ULC

Adoption Act (1994) Summary

In 1994, the Uniform Law Commissioners promulgated the Uniform Adoption Act (1994) (UAA). It replaces two earlier efforts to promote uniformity of adoption law, an original Uniform Adoption Act of 1953, and an amended version of this original act in 1969. Both of these acts were declared obsolete prior to the work on the Uniform Adoption Act (1994), and had not been actively promoted in the states for some years preceding 1994. The Uniform Adoption Act (1994), although a technical revision of these earlier efforts, must be regarded as an entirely new act. It is a far more comprehensive and complete effort than the earlier acts were. It is the result of five years of intensive drafting work. The first draft was prepared in 1989.

Adoption law is essentially procedural law designed to accomplish one thing. An adoption proceeding ends an initial legally-recognized (and enforceable) parent-child relationship and replaces it with an entirely new legal parent-child relationship. In the law, with the exception of step-child adoptions, the new parent-child relationship attaches to the adoptive parents and child as if the child were born of the adoptive parents. The former relationship (in most jurisdictions) is treated as if it had never existed.

That bare description of what happens in an adoption proceeding, however, does not begin to communicate the complexity of the action and the difficult policy decisions that must be made in the course of drafting a comprehensive act. In adoption law, we invade and challenge the core concept of the nuclear family about as deeply as it is possible to do so. Drafters must confront the issues of the rights of both birth parents and adoptive parents, of the best interests of children, and of the needs of society in working on a uniform act pertaining to the subject. These issues are the core substance of "family" as we view it. Drafting decisions are not easy. Opinions on all constituent issues are not uniform. Passions run high on some of them. Balancing rights and interests is, at best, uneasily accomplished.

The Uniform Adoption Act (1994) reflects these facts. It has stretched its drafters' collective judgment to the absolute limits. It contains many studied compromises in the effort to be as fair as possible to all parties, but there are no illusions about the satisfaction that the Uniform Adoption Act (1994) will provide to many people with committed interest in adoption issues.

Scope of Act

The fundamental adoption proceeding takes place in a court of law, but some of the procedures may be described as administrative or quasi-administrative in character. The initial proceeding involves obtaining the consent of the birth parents to place their child for adoption in a direct placement action, or relinquishing it to a qualified agency, if the adoption is to be an agency adoption. This is not necessarily a judicial procedure, though it can be. UAA contains a procedure for a pre-placement evaluation of the qualifications of the prospective adoptive parents. It is not a judicial proceeding.

The adoption proceeding in a court of law can include a proceeding to terminate the rights of a birth parent who has not consented to the placement for adoption or who has not relinquished the child to an agency. A termination proceeding is an adversarial, fault proceeding in court directed against the non-consenting or non-relinquishing parent. Within the adoption proceeding, there is also a mini-proceeding to identify any unknown father, or if that is not possible, to publicly notify an unknown father of the adoption proceeding.

UAA provides somewhat separate court proceedings for the special cases of step-parent adoption and adult adoption. And beyond the specific proceedings for the adoption itself, are further provisions for the retention of adoption records, for maintaining their confidentiality, and procedures for obtaining non-identifying information from those records, for obtaining a protected party's consent to open adoption records, and for petitioning an applicable court for opening adoption records that otherwise remain sealed. These procedures are all court procedures.

There are provisions and procedures for establishing and maintaining a registry in which birth parents, adult adopted children, adopted siblings, and adoptive parents may register their consent for disclosure of identity to the other parties otherwise unavailable in the sealed records. The registry is an administrative activity.

Last, but not least, the Uniform Act regulates fees that may be charged for adoption services offered by professionals, and it provides penalties for violations of its provisions.

The bare bones of the act have been, at this point, described. No short summary can do justice to the whole of the issues resolved in the Uniform Act. It shall be the effort in the rest of this summary to discuss the major issues and their resolution and then, finally, to discuss step-parent and adult adoptions. The three major issues are: direct placement of children versus agency placement; birth parents' rights; and confidentiality of records.

