Adoption Laws Transcripts August 19, 1997 9 a.m. - 10 a.m. GUESTS: SUZANNE NICHOLS, ADOPTION ATTORNEY DAVID MALUTINOK, CHILD WELFARE ADVOCATE The following are excerpts from the viewer call-in portion of the program. Adopting Your Spouse's Children Agency Vs. Private Adoptions Adopting a Child from a Foreign Country Locating a Birth Mother Adopting a Grandchild Adopting an Older Child Getting Back A Child Relinquished To The Courts Tips On Adoption JUNE GRASSO: Good morning. I'm June Grasso, and welcome to Legal Cafe, Court TV's daily wakeup call to the law in your life. On Mondays, we look at the family, obviously one of the most important parts of our lives, and this morning we'll focus on the laws of adoption and how the process differs if you're using an agency adoption or doing it yourself. I'm joined now by Suzanne Nichols to talk about the legal procedures for both private and agency adoptions. Suzanne is managing partner in a law firm that specializes in private adoptions, both international and domestic. She also co-authored a chapter on parental consent for the New York Bar Association's adoption law handbook. Thanks for being here, Suzanne. MS. NICHOLS: Thank you. MS. GRASSO: Suzanne, you know, when I was reading about what it takes to be an adoptive parent and particularly the agency adoptions, it seems like there are so many, many hoops to go through. MS. NICHOLS: Well, I think that you need someone to take you through each step, to navigate you through the process. There is no uniform adoption law, so states vary, adoption laws vary from state to state, so some of the things that this couple was speaking about may be different, different requirements are necessary in other states. MS. GRASSO: Now, as far as the agency adoption versus the private adoption, is there more to go through with an agency adoption? MS. NICHOLS: Well, I think basically there would be. People tend to go to a private attorney such as myself because they're making to look -- they're looking to make this happen more quickly, they want to be more pro-active, such as this family, in advertising and seeking their own birth parent. MS. GRASSO: But as far as restrictions, what would you have to go through in an agency adoption you wouldn't have to go through in a private adoption? MS. NICHOLS: Well, agencies can set all kinds of limits on their couples, such as age limits. I've heard of agencies that will not place into a family whether either adoptive parent smokes, so they can have, you know, a whole set of requirements, whereas with a private adoption, these things won't generally be regulated. MS. GRASSO: Now, is it cheaper, though, with an agency adoption? MS. NICHOLS: No, I would say absolutely not. It's a different way of -- I mean, some agencies have flat fees. Some agencies may charge according to your income, whereas with private adoption, it's a case by case situation, so you could go to an agency and perhaps their total fee -- I'm just -- may be 15,000 (dollars) or $20,000, and you know that that's what you have to pay, whereas you might be very fortunate and locate a birth mother who has medical coverage, who does not require support, so it may be $9,000 or $10,000. MS. GRASSO: Now, with the agency, you don't have any contact with the birth mother or the birth father? MS. NICHOLS: Not necessarily. MS. GRASSO: Sometimes you do? MS. NICHOLS: Traditionally, I mean, years ago, it was very limited. Agencies protected the birth parents and -- so to speak -- and the adoptive parents from one another, but in the '90s now, even with an agency, it may be necessary to have contact. MS. GRASSO: Do you find that that contact is a good thing? Because my question is there are a lot of waiting periods in place, but once -- even after the baby is given to the adoptive parents, the birth mother has, depending on the state, time to change her mind, or the birth father, to change her mind about the adoption. If they know the parent, does it make it harder? Do they sometimes -- because they know where they can see the child or they know that -- they have an image in their mind of whom their child is being placed with? MS. NICHOLS: I don't think so. I don't think so at all. I mean, each state -- states have different revocation periods, but I think that most of my adoptive parents, most of the families that I work with, do enjoy knowing their birth parent. They like each other, and I think that it makes them both feel very good about the placement, but most of the time, they don't know identifying information, so a birth mother may know that she's placing her family with Tom and Carol in New York, or wherever -- MS. GRASSO: And they meet? Do they meet? MS. NICHOLS: It's up to the birth parents and the adoptive parents. If a birth mother wants to meet an adoptive parent and the adoptive parent chooses not to meet her, then she'll probably just choose another family. ADOPTING YOUR SPOUSE'S CHILDREN MS. GRASSO: There are tons of questions in this area. We're going to get to more of this. I also want to get to the advertisement and how you go about it, but first let's find out what's on our viewers' minds. I want to start with an e-mail question we got at our Legal Cafe website. Christine from Pennsylvania has two daughters from her first marriage. Her second husband wants to adopt them. The problem is Christine says her divorce agreement forbids her from taking her ex-husband back to court for child support. She wants to know, "Can my new husband adopt my children even though I agreed not to go back to