Adoption and foster care

• Pages: 299-339
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Catherine Cunningham,Sebiga Lee,Caitlin Clements,Lauren Eber,Taylor-Ryan Nedd
• Subject Matter: Civil Law

ADOPTION AND FOSTER CARE

EDITED BY CATHERINE CUNNINGHAM, SEBIGA LEE, CAITLIN CLEMENTS,

LAUREN EBER, & TAYLOR–RYAN NEDD

I. INTRODUCTION ........................................ 300

II. DOCTRINAL UNDERPINNINGS OF THE ADOPTION AND FOSTER CARE

SYSTEMS ............................................ 300

A. HISTORICAL DEVELOPMENT AND CURRENT STATE OF ADOPTION

LAW ........................................... 301

B. BEGINNING AND MODERN DEVELOPMENT OF FOSTER CARE LAW . . . 306

III. RIGHTS OF BIOLOGICAL PARENTS ........................... 312

A. “BIOLOGY PLUS” APPROACH AND THE RIGHTS OF BIOLOGICAL

FATHERS ........................................ 312

B. IMPACT OF SAFE HAVEN LAWS ON THE RIGHTS OF BIOLOGICAL

FATHERS ........................................ 317

C. ASSIGNED RIGHTS OF BIOLOGICAL PARENTS AND FOSTER CARE

PROVIDERS UNDER THE COMMON LAW ................... 321

IV. SEXUAL ORIENTATION OF PARENTS AND THE ADOPTION

AND FOSTER CARE SYSTEMS............... ................ 323

A. SEXUAL ORIENTATION AND ADOPTION LAW ................ 323

1. Policy Reasons for Banning Adoptions Based on Sexual

Orientation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323

2. The Impact of Obergefell on Same-Sex Adoption. . . . . . 325

3. Full Faith and Credit Analysis of Sexual Orientation

Bans on Adoption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326

B. THE EMERGING USE OF RELIGIOUS FREEDOM TO JUSTIFY

DISCRIMINATION AGAINST SAME-SEX COUPLES ............. 327

V. SYSTEMATIC IMPACTS ON CHILDREN IN FOSTER CARE ............. 330

A. CURRENT PROBLEMS ................................ 330

B. GAY, LESBIAN, BISEXUAL, AND TRANSGENDERþYOUTH IN

FOSTER CARE .................................... 332

VI. ADOPTION BY INDIVIDUALS WITH TIES TO A CHILD ............... 335

A. KINSHIP CARE .................................... 335

B. SECOND PARENT ADOPTION ........................... 336

VII. RACE IN THE ADOPTION AND FOSTER CARE SYSTEMS ............. 336

VIII. CONCLUSION ......................................... 338

299

I. INTRODUCTION

The state-regulated system of adoption and foster care raises important ques-

tions about the proper role of government intervention in the typically private

family realm. Issues of gender, sexual orientation, and race influence the way the

law recognizes American families, particularly the respective rights of parents

and children through adoption and foster care.

This Article provides an overview of the current law governing adoption and

foster care, with a particular emphasis on how gender, sexual orientation, and

race impact this system. Part II introduces the doctrinal underpinnings of contem-

porary adoption and foster care laws, following the overall development of both

areas of family law. Part III discusses the rights of biological parents in adoption

and foster care proceedings. This section also highlights the impact of gender on

parental rights in adoption proceedings through a discussion of courts’ “biology

plus” approach and the development of safe haven laws. The section concludes

with a discussion of the rights of biological parents in the foster care system. Part IV

addresses the impact of sexual orientation on adoption and foster care placement.

Part V explores the systematic impact of adoption and foster care laws on children

involved in the processes, including the challenges faced by gay, lesbian, bisexual,

and transgender youth in the system. Part VI discusses developments in adoptions

involving individuals with familial ties to the child, including kinship care and second

parent adoptions. Part VII examines the role of race in adoptions and the foster care

system.

II. DOCTRINAL UNDERPINNINGS OF THE ADOPTION AND FOSTER CARE SYSTEMS

Laws governing adoption and foster care are based on state and federal stat-

utes.

1

While each state establishes its own standards for adoption and foster care

processes, states must also comply with federal statutes to be eligible to receive

certain federal funding.

2

There is no constitutional right to adopt or to be

adopted

3

—adoption is considered a privilege.

4

Similarly, foster parents do not

have a constitutional right to maintain custody of their foster children.

5

1. See, e.g., Smith v. Org. of Foster Fams. for Equal. & Reform, 431 U.S. 816, 845 (1977) (“[A]

foster family . . . has its source in state law and contractual arrangements.”); Lofton v. Sec’y of the Dep’t

of Child. & Fam. Servs., 358 F.3d 804, 809 (11th Cir. 2004) (“Under Florida law, ‘adoption is not a

right; it is a statutory privilege.’ Unlike biological parentage, which precedes and transcends formal

recognition by the state, adoption is wholly a creature of the state.”) (citations omitted).

