Adopting Out the Children of Illegal Immigrants: The Trial Starts

Today the trial commenced in the adoption battle over Encarnacion Bail Romero's son, adopted out over her objections while she was jailed for immigration charges (I've blogged about the case here and here and here and here). 

The issue is larger than this one case, as is made clear by Michelle Brane, director of Detention and Asylum at the Women's Refugee Commission:

"The real issue is if the parent wants to be deported with their child, what right do we have to say 'No, you cannot have custody of your child?' Romero's intent now is to go back home with Carlos, but he has already started a life here with another family...This is the kind of tragedy that needs to be avoided and can be avoided by doing the right thing early on and giving people access to the courts and to their children early on."

Bail Romero's parental rights were terminated by a Missouri trial judge at least in part on the grounds that she abandoned her child because she didn't make contact with him while she was in jail.  The judge apparantly doesn't recognize how difficult that could be:

Without any policies in place to regulate the care of U.S. citizen children while their parents are detained, immigrant parents are unable to attend court hearings, contact caseworkers, complete parenting classes or take any of the necessary steps to meet the strict timelines dictated by juvenile courts.

"And the result is that nobody is really recognizing that there's a parent there trying desperately to communicate that they want to still be involved with their child," said Nina Rabin, an immigration attorney with the University of Arizona's Immigration Law and Policy Institute.

It's those parents that are slipping through the cracks between two huge bureaucracies, she said.

There are also some huge factual issues unresolved in the first hearing where the judge found that the mother had abandoned the child -- she didn't attend, she didn't testify, her attorney was paid by the adoptive parents. . . .  So it will be interesting to see -- factually -- what develops in this new trial.

Italy/Vietnam: Adoptees Learn About Heritage

From the VietNamDaily:

Italian families who have adopted Vietnamese children attended a meeting in Rome yesterday to share experiences and learn more about Vietnamese culture.

50 families took part in the event, which was hosted by the Vietnamese embassy in Rome and the Italian Adoption Families Association.

Speaking at the event, Vietnamese ambassador to Italy Dang Khanh Thoai expressed his gratitude to the Italian families for their love and support of adopted Vietnamese children.
He stressed that Viet Nam would continue to co-operate closely with Italy in improving adoption procedures appropriate to the two countries' legal policies as well as hosting more cultural exchange events and discussions.

In response to Viet Nam's concerns, the association would carefully watch over adopted children and help them to learn about their origins and cultural heritage.

Chinese consulates in the U.S. have hosted the same kind of thing.

Inter-country adoption risks children lives

That's the headline in the Daily Times (of Malawi), a country suspicious of international adoption after the Madonna kerfuffle:

Inter-country adoptions negatively affect adopted children if not properly regulated, a law commissioner has observed.

Law Commissioner Gertrude Hiwa made the observation in Lilongwe on Monday during a consultative workshop for the fifth International Policy Conference on the African Child (IPC) organised by the Malawi Law Commission.

She said inter-country adoptions in some instances are marred by dysfunctional and insufficient regulation which result in serious violations of children's rights.

She said the very children which the system endeavours to improve their wellbeing may be exposed to even greater risks by the system.

"Such risks may include child trafficking, sale of the children , abduction and abuse, coercion of birth parents especially mothers to relinquish their babies, fraud and also corruption," Hiwa said.

"Further Africa has not yet carried out a comprehensive situation analysis of inter-country adoption with the result of unavailability of proper information on the issue and therefore a gap on the accurate status of inter-country adoption in Africa," she said.

Hiwa further said it is important for Africa to try and address this matter collectively and collaboratively in order to ensure a harmonious approach to defeat unscrupulous actors who take advantage of the countries whose rules and systems are weak and therefore puts vulnerable children at even greater risk.

It's always interesting to hear perspectives from sending countries.

"Open Adoption" of Embryos

From TODAYMoms blog:

Carmen Olalde really wanted children. She went through years of infertility treatment and IVF, then a difficult pregnancy, to have her twins. And as her twins turned four, she realized that two kids were enough.

