Birth Mother’s rights in adoptions.
By: Kathleen Hennessey
Associated Press Writer
March 5, 2005
A ngela Chalmers-Howald was 39, trying to cope with her mother’s recent suicide and “alone and desperate” when she first considered giving up her baby girl for adoption. When told she could request yearly visitation, photographs of her daughter — even a video of her first steps — in a contract with her daughter’s new adoptive parents, the decision became an easier one. “I knew nothing about adoption,” she said. “I thought it was too good to be true. Well, it was too good to be true.”
Chalmers-Howald soon learned that the contract she’d signed wouldn’t hold up in court. She felt duped and became obsessed with reversing the adoption. Having failed, now she’s focused on changing the law Chalmers-Howald is one of the people behind a Nevada proposal to clarify birth mothers’ rights in open adoptions. An open adoption is one in which there is communication between the birth and adoptive parents, and the proposed bill would formalize the process for laying out the terms of that communication.
The bill has hit a nerve with birth parents and those who adopt, although the proposed changes seem minor. Birth mothers like Chaliners-Howald see it as a step toward fairness and equal footing in a complicated, emotional process. Adoptive parents think it chips away at their right to decide what’s best for their children. Helen Foley is one of those parents. She signed a post-adoptive contact agreement with the mother of one of the two children she adopted. The mother has since run into unrelated legal trouble and hasn’t requested visitation, she said. “I would reject it if she did,” Foley said. Foley, a lobbyist and former state senator, worries that under the proposed legislation more post-adoption contracts will be enforc- eable. That will lead to court battles over visitation and requests for photos and phone calls, she said.
In those cases the bill puts the burden on adoptive parents to prove to a judge that the agreement is no longer in the best interest of the child. That’s a burden other parents would never shoulder, she said. “It makes us into second-class parents,” she said.
Lawmakers have been searching for middle ground since AB51 was introduced. On Friday, March 4th, 2005 an Assembly Judiciary sub-committee approved several amendments aimed at easing adoptive parents concerns, including a provision that shifts the burden of proof to the birth mother, and one that eliminates a requirement that agencies inform birth mothers of the process for creating legally binding contracts. The bill still has to be approved by the full Judiciary Committee, the Assembly and the Senate.
The proposed bill is a reaction to the Nevada Supreme Court’s ruling on Chalmers- Howald’s breach of contract suit against Mike and Sheri Stapleton — the parents she said she chose to adopt her daughter because they came from a tiny ski town nearby. The court ruled that the Stapletons were not legally bound by the agreement — a template used by the adoption agency involved that wrongly stated it was civilly enforceable. In fact, Nevada had no statute that addresses the agreements.
Eighteen states have laws that allow birth parents and adoptive parents to enter into agreements that can be enforced and modified later. The laws try to protect both sides, who are often navigating complicated legal terrain with little or no legal representation. Such agreements, including the Nevada proposal, can’t be used to overturn an adoption.
Annette Appell, a professor at the University of Nevada, Las Vegas Boyd School of Law, said the move toward increasingly open adoptions has been slow and steady, and is a result of Roe vs. Wade, birth control, and a gradual decrease in the number of infants available. “Birth moms have a lot more power in terms of negotiating,” said Appell, who’s studied post-adoption contact agreements. Still, most adoption agreements, like most adoptions, don’t fit that model. There’s a myth or misconception about adoptions, that they’re all these anonymous instant adoptions,” she said. “You look at the number of folks adopted as infants and that’s about 20 (percent) to 25 percent. Most adoptions are of step-kids or other relative or foster children.”
It’s these children who may stand to benefit the most from the formalized contact agreement process outlined in the bill experts said. Cynthia Lu, a Washoe County public defender, said her office has been using enforceable contact agreements for seven years in finding permanent homes for foster children. She said troubled birth parents are more likely to voluntarily agree to adoption if they know they can maintain a relation ship with their child. “It’s a win-win. There’s a child who get adopted sooner and birth parents that condone the relationship,” she said, noting that the agreements often save her office from proceeding with costly trials to terminate birth parents’ rights. But a one-size-fits-all approach offends some adoptive parents, particularly those adopting newborns and wary of entering into long-term agreements that could limit their ability to adjust to changing circum-
If bound by visitation rules in a contract a family might need to request court approval before it could move to another city. That’s a costly and offensive process
said Michael Calldns, a father to two adopted children. “I’ve already proved to the state, with lessons, counseling, having my home looked at, asking friends to write letters support me as a potential father,” he said, adding that if he has to go to court to justify his decisions, “where’s the equity in that?”
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