or not to place YOUR baby!) beginning this week.

I will be a grownup and wait to see the entire series before I share my final word, but I have to hope that this time the adoption stories, as compelling and dramatic as they might be, won’t focus entirely on the negative. 

The rationale and research behind the series (summarized at http://www.thefutoncritic.com/news/2012/07/17/oxygen-media-study-reveals-women-say-yes-to-adoption-684504/20120717oxygen01  )gives me hope that Oxygen won’t join the already bloated ranks of adoption “horror” movie purveyors such as Lifetime, for example (“Adopting Terror”, anyone?).   Despite research showing a substantial percentage of Americans “approve” of adoption, both scholarly critiques of the presentation of adoption in the media and in textbooks, and frequently observed negative depictions of the institution contradict the assumption that adoption is understood or well accepted. In the past few months alone, films such as Disney’s “Meet the Robinson’s”, television shows such as Glee, and articles in prominent newspapers including the New York Times, Boston Globe, the Pittsburgh Tribune and the Washington Post have all indulged in negative and hurtful stereotypes about adoption and members of the adoption family.

To repeat myself ad nauseam, adoption is always a challenge for adoptees, for adoptive parents and certainly for birth parents.  It can be highly traumatic, especially when it is preceded by a history of neglect or abuse or accompanied by genetic vulnerability in the adoptee.  But it does not inevitably spell doom and in fact for all three members of the adoption triad it can be highly beneficial, especially today when vastly increasing numbers of adoptions are accompanied by full exchange of background information and contact between the families of various sorts.  Another factor improving the success of adoptions is the openness among adoptees to sharing their histories with each other (See, for example, http://adoptionwrites.tumblr.com, my daughter’s blog)

Two anomalies from the research supporting the series:

One: The study asserts that fully 33% of Americans have considered adoption.  In 2005, a government sponsored study found that more than 25% of American women who at some point had been married had considered adopting a child.  That is more than ten million American women who considered possible adoption. What this study doesn’t report is the pathetically low number of adoptions successfully completed.  Of those considering, only 16% actually took concrete steps toward adopting; and of those who took concrete steps toward adoption, only 31% ( or only 1.3% of the total interested in adoption) had ever actually completed an adoption.  This, despite the fact that at the time  of the study it was estimated that there were 118,000 children in public foster care awaiting adoption.  Why?  Needless obstacles placed in the way by agencies and courts.

Two: The study reports that 90% of those interviewed believed birthparents were likely to be unwed teens.  After twenty plus years doing adoption legal work for birthparents as well as adopters, I can honestly say this commonly held belief is way off base.  I saw as many birthmothers in their forties who were trying to leave abusive marriages, college students, and women with too many children to care for in their thirties as I did teens.

So I am crossing my fingers and hoping against hope that Oxygen airs out the well-worn myths and stigma and manages to tell a true but hopeful story. 

June, 2012

Slate (one of my daily online procrastination stops) recently published a story on yet another disrupted adoption.  This time, the author Joyce Maynard acknowledged that she chose to end her adoption of two Ethiopian girls after bringing them to the U.S. and writing about them.

No one knows exactly what transpired, but all of us in the adoption world cringe when this happens.  I will not pretend to be above  an immediate negative reaction, having weathered the challenges of adoption myself and seeing others I have known personally and professionally go to extreme lengths to find support and services to help themselves and their children get past the early losses and exposure to health risks that can test the adoptive family bonds. 

But as a former adoption attorney who handled dozens of “voluntary” disruption cases, I have to take a step back.  Indeed, some adopters are naïve and arrogant about the risks and close their eyes and ears to inconsistent or even negative background information.  More than once, when I secured troubling background information, my clients just refused to believe it, or decided that love would conquer all.  If only it did.  But even more often, agencies and orphanages, sometimes desperate to place children who need to escape a horrible fate otherwise, outright lie about the child’s health background. 

I have had cases where parents were assured that the child they were bringing home was healthy, only to learn after arriving back in the U.S. that the child was infected with the HIV virus, and that the positive test results were in the files when they were lied to.  Children with serious heart conditions or fetal alcohol syndrome were presented as healthy in the medical reports provided to the prospective parents. 

I have had cases where the agency declined to share the fact that both parents of a child in their care had been hospitalized with serious mental illness.  I have had cases where an agency omitted knowledge of serious substance abuse or alcoholism in the birthmother during pregnancy.  I have had agencies terminate placement services to parents who ask too many questions about the child’s health, often claiming that by asking   questions the adopters reveal themselves as “unready to adopt”.  Indeed, searching for background information is often outright discouraged on penalty of being “fired” from the agency, losing thousands of dollars as well as hopes of creating a family.

More often than not, clients who were fully advised of health risks went ahead anyway, martialing the services and support they needed with armed and ready.  Contrary to popular belief, there are adoptive parents for those children; people who are informed, prepared, and willing to take on even the most challenged children. 

But there are those adopters who know that they are simply not equipped to parent a child with a long and serious history of abuse, neglect or illness.

I have to hope that as adoption becomes more transparent and open, that the transparency will extend to sharing as much background as possible with the adopting family so that fewer children suffer disruption.

The recent release of a study conducted by the Evan Donaldson Institute on the prevalence of openness in infant adoption certainly squares with my experience as an adoption attorney for the past many years.  Indeed, over the past twenty years representing over a thousand adopting families, I cannot remember even one private sector infant adoption case where there was no communication between adopters and potential birthparent.   In the vast majority of my cases, an in-person meeting between the two families preceded the adoption, and some contact after the adoption was certainly the norm.  I certainly encouraged both, and found that while some clients were initially fearful, almost all found contact to be a positive experience.

It is also my experience that this openness in its many forms clearly benefits the child, which should answer the primary question.  But beware the dragons.

1.)   Openness in cases where there is a history of abuse or neglect in the birthfamily  can be highly problematic and even dangerous for the child, never mind the stress it can cause the new family;

 2.)    Openness in international adoption, while growing in frequency,  is   difficult     to achieve after placement,  but in many instances international law actually prohibits pre-placement contact between adopters and the birthfamily;

3.)   Post placement contact agreements are sometimes used as a settlement weapon in a disputed adoption or inducement to place, and therefore rest on a shaky foundation of mistrust.  In public sector cases, adopters who have fostered the child for months or even years are often handed a “take it or leave it” form contract on the day of finalization.

The sensible and stressed recommendations incorporated in the study would go a long way toward slaying these dragons.  But realistically, post placement services even now are sparse and getting sparser.  The fact is, the thorough counseling and support needed to prop up troubled cases is not going to be available to the majority of families anytime soon, so the benefits of openness may be limited to those cases of private sector infant adoption where adopters have the resources to pay for the needed support.

Until we find a way to truly support adoption and adopted children the benefits of openness may be limited to a few.