But she still had four frozen embryos from her last IVF cycle. And so she made a decision that put her at the frontier of reproductive ethics. She donated the embryos to a Virginia couple also suffering from infertility, whom she met via a website ad – on the condition that the donation be "open," and they send regular photos of any resulting child and hopefully keep in touch by e-mail and phone.

“My motherly part of me thinks that I think that I would at least want to know what happened to them, that it would hit me once in a while that I have these genetic children out there. But at least I will know that [the couple] Karolina and Oscar have them and that they’re happy, they’re OK,” says Olalde.
Meet the modern "open adoption" family -- at least two hopeful humans and one embryo, brought together by science, trust, complicated legalities and a goodly bit of luck.

Many post-birth adoptions these days are “open,” in which the birth and adoptive families know each other’s name and perhaps have some degree of contact. Pre-birth arrangements may be following suit, though the law hasn't yet caught up.

* * *

The donation arrangements are murky legally, as well as emotionally. Adoption laws only cover children already born, so families involved in embryo donation usually sign forms and contracts dictating "ownership" of the embryos, often hiring their own lawyers for private agreements. Some follow up with a legal adoption after a child is born to further secure their rights.

Margaret Swain, an attorney whose practice focuses on adoption and reproductive technology, says children born from donation will likely appreciate an open arrangement, even though parents might initially feel uncomfortable.

“Following the lessons learned from adoption, and what we are hearing from children born through gamete donation, some degree of openness is probably a good idea. Children born of gamete donation -- donation of either egg or sperm -- usually like to know more about the person who donated, or to meet that person,” she says.

"Adoption" is the word the article uses, which I consider a misnomer when it comes to embryo donation.  "Open donation" would be more accurate here. And the article needs to straighten out another misperception it creates -- by talking about the fact that openness in embryo donation is legally murky, they create the impression that there's no legal murkiness in open adoption agreements.  Indeed, in most states such agreements are still not legally enforceable.

Spain: 92% Adopted Parents Satisfied With Decision

I didn't find the figure at all surprising, but others might -- a study in Spain revealed that the number of adoptive parents satisfied with their decision to adopt is an extremely-high 92%.  The report also identifies some variables that cause lower satisfaction rates, some not surprising and others a bit of a surprise:

"We wanted to know to what extent adoptions in Spain are providing children who need it with a healthy family environment that promotes their development" Yolanda Sánchez-Sandoval, a researcher from the University of Cádiz (UCA) states. In order to assess that, a comprehensive questionnaire was sent to families with adopted children in Andalucía, which was employed, amongst other uses, to assess family's satisfaction with the decision as a measurement of success.

The results show that, although their lives have been not been free of difficulties, these families are happy with the adoption. "Generally speaking, they are very satisfied with their decision and its implications on their family and personal lives" Sánchez-Sandoval affirms.

77.7% of families stated that their lives have been happier as a result of the adoption and 91.9% consider its repercussions to be positive. However, 37% consider family life to be more complicated in their situation.

The children's opinion of their lives is also linked with that of their parents. "When the parents are more satisfied with the adoption, we found that the children are also happier with their own lives" the researcher declares.

In the study, which is published in the journal Psicothema, they identified some variables that are linked with difficulties in adoption, for example, if the children were older when arriving at the home, if they were adopted alone or with a sibling, or if they had previous experiences of abuse.

Adopting a child that they already knew before also affects the process. "Those who adopted children that they had a relationship with before were less satisfied, probably due to the reason for adoption. These families may have felt somewhat obliged, or reflect more on the decision" Sánchez-Sandoval analysed.

The satisfaction is also lower in cases where the parents have a higher level of education. "They have higher expectations" the author says. The mothers are less affectionate and caring, and the children are less caring and have behavioural problems.

So, does anything surprise you in these results?  I'm not quite sure I understand why adoption of children you already know leads to a lower rate of satisfaction.  And don't you love the condemnation of us over-educated, not-affectionate moms?!

