Open Adoption Settlement Tool or Best Interests? Douglas J. Monaghan, JD, CWLS Nancy A. Randall, Psy.D.

Michaud v. Wawruck 2009 Conn. 407 (1988) AGE 002/05/79Baby M DOB 2.608/31/81Consent TPR by mom/PC /06/82TPR by dad/PC 1982Mom v. DCYS (TPR consent by dad’s fraud) 3.709/16/83Stlmt agrmt (OAVA: 2x per month for 3 hours at Wawrucks home) Adoption by Wawrucks; visitation terminated Michaud v. Wawruck (spec perf/breach K/fam div /20/88CT Supreme Court: agrmt not void by public policy; case remanded for hrg on whether visits in best interests of child CASE TIMELINE

STATES WHICH ALLOW PCA*: ALASKA ARIZONA CALIFORNIA CONNECTICUT FLORIDA INDIANA LOUISIANA MARYLAND MASSACHUSETTS MINNESOTA MONTANA NEBRASKA NEVADA NEW HAMPSHIRE NEW MEXICO NEW YORK OKLAHOMA OREGON RHODE ISLAND TEXAS VERMONT (Step only) VIRGINIA WASHINGTON WEST VIRGINIA *Courtesy of Child Welfare Information Gateway, Children’s Bureau, ACYF, HHS, current to February

STATES WITHOUT ENFORCEABLE PCA BY STATUTE* MISSOURI NORTH CAROLINA OHIO SOUTH CAROLINA SOUTH DAKOTA TENNESSEE *Courtesy of Child Welfare Information Gateway, Children’s Bureau, ACYF, HHS, current to February 2009

TERMS OF PCA (Contract): AZ:Adoptive parent may terminate contact at any time determines not in BI CA:(Fill blank forms w/symbols) Warning in bold face: Adoption can’t be set aside Action to set aside or modify PCA won’t affect child’s custody Court won’t act on petition to modify agrmt unless mediation or ADR tried in good faith CT:Termination /adoption irrevocable even in PCA breached Agrmt grants birth parents right to seek enforcement (Also IN, LA, MA, NH, RI, VA) Statutorily required terms: Common law: whatever works

TYPICAL PCA TERMS: Recitals Quid pro quo/consideration Nature of contact (visits/PO Box) Frequency of contact Duration of contact (if visits) Good faith and fair dealing Reservation of discretion Consideration of best interest Consult with health care provider Adoptive parents can expand Modification prohibited

Is open adoption a new phenomenon? Prior to 19 th century, placements were informal Closed adoptions becoming the norm late 19 th century, becoming law in 1940s-1950s Agencies began to be involved, and take control of the process, with birth parents having few rights A move to more openness occurred in the 1960s- 1970s

Why should we care about open adoption anyway? Loss Rejection Guilt/Shame Grief Identity Intimacy Mastery/Control Silverstein and Kaplan, 1982 Silverstein and Kaplan identified 7 core issues of adoption

Fears/Criticisms of open adoption – adopted child If conflicts exist between adoptive and birth families, child may feel in the middle Child may attempt to play adults against each other Strong ties with birth family may interfere with forming strong ties with adoptive family If contact is discontinued, another loss

Fears/Criticisms of open adoption – adopted child Complications related to siblings being raised in the birth family Dangers, including those due to problems which led to the initial need for placement/adoption Difficulty explaining the relationships to others

Fears/Criticisms of open adoption – adoptive parent Being more different Intrusion/interference by birth parent Child will prefer the birth parent, or want to live there Resentment/feelings that birth parents don’t deserve it

Fears/Criticisms of open adoption – adoptive parent Need to be perfect/being judged Feelings of not being the “real” parent Acceptance of relationship with people they may not ordinarily feel comfortable with

Fears/Criticisms of open adoption – birth parent Difficult to resolve grief Difficult to fill a lesser role for child Feeling judged

Benefits of open adoption – adopted child No secrecy or pretense Realistic understanding of decision/reasons Knowledge of birth parents’ being alive, wanting a part in their life Acceptance by both sets of parents/extended families

Benefits of open adoption – adopted child Relationship with birth siblings Reduced feelings of rejection/abandonment Access to info about identity/culture/medical/developmental info More tied to own history

Benefits of open adoption – adopted child Lessens loyalty conflicts No need to search

Benefits of open adoption – adoptive parent No secrecy or pretense Reduces fear of unexpected appearance of birth family More realistic understanding of birth family Able to more fully answer child’s questions and access information when needed

Benefits of open adoption – adoptive parent Greater sense of having the right to parent the child Better understanding of child’s history

Benefits of open adoption – birth parent Knowledge of how child is doing/peace of mind Better grief resolution Development of relationship with adoptive family Better sense of control over relinquishment and adoption decisions

Research on Open Adoption Minnesota/Texas Adoption Project (Grotevant & McRoy) Berry, 1991 & 1993 Siegel, 2003 Barth & Berry, 1988 Belbas, 1986 Blanton & Deschner, 1990 Meezan & Shireman, 1985 Nelson, 1986 Brodzinsky, et.al., 1984

Is open adoption always appropriate? Safety considerations Continuing effects of trauma/retraumatization Need to respect boundaries/support adoption Mental health issues

How do families know what is right for them? Need to explore issues and needs Consideration of each member of triad – strengths, needs, and challenges Changes over time Best interests of child paramount

How can we facilitate success? Mutual respect Open communication Clear boundaries/understanding of roles Focus on child’s needs as primary Support available

Responses to Survey “ I think it was easiest for birth mom to let go and not keep contact when she learned that “A” has Fetal Alcohol Syndrome. I don’t think she could handle knowing what she had done.” “Facebook has provided a more direct and responsive connection…Since “S” is 14 now and there appears to be absolutely no potential for confusion as to what part we play in her life vs. her birthparents, we see no reason to limit it in any way.” “For “S” and “L” (birth sibling), instead of having a hunger to fill some void of information, they both have satisfactory knowledge of each other and rapport with each other.”

Responses to Survey “The contact with Mom and her boyfriend had a negative effect. They would promise them birthday cash etc. and never send anything.” “Maternal grandmother will talk and request contact when we run into her in a store.” “We have no signed contract but an informal understanding that if she got mental help, she could see the children.”

Responses to Survey “Kids were getting older, mom was doing well, so we extended Christmas visit to summer visit.” “I would not suggest an open adoption. There is so much pain that just continues…My children are teenagers, so they deal with loyalty to their biological family. They only remember the good times and can’t understand why they can’t just live with their mom.”

Responses to Survey “I think he has enough bad memories to carry him thru his lifetime. By being able to see and have a relationship with mom he knows that she still loves him and is just not able to take care of him…at least my son was and is able to keep in contact with people who love him the best they can. His bio grandmother died last year and we all went with him to the funeral, so he got a chance to see his family and grieve with them. That has to be important, you can’t minimize those ties.”