Happy Law?an Ethical Paradigm for the Tpr/adoption Attorney

• Publication year: 2023
• Citation: Vol. 35 No. 3 Pg. 55
• Pages: 55
• Year: 2023

Happy Law? An Ethical Paradigm for the TPR/Adoption AttorneyVol. 35 Issue 3 Pg. 55South Carolina Bar JournalNovember 2023

By James Fletcher Thompson

Editor's Note: This article is part two of a two-part series on TPR cases, continuing from our September 2023 issue.

Frequently, attorneys describe adoption law as "happy law."^[1]Perhaps this characterization is in juxtaposition to divorce law or other hard-fought civil litigation where clients are often dissatisfied, even if their attorney has achieved the very goal they wanted. Against this adversarial backdrop, adoption law appears unique, perhaps even rosy. After all, it seems the only happy faces at the courthouse are those of adoptive parents — the newly-created family even wants to capture the proud day for posterity, smiling for photographs with the judge and their attorney.

And it is true. Handling an adoption is a profoundly rewarding experience for the attorney, as lives are impacted for generations to come. And yet, one sees only half of the picture to describe adoption law as happy law, for it is equally true that for every family that is built, one is deconstructed. For parents losing their legal rights to a child, this is not an altogether happy result. Whether by a shared design (through a voluntary adoptive placement) or by an unwelcome intervention (through a judicial termination of parental rights), every birth parent, to some degree, experiences grief and loss in an adoption.^[2] Yes, even if abuse or neglect led to the adoption, these parents nonetheless share a sense of grief, loss, and regret.^[3] Not just the parents, other members of the birth family, too, might carry a sense of loss in their lives.

And so, happy law describes a true but incomplete picture of adoption. Perhaps the ethical transgressions by adoption attorneys^[4]reflect, in part, their failure to acknowledge both sides of the adoption equation-the construction and the deconstruction of family. Perhaps adoption attorneys allow the rosy perception of their work held by others to cloud their own perspectives. If adoption attorneys consider their work to be an unmitigated good, this moral absolutism can lead to ethical blind spots that ignore the complexities of adoption practice.^[5] Some ethics commentators suggest that it is "too easy for attorneys to become caught up in the view that family formation work always exemplifies goodness and morality, possibly causing them to disregard the interests of the other parent as the lawyer marches toward the goal of creating a new and legally recognized parent/child relationship."^[6]

The field of behavioral legal ethics posits that psychological factors blind lawyers to their own unethical conduct.^[7] If adoption attorneys view their work as inherently right (or perhaps righteous), this perspective can lead to unconscious bias.^[8] For instance, an attorney may unconsciously overlook unethical or blameworthy behavior, instead focusing narrowly on a desired outcome — such as completing an adoption — envisioning the freeing of a child from an undesirable life with the birth family and ensuring a bright future with secure and loving parents. If adoption is good, so goes the theory, then whatever behavior that produced it must also be good,^[9] a

Machiavellian concept that the end justifies the means.

Adoption attorneys must avoid such pretension and claim of exceptionalism. Prior to accepting an adoption case, the attorney should pause and assess, or risk being swept up in a pursuit that may or may not be in the child's best interest. For example, perhaps it is better to allow a foster child to be adopted by foster parents if the child is securely attached to them than to seek adoption of the child by a relative who has no existing relationship. Perhaps it is wiser to counsel clients against seeking adoption when the birth father promptly comes forward offering support and seeking visitation; perhaps obtaining custody of the child is a better result than termination of parental rights and adoption.

Similarly, after any adoption case is initiated, opportunities are always present to pause and assess along the way. Perhaps an open adoption with ongoing communication with the birth family is better than forever foreclosing all contact;^[10] perhaps an enforceable agreement allowing sibling visitation among two or more adoptive families is preferable to excluding an adoptee from knowing birth siblings;^[11] perhaps an agreement allowing court-ordered birth grandparent visitation with the adoptee is preferable to depriving an adoptee of continuing a loving relationship.^[12]

This is the time to think about future interactions with others in the child's life, to counsel the client on the full range of possibilities for creative and collaborative resolution. Otherwise, the case is likely to proceed to the final hearing where the judicial outcome will be an all-or-nothing decision. When a parent's rights are terminated, no joint custody or enforceable visitation option is possible. There is no "do over" as is possible when a parent is found to be unfit in a custody case and then, in a subsequent action, proves fitness and reclaims those custodial rights. Adoption...