Direct and Agency Placement of Children for Adoption

A direct placement adoption occurs when birth parents directly place a child with adoptive parents for adoption. Most such adoptions take place through private agents, frequently attorneys, who find children available for placement and who arrange the placement and adoption between the birth parents and the adoptive parents. In existing law, most of the states permit direct placement adoptions, and most of those allow direct placement adoptions to occur as an alternative to agency placement adoptions.

A few states permit only agency placement adoptions. These adoptions occur when birth parents relinquish a child to an agency, which then places the child for adoption and consents to the adoption. The agency steps into the shoes of the birth parents upon relinquishment to the agency. State governmental agencies may conduct agency adoptions, but many are handled by non-profit agencies that are licensed and regulated by the states in which they operate.

Direct placement adoptions are widely criticized as commercialization of adoption, as subject to price gouging as a result of that commercialization, as subjecting the best interests of the child to the profit motive, and as being the most error-prone mode of adoption. A substantial number of proponents for agency placement adoptions actively oppose any direct placement adoptions.

However, the bulk of the states have clearly continued direct placement adoptions in the face of criticism. For all of the criticism there are too many very successful direct placement adoptions and qualified professionals to assist such adoptions. Agency placement adoptions also have their critics. The agency system is often seen as a bureaucratic impediment to placing children for adoption, as sometimes engaging in discriminatory practices, and as, generally, not serving the best interests of children as a result. It is also not necessarily a cheaper alternative to direct placement adoptions.

The Uniform Act continues both direct and agency placement adoptions. It attempts to reduce the perceived abuses of both forms. For example, adoptive parents must have a pre-placement evaluation by an independent professional before becoming eligible to adopt a child. This requirement applies to both direct and agency placement adoptions, but operates as a particular safeguard for direct placement adoptions. In the bulk of the states, direct placement adoptions occur without such evaluations.

The specific procedures for obtaining the consent of the birth parents in the Uniform Act also constitute one of the major safeguards for direct placement adoptions. By requiring a procedure before an independent tribunal, in which the birth parents sign a document of consent and which assures full disclosure of the effect of adoption, the rights of birth parents are better protected and the prospect for error in handling birth parents' rights is considerably diminished. The consent procedure also encourages the identification of unknown fathers. If direct placement adoptions are more error prone, these are the kinds of safeguards, or checks and balances, that eliminate opportunity for error.

The Uniform Act requires up-front disclosure of fees and costs that adoptive parents will have to bear. The court must scrutinize the fees paid as part of the adoption proceeding, and UAA quite clearly spells out what the adoptive parent is allowed to pay for. Fees for professional services are included, as are certain expenses of the birth parent. A child may not be purchased by a direct payment of money to anyone. Coupled with the judicial approval of costs, these provisions help to foreclose fee gouging in direct placement adoptions.

The Uniform Act provides safeguards that should eliminate the problems of direct placement adoptions. At the same time, adoption of the Uniform Act should streamline the bureaucratic process in most states. It should eliminate the differences between state agencies that delay interstate agency placements under the Interstate Compact for Placement of Children. The Uniform Act approach is to improve the two sides of the adoption equation, not to eliminate one of them.

Birth Parents' Rights

Birth parents' rights are the second major issue governed in the Uniform Act. Birth parents have legal obligations toward their children and have a right to their custody at birth. Biological fathers are legally obligated to support their children and have rights with respect to the custody and control of them, unless adjudicated otherwise, even though they are not married to the mothers of these children. Adoption of children by other persons requires that these rights be properly ended so that new rights and obligations can be assigned to the adoptive parents. If these rights are not properly ended, there can be serious conflict between birth parents and prospective adoptive parents.

The consent and relinquishment procedure is the first part of protecting birth parents' rights. The consent or relinquishment must be in a signed writing which recites that the birth parent understands the nature and effect of his or her consent. Full disclosure of the nature and effect of the consent or relinquishment to the birth parent becomes essential to effective consent. Among the disclosures that must be made is that the birth parent is entitled to advice of an independent attorney.

