Monday, April 2, 2012

Contested Adoptions Can Take Years to Resolve

The Salt Lake Tribune reports about the length of time it takes to resolve contested adoptions in that state:
Four years ago, as it returned a young boy to his biological father, the Utah Supreme Court expressed alarm that contested adoptions were taking so long to resolve and urged that such cases be put on a fast track.

In that particular case, the child was 18 months old when his mother placed him for adoption and the father sought to intervene, a legal battle that ended in the dad’s favor nearly three years later.
"We anticipate that, in the future, every effort will be made to avoid delay in cases like this," the court said, asking that the boy be reunited with his father with "all due haste" while paying "special attention" to the child’s needs.
"This transition may be hardest for him, and his needs must come first," the justices said in the 2007 decision.
But there is no indication that the time it takes for contested adoptions to work through Utah’s court system has improved, leaving some observers to repeat calls for an expedited process like that used in child welfare cases to reach quicker final decisions and lessen psychological trauma when a placement is disrupted.
Robert Manzanares, for example, began a custody bid for his daughter more than a month before her birth in 2008, filing first in Colorado and then here in Utah. The case wound its way from a lower court to the Utah Supreme Court over 2½ years. Utah’s high court then took 15 months to issue a decision — in Manzanares’ favor — sending the case back to trial court for more debate over who has the right to raise the child. Last week, a Utah judge agreed to dismiss the case so the girl’s custody can be decided in Colorado; those proceedings will likely continue for at least several more months.
Manzanares’ daughter is now 4 years old.
Because of the difficulty in challenging an adoption, coupled with the fact that birth parents often lack the resources to mount such a challenge, means that the number of contested adoptions is small.  The article notes: "According to court data, there have been just 16 contested adoption cases in 3rd District Court, the state’s largest, since 2005. That count may not include paternity actions filed by unwed biological fathers."
And how long does it take to resolve contested adoptions? Again, the article says, "On average it took judges in 3rd District Court 535 days to resolve the contested cases between 2005 and 2011."
I've posted before that delay benefits the parent in possession, which the article also confirms: "But there is no question that the more time that passes, the more uncomfortable the prospect of disrupting a placement becomes for nearly all those involved — a situation that would seem to benefit prospective adoptive parents."
My cynical lawyering mind tells me that adoptive parents try to delay -- or at least, do little to speed up the process.  But one lawyer quoted in the article disagrees: "'My experience generally is that adoptive couples want resolution and don’t generally seek to specifically drag things out,' Hardy said. 'They may recognized that is to their advantage, but they won’t take steps to specifically drag things out. In my experience, it is generally the system that drags it out, not one party or another that does so.'"  But of course, it might be unethical to admit that a lawyer participated in delaying tactics, so I wouldn't exactly expect to see such an admission by a practicing lawyer!
Another point the article makes is that Utah judges WILL remove a child from adoptive parents, even if there has been many years' delay:
The prospect that a judge’s own heart strings may be pulled is a liability of protracted cases, one that may lead to "ends-mean thinking" where emotions influence decisions, Smith said. The Utah Supreme Court distanced itself from emotional decision making in its 2007 decision, noting in its opinion that: "Once an unmarried biological father has established standing to contest, and does in fact contest, an adoption, the level of bonding between child and anyone other than the biological parents becomes legally irrelevant."
* * *
David McConkie, an adoption attorney who now works for LDS Church Family Services, has handled cases where children were removed from adoptive families.
"The hardest cases the courts ever deal with are cases when they’ve got a baby being raised in a home and they’ve got to remove that child from a home," he said. "But judges will follow the law, and they will apply the law and say if the father’s rights were violated under the statutes of whatever state you’re in, they’ll remove those children from that home. It happens more than you think."
That is not the case, however, in all states.  In many states, courts may invalidate the adoption, but then hold a hearing to decide whether it is in the best interest of the child to be returned to the birth family or to remain with the adoptive family.    And the longer the child has been with the adoptive family, the more likely the court will rule that the child should remain with the adoptive family.
Consider, for example, In re J.M.P., a Louisiana case.  There, the Louisiana Supreme Court ruled that the birth mother had timely revoked her consent;  that should mean that the child be returned to her, right?  Nope, the court remanded to the trial court for a hearing on the best interest of the child.  The supreme court instructed the trial court to consider the psychological bonding between the child and adoptive parents -- and by the time the best interest hearing was held after this appeal, the child had been with those adoptive parents for over two years.  What are the chances that the child was returned to the birth mother, do you suppose?! (There's no reported case after that hearing, so I don't know for a fact what happened, but I can guess!).
In Lemley v. Barr, the birth mother's consent was invalid because she was not 18 at the time she signed the papers.  Immediately after she signed, her parents went to the lawyer and said they wanted the child back.  The lawyer refused, and refused to tell them where the child was.  When the birth mother asked the lawyer again days later, the lawyer again refused.  When the birth mother filed suit in Ohio, the lawyer, under orders from the adoptive parents, refused to tell the court where the child was or who the adoptive parents were.  Two years and two months later, the Ohio Supreme Court ruled that the birth mother's consent was invalid, and the lawyer had to reveal the names and location of the adoptive parents.  While all this was being litigated, the adoptive parents filed for adotion in a West Virginia court.  As soon as the names and location of the adoptive parents were revealed, the birth mother filed in West Virginia for the return of the child, based on the Ohio court's decree.  The West Virginia trial court refused to accept it.  After an additional 2 years and three months passed, the West Virginia Supreme Court finally ruled that the courts must accept the Ohio Supreme Court's decree -- BUT, the court remanded to a West Virginia trial court to hold a hearing on whether a change of custody was in the best interest of the child, who was now 5 years old.  Here's what the court said:

Certainly in the case before us we do not have an instance of kidnapping, violence, or flight from the jurisdiction of the court.  Indeed, the Barrs [adoptive parents] used all possible legal strategems to avoid an unfavorable ruling in the Ohio courts, but at no time did they resort to self-help by fleeing or by refusing to follow a lawful court order.  And, although Miss Lemley [birth mother] was young, frightened, and inexperienced, she did sign papers on two occasions consenting to an adoption, and she accepted money for the payment of her medical expenses.  Nonetheless, Miss Lemley has equity on her side too; she did not sleep upon her rights.  she tried to regain possession of Ryan immediately and it is difficult for us to tell her now that she cannot have Ryan because it is "too late."  Yet, as we have already indicated, the only entirely innocent party in these proceedings is the child, Ryan Barr.

The record before us is devoid of detailed evidence concerning what is now in the best interests of Ryan Barr. But we do know from the facts of record that Ryan is a five-year-old child who has spent almost his entire life with an adoptive mother, father and siblings in Huntington, West Virginia.  If we now transfer custody to Miss Lemley, who counsel informs us has married, he will be taken to another place and brought up by people who are complete strangers to him.  Although we cannot say that this is not in his best interests, we can at least say that there is some question in our mind whether such action is appropriate.
No idea what happened after this (if anyone knows, I'd love the info -- I've been looking online for years for an update with no luck), but there really couldn't have been a much clearer direction to the trial court to find that it was in the best interest of the child to remain with the adoptive parents. . . .
So, I say again, delay is in the best interests of the parents in possession in a contested adoption, and that's usually the adoptive parents.  Yes, a court might simply return the child to the birth family upon finding that the adoption was illegal.  But a court might also engage in that "ends-means thinking" and decide that, regardless of the illegality of the adoption, we'll do just about anything to keep from taking those kids away from "the only parents they've ever known."

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