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.”