The Silent Client

A Japanese judge known as King-Solomon-in-Kimono once presided over the case of two women who held a baby between them, each claiming the child as her own. The judge, like Solomon, asked each woman if she was the babyÕs true mother. Both women answered yes. ÒWell then, if there is no way to decide between you, I must cut the baby in half,Ó the judge said. He raised his sword over the baby. Just before the blade fell, both women cried out: ÒItÕs hers!ÓThe judge put away his sword and looked from one woman to the other. The women shrugged their shoulders. ÒYou see, Honorable Judge,Ó they explained, Òeveryone knows the wisdom of King Solomon.Ó This twist on the traditional tale nicely illustrates the current American struggle over adoption. King Solomon, when he was confronted with the same problem, believed he could determine which woman was the childÕs mother, because she would be the one who cared most about the babyÕs fate. But in the latter-day version, both women act according to political calculations Ñthey will say whatever they think the judge wants to hear. The babyÕs best interest is ignored.Adoption cases in this country have recently sparked heated and often agonizing conflict. The reason, argues a small circle of reformers, is that adoption laws tend to favor the rights of parents over those of children. The reformersÕ critique also points to a solution: the recognition that children have independent rights that merit constitutional protection. ÒYou canÕt treat children like misaddressed packages,Ó says Joan Hollinger, a visiting professor at the Boalt Hall School of Law who is a leading proponent of adoption reform. ÒYou canÕt just mark them ÔReturn to SenderÕ when an adoption is contested.ÓThe notion that children caught in adoption litigation deserve at least as much legal consideration as the adults who bring the cases may seem (continued on page 7) like common sense, but itÕs rarely how the law works. While the US Supreme Court has said plenty about the rights of parentsÑtheyÕre almost inalienableÑthe justices have been virtually silent about the rights of children. And most states, including California, still give little or no recognition to the rights of children independent of the parents to whom they are born. It was this state of affairs that was dramatized so devastatingly by the famous Baby Jessica and Baby Richard cases of the early 1990s. Baby Jessica was two-and-a-half when, in August, 1993, her tear-stained face stared out from the car that transported her from the Michigan home of her adoptive parents to the Iowan birth parents who reclaimed her. A year and a half later, the Illinois courts took Baby Richard from his adoptive home and awarded the three-year-old to his ÒrealÓ father. To get the child back, the father had reunited with the birth mother, who had originally told him the baby was dead. (A few months ago, the couple decided to separate once again. Five-year-old Baby Richard, now named Danny Kirchner, lives with the birth mother who once lied about his birth and signed away her rights to him.)When Baby Jessica and Baby Richard were returned to their birth parents after spending years in adoptive homes, their cases seemed to kindle the kind of outrage that could lead to deep-seated legal reform. Editorials cried out against laws that dragged contested adoption cases on for years, only to end in an abrupt switch from one set of parents to another. Newsmagazines profiled the adoptive parents who had offered the children loving, secure, middle-class homes.But the opinion was not unanimous: other voices in the media and in the courtroom pointed out the class issues involved in the cases of Baby Jessica and Baby Richard. The young, working-class birth parents who were fighting to reclaim their children had admittedly made mistakes by splitting up and placing their children for adoption, but now they were pleading for another chance to raise their own children, to claim their flesh-and-blood legacies. Some observers cheered when the reunited couples faced down the media and the courts whose power had seemed to be arrayed against them. While the widespread outcry against the birth parentsÕ victory in the Baby Richard and Baby Jessica cases helped bring about legal reform in Michigan and Illinois, the childrenÕs home states, in other places, including California, it was the birth parents and their advocates who got organized.As recently as 25 years ago, the American public generally viewed adoption as an uncomplicated transaction. Unwanted babies were judged lucky to find homes with childless couples. Abortion was rare. So was single parenthood. In the face of severe social sanction, many young single mothers bowed to pressure from agencies and gave up their children. ÒBetween 1925 and 1975, adoption agencies were in the driverÕs seat,Ó says Stephen Sugarman, a Columbia Law School professor who specializes in family policy. ÒOut-of-wedlock pregnancy carried a stigma, and a lot of pregnant women gave their babies up secretly.Ó When social workers whisked newborn babies away, sight unseen, courts backed them up. Little public support existed for the few birth parents who later sought to get their babies back. Unconcerned about the integrity of the family or about a childÕs cultural identity, judges shared the widespread belief that giving a poor unmarried womanÕs child to a middle-class family would be best for all involved.Then things began to change: the sexual revolution lessened the stigma attached to single motherhood, and the Supreme Court ruled in Roe vs. Wade. The number of available babies began to drop. Some unmarried women chose abortion; others asserted their independence by deciding to raise their children alone. In 1970, about eighty percent of the babies born to single mothers were put up for adoption. In 1983, the figure was four percent. The politics of race and class further undermined the belief that adoption was an unambiguous blessing. Native Americans and then African-Americans erupted in protest against the growing number of white families adopting black and Indian children out of foster care. They saw white adoptive parents as baby thieves instead of benevolent intercessors. Transracial adoptions inflicted harm twice over, claimed groups like the National Association of Black