I find it interesting that the researchers thought parent satisfaction was a measure that would illuminate what they were apparently studying -- the extent to which adoptions in Spain are "providing children who need it with a healthy family environment that promotes their development." Certainly, it would be A factor, since it would be linked with children's happiness (we're all familiar with the saying, "If mama ain't happy, nobody's happy," right?!).  But I'd think other factors might be more illuminating.  Maybe we'll see other reports from the survey, addressing other issues, in the future.

Linsanity & Perpetual Foreignness

I've written before (both as a scholar and a blogger) about the concept of "perpetual foreignness," that class of individuals with "marks of foreignness," like speaking English with a foreign accent or being Asian or Hispanic, groups often assumed to be foreign-born, regardless of actual place of birth. Here's what I said about perpetual foreignness in a law review article examining the Constitution's requirement that the president be a "natural born citizen:"

Being “foreign” seems to trump “citizenship” for naturalized citizens. Many naturalized citizens, especially when non-White, are seen as “permanently foreign.” Robert Chang argues that the figure of “perpetual internal foreigners” has been necessary to construct America’s sense of identity, because immigration and naturalization restrictions “were based on a sense of who properly belonged in the national community.” Without restrictions on who could be a citizen, there would be no “them” to compare “us” to. Once the foreign-born become citizens through naturalization, the “myth of a historically homogeneous American identity” must be preserved by devaluing naturalized citizens. One might argue that it is different today, where immigration laws are no longer based on race, where, as Nathan Glazer puts it, “a strong accent, a distant culture, is no bar to citizenship.”

But Professor Glazer must concede, “whatever we mean by the American nation, the new citizen may not yet be considered a full member of it by many of his fellow citizens, because of race or accent.” He continues: "Many of us, perhaps most of us, have a mind-set in which certain races and nationalities, despite their formal equality in American law, despite the fact that distinctions of race are not recognized in immigration or naturalization law, have a greater claim to becoming American and are accepted as more legitimately American than others.

In America, it seems, some citizens are more equal than others.

Of course, this concept of perpetual foreignness is not limited to naturalized citizens.  Those who are born in the United States -- but are from groups thought to be "foreign," like all minority races other than African-American -- also face the stigma of perpetual foreignness.  Remember when Tara Lipinski and Michelle Kwan won gold and silver in 1998 Olympic figure skating? One headline announcing the result read, "American Beats Kwan." Tara Lipinski, American. Michelle Kwan, not so much, despite the fact that she was born and raised in California.  Michelle Kwan, perpetual foreigner.

What about Jeremy Lin?  Everyone knows he was born in America -- he's touted as one of the first Asian-AMERICAN players in the NBA (actually, he's frequently touted as THE first, which isn't true, since the first was a man of Japanese descent in the 1940s).  But is Lin REALLY American?!  That's the question subtly asked in this Time Magazine piece about whether Lin, who is apparently unlikely to be selected for the American team by Team USA coach Jerry Colangelo, would play for the CHINESE team in the upcoming Olympics:

Colangelo, however, says he won’t be swayed by public opinion, or even the remote possibility of China taking him away. Lin’s maternal grandmother is from mainland China, and Xinhua, the state news agency, has already called on Lin to renounce his U.S. citizenship and suit up for the Chinese team. (China does not allow dual citizenship. Lin’s parents are from Taiwan, but the Taiwanese team cannot qualify for the London Games).

Yes, it would seem outlandish for Lin to join the Chinese team. . . .

YES, it would seem outlandish -- or in the vernacular, completely LINSANE -- so why are they advancing such an idea??!!! All it takes is being Asian, and suddenly we speculate on whether you are willing to renounce your American citizenship in order to play for a foreign team!?! See, when you're a perpetual foreigner, your American-ness is always in doubt, slightly suspect, apparently disposable.  Being "foreign" trumps citizenship, even birthright citizenship.

