Permanency v. Biology: Making the Case for Post-Adoption Contact

• Author: Solangel Maldonado
• Position: Professor of Law, Seton Hall University School of Law
• Pages: 321-359

PERMANENCY V. BIOLOGY: MAKING THE CASE FOR

POST-ADOPTION CONTACT

SOLANGEL MALDONADO*

The law p resumes that natural p arents act in their children’s best

interests.1 This presumption , however, d oes not appl y in cases where child

protective servi ces has removed a child from the home or determined that a

parent is unfit or neglectful.2 To the contra ry, child welfare laws presume

that children’s best interests are rarely al igned with that of their parents

once the state det ermines that their p arents are unable or unwilling to rai se

them. This assu mption is refl ected in the Adop tion and Safe Fami lies Act,3

which imposes swift timetables for commencement of terminati on

proceedings4 and provides states with financial incentives to place chi ldren

in ado ptive homes.5 It is also reflected in st ate s tatutes authorizing

termination of parental rights based on a parent’s failure to visit the child

for a relatively short period,6 failure to contribute to the child’s financial

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* Professor of Law, Seton Hall Universi ty School of Law. I am grateful to Dennis

Feeney, Lauren Jones, and Anu rima Ray for exceptional research assistanc e.

1 Troxel v. Granville, 530 U.S. 5 7, 68 (2000); Parham v. J.R., 442 U.S. 584, 602

(1979) (“The l aw’s concept of the family rests on the presumption that . . . natural bond s of

affection lead parents to act in the best interests of their children.”).

2 See, e.g., Santosky v. Kramer, 455 U.S. 745, 760 (1982) (stating that the law

presumes that parents’ interests are the same as their children’s best interests until the

parents, through their conduct, demonstrate o therwise); Parham, 442 U.S. at 604 (noting

that the “tr aditional presump tion that the parents act in the best interests of the ir child”

applies “absent a finding of neglect or abuse”).

3 Pub. L. No. 108-8 9, 111 Stat. 2115 (1997) (codified as amended in scattered sections

of 42 U.S .C.). AFSA requir es that states comm ence termination proceeding s if a child has

been in foster ca re for fi fteen of th e previous twenty-two months, unless the child w as in

kinship care. 42 U.S.C. § 67 5(5)(e) (2000).

4 See 42 U.S.C. § 675(5).

5 See id. § 673b.

6 For example, under Tennessee law, a parent’s willful failure to visit his o r her child

for four consecutive mo nths is grounds for termination of p arental rights. TENN. CODE

ANN. §§ 36-1-102(1)(A)(i), -113(g)(1) (2005).

322 CAPITAL UNIV ERSITY LAW REVIEW [37:321

support,7 neglect related to poverty, 8 or the child’s leng th of time in foster

care.9

The assumption that parents’ interests and children’s i nterests diverge

once a parent no longer lives with the child is faulty. A child’s best

interests may be inex tricably linked to the i nterests of a biological parent,

even if the parent cannot adequately care for him. For example, a parent

may wish to maintain contact with a child that she cannot properly raise,

and the child may have a similar interest in not severing ties with the birth

family.10 This is the case for millions of children of divorce who do n ot

live with bo th paren ts. Most states recognize noncu stodial parents’ rights

to maintain contact with their children, even when they fail to support

them.11 Further, chil dren repeat edly expr ess thei r wishes to mai ntain

contact with nonres ident parents.

Similarly, many chil dren in foster care want to maintain a relatio nship

with their birt h families ev en when their p arents cannot adequately ca re for

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7 N.C. GEN. STAT. § 7B-1111(a)(3) (2007) (failure to contribute to the support of a

child in state care for six mon ths).

