Legal Risk in Adoption

March 25, 2010

Recently, WITF aired a three part series on adoption which highlighted how important permanency is for children, particularly those children who are often perceived to be unadoptable because of their age, physical disabilities or mental health issues. I have had the pleasure of working with many families during the last 12 years that have adopted children regardless of any challenges the children may face. These families simply opened their heart to a child in need and never looked back. 

In the last several years I have become more involved in contested adoptions. While I have always handled contested adoptions, I have come to realize that the legal risk to adopting families is not always clear when a child is placed.

It’s not uncommon for many families to act as foster parents without the intention of becoming adoptive parents and eventually ending up adopting a foster child. Some families specifically foster because they want to be pre-adoptive resources, and of course, there are families who simply contract with adoption agencies for the sole purpose of adopting a child. Regardless of the placement situation, I have found that some of my families ended up in a contested adoption situation and were not fully aware of the legal process that got them there, or how to resolve it. 

When considering the legal risks in adoption, it is important for adoptive families to understand that a child is not truly available for adoption until and unless both biological parents’ rights have been terminated, and the appeal period associated with the termination has expired. The parental rights of biological parents can be terminated voluntarily or involuntarily. Either way, both types of termination can be appealed to the Pennsylvania Superior Court. This causes delay in the finalization of an adoption and potentially could negate it.

Problems can also arise if the biological mother does not know the identity of the biological father or identifies the incorrect biological father (either purposefully or not). Often paternity testing is required in order to identify the biological father. Then the true biological father might not be aware they had fathered a child until the child is to be adopted by another family. In this scenario, if the biological father is found to have been truly unaware of the existence of the child, and that father wishes to parent the child, the adopting family may lose the opportunity to adopt that child. This situation is particularly heartbreaking for the adoptive family who has cared for and nurtured a child believing that they would adopt the child, only to have to return the child to a biological parent who was not identified in the beginning. 

Another scenario that has become increasingly frequent in adoption is family interventions in adoption proceedings. In these situations, there is a valid enforceable termination of parental rights, but when an adoptive family proceeds with the finalization of an adoption, a biological family member, such as a grandparent or aunt or uncle, intervenes in the adoption. When this occurs, the court essentially must determine if the intervening family member has the right to proceed with a petition for adoption, and if they do, the court conducts a hearing akin to a custody proceeding. This process determines which family, the intervening biological family or the adoptive family, is permitted to adopt the child. Similar to Family Court matters, the best interest standard utilized in custody proceedings is applied. While not all biological family members automatically have standing to intervene in adoption proceedings, many adopting families are not aware of this legal risk when accepting a child into their home as a pre-adoptive placement. 

The good news is that hundreds of adoptions are completed each year without incident. In addition, many of the adoptions that initially had complications due to an appeal of a termination decree, identification of a biological father, or a biological family member has intervened are resolved either by agreement or as a result of litigation. 

I frequently work with families involved in contested adoptions. It is my hope that pre-adoptive and foster to adopt families are provided information about the legal risks associated with adoption early on in their process so that the families can be prepared if something unexpected happens. My experience has shown that families who have been made aware of a legal risk associated with the child they wish to adopt at the beginning of their process are better emotionally able to withstand a long and stressful litigation process if necessary.