§60.05 Private Adoptions

• Jurisdiction: Washington

§ 60.05 PRIVATE ADOPTIONS

In the typical private adoption, the court first approves the legal transfer of custody of a child from his or her biological parents to the adoptive parents, along with the concomitant termination of the biological parents' parental rights; the court then will enter a decree of adoption after considering whether that will be in the child's best interest. This section will cover these procedural and statutorily required steps.

[1] Preplacement Report

To ensure the adoptive parents' fitness and to ensure that the adoptee will be placed in a stable, safe, and supportive environment, a preplacement report is required. RCW 26.33.190.

[a] Contents

The first step in an adoption is for the prospective adoptive parents to obtain a preplacement report (often called a "home study"). The preplacement report sets forth "all relevant information relating to the fitness of the person requesting the report as an adoptive parent." RCW 26.33.190(2). It is based on an investigation of the home environment, family life, health, facilities, and resources of the person requesting the report. Id.

RCW 26.33.190(3) requires all preplacement reports to include an investigation of the conviction record, pending charges, or disciplinary board final decisions of prospective adoptive parents. The preplacement requirements include the following two background checks: first, a fingerprint-based background check performed by the FBI; and second, a Washington State Child Abuse-Neglect (CAN) Registry report. These background checks need to be done for any adult living in the home of the adoptive parents, and the CAN report has to be done for every state where the adoptive parent has lived for the past five years. Some courts also require a Washington State Patrol clearance.

Practice Tip: It is very important that your clients be forthcoming about any criminal record in conversations with the individual preparing the preplacement report. Not only is it the right thing to do, but hiding (or forgetting) even a minor criminal matter may cause serious problems if it is discovered later.

[b] Preparation

The individual preparing the report must have a master's degree in social work or a related field and one year of experience in social work or a related field, or a bachelor's degree and two years of experience in social work; or, if they do not have such qualifications, the court must make specific findings of fact that are entered on the record, establishing that the person has reasonably equivalent experience. See RCW 26.33.020(10). The person preparing the preplacement report is required to sign and file a certificate, under penalty of perjury, specifying his or her qualifications. RCW 26.33.190(1). A reasonable fee, based upon the time spent, may be charged for the preplacement report. RCW 26.33.190(4). Upon request, the fee will be subject to review by the court. Id. The person requesting the report shall have the right to receive a copy of it, RCW 26.33.190(6), as well as the right to request that it not be completed, RCW 26.33.190(7).

At a minimum, at least one month is generally needed to gather the necessary information, references, and clearances to prepare the preplacement report. A preplacement report must be filed before the court will sign an order placing custody of the child with the prospective adoptive parents. RCW 26.33.180. In other words, all of the other papers needed to obtain an order granting custody to the adoptive parents may be ready, but unless a preplacement report is prepared and filed with the court, a court will not sign a custody order allowing placement of the child with the prospective adoptive parents.

For some interstate adoptions and all international adoptions, a licensed child-placement agency must prepare the preplacement report. Preplacement reports for international adoptions and for most interstate adoptions must be updated if more than one year old. Otherwise, reports should be updated if more than two years old, with the caveat that some attachments be updated anywhere from one year to every six months. For example, King County requires that the Washington State Patrol criminal record check be current within six months.

Practice Tip: Always initiate the preparation of a preplacement report early in the process.

[c] Notice

RCW 26.33.230 provides that not less than three days' written notice of any proceeding at which a preplacement report will be considered must be given to every agency and/or individual who prepared a report and who had been requested to prepare a report, whether completed or not. This requirement helps to ensure that all relevant, and possibly unfavorable, information is presented to the court. "The notice shall state the name of the petitioner, the cause number of the proceeding, the time and place of the hearing, and the object of the hearing." Id. Unless the preplacement preparer signs a waiver of right to receive notice, proof of service must be filed.

[d] Petitioner's Sworn Statement

Although the statute does not use this term, a petitioner's sworn statement is required to be prepared and filed. This statement identifies every individual or entity that was ever asked to prepare a preplacement report and states whether notice was given to the preparer or whether a waiver of notice was signed by the preparer.

See Form 60-1—Petitioner's Sworn Statement—provided with the downloadable forms accompanying this deskbook (see § 60.16, below).

[2] Initial Contact With Birth Parent

In a private adoption, the prospective adoptive parents may hear about or make contact with an expectant mother interested in pursuing an adoptive placement for the child. The extent to which the adoptive parents may have contact with the expectant mother and the degree to which information is exchanged depends upon the desires of both parties.

Sometimes the initial contact with a birth parent occurs as a result of advertising, whether that is in printed or electronic form.

Practice Tip: Prospective adoptive parents must have a completed and favorable preplacement report in hand prior to any advertising, as there are possible adverse consequences for failing to do so. RCW 26.33.400(3).

The attorney must gather information concerning the medical status of the child, including any disabilities of the child, RCW 26.33.350(1), and information concerning the mental and physical health history of the birth parents, RCW 26.33.350(2). The statute requires the attorney to transmit these medical records to the adoptive parents prior to placement. An earlier version of the statute required the "complete medical report" to contain "all reasonably available information," but now the current statute raises the bar; it requires "all known and available information," including, when known and available, a review of the birth family's and child's previous medical history and a physical exam of the child by a licensed physician with appropriate laboratory tests. For an infant adoption, prenatal records and the parent's medical history and records can be obtained prior to the child's birth, while the labor and delivery records should also be made available as soon as reasonably possible.

To obtain medical information from health care providers, a medical release must be signed by each birth parent. Unless the release specifically allows identifying information to go to the adoptive parents, only nonidentifying information can be given to them.

Also, the attorney must transmit to the adoptive parent, prior to placement, "a family background and child and family social history report, which includes a chronological history of the circumstances surrounding the adoptive placement" and any available school, psychiatric, psychological, or court reports. The attorney "shall make reasonable efforts to locate records and information concerning the child's family background and social history." RCW 26.33.380(2).

In both the medical report and the family and social history report, the identity of the birth parent shall not be revealed without a specific release.

Practice Tip: At the very first contact with the birth mother, the attorney should make arrangements to get a verification of pregnancy from a physician after obtaining a medical release from the birth mother. Inquiry should also be made into possible Native American heritage and the identity and whereabouts of all possible fathers.

Failure to provide the above-described information to prospective adoptive parents may be grounds for the tort of wrongful adoption. See McKinney v. State, 134 Wn.2d 388, 950 P.2d 461 (1998); Price v. State, 96 Wn. App. 604, 980 P.2d 302 (1999), review denied, 139 Wn.2d 1018 (2000).

[3] Consent

A "consent to adoption" is a document that is signed by a birth parent indicating the desire to relinquish parental rights and consent to the adoption. (Other states refer to this document as a "surrender and release.") The execution of this document does not terminate the parental rights; rather, the document must be approved by court order before rights are formally terminated. This is in contrast to a number of other states where the formal signing of a "consent" document becomes an irrevocable act; in such states, there is no further court action that must be done to terminate the parental rights of the signing birth parent.

[a] Initial Considerations

Although the prospective adoptive parents' attorney may discuss many topics and concerns with them, the attorney's most important role is to assist the clients in obtaining a valid consent from at least one birth parent, usually the birth mother. Because there is an inherent conflict between the prospective adoptive parents and birth parents, an attorney cannot ethically represent both sets of parties. See ABA Standing Committee on Ethics and Professional Responsibility, Informal Op. 87-1523 (Feb. 14, 1987). The Rules of Professional Conduct (RPCs) create certain ethical duties. A...