Minors' Consent to Abortion & Adoption: Legal Complexity

OK, here's another section of the law review article I'm working on for my day job.  Here I deal with why the adoption decision should be afforded MORE protections than a minor's decision about abortion, leading to my proposed solution that minor birth parents should be given independent legal counsel:

The differential treatment of a minor’s decision to have an abortion and a minor’s decision to relinquish parental rights and consent to adoption is striking.  Are the decisions so dissimilar as to justify this difference?  Three reasons are commonly given for why minors should not be making the decision about abortion on their own:  1) health risks associated with all medical procedures, including abortion; 2) emotional fallout after abortion; and 3) the seriousness of the decision.  The decision about relinquishment of parental rights and consent to adoption seems to share these characteristics with the abortion decision.  In addition, the adoption decision differs from the abortion decision in at least one significant way: the legal complexity of the adoption decision.

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Adoption is a legally-created and pervasively regulated enterprise.  The hallmark of adoption law, traced to the first “modern” adoption statute in 1851, is the complete replacement of the biological family with the adoptive family:
The early adoption statutes provided a mechanism for the transfer of full parental control from one person to another. The statutes carefully specified that the adoptive parents stood in the shoes of the biological parents with respect to custody, obedience, and care. They explicitly transferred "all" parental rights from the biological parents to the adopting parents, with a corresponding transfer of the child's legal obligations of obedience, support, and maintenance. Thus, although the parent-child relationship was transformed with respect to the parent's identity, the nature of parental rights and authority remained unchallenged. Adoption thus confirmed the indivisibility of parental rights by allowing new parents to replace legally the birth parents.
For that replacement to be effectuated, a court must first terminate the parental rights of the birth parents before granting parental rights to the adoptive family.
 The Supreme Court has long recognized parental rights as fundamental rights recognized by the Constitution.  Because of the fundamental nature of parental rights, the Supreme Court has said that a state cannot lightly revoke those rights. When a state seeks to terminate parental rights involuntarily (without the parent’s consent), the Constitution requires a heightened standard of clear and convincing evidence. Despite the fundamental nature of parental rights, a parent can voluntarily relinquish these rights.
Voluntary relinquishment of parental rights cuts off all parental rights, including “the parent's right to the custody of the child and his right to visit the child, his right to control the child's training and education, the necessity for the parent to consent to the adoption of the child and the parent's right to the earnings of the child, and the parent's right to inherit from or through the child.” A minor birth parent may not know or understand what rights parents have, so that she does not fully understand the rights she is relinquishing.  Consider the case of 17-year-old LaTonya Chienta Anderson. She signed a relinquishment and consent that read as follows:
Know all men by these presents, that I, LaTonya Chienta Anderson, the mother of . . . do hereby consent to the adoption of my said child . . . in order that said child may have all the privileges which may accord her by the Laws of Alabama upon her legal adoption.  And I do hereby consent and request that the Probate Judge make all such orders and decrees as may be necessary or proper to legally effectuate said adoption.”
The affidavit made no mention of the termination of LaTonya’s rights, only that the child would acquire certain unnamed legal privileges. The affidavit gives permission to the judge to make all orders necessary to legally effectuate the adoption, but does not inform LaTonya that one of those necessary orders would be the permanent and irrevocable termination of her parental rights. The child was being adopted by the parents of the putative father, and the mother had been freely visiting the child while in the custody of the grandparents, but nothing in the affidavit informs LaTonya that she would no longer have a legal right to visit her child. There was evidence from the social worker conducting an investigation prior to finalization of the adoption that the mother did not understand the finality of the adoption and the legal implications.  After the social worker explained it to the mother, she said she wanted to withdraw her consent. The appellate court held that the consent was valid because the mother “freely and willingly” signed the consent after reading it and “choosing not to question anything.”
This case seems to illustrate perfectly why a minor needs additional protections in signing an adoption consent.  It is easy to imagine that she saw the adoption as a way to make the custody “legal,” without understanding the implications for her own parental rights.  All  that is encompassed in her request that the judge “make all such orders and decrees as may be necessary or proper to legally effectuate said adoption,” was likely just so much mumbo-jumbo to the minor mother.