Even more outlandish than the idea that Lin would join the Chinese team is the fact that a major news magazine like Time would actually speculate about it.  They need to read the Asian American Journalists Association guidelines for reporting about Jeremy Lin (how sad that they actually needed to issue such guidelines):

Jeremy Lin is Asian American, not Asian (more specifically, Taiwanese American). It's an important distinction and one that should be considered before any references to former NBA players such as Yao Ming and Wang Zhizhi, who were Chinese. Lin's experiences were fundamentally different than people who immigrated to play in the NBA. Lin progressed through the ranks of American basketball from high school to college to the NBA, and to characterize him as a foreigner is both inaccurate and insulting [emphasis added].

Indeed.  The AAJA's bottom line is a good one: "Stop to think: Would a similar statement be made about an athlete who is Caucasian, African American or Latino?" Words to live by.

Artyom News

Well, not really about Artyom, but about about Torry Hansen and the Hansen family, those fine folks who sent 7-year-old Artyom back to Russia with a note saying they did not wish to parent him any longer --

First, the Shelbyville (TN) Times Gazette has an exclusive interview with Nancy Hansen, Artyom's grandmother, who escorted him to that international flight to send him -- alone -- to Russia to be picked up by a stranger and transported to the Children's Ministry. Mostly she complains about the lawsuit for child support against Torry:

The family of a woman who sent her adopted son back to Russia in 2010 is speaking out, claiming they never wanted the press barred from court proceedings -- and blasting the attorney they fired earlier this month.

* * *

In an exclusive interview, Hansen told the T-G that Torry has written a letter dated Feb. 12 to Circuit Court Judge Lee Russell, asking for a court-appointed attorney and requesting a transcript of the Feb. 1 hearing. The Hansens claim they have not yet heard a reply from Russell.

Last week, the Hansens' latest attorney, Sandra L.M. Smith of Murfreesboro, filed a motion to withdraw as counsel, saying that she had been unable to communicate with her clients, but Hansen claims that isn't true.

* * *

Hansen claims that after the Feb. 1 hearing, Smith failed to contact her clients to tell them the outcome, saying they had attempted to contact her in the three days that followed, but that Smith did not respond by e-mail or phone. Nancy claims that Smith left a message on Feb. 4, saying she wanted to go over documents, and for the next four days, the Hansens say they tried to get in touch with Smith, but to no avail.

The letter from Torry said "they still don't know what transpired" during the Feb. 1 hearing in Lynchburg, asking to have the transcripts e-mailed to them. Nancy claims that Smith "only tried to cover herself after Feb. 8," also claiming to have recordings of their phone conversations.

Hansen added that Smith could have reached her family if she had wanted to.

Nancy also told the T-G that she was going to travel to Washington state, where WACAP is located, and file a slander suit against the adoption agency. She said that she was going to file it in this state, but now says that "I would not hire another Tennessee lawyer for nothing." She stated she also intended to file a suit against the National Council for Adoption.

Hmm, I'm not sure she'll find a lawyer in Washington state to take the case, having fired 3 previous attorneys and complaining to high heaven about this one. Sounds like the kind of high-maintenance client a lawyer who doesn't want to deal with a grievance filed against him/her with the state bar association will avoid like the plague.

Second, the Washington Post reports on Torry Hansen's failure to attend depositions, leading to a contempt of court hearing:

An American woman who sent her 7-year-old adopted Russian son back to Moscow has been ordered by a Tennessee judge to appear in court to face a possible motion for contempt.

Attorney Larry Crain represents the adoption agency and the boy, Artem Saveliev. Crain said mother Torry Hansen, formerly of Shelbyville, Tenn., has not appeared at three noticed depositions, the last one scheduled for Monday.

On Thursday, Bedford County Circuit Court Judge Lee Russell ordered Hansen to appear in court on March 7 when the judge will consider whether to hold Hansen in contempt of court. He also will consider a motion for a default judgment against her.