The procedure itself requires an examination of the birth parents by an independent tribunal. It may be a judge in a court of law, an attorney who does not represent either party in the adoption proceeding, a magistrate appointed specifically by the court for the purpose, or, for military personnel, a military officer. The options permit flexibility for facilitation of the procedure, but guarantee the scrutiny and examination by an objective third party with professional and\or official status to assure that informed consent or relinquishment actually occurs.

A consent or relinquishment for placement of a newborn infant is not effective until the child is born and may be rescinded without any reason within 192 hours after it is born. This extends the birth parents' capacity to consider and reconsider the decision to place the infant for adoption for a substantial period of time before the decision is final. For children who are not newborn infants, the consent or relinquishment is effective immediately upon execution.

The petitioner in an adoption proceeding must provide the court with the names of those whose consent or relinquishment of the child has been obtained, and "the name or relationship to the minor of any individual whose consent or relinquishment may be required, but whose parental relationship has not been terminated, and any fact or circumstance that may excuse lack of consent..." Notice of an adoption proceeding must go to any person whose consent or relinquishment is necessary, but also to "an individual whom the petitioner knows is claiming to be or who is named as the father or possible father of the minor adoptee and whose paternity of the minor has not been judicially determined..." The court has an obligation in an adoption proceeding either to identify an unknown father that the court learns may be involved in the adoption proceeding, or to provide notice of the proceeding if identity cannot be determined. These requirements are designed to assure that birth parents are identified and that they are given fair opportunity to enter the adoption proceeding in the event they desire to contest it.

The converse problem of birth parents' rights is speedy adjudication so that an adoption, once concluded, cannot be upset, and provisions for termination of parental rights that allow a court to consider a particular version of best interests of the child in the adjudication of a termination.

Generally, it is not difficult to identify the birth mother of a child that is placed for adoption. The birth mother makes the initial decision to place her child for adoption in the large majority of cases. The determination of the father is the problem, if there is to be a problem. Unknown fathers, those who the birth mother simply cannot name, or thwarted fathers, those whose identify does not become known for some reason before the placement of a child, are the more difficult cases. The Uniform Act strives to protect the legitimate rights of birth fathers, but in those instances in which protection of those rights conflicts with the best interests of a child, the balance in the Uniform Act swings to the side of the child. It is possible under the Uniform Act to terminate a thwarted birth father's rights in favor of the adoptive parents if not terminating them would be detrimental to the child.

It is not fully clear that the consent or relinquishment of all fathers is necessary for an effective placement. The developing case law does not provide complete guidance. The Uniform Adoption Act (1994) requires consent or relinquishment only from fathers who have a specific parenting relationship with the child. The kind of relationship that would give rise to a presumption of fatherhood under the Uniform Parentage Act, generally, means a consent or relinquishment must be obtained. That forces a putative father, who does not qualify as a presumed father, to come forward and file to establish paternity if that father wishes to maintain any rights with respect to the child. He has 20 days to do that after receiving notice of the adoption proceeding. Otherwise, his rights may be summarily terminated and he has no power to enter or thwart the adoption proceeding.

Any man who asserts a claim for paternity in an adoption proceeding, and who has not executed a consent or relinquished the child, may still have his parental rights terminated. A termination requires a finding of some fault on the part of the father. Generally, the grounds in the Uniform Adoption Act (1994) relate to de facto abandonment of or avoidance of responsibility for the child. But even if fault cannot be proved, the court has the option of considering termination on the basis that not terminating his rights would be "detrimental to the child."

The fault grounds in a termination proceeding may be proved by a "preponderance of the evidence," but to prove that rights should be terminated because it is "detrimental to the child" requires "clear and convincing evidence." The latter is a higher standard of proof. In addition, the court must consider a variety of factors in its determination under these grounds, such as "respondent's ability to care for the minor," "the duration and suitability of the minor's present custodial environment," and "the role of other persons in thwarting the respondent's efforts to assert parental rights."

In addition, once an adoption proceeding is concluded, it is final. Rights to appeal the decision run very quickly. The statute of limitations runs only for six months. After that, no unknown or thwarted father can upset the adoption, even if rights have not been terminated in the adoption proceeding.