family court?" And there's one burning question in my mind. I understand that Christine is on the phone line. Christine, are you there? Q Yes, I am. MS. GRASSO: Christine, my first question to you is whether your ex-husband is willing to give up his children for adoption. Q Well, when the girls were 3 and 4 years old, I got a call from my attorney that, you know, my ex's attorney had sent a paper that basically he gave up all parental rights. MS. GRASSO: He sent a paper saying that? Q Yes. MS. GRASSO: But he's been -- has he been paying child support? Q Oh, no. That was part of the agreement, that I could no longer, you know, I couldn't at any point in time in the future take him back to domestic relations to get child support. MS. GRASSO: I see, so you negotiated that with him, you wanted that paper from him, or did he just come up with that himself? Q He -- they just come with it himself. MS. GRASSO: Wow. Okay. Well, that was the question, because you have to have -- right, the first thing you have to have is the other parent, the parent has to give up -- MS. NICHOLS: Well, that's not easy to say. I mean, I don't know what kind of a paper he signed, but in order for her husband to adopt her daughters, the birth father would have to be willing to consent to have his parental rights -- MS. GRASSO: It seems like he has consented already. There's a piece of paper in place. MS. NICHOLS: Well, you know, I hesitate to comment on that without seeing what he's -- MS. GRASSO: Okay, but, Christine, it seems that you have the most important part of what you need, and in these cases, the real sticking point, usually, when you want your second husband to adopt your child is that the first husband, the biological father, doesn't want to give up rights, but in this case, since you have that and since he's been willing to and he hasn't been paying child support, it sounds like you have it open, but you're going to have to go an attorney to make sure that everything is correct. From the way I look at your e-mail, we can't tell unless we actually read your agreement. It sounds like what it prohibits you from doing is taking him back for child support. Well, you're not taking him back for child support. You're going into court to make an adoption -- Q Right. MS. GRASSO: -- so I think it depends on how -- whether he -- whether that paper where he's given up parental rights, if it's been written in the proper way. Q Okay. MS. GRASSO: So if it's been written in the proper way, it sounds like you, you know, you have a -- will have pretty much of an easy go of it, but you're going to have to go to an attorney for that. Thanks so much for e-mailing us. We appreciate it. AGENCY VS. PRIVATE ADOPTIONS We're talking about adoption this morning, and when you adopt here in the United States, there are really two different ways to go -- an agency adoption or private adoption. The problem is there are no federal laws on the subject, and the state laws are often very different. Well, here's how the system works. For an agency adoption, the agency acts as an intermediary, a middle man, between the birth parents and the adoptive parents. This means the birth parents might not ever get to know the adoptive parents because the child is basically surrendered to the agency. With a private adoption, anyone can act as intermediary, and the birth parents place the child directly with the adoptive parents. As a result, the birth parents are often in contact with the adoptive parents, and that can present legal problems down the road for both sets of parents. I want to talk about some of those potential problems, and joining us from the Court TV newsroom is David Malutinok, a private -- former director of a private adoption agency in Georgia who currently works as a child welfare advocate. Dave is an adoptive parent himself. Good morning, David. ADOPTING A CHILD FROM A FOREIGN COUNTRY Okay. David, as an adoptive parent, my first question is how did you adopt your child? Was it through a private adoption or an agency adoption? MR. MALUTINOK: Well, I was -- my wife and I were in China approximately two years ago, working as an agency director, and my wife was the director of our foreign social services. We were in China visiting some of the orphanages and talking to some of the adoption officials, and we noticed that there were some -- a number of children, obviously, that were available for adoption, and really at that time it was put on our heart that we really wanted to adopt at some point, and during one of our trips over there, we happened to find a little 2-1/2 year old at the time that we really fell in love with, and went back through our own agency and went through the adoption process. MS. GRASSO: Now, is an international adoption very difficult, because there are -- it seems a lot of people feel that there are more children available internationally. Is that true? MR. MALUTINOK: Oh, definitely. There are literally millions of orphans around the world available for adoption. MS. GRASSO: And how difficult is it to go through the paperwork of bringing a child here and adopting a child? MR. MALUTINOK: There is a lot of paperwork. It's amazing when you think of it. You fill out a number of forms, you have a number of forms legalized and notarized and certificates that go along with these forms all around the world, and then you come back with a human being, so that the process is time consuming. There is a lot of paperwork, but it's well worth it. MS. GRASSO: And, David, how long -- when you say time consuming, how