Author:Jeffrey Lehman, Shirelle Phelps

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A two-step judicial process in conformance to state statutory provisions in which the legal obligations and rights of a child toward the biological parents

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are terminated and new rights and obligations are created between the child and the adoptive parents.

Adoption involves the creation of the parent-child relationship between individuals who are not naturally so related. The adopted child is given the rights, privileges, and duties of a child and heir by the adoptive family.

Since adoption was not recognized at COMMON LAW, all adoption procedures in the United States are regulated by statute. Adoption statutes prescribe the conditions, manner, means, and consequences of adoption. In addition, they specify the rights and responsibilities of all parties involved.

De facto adoption is a VOIDABLE agreement to adopt a child, based on a statutory proceeding in a particular state, which becomes lawful when the petition to adopt is properly presented.

Equitable adoption, sometimes referred to as virtual adoption, is treated by the law as final for certain purposes in spite of the fact that it has not been formally executed. When adoption appears to comply with standards of fairness and justice, some states will grant a child the rights of one who has been adopted even though the adoption procedure is incomplete. An equitable adoption might be enforced by the court for the benefit of a child in order to determine inheritance rights, for example. Similarly, adoption by ESTOPPEL is the equitable adoption of a child by promises and acts that prevent the adoptive parents and their estates from denying the child adoptive status.

Who May Adopt

To be entitled to adopt a child, an individual must meet the qualifications under the laws of his or her state, since the state has sole power to determine who may become an adoptive parent. Unless otherwise provided by state statute, U.S. citizenship is not a prerequisite for adoption.

A child may be jointly adopted by a HUSBAND AND WIFE. If not contrary to statutory provision, either may adopt without being joined by the other. Unmarried people may adopt unless prohibited by law.

A growing area of controversy by the courts is whether adoption by a child's grandparents is a viable alternative. Such adoption might be considered in the child's best interests if the natural parents die or if the custodial parent is found unfit. A legal guardian may adopt a child but is not ordinarily given preference in the court proceedings.

The best interests of the child are of paramount importance in policy considerations toward adoption. Although legislative policy prefers such conditions as adoption by people of the same religion as the prospective adoptee, an interfaith adoption is allowed when it does not adversely affect the welfare of the child.

Elements in determining who will be suitable adoptive parents include race, religion, economic status, home environment, age, and health. Most of these criteria are taken into consideration in placements by agencies or in private placements where state law requires that adoptive parents be investigated.

Who May Be Adopted

Since the status of an adopted person is regulated by state statutes that authorize the adoption, state law determines whether an individual is a proper candidate for adoption. In addition, to be subject to adoption in a particular state, the individual must be living within that state.

Children may be adopted in situations where their natural parents are living, dead, or unknown, or where they have been abandoned. An adoption will not be prevented by the fact that a child has a legal guardian.

Some statutes expressly limit adoption to minors, and others expressly provide for adoption of adults. The adoption of adults is regarded by statutes and the courts in a manner similar to the adoption of children. Practically, however, the adoption of adults differs greatly, since it serves different purposes and creates few of the difficulties arising out of the adoption of children. In most cases, the purpose of adult adoption is to facilitate a device for inheritance. One may designate an heir by adopting an adult. Generally, the adoptee would not otherwise be entitled to inherit but for the adoption.

Social Considerations

In the past, adoption was viewed primarily as a means for a childless married couple to "normalize" their relationship. The focus has switched, however; now, adoption is ordinarily seen as an institution that exists to help place children into improved environments.

A number of states have, in recent years, enacted statutes that permit subsidization of adoptions. The adoption procedure thereby became a social instrument for the improvement of the lives of underprivileged children. Subsidized adoption tends to encourage adoption of children by suitable individuals who would otherwise

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be unable to afford it. This type of adoption has a significant effect upon placement of children labeled hard-to-place. Such children, who are frequently either physically or mentally handicapped, might have no other alternative except protracted institutionalization.

State law may require that the adopting parent have custody of a child for a certain period before obtaining an adoption decree. This requirement is designed to prevent premature action and to establish whether the best interests of the child will be furthered by the adoption.

Transracial Adoption The issue of transracial adoption (adoption of children who are not the same race as the adoptive parents) has come under close scrutiny by courts, legislatures, and the public. Americans are sharply divided on this issue. Is it a positive way to create stable families for needy children and well-meaning adults? Or is it an insidious means of co-opting members of racial minorities and confusing their sense of identity?

In 1972, when the number of African American children adopted annually by white families rose to fifteen thousand, the National Association of Black Social Workers (NABSW) issued its opinion on the subject. Igniting a furious national debate that continued in the mid-1990s, the association equated transracial adoption with cultural GENOCIDE for African Americans.

The NABSW and other minority groups opposed to the adoption of African American children by whites claim that the children are deprived of a true appreciation and understanding of their culture. Their childhood is skewed toward white values and assimilation. Without a sense of racial identity and pride, these children cannot truly belong to the African American community; yet, by the same token, racism prevents their full inclusion in the white world.

Despite these arguments, some African Americans applaud the unconditional love and permanence offered by transracial adoptions. Transracial adoption supporters argue that it is much worse to grow up without any family at all than to be placed with parents of a different race. Because a disproportionate number of African American children are placed in foster care, mixed-race adoptions may be necessary to ensure permanent homes for some African American children. Transracial adoption may also be viewed as an opportunity to achieve INTEGRATION on the most basic level.

Controversies involving transracial adoption soon found their way to the courts. In 1992, the Minnesota Supreme Court upheld a district court's order to transfer a three-year-old African American girl from her suburban Minneapolis foster home to her maternal grandparents' home in Virginia (In re Welfare of D. L., 486 N.W.2d 375 [Minn. 1992]). Referred to as Baby D in court records, the child had been raised since birth by white foster parents who had been married for twenty-four years and had already raised three grown children. Baby D's birth mother placed her in foster care almost immediately after delivery and had not seen the child since. When no relatives could be found to claim the child, the foster parents decided to adopt the girl, whom they had grown to love.

When Baby D's grandparents learned that their daughter had delivered a baby, they set out to find their grandchild and to obtain custody. (The couple was already raising their daughter's three other children.) When the foster parents' petition to adopt Baby D surfaced, the grandparents vigorously opposed it.

The Minnesota Minority Heritage Preservation Act mandated a preference for placing children with relatives and adoptive parents of the same race (Minn. Stat. Ann. § 259.57(2)). An intermediate appeals court and the Minnesota Supreme Court agreed with the lower court that under the law, the Virginia grandparents must be granted custody. Despite the white foster parents' argument that they had provided security and loving care for the child, the grandparents' claim to Baby D was superior. Although many African Americans applauded the decision, some critics questioned the constitutionality of a law favoring same-race adoption.

A similar case in Lexington, Texas, produced a different result in 1995. Two foster parents, Scott Mullen and Lou Ann Mullen, who are white and Native American, respectively, applied to adopt two African American boys in their care. Initially, social workers for the Texas Department of Protective and Regulatory Services denied the Mullens' request, stating that departmental policy required them to seek adoptive parents of the same race as the children.

A civil liberties group...

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