Open Rappaport Article

Open Adoption Given Legitimate Standing in California

by Bruce M. Rappaport

A major milestone for open adoption was reached on September 29, 2000, when California Governor Davis signed new legislation giving legal standing to open adoption agreements related to the foster care system. The law ensures that all parties will have the option, on a voluntary basis, to negotiate and reach a mediated post-adoption agreement that protects the child's safety but does not cut the child off from his or her past. The bill (California Senate Bill 2157) was sponsored by the Independent Adoption Center, a fully open adoption agency, and introduced into the California Senate by Senator Adam Schiff. In a significant departure from past policy, the California Welfare Directors Association (CWDA) and the State Department of Social Services supported the bill in recognition of its potential for speeding up completed adoptions. The California Association of Adoption Agencies, which has opposed enforceability even in kinship agreements, was the only organized opposition to SB 2157. The legislation covers only adoptions in the foster care system rather than all adoptions, but the need is greatest in this area.

The new law legitimizes the right of a child to have some type of contact with his or her biological parents. In the past, the social work establishment has argued that children who have been in foster care will not learn to bond with their few families unless all ties with their past families are severed. Many, but not all, social workers today no longer support this view and recognize that such a policy only makes things worse. The message the child gets is that no family can ever be counted on. Not surprisingly, attachment disorders are widespread, meaning the inability-or unwillingness-of a child to learn to trust family and friends. And the damage of this cruel form of closed adoption is, in many ways, even greater than in closed infant adoptions: the children from foster care are old enough to have had significant relationships (with their parents or other family members) that are being totally abandoned.

This new legislation was critical to the success of recent efforts to speed up the adoption process using voluntary mediation. Many birth parents contest any attempt to have their child placed in a permanent home. While understandable, the result is damaging to the child as the subsequent court battles delay the child's badly needed permanent placement. Reunification efforts are still needed, but new federal legislation puts a time limit on these efforts so that the child is in a stable family environment during the critical childhood years. When attempts to provide reunification have failed, permanency mediation efforts are used, based on a model developed by Jeanne Etter; the birth parents are asked to voluntarily relinquish their rights to contest the termination of their parenting rights in return for the assurance that they will still have some, even though limited, contact with their child. The adoptive parents are asked to voluntarily establish this supervised contact with the birth parents in return for an end to the court battles that prevent their final adoption of the child. These agreements are purely voluntary and require the agreement by all parties (even the adopted child, if old enough). Where it has been tried, the time it takes for the child to be permanently placed has been cut up to 50%. As a result, the child does not have to spend crucial childhood years without any stable family life.

The single biggest legal impediment to increasing the number of these mediations has been that these mediated plans have not been recognized by law and, therefore, are not enforceable. Though the birth parents are asked to give up their legal rights to contest the case, they have no guarantee that the agreement they have negotiated will be honored. Moreover, the absence of a legal basis for these agreements also sends a very powerful message, intended or not, that open adoptions are not legitimate. If open adoptions are valid, after all, then any agreement made about post-adoption contact should also be legitimate.

This new law makes these agreements, if they can be reached, as binding as any other legal agreement in our society and mandates that the birth parents in any dependency adoption must at least be offered the option of a voluntary mediated agreement that works for all involved, most importantly the child: "Post-adoption contact agreements are intended to ensure children of an achievable level of continuing contact when contact is beneficial to the children." (California SB 2157)

If the adoptive parents do not abide by the agreement, the birth parents first must submit the dispute to mediation. If this does not work, they can ask for a court order to enforce the agreement. In no case, however, can the child's adoption be revoked.

If the birth parents miss any of the visitations (usually once a year), they can still visit with the child (usually under supervision) in subsequent years. If these visits will put the child in jeopardy, the adoptive parents can ask for relief from the courts.

Hopefully, other states will follow this lead and give the open adoption movement the validity and support it deserves.

Bruce Rappaport, Ph.D., was the founder and Executive Director of the Independent Adoption Center and the author of The Open Adoption Book: A Guide to Making Adoption Work for You (Macmillan 1998). Founded in 1982, the IAC is a licensed agency and is the largest and oldest fully open adoption agency in the U.S.