 Voluntary relinquishment of parental rights and consent to adoption must be knowingly, intelligently and voluntarily given.  Because of the complexity of the legal decisions involved in adoption, it is difficult to see how a minor’s actions in this regard could be knowingly, intelligently and voluntarily given – at least without support from a legal professional.  Consider a student in my Adoption Law class.  Now an adult, she had relinquished a child for adoption when she was 16 years old.  She shared that information with the class, and said key to her decision to place her child for adoption was that she had been given a choice of adoptive parents and the promise of continuing contact.  During the course of the class, she was dismayed to learn that the promise of continuing contact – an “open adoption” agreement – was not legally enforceable in the state in which she entered into it.  When she looked with adult eyes at her relinquishment affidavit, she realized that she had relinquished the child to the adoption agency, not to her chosen adoptive parents, and that the agency could have placed her child with other adoptive parents.  She learned during the course of the class that her child’s right to inherit from her had been terminated. She discovered that she could not have access to her child’s original birth certificate, even though her name was on it as mother. This birth mother was obviously intelligent, proven by her graduation from high school and college, and her admission to law school.  But at age 16, she was not aware of the legal intricacies of the adoption placement decision.
The issue of open adoption, or post-adoption contact, is a particularly thorny legal issue in adoption placement. Since adoption requires termination of parental rights of the biological parents, they possess no residual rights to insist on post-adoption contact. Only in the minority of states where there is legislation on point does a birth parent have an enforceable right to post-adoption contact.  It is still common practice in states without enforceable open-adoption agreements, however, for agencies and adoptive parents to enter into such unenforceable “agreements.”  For example, Amazing Grace Adoption Agency, based in Raleigh, North Carolina, offers the following services to birth parents:  “Choosing and meeting with an adoptive family; Receiving information and pictures of your baby following an adoptive placement; Different levels of openness with the adoptive family.”  If you visit the website of Missouri Adoption Agency, a page will describe open adoptions, and includes a testament by a birth mother describing her contact with her relinquished child: “It was my desire to have an open adoption and this has worked beautifully for all of us.” At Spirit of Faith Adoption Agency in Ohio, the agency describes open adoption as an option: “Most importantly, because of openness, there can be contact in the future and an ongoing story to share of your child’s life; a story that is based on love. When there is openness, or on-going communication between adults, your child will know that the decision you made was not an easy one, and made out of love for him/her.” The birth parents may not be aware that the openness promised by these agencies will not be legally binding in these states.
In those states with enforceable open adoption agreements, there are complex legal requirements to limit the parties who can enter into such agreements and to limit the types of adoptions in which such agreements are enforceable. For example, in Connecticut, post-adoption contact agreements are not enforceable in private adoptions, only in adoptions from foster care.  In Nebraska, court-approved contact agreements are only renewable two-year terms. In Wisconsin and Vermont, open adoption agreements are only enforceable in stepparent adoptions.  In Indiana, the agreement is enforceable only if the child is over age 2 at the time of the adoption,  while in Oregon, if the child is under age 1, the child must have spent at least half his or her life with the birth relative seeking an open adoption agreement. Similarly, in Oklahoma, the agreement is enforceable only if the child resided with the birth parent prior to the adoption. In Montana, a court can refuse enforcement of an open adoption agreement if enforcement would be detrimental to the child or undermine the adoptive parent’s parental authority, or if due to changed circumstances, compliance with the agreement would be unduly burdensome.  Even without these limitations, most states with enforceable agreements require careful attention to the intricacies of the statutes.  In most states, open adoption agreements are enforceable only when approved by a court and/or included in an adoption decree. In Texas, a post-adoption contact agreement is enforceable only if a judge incorporates it in the termination of parental rights order; it is not enforceable if it is only included in the affidavit for voluntary relinquishment of parental rights, or if it is only included in the adoption decree. These are not requirements that a minor birth mother is likely to know.
Minor birth parents may not be aware of legal rights associated with revocation of consent or when consent is invalid, with inheritance rights, with right of access to information and/or contact in the event of a medical emergency, or with any of the other multitude of rights and obligations affected by the legal relinquishment of parental rights and consent to an adoption.  If the only adults with whom the relinquishing minor interacts are the adoptive parents or the lawyer or agency representing the adoptive parents, a minor will have little access to information crucial to a voluntary and knowing consent.  The judge overseeing the adoption is not usually in the position to serve this function. Though adoption is a legal process, it is not uncommon for a birth mother never to set foot in the courtroom. Statutes allow a birth parent to waive notice of any and all hearings at the same time the affidavit of voluntary relinquishment is signed. Thus, there is no opportunity for a birth parent to ask questions in court, for a judge to assess the maturity of the minor birth parent or what the birth parent understands about the legal parental rights she is waiving. Judicial involvement in the adoption does not necessarily allow for judicial oversight of the minor’s decision about adoption placement.
If you've managed to read down this far, and you're a birth mother who relinquished as a minor, I'd love to hear more about your understanding of the legalities of your relinquishment.  Please comment!