2. See, e.g., 42 U.S.C.A. §§ 670–77 (West, Westlaw through Pub. L. No. 119-1) (stating requirements

that states must meet in order to receive federal funding for foster care and adoption assistance).

3. See, e.g., Lofton, 358 F.3d at 811–15 (holding that there is no fundamental right to apply for

adoption, adopt, or be adopted).

4. See Browder v. Harmeyer, 453 N.E.2d 301, 306 (Ind. Ct. App. 1983) (“[A]doption is a privilege,

not a right, governed not by the wishes of the prospective parent(s) but by the state’s determination that a

child is best served by a particular disposition.”) (emphasis in original).

5. See, e.g., Smith, 431 U.S. at 845–46 (holding that the constitutional liberty interest of foster

parents is very limited because it “derives from a knowingly assumed contractual relation with the

300 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:299

A. HISTORICAL DEVELOPMENT AND CURRENT STATE OF ADOPTION LAW

Although adoption has been practiced since ancient times,

6

the first adoption

laws were not enacted by states until 1850.

7

Adoption statutes help courts adjudi-

cate disputes between biological and adoptive parents.

8

These statutes either

authenticate informal agreements and contracts that the parties reach or authorize

“judicial supervision over adoptions.”

9

Prior to the early twentieth century, adoptees’ welfare was largely ignored.

10

Today, courts focus on a “child’s best interest” in formulating judicially based

adoption determinations.

11

Courts and legislatures now grapple with how to

apply the “child’s best interest” guideline in restricting eligibility requirements

for adoption.

12

The adoption system is organized into two separate types of adoption: agency

adoptions and independent adoptions. Under the agency adoption scheme, a licensed

social service agency acts as an intermediary between biological and adopting

parents, and the court finalizes the adoption process.

13

Additionally, agencies usually

provide medical and psychological care to the biological parents.

14

How Are Birth Mothers Screened?, CONSIDERING ADOPTION, https://perma.cc/S9T7-6VZ4

(discussing medical services); What You Need to Know About Adoption Counseling, CONSIDERING

ADOPTION, https://perma.cc/XX99-4MX3 (discussing psychological services).

Alternatively, an

independent adoption may involve an unlicensed intermediary, such as a lawyer,

who works with adoptive and biological parents to form a placement or biological

parents directly placing a child in an adoptive home.

15

Independent adoptions often

State,” leaving the state to define the rights of the parties); Crim v. Harrison, 552 F. Supp. 37, 41 (N.D.

Miss. 1982) (holding that the existence of a constitutionally protected interest for foster parents must be

determined on a case-by-case basis because a legitimate claim of entitlement can only be established if

the state’s laws and the contractual provisions create an expectation that the child will be permanently

placed with the foster parents); see also Kristin J. Brandon, Comment, The Liberty Interests of Foster

Parents and the Future of Foster Care, 63 U. CIN. L. REV. 403, 405 n.12 (1994) (explaining that courts

frequently reject the position that foster parents have a life or property interest under the Fourteenth

Amendment Due Process Clause).

6. See Brandon, supra note 5, at 406 n.13 (finding that references to adoption are present from the

times of the early church and under Elizabethan law).

7. See Thanda A. Fields, Note, Declaring a Policy of Truth: Recognizing the Wrongful Adoption

Claim, 37 B.C. L. REV. 975, 977 n.12 (1996) (noting that Texas and Vermont were the first states to pass

adoption laws in 1850).

8. See id. at 977–78.

9. Id. at 977.

10. See id. at 978–79 (asserting that the court did not need to consider adopting parents’ plans or

qualifications).

11. See, e.g., Thompson v. Thompson, 484 U.S. 174, 180 (1988) (“[C]ustody orders

characteristically are subject to modification as required by the best interests of the child.”); In re T.G.

R.-M., 404 S.W.3d 7, 17 (Tex. App. 2013); Adoption of A.S., 151 Cal. Rptr. 3d 15, 25–26 (Cal. Ct.

App. 2012); In re Elizabeth F., 696 S.E.2d 296, 300 (W. Va. 2010).

12. See, e.g., In re Adoption of Baby Girl B., 67 P.3d 359, 372–73 (Okla. Civ. App. 2003) (listing

factors considered in the best interest of the child test in Anglo-American legal systems) (citation

omitted).

13. See Fields, supra note 7, at 980.

14.

15. See Fields, supra note 7, at 980.

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