8 See Dorothy E. Roberts, Is There Justic e in Children’s Rights?: The Critique of the

Federal Family Preservation Policy, 2 U. PA. J. CONST. L. 112, 118 (1999) (stating that

“[m]ost children in foster care were removed . . . because of parental neglect related to

poverty” and thus, their parents’ parental rights may be terminated not because they were

abusive or unfit but b ecause AFSA requires that states commence termination proceedings);

see also DUNCAN LINDSEY, THE WELFARE OF CHILDREN 174–75, 178 (2d ed. 2004)

(reviewing studies and concluding that poverty, not child abuse, is the main reason children

are removed from their home s in the majority of cases).

9 See N.C. GEN. STAT. § 7B-1111(a)(2) (willfully leaving a ch ild in foster care for

more than twelv e months); Jennifer Ayres Hand, Note, Preventin g Undue Terminations: A

Critical Evalu ation of the Length-of-Time-Out-of-Custody Ground fo r Termination o f

Parental Rights, 71 N.Y.U. L . REV. 1251, 1278 n.146 (1996) (listing state statutes).

10 See Roberts, supra note 8 , at 117 (arguing that “ [c]hildren have an interest in

maintaining a bond with their parents and other fami ly members and ar e terribly injured

when this bond is disrupt ed”).

11 The legal obligation to pay child support is sep arate from the right to visitation. A

custodial p arent cannot deny a noncustodial parent visitation becau se he has failed to pay

child support. See, e.g., C amacho v. Camacho, 218 Cal. Rptr. 810, 812–13 (Ct. App. 1985);

Olson v. Olson, 398 So. 2d 491, 491 (Fla. Dist. Ct. App. 1981); Block v. Block, 112

N.W.2d 923, 927 (Wis. 196 1).

2008] MAKING THE C ASE FOR POST-ADOPTION C ONTACT 323

them.12 Even young children who cann ot ex press thei r wishes may desire

contact when they ar e older13 and, as sh own belo w, may benefit from such

contact.14 However, despite eviden ce s uggesting that post-ad option

contact is in children’s bes t interests,15 adopted children have no legal right

to maintain contact with their birth families.16

While post-adoption co ntact may benefit all adopted children, i t may

be particularly beneficial for transracially adopted children. Transracial

adoptions have become increasingly common in the past decade. In fact,

approximately twenty-six percent of black children adopted from foster

care in 2004 were adopted by a family of a different race or ethnicity.17

Although arguably transracial adoptions are not inherently detrimental to

children’s best int erests, st udies hav e found that transracially adopted

children fac e significant challeng es not faced by children adopted by same

race families.18 Fed eral law, however, prohib its agencies from taking st eps

that many child development experts believe would help trans racial

adoptive families cope with these challenges.19 This article argues that

post-adoption contact may provide a sol ution.

This article proceeds in three parts. Part I discusses the benefits of

post-termination con tact and ass erts that man y children would benefit from

continued, albei t limited, con tact with th eir birth famili es. Part II di scusses

the challenges faced by transra cial adoptees an d their ado ptive families and

shows ho w federal law has h indered states’ abilities to help these children

and their adoptive famili es address these challen ges. Part III looks at

states’ appro aches to post-termination and p ost-adoption contact and

highlights the sh ortcomings of these approaches.

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12 MICHAEL S. WALD ET AL., PR OTECTING ABUSED AND NEGLECT ED CHILDREN 138

(1988).

13 PETER BENSON ET AL., GROWING UP ADOPTED 26–27 (1994).

14 See infra Part I.

15 HAROLD D. GROTEVANT & RUTH G. MCROY, OPENNESS IN ADOPTION 15 (1998).

16 2 AM. JUR. 2D Adoption § 166 (2004).

17 Lynette Clemetson & Ron Nixo n, Breaking Through Adoption ’s Racial Barriers,

N.Y. TIMES, Aug. 17, 2006, at A1.

18 RUTH G. MCROY & LOUIS A. ZURCHER, JR., TRANSRACIAL AND INRACIAL ADOPTEES:

THE ADOLESCENT YEARS 12–13 (1983 ).

19 See infra notes 126–30 and accompanying text.