long, on the average, would it take for an international adoption, or is there no average, perhaps? MR. MALUTINOK: Well, it is -- because each country is different. It took us approximately nine to 10 months from when we made the decision we wanted to adopt to when we actually picked up our daughter. MS. GRASSO: All right. Well, stay right there, David. We're going to go to the phones right now. LOCATING A BIRTH MOTHER MS. GRASSO: Suzanne, you know, I wanted to bring up something that they had talked about before, and that is, you know, finding the birth mother, if you're going to do it in private agency -- or private by yourself, and they put ads in the newspapers and that sounds so tough to me, because I've put ads in the newspapers for different things, and then it's just tough enough if you're looking for someone to, you know, help you around the house, but to look for someone, you know, who you want to take care of their baby for the rest of your life, adopt that baby -- how do you decide, when you're getting these phone calls, I mean, how do you sift through them? MS. NICHOLS: Well, I think that you need someone to help you. I think that you need an attorney to help you through this -- MS. GRASSO: To actually take the phone calls? MS. NICHOLS: No, no, no, it's illegal for me to take the phone calls. No, no, I'm not suggesting that, but I help my clients step by step through the process. I'll help them to write an ad, tell them what states are best for them, if they have laws that are better for them to place the ads in. We'll discuss how to handle the phones. MS. GRASSO: Is there another -- besides this personal -- if you want to do it, if you don't want to go through an agency, you want to do a private adoption, is there another way to do it besides handling all, you know, talking to the birth mothers and going trough that? It must be emotionally unbelievable to do that. MS. NICHOLS: It's very difficult, June, but it works. MS. GRASSO: Yeah. MS. NICHOLS: I mean, that's what you have to keep in mind, one has to keep in mind. It really is a very effective way to locate a birth mother. Not every state allows someone else to take the calls for you so as an adoptive parent, you may have to do this. MS. GRASSO: Okay. MS. NICHOLS: You can't pay someone to do this for you. There are certain states where you can have someone do the screening process for you, but I always tell my clients that the best person to make contact with a birth mother, a prospective birth mother, is you. Who -- I mean, if you think about it, if you have someone else taking the calls, saying, "Oh, June is a wonderful person, let me tell you about her" -- I mean, who better than you to laugh with her, to cry with her, to develop a rapport with her. ADOPTING A GRANDCHILD MS. GRASSO: Okay. Let's go to the phones, where Marsha from Massachusetts is on the line. I understand you're a grandmother, Marsha. Q Yes. MS. GRASSO: Hi. Congratulations. What's your question? Q I'd like to adopt my granddaughter. I have two grandchildren in a foster home, and the foster parents want to adopt my grandson, but they don't want my granddaughter. They're willing to give her a home, but not to adopt her. So I would like to adopt her, but it's like DSS is against me. I've worked with them completely against my daughter when she was doing wrong, you know, because she was into drugs and alcohol and all this, and I didn't like my grandchildren being there, and my daughter does want me to have my granddaughter. My granddaughter does want to live with me, but I can't -- MS. GRASSO: May I ask how old is your granddaughter -- Q Ten. MS. GRASSO: -- and your grandson? And the grandson is how old? Q Eleven. MS. GRASSO: Eleven. And they're going to be separated at this point, is that something you've thought about, separating them? Q Yes. Well, my granddaughter doesn't feel like the people that she's living with wants her, because they're willing to adopt my grandson, but not her. They're willing to let her live there, but they don't want to make her theirs, and it's really affecting her badly. MS. GRASSO: Oh, boy. Q Because she feels like there's nobody out there who wants her, but I told her that me and her grandfather want to adopt her, and she's thrilled about the idea, but how can I go about this without having to get an expensive lawyer? Financially, I can't afford an expensive lawyer. MS. GRASSO: Well, you say -- is it your perception -- DSS I assume is the Department of Social Services in Massachusetts? Q Yes. MS. GRASSO: And why do you think that they're against you? Q Oh, they just -- everything I say, everything I do is like I'm doing something wrong. MS. GRASSO: All right. Well -- Q I'm a business owner -- I mean, I just started a business, and, you know, that's where all my money is, with a business, and it's a small business, and I can financially be able to take care of my granddaughter. You know, it's not that much more to take on another child -- but I would love to have her. She wants to be here. What can I do -- am I entitled to some kind of legal help? MS. GRASSO: Okay. Suzanne, do you have any advice for Marsha? It seems like a grandmother -- I mean, we've seen a lot of cases in New York where they did some adoptions and they let cameras in. There were a lot of grandmothers who were taking over for children who, for whatever reason, because of drugs or other things, couldn't have their -- and it seemed like the perfect thing, because it's a family member. MS. NICHOLS: Yes, that's true. MS. GRASSO: Here