6.1 Overview

• Library: Adoption Procedures and Forms: A Guide for Virginia Lawyers (Virginia CLE) (2019 Ed.)

6.1 OVERVIEW

6.101 In General. In a parental placement adoption, the birth parent or parents place the child directly with the adoptive parents. In many cases, the birth mother will select the adoptive parents while she is still pregnant, and the birth father also may be involved in this selection process. The adoptive parents may be located through family connections, work connections, word of mouth, the Internet, social media, the medical community, attorneys, and many other means. There is usually full disclosure of last names and addresses, but not always. This chapter describes a parental placement that proceeds smoothly and discusses some of the possible challenges the attorney may have to confront when a parental placement faces complications.

6.102 Ideal Procedure.

A. In General. The termination of parental rights in a parental placement adoption is voluntary. The birth mother who decides to enter into an adoption plan typically chooses the adoptive parents with whom she wants to place her child. If the birth father is involved, he may take an active part in this decision and should be encouraged to be a part of the team. It is far better to include the birth father in the process as early as possible, if he is willing to be involved. Should the birth father feel his rights are being ignored, or that he is not important to the process, the threat of disruption or opposition to the placement may be greater.

Unless the birth parents and adoptive parents are connected through family members or work or in another close manner, the birth parents often will consider adoptive parents by looking at adoptive parent profiles or what traditionally was once referred to as a "Dear Birth Mother" letter. Adoptive parent profiles are different from home studies as they include general information and many photographs of the adoptive family. Adoptive parent profiles typically now are done as soft-bound booklets prepared on the Internet or with other "make your own booklet" type programs. Once the birth parents have selected or identified the adoptive parents of their choice, they can arrange to meet with the adoptive parents. If

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they are considering several sets of adoptive families, the birth parents may meet with each separately and then choose the adoptive parents they deem to be most suited to adopt the infant. In some parental placements, the birth parents may not want to actually meet the prospective adoptive parents but will simply rely on the information provided to them in the adoptive parent profile. It is usually advisable to encourage the birth parents to meet the adoptive parents for many reasons including that it will be ultimately in the child's best interest. A meeting between the adoptive parents and birth parents also helps the birth parents better realize or conceptualize their adoption plan. Once the birth parents and adoptive parents have met, the adoptive parents should continue to develop as much rapport with the birth parents as possible without being overbearing.

The adoption attorney for the adoptive parents should be involved in the process as early as possible to help the adoptive parents plan for the birth and hospital experience as well as the legal proceedings. Generally, the birth parents should be asked to complete background forms early in the process. The attorney should have sufficient forms to use for this purpose or work with the coordinating adoption social worker to obtain them. The attorney's role includes coordinating with the social workers and with the licensed child-placing agency (typically the one that conducted the adoptive parents' home study) to ensure that: (i) the necessary background forms are completed by the birth parents; (ii) counseling is offered to the birth parents; (iii) the formal simultaneous meeting with the adoptive parents, birth parents, and social worker is offered and held (or waived); (iv) ongoing contact is discussed; and (v) the pertinent information for the report to the court is being gathered. The attorney's role also includes ensuring that independent counsel is arranged for the birth mother and, in some instances, for both birth parents. ¹

B. The Hospital Process. Hospitals can have very different procedures regarding adoption situations. Many hospitals will allow the birth parent to sign a release form that authorizes the hospital to transfer the baby directly to the adoptive parents and also releases the hospital from any liability. The adoptive parents may need to sign a form acknowledging receipt of the child and likewise releasing the hospital from any liability. The hospital may have other forms that it requires the birth parents to sign, such as a consent for the adoptive parents to visit the child. Typically, the birth parents will execute a HIPAA compliant medical record release authorization and a

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health care power of attorney. ² These documents allow the adoptive parents to obtain medical information and treatment for the child until a temporary custody order is obtained. The health care power of attorney is signed in the hospital by all the parties before a notary. Most hospitals have a notary available during regular hours, but it is a good idea for the attorney's office to arrange for one in case the hospital cannot provide one. Sometimes a document entitled an "entrustment agreement," an "entrustment agreement and health care power of attorney," or a "temporary custody and medical power of attorney" is used at the hospital in parental placement situations. But it is important to recognize that the only valid "entrustment agreement" provided for under Virginia law is an "entrustment agreement" used in agency adoptions. Thus, any such document is not a valid document that is enforceable under Virginia law even though the use of those agreements occurs with some frequency. If an adoption attorney is forced to use such an entrustment agreement or temporary custody agreement in order to comply with a hospital's requirements to release a child to the adoptive parents, the attorney should explain to the adoptive parents that such a document does not give them any actual legal authority and that, until the custody order is obtained from the juvenile and domestic relations general district court, the adoptive parents really are in a legal position no greater than that of a babysitter who has permission to get medical treatment for the child.

Hospitals have varying adoption procedures and requirements. Some allow direct discharge to the adoptive parents with the executed power of attorney, whereas others may require additional forms to be signed by the parties. Other hospitals do not allow direct discharge but insist instead that the birth mother hold the child as she is wheeled out of the hospital and then hand the child to the adoptive parents outside the hospital door or even outside the parking lot. A few still require that an attorney or social worker be present for discharge to carry the baby out with the adoptive parents.

The best practice is to contact the hospital before the anticipated delivery and, if necessary, to fax the hospital copies of any health care power of attorney or release forms required by the hospital. Note, however, that many hospitals already will have their own forms applicable to the hospital's liability and concerns. Counsel should contact the hospital's offices of risk management, discharge planning, or social services to get the name of a contact person who can facilitate the process once the attorney or the adoptive parents arrive at the hospital. The birth parents can receive copies and review

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any documents that will be signed before the birth, thus keeping attorney fees down by not requiring the birth parents' attorney or adoptive parents' attorney to go to the hospital to explain them. Counsel for the adoptive parents should transmit copies of any HIPAA compliant medical authorization or health care power of attorney to the birth parents' attorney ahead of time, so the attorney can review the document with the birth parents. ³

If a HIPAA compliant medical authorization or health care power of attorney is executed, ⁴ the originals should stay with the adoptive parents. Sometimes, the hospital will want to have a copy made to include in the child's medical records or the birth mother's medical chart.

Attorneys should be aware that although most nursery staffs are supportive, some staff may be personally opposed to adoption. There have been instances where nurses have questioned the birth mother's decision regarding the placement and have attempted to exert inappropriate influence over the placement decision. Thus, it is important for the hospital staff to be well informed before the birth regarding the birth parent's adoption plan. The adoption plan for the hospital can be prepared before the birth by the birth mother and provided to the appropriate hospital staff members. The plan can include the amount of time the birth mother desires to see the child, the amount of contact that the birth mother desires to have with the adoptive parents, the amount of contact the birth mother desires the adoptive parents to have with the child at the hospital (including if either or both may be present at the birth), who will name the child on the birth certificate application, and the like. Some hospitals might have an extra room available for the adoptive parents, but this often depends on hospital capacity. If an extra room is not available, the adoptive parents will need to plan to visit with the baby in the nursery and, in some instances, even in the birth mother's room.

Another issue to address before the birth mother goes to the hospital to deliver, if possible, is what name the birth mother or birth parents will put on the application for the birth certificate at the hospital and whether the birth father will be listed on the birth certificate. The baby's name can be a...