Contested Adoptions and the Role of Bonding

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by Peter Kenny, Esq.

Diego was four months old when he was removed from the home of his birth mother due to severe abuse and neglect. He was immediately placed in a foster home with Mike and Jan who had two older adopted children. Developmental delay was clear and Diego was diagnosed as “failure to thrive.” Parental rights were terminated one year. His relatives were contacted but did not respond. Diego is now 2 ½ years old and continuing to show good progress. The foster parents wish to adopt him.

Meanwhile, the maternal grandmother has requested that he be placed in her home. She lives in a different state and has yet to see or visit with Diego, but is insisting that he is her grandson, and that family is family. Grandmother has requested that she be given legal guardianship, and has said that she will adopt him if she is forced to compete with the foster parents. The welfare department has agreed with her and is supporting her request for a change of placement. Mike and Jan plan to file to adopt Diego. What can they do to present their best case in court?

Mike and Jan are facing a disputed adoption. The outcome may be decided on the issue of bonded vs. blood relationships. Mike and Jan will have to overcome the widely-held prejudice that the biological family comes first. Here are some important steps for Mike and Jan to take.

  1. Attend all case conferences and court hearings from the very beginning. As an advocate, you need to be present where information is shared and plans are made. How can you help a child if you don’t know what is going on? Further, attending the meetings is a good way to show that you care.
  2. Keep a detailed daily journal. List doctor visits, school progress, and any visitations with relatives. Keep a record of ALL communications with anyone involved. If it’s a phone call, immediately note the date and time and what was discussed. A journal that records day-to-day information is the best thing you can do to help your attorney. Take pictures of your family with your foster/adopt child. A picture is worth more than words. Your attorney may wish to present the journal as written evidence of bonding.
  3. Commit. Make up your mind to adopt and stay the course. Be sure that you and your spouse both agree. The contest may be long and expensive. There is no room for ambivalence. Adoption is a lifetime commitment, more lasting today than marriage.
  4. Hire the right attorney, one who is knowledgeable about the relevant laws and policies. Whether you are incorporating a business, planning your estate, or suing for personal injury, you want to be represented by someone who has expertise in that particular area. The same applies to adoptions from foster care which are more complicated than the usual uncontested infant adoption. Check your state or local foster parent organizations and internet message boards, or ask for recommendations of a good attorney from your fellow foster parents.
  5. Obtain a bonding evaluation. Bonding must be objectively defined. The defining standard may be spelled out in the state child welfare manual. Or it may be defined by state law. Use the legal or policy definitions when available. Your attorney may also use definitions from the research. The expert evaluator should include data on what happens when bonding is interrupted.
  6. Obtain an adoption Home Study. While bonding may take precedence over mere blood kinship, a bonding evaluation is not sufficient. It cannot override the inability to provide adequate basic care during the child’s pre-adult years. Age, money, and health become compelling factors. Consider having an outside evaluator rather than having the welfare department simply update your foster care home study.
  7. Obtain reports from other professionals about Diego’s progress. This might include pediatricians, therapists, teachers, and day care workers. Your attorney will want to consider their impact as witnesses.
  8. Contact family and friends. Your attorney may choose to call members of the community who have observed the daily interactions between child and family first-hand. Who has spent the most time with Diego, and who has the best first-hand knowledge? Do they perceive the foster/adopt parents as the “real” parents? The judgment of the extended community is valuable folk wisdom, and can be used in court to document true parenthood. Your attorney will prepare these contacts, and evaluate how well they might do on the witness stand.
  9. Other important questions to consider. Parent/child bonding is not the only issue. Sibling bonding may be equally critical. Who are the “real” brothers and sisters, those related by blood but whom he has never known, or those children with whom he has been raised in foster care? Are there blood siblings who live close to the foster/adopt family with whom attachments can be formed and nurtured as Diego grows?
    Race and ethnicity should not be determining factors but they often need to be addressed. What have the foster/adopt parents done and what will they do after the adoption to help Diego connect with his ethnic heritage? A cooperative adoption may help resolve the conflict. Will grandmother agree to Mike and Jan’s adoption in exchange for post-adoption contact?
  10. Be prepared for court. There is no substitute for thorough preparation with your attorney as you organize your case for Court. Have your exhibits well-organized and ready to present to the judge. When testifying always try to present your information through the prism of “what is in the child’s best interests.” Do not be afraid to illustrate your points with real-life examples while answering questions from your attorney. Showing emotion at appropriate times is okay. Conversely, when answering questions from the attorney for the other side, focus only on the question being asked. Be brief and be wary of offering any unsolicited information. Generally, it is better to present your own case as well as you possibly can rather than try to “tear down” your opponent.
  11. Mike and Jan can show their love for and commitment to Diego by presenting the most complete case possible, giving the court every reason why they think Diego will do best in their home. Tell what they want and will do for Diego, without demeaning grandmother. The judge will decide. Should the judge decide Grandmother’s case is more compelling, at least Mike and Jan will know they did what they believed to be in Diego’s best interests.