you have a case where it seems like the little girl wants to be with her grandmother -- MS. NICHOLS: I know. It would seem -- well, I do know that Massachusetts is an agency state. Adoptions are handled through agencies in Massachusetts. I -- you know, I don't have enough information to know why DSS doesn't want the grandparents to adopt. MS. GRASSO: Right. MS. NICHOLS: I have no idea what the age of the grandparents is, whether, you know, they think that they should be with a younger set of parents -- or what their criteria is. MS. GRASSO: David, do you have any helpful advice for Marsha or any advice at all? MR. MALUTINOK: I guess what I would suggest is that she contact DSS, and maybe a DSS supervisor, and just have a sit-down meeting and ask why you feel -- it seems as if you're keeping me from being able to adopt my granddaughter. Please give me some concrete reasons why. If there are some things that I can work through, there are some things that I can change based on what DSS input is, that would help me be able to adopt. MS. GRASSO: Now, also, Marsha, I would question whether there is some agency, maybe some place that you could go for legal assistance, at least legal advice in Massachusetts, whether there's a legal services agency, whether you could contact the law schools there. I know when I went to law school up there, we had a group of law students who worked, supervised by other people, but worked outside the school doing all kinds of different kind of civil cases, and so perhaps if you contacted some of your law schools in the area as one step to see if they have legal services clinics that could help you with this issue, and also see if there are any legal services clinics in your area so that you could get some advice in this area before you go forward and try to do this. That's what I can think of. Or, you know, you could try or just -- you could try to go to an adoption attorney just for a consultation. You know, just set forth your parameters, say you have, you know, for example, you could pay by the hour, I assume -- Suzanne, is it by the hour that -- MS. NICHOLS: Generally for consultations, but this -- in this type of situation, I would assume almost any lawyer would charge hourly. MS. GRASSO: Okay. So, I mean, you could, even though you don't have a great deal of money, you have enough to do a couple of hours of consultation. Call a couple people who do adoption and see if you can get some advice on how to proceed by yourself, because I think you need some help going through this process. Thanks so much for calling, Marsha, and really good luck with adopting your granddaughter. ADOPTING AN OLDER CHILD Let's go to the phones again for another caller. Kathy from Missouri is on the line. Good morning, Kathy. Q Good morning, June. MS. GRASSO: Hi. Q My husband and I have contemplated adopting an older child, and we've worked with child welfare as foster parents, and we were told that they are the only options with regards to adopting older children, and I'm wondering if that, from your opinion, is the only choice. MS. GRASSO: Again, the source, you say, is child welfare? Q Right. MS. GRASSO: Okay. Well, let me ask Suzanne Nichols, who handles private adoptions. Can you adopt an older child privately? MS. NICHOLS: Well, I think domestically, the route that she's talking about would be the one to take, but I do many, many adoptions through Hungary, where the children are toddlers o -- I think the oldest child that I've brought in is a 7 year old. MS. GRASSO: When you say "older," Kathy, how old are you talking about? Q Oh, somewhere 5, 10 years old, in that range. MS. GRASSO: Okay. David, let me ask you a question, because from what I've read, it's easier to adopt older children because most couples want infants. MR. MALUTINOK: That's correct. Internationally, that's correct. MS. GRASSO: Internationally it is, so there's another way she could do it, internationally, is that -- MR. MALUTINOK: Yes. There are many children in the 5 to 7 year old age range that she could adopt internationally, and many governments even tend to reduce the adoption fees that they charge, and the legal fees and so forth, to be able to place older children, because they aren't easily placed. MS. GRASSO: All right. So, Kathy, that's a route for you to go. And I want to, at this time, thank David Malutinok, but, David, before you go, what is your best advice for a person who wants to do an international adoption, since you've been through it yourself? MR. MALUTINOK: I would definitely research the country. There are certain countries that international adoptions are much more difficult. There are other countries that are easier. Because, obviously, I was a director of an agency, I prefer going through an agency, because they have the experience in a number of countries and to be able to determine which country would be best for you. Some countries have a great number of infants that are available. Other countries limit the infants to certain qualifications by the adoptive parents, so there are a wide range of options for someone adopting internationally. The challenge is just to find what option would be best for you. MS. GRASSO: All right. Thanks so much for being here, David. GETTING BACK A CHILD RELINQUISHED TO THE COURTS We are going to go back to the phones now. Bruce from Minnesota is on the line. Good morning, Bruce. Do you have a question? Q Yes. My question is is my wife gave up her rights to her child when he was 5 years old and -- MS. GRASSO: To an adoptive parent? Q