I wish I could say all of these shenanigans were unusual in legal proceedings, but they are not. In fact, it all seems rather typical of a family law case, where someone is always unhappy with the lawyer, hiring and firing multiple lawyers, etc. And it's a toss-up on the client-won't-contact-me/lawyer-won't-contact-me she said/she said allegations here -- lawyers hardly ever contact clients as often as the client would like, and clients are always ducking their lawyers when they've done things like failed to show up for a scheduled deposition.  My bet -- Torry will be a no-show for the hearing on contempt, too.  I'll let you know. . . .

But my favorite quote from the Washington Post article:

Nancy Hansen recently told The Associated Press she doesn’t believe Artem was traumatized by being sent home alone.

“All I can say he was very happy when he was on the plane,” she said. “Witnesses have said that he was running all around and he was happy. There were stewardesses watching over him.”

Wow, what a loving, sensitive grandmother! And if I were the lawyer, I'd be slapping a gag on that woman!  According to the Times-Gazette piece, at least part of the unhappiness the Hansens express with their latest lawyer is that she filed motions to exclude the media from the court hearing when the Hansens didn't want the media excluded.  Hmmm, sounds like the lawyer was doing something in the best interest of her clients -- keeping the media from hearing them speak as much as possible!

Adoption Legal Cases in the News

Can't help it, I'm a law geek, so I have to share a couple of recent cases I've found interesting.

First, a biological family regains a child after a 6-year custody battle, from what looks to be an illegal adoption, if it's true that the adoptive family just changed the child's birth certificate instead of having a legal adoption proceeding:

Seven years after he was born, a Raytown boy is finally living with his biological parents. Noah Bond’s birth father fought all the way to the Missouri Supreme Court to get his son back.

Until August of 2011, Noah was living in Texas with a couple who wanted to adopt him and who had raised him since he was an infant. But the birth father, Craig Lentz had never agreed to the adoption and his girlfriend, Ebbie Bond says she only did so under duress.

Noah Bond is now seven-years-old, but his birthday in December was the first he ever spent with his parents. It was December 2004 when Craig Lentz filmed the birth of his son when his girlfriend gave birth. But during a bout of what she says was postpartum depression, Ebbie Bond agreed to give up custody.

Lentz’s name wasn’t on the birth certificate so he had no legal standing to stop the process.

“When we went to get it, there was no record that Noah was ever born.”

More than six years of legal battles followed with Stuart and Megan Taylor, who refused to talk with us the one time we caught up with them outside of court.

“Somehow the Taylor’s had changed Noah’s birth certificate without ever having an adoption and that if I died in the accident there would be no record that he was ever born and he would’ve just disappeared into Texas and that would’ve been that,” said Craig Lentz.

The accident Lentz refers to was a car crash on Highway 350 in June of 2010. He died on the operating table twice only to survive months of painful rehabilitation and more delays to his expensive custody battle.

Second, the Baby Veronica case. I was disappointed in the one-sided presentation of the issues in this Anderson Cooper piece (opinion pieces, clearly identifiable as such, can be one-sided, but straight news isn't afforded that luxury!), but even more disappointed in the fact that the "expert" (identified as an expert in disability law and as a child advocate, no mention of expertise in adoption law; still, a lawyer in any field should know better than relying on overruled law!) Cooper interviewed after showing the video (interview not on the video below) got the law wrong.  She says the South Carolina court hearing the appeal of this matter should follow a particular case decided by the courts of Kansas, without noting that the Kansas courts have since rejected that interpretation of the law as wrong! I blogged about the so-called "existing Indian family doctrine," the interpretation of the law the expert was talking about, here.



Third, in this Minnesota case, the appellate court ruled that an Ojibwe mother's rights under ICWA were not followed when she petitioned for custody of her son, who was adopted, and then the adoption disrupted, and the child placed in foster care:

A Mille Lacs Band of Ojibwe mother with a history of substance abuse may petition to regain custody of her son, the Minnesota Court of Appeals ruled Tuesday.

The court cited the high threshold of the Indian Child Welfare Act in reversing an Aitkin County judge's decision to deny the mother's petition. She voluntarily terminated her parental rights to the boy, now 12, in 2006.