All these provisions are designed to balance the legitimate interests of all parties, birth parents, children, and adoptive parents. The Uniform Act tries to preserve legitimate birth parent's rights. On the other hand, it tries to expedite the adoption process so that adoptions are not upset by the untimely assertion of birth parent's rights. The balance ultimately swings to the stability of the adoptive home for the child and the best interest of the child. When that occurs, birth parents' rights become secondary to that interest. Subtle and fair balance are the underlying imperatives in all these provisions.

Confidentiality of Records

The third major issue is confidentiality of birth records. For the most part over the last 40 years, state law has regarded the birth records, including the original birth certificate, and the record of the adoption proceeding as confidential. These records are normally sealed. In addition, the names of birth and adoptive parents are kept confidential.

There has been considerable controversy over the continuance of full confidentiality. There are advocates for completely open records, citing the rights of adopted children to know what their birthright is. On the other hand, there are advocates for complete confidentiality. Part of that advocacy relates back to what adoption is - the complete severance of the child from the birth parents and complete recreation of a new family for the adopted child. But the rest arises from concerns for both birth parents and adoptive parents. Most infants put up for adoption are not born to married women. Illegitimacy has its stigma, and many children have been put up for adoption on the condition that the birth parents' identities be kept secret. Adoptive parents have their concerns as well. Most people adopt a child, not the birth family of the child. They adopt on the condition that the birth family not know who the adoptive parents are.

Given the equities between all parties, there is no clear right or wrong answer to the confidentiality question. Any decision to make a radical change in current policy in most states may benefit some people who are not now benefitted, may not make any difference at all to other persons, and may cause real injury to others. Nobody in a position to make policy decisions can be sure about those decisions, no matter which position is taken.

UAA takes the position that if it is not clear what the effect of radical change would be, then try to find a way to meet the immediate needs of parties to the adoption process, but, otherwise try to avoid harm. The fundamental policy of the Uniform Act is to retain confidentiality of records and the identity of birth and adoptive parents. But under the Uniform Act confidentiality is confidentiality with qualifications.

Parties to the adoption process may clearly volunteer to have their identities known to the other parties. Birth parents have the clear opportunity under the Uniform Act to choose adoptive parents. Every birth parent must be given the opportunity to consider disclosure of identity as part of the process for obtaining consent or relinquishment. Adoptive parents have the option of revealing their identities from the outset. Voluntary open adoption is clearly permitted in the Uniform Act, and waiver of confidentiality is permitted.

If the records are confidential and identities are secret, there are still mechanisms to obtain information. The Uniform Act provides a procedure for obtaining non-identifying information from the confidential record. It also allows specific health information to be provided to the court, which then notifies the party who may benefit from that information that it is available.

The Uniform Act calls for the creation of a registry in which birth parents, adoptive parents, adult adoptees, and adult adopted siblings can provide permission to reveal their identities. This is coupled with a court procedure to obtain access to identifying information to which permission for access has been granted.

In addition to these provisions, the Uniform Act allows a petition to the relevant court for obtaining identifying information for which no consent to access has been granted. This procedure is a kind of equitable procedure, not bound by exact rules pertaining to disclosure of the information, in which the court weighs the equities and needs of all the parties. If it finds that there is good cause for revealing the information, a compelling reason for its disclosure, and "the benefit to the petitioner will be greater than the harm to any other individual of disclosing the information," the court has the power to disclose the confidential identifying information.

The issue of health related information is of particular concern with respect of these provisions. One of the problems with respect to health related information is that it is frequently not available. Older records will not have much genetic information, with health implications, that will be of assistance to people. It is not possible to create information that never was available. But the Uniform Act attempts to assure that such information will be available in adoptions in the future.

Part of the information that birth parents must provide in the adoption proceeding is health and genetic related information about the child. This is information that must be provided at the initiation of the proceeding, and which becomes part of the permanent record. This means that adoptees and adoptive parents very likely will have appropriate health related information available to them.

Step-Parent and Adult Adoptions