No, to court, and what we're doing is we're trying to get him back. We're working with the courts now, and he does come and visit us, but they're saying that I can't adopt him, and I'm not the legal father. MS. GRASSO: Well now, may I ask you where the legal father is, the biological father? Q He gave up his parental rights. MS. GRASSO: He did -- you're sure his parental rights were terminated? Q Yes, and he gave up his parental rights and so did my wife. MS. GRASSO: Okay. Q And I was with my wife. We weren't married. We were together at that time, and she -- I want to be able to adopt him, because he does come over to our house -- MS. GRASSO: Well, the first step would be your wife getting her rights back. Is that under way? Is your wife getting her rights back, her parental rights back? First of all, where has the child been, and has he or she been in foster care? Q Yes. MS. GRASSO: Okay, so no one else has tried to adopt. Q No. MS. GRASSO: Is it a boy or a girl, may I ask? Q It is a boy. He's 15 now. MS. GRASSO: Oh, he's 15 now. Q Yes. MS. GRASSO: And so now -- so the first step is she is working to get custody of him and to get -- and to have her parental rights put back in place. Q Right, but they're saying that we don't have no right to get him back on account of she gave up her parental rights and because I'm married to her, they won't allow him to come back into the house and won't give me the chance, and I'm not the legal father, and he wants me to adopt him. MS. GRASSO: Well, I think the first step would be -- and first of all, this sounds like a very -- there's probably a lot more going on here than we can deal with in this phone conversation, Bruce, but, Suzanne, once you give up, once your parental rights are terminated and you give them up, I mean, that's pretty much it, isn't it? MS. NICHOLS: Yes. I mean, this is a different type of situation, and it's really hard for me to comment on this. We're not talking about a birth mother signing surrenders and knowing that an adoptive parent is going to be adopting the child. What this viewer is talking about is a child being in foster care. So I think the terminology -- I mean, I don't know whether his wife's rights are completely terminated, if she's going to get the child back, and it's impossible to comment as to why they wouldn't -- maybe eventually if her rights were reinstated, he could adopt. MS. GRASSO: But, Bruce, I think the first thing to think about is having your wife, if she can get her parental rights back. I mean, as long as the young man is in your house with you and then perhaps later on you can work it out where you can adopt him, as well, but the important thing is if she's able to get her parental rights back and he can come live with you and you can act as his father. It's kind of a practical solution to perhaps some legal complexities, but we wish you both good luck in getting him back into the house. TIPS ON ADOPTION MS. GRASSO: Our time this hour is almost up, so let's summarize some of the key legal points we discussed. We'll call this Suzanne Nichols's House Blend for a Safe Adoption. First, know your personal needs and go over what you want from the adoption. Second, think about your finances as a huge part of the choice between adoption agencies and private adoptions. Finally, you should absolutely meet and get to know the person who is handling your adoption case. And, Suzanne, when we were off camera, you said something that I think is very hopeful, because I said to people who want to adopt, I said, you know, with all these rings and things you have to go through, there are a lot of people who give up. MS. NICHOLS: Well, as I told you, June, I tell my clients if you want a baby, you'll get one. I mean, I can't tell you in meeting you whether it will happen within five months or whether it will take you nine months or 10 months, but most of my clients have babies in their home well within a year from the time they get started. MS. GRASSO: Now, another thing -- and we saw this in the Corrados' piece -- there's a waiting time from when you get the baby to when the birth mother can change her mind about it, and in my mind -- well, how long? Is it months? Is it weeks? What is it normally? MS. NICHOLS: Well, actually, states vary, as, you know, we've talked about. In certain states, a birth mother's rights can be terminated as early as 48 hours after birth or 72 hours in some states, so a birth mother may not sign a surrender till 48 hours, but then her rights are terminated and then you would have custody of the baby. You wouldn't be -- it wouldn't be a finalized adoption, you would not be legally the adoptive parent yet, you would be a prospective adoptive parent. And then there's a period of time in every state where the court looks at you. Is this placement in the best interests of the child? And you'll have post-placement visits even in a private adoption. MS. GRASSO: Now, what about -- can, as we said, if you are a couple, you can adopt if you want to. What about a single parent or a person who is below middle-income level or a gay person? Can they also adopt? MS. NICHOLS: Absolutely. I do many, many single parent adoptions; gay adoptions, many. Sometimes I think that it's become much easier for single women to adopt today than it was maybe eight years ago. The climate in the country has changed so much. MS. GRASSO: Suzanne Nichols, you have a happy job and thanks so much for being here today. That about does it for hour one of Legal Cafe, but there's still a lot more coming your way.