Under the act, which seeks to protect the rights of Indian tribes in retaining children in their society, a high set of standards must be met before determining the mother is not fit to regain custody. Not all of those standards were met, the court ruled. The case will now return to Aitkin County.

According to the order, the boy, who suffers from multiple behavioral disorders, was removed from his mother's care and adopted in 2008. A year later his adoptive parent sought out-of-home placement because she could no longer care for him due to his behavior. The boy was then placed in foster care with a Native American adult who is not a member of the boy's tribe. The adoptive parent terminated her rights and the boy seemed to thrive in foster care.

In the Dark

The Illinois Times looks at allegation that parents adopting from foster care are not being provided with information about the child's mental and social history:

Tammy Herstad feels like a failure. A mother of three adopted sons and one biological daughter in the Chicago suburb of Bartlett, Herstad spends much of her time worrying about her adopted son, Adam. The 9-year-old has been diagnosed with bipolar disorder and other emotional disturbances that manifest in violent, destructive behavior at the slightest provocation.
“Right after the adoption, he fell off the deep end,” Herstad says. “He would wake up in the middle of night and destroy things. He would take (his brother) Abel’s diabetes syringes and stick them in things. He would break glass, he would hurt our dogs, he couldn’t sit in his seat anymore. He was hearing voices…(he was) aggressive, violent. It was just absolutely crazy.”
Herstad says she feels like she failed Adam because her love and parenting skills weren’t enough to stop his damaging and dangerous behavior. But Tammy Herstad also feels let down herself. She says she wasn’t warned about Adam’s bipolar disorder, reactive attachment disorder and other issues. And she’s not the only one who feels left out of the loop.
Illinois Times spoke with five families in Springfield and around the state who say the Illinois Department of Children and Family Services, along with the private agencies with which DCFS contracts, fails to give families the full picture concerning the children they adopt. Undisclosed tendencies toward violence and self-harm can lead adoptive families to throw up their hands in desperation, jeopardizing the future of an adopted child.
Does DCFS keep potentially explosive information from adoptive parents or offer promises it doesn’t keep? The answer is nuanced, but not very comforting.

In the 70s & 80s there were a lot of cases of failure to inform adoptive parents of information about the children they were adopting.  An adoptive parent might not be told about known sexual abuse of the child, or of known significant physical and mental health diagnoses.  The first court to recognize a legal cause of action for this failure to provide information, usually called "wrongful adoption," did so in 1986.  The publicity associated with these cases led many states to enact legislative reform, creating obligations to provide medical, psychiatric, educational, social, and family information about a child prior to adoption.

I think many have come to believe that the problem of informational deficits has been solved by these reform efforts, at least in the domestic adoption context. This article suggests that that is not the case, at least not in Illinois.

International Adoption: The Debate

Two noted legal scholars on adoption, Elizabeth Bartholet and David Smolin, are debating the topic of international adoption in an upcoming book chapter; that chapter is now available here. The abstract describes the debate as follows:

This chapter is taken from a forthcoming book on Intercountry Adoption, edited by Judith L. Gibbons and Karen Smith Robati and forthcoming in June of 2012. The chapter constitutes a debate between Professor Elizabeth Bartholet and Professor David Smolin. Each independently was given three questions to answer, and then one opportunity to respond to the other's answers to those three questions, all with strict space limitations. The debate illustrates some of the starkly different perspectives regarding the law, policies, and facts relevant to intercountry adoption.

The three questions were as follows:

1. From a worldwide perspective, identify basic human rights, core human needs, and best interests of unparented children, those living without family care including those in
institutionalized care.
2. How should we understand the subsidiarity principle of the Hague Convention and how do the expressions of that principle in the CRC and the Convention aid or hinder the best interests of the child?
3. How should the law (and the governments of sending and receiving nations) respond to concerns with child trafficking, corruption, and adoption fraud in the intercountry adoption system?

If you've read the previous writings of these two scholars (I've blogged about some of Bartholet's perspectives here and Smolin's perspectives here), you'll find nothing new in this written debate, but it is fascinating to see in one place their "starkly different perspectives."