Social WorkersÑthey forced children to grow up among aliens and robbed the race of its next generation. The outcry against adoption crescendoed in the 1980s. Some researchers went so far as to posit an Òadoption syndromeÓ that could damage a childÕs self-identity. Courts drew back from their earlier embrace of adoption, and so did some lawmakers. States came to differ dramatically on the basic questions of who may place a child for adoption, whether birth fathers as well as mothers must give their consent, and when consent is final. The result is that in adoption law today inconsistencies abound.The tangle of law has complicated the adoption process rather than easing it. Today more than half the 130,000 annual adoptions in the US involve stepparents or other relatives. As many as twenty percent more are of older children, many of whom have been in foster care. Between 7,000 and 10,000 adoptees are foreign born. Only about one-quarter of all adoptions involve infants given up by birth parents and adopted by unrelated adults.The statistics mark the transformation of the old adoption model. ÒThe agencies have a lot of hard-to-place kids,Ó Sugarman says. ÒSocial workers are simultaneously under pressure not to put kids up for adoption unnecessarily, but also not to allow them to drift into foster care. ItÕs a world of heated controversy.ÓIt was against this backdrop that the birth parents of Baby Jessica and Baby Richard pled for the return of their babies. The cases tapped into growing queasiness about the wisdom of severing blood ties, and about deciding that children may be better off with better-off parents who are not theirs by birth. Faced with a choice between middle-class adoptive parents and struggling, working-class birth parents desperate for a second chance to raise their children, the courts were no longer comfortable imposing the values that earlier had stripped such birth parents of their rights. With its aura of white middle-class privilege, adoption has become a subject that many liberal child advocates donÕt want to touch. Their discomfort is only increased as they watch the conservatives enthusiastically endorsing adoption as an alternative to abortion. Joan Hollinger is one liberal who is prepared to jump into the fray. The 56-year-old Cal law professor, hair gone white at the temples, usually can be found glued to the computer in her office high in the Boalt Hall annex. SheÕll stop her work to share with you her recipe for apple-cranberry crisp, or fret over finding mittens warm enough for a winter trip to Germany. But donÕt be fooled by benign appearancesÑHollinger is a tenacious crusader. She and a few other lawyers and academics are the central force fighting for adoption reform in America. Sometimes, HollingerÕs side wins. Recently her argument about the rights of adopted children helped break new ground in the California courts and turned the case of Bridget and Lucy R. An Ohio couple adopted Bridget and Lucy in 1994 when they were four days old. What the adoptive parents did not know was that the twinsÕ birth father, Richard, is three-sixteenths Pomo Indian. Richard did not grow up on the reservation and had not applied for tribal membership. But when his mother learned of the adoption, she asked the tribe to reclaim the girls under the Indian Child Welfare Act, enacted in the 1970s to preserve Indian cultures by preventing the removal of Native American children from their families and tribal communities. Richard and his wife, Cindy, had placed the girls for adoption because they were fighting and having problems with alcohol and money. The couple already had two sons and felt they could not handle more children. When a lawyer told Richard that his Indian ancestry could delay or prevent the adoption, Richard checked the box for ÒwhiteÓ on a form that asked his ethnicity. By the time Bridget and Lucy were born, their parents had split up and Cindy had taken her sons to a shelter.Weeks after giving the twins to their adoptive parents, Richard told his mother what he had done. The twinsÕ grandmother went to Pomo leaders, who agreed that the girls belonged with the tribe. She convinced Richard and Cindy to fight the adoption, even though the ninety-day period that California usually gives birth parents to change their minds had expired. RichardÕs sister offered to raise the twins, and the Pomo tribe filed for custody. Bridget and Lucy had not exactly been removed from the Pomo community; in fact, they were born hundreds of miles from the reservation to a father who did not register with the tribe until after deciding to reclaim them. Still, a year and a half after Bridget and Lucy went to live with their adoptive parents in Ohio, a trial court ordered their return.Before the passage of the Indian Child Welfare Act, Native Americans lost countless children to white families because government workers did not respect extended tribal and family ties. Where tribal members often created networks of adults to share responsibility for child raising, outsiders saw such practices as parental neglect. The child welfare system, with its push for Òpermanency planningÓ and Òlong-term placement,Ó looked askance at parents who allowed their children to move from house to house among different relatives or friends. Native Americans wanted protection from judges and social workers who did not understand their ways. Congress stepped in with the Indian Child Welfare Act, which ensures that if their parents do not want to care for them, Indian children can go to live with another member of the tribe.That is precisely what Bridget and LucyÕs grandmother wanted for her grandchildren. The Pomos are a tiny tribe with 225 members, only 25 of whom live on the reservation. To the Pomos, RichardÕs lack of connection to the tribe only underscored the need to reclaim his children. Here was a chance to bring back a third generation that otherwise might have been lost.But the couple who had adopted Bridget and Lucy refused to give up the eighteen-month-old infants they had raised from birth. The adoptive parents offered to teach the twins about their Indian background, but pled for recognition of their own familyÕs growing ties. In June 1995, they filed an appeal.Viewed as a battle between two sets of adults, Bridget and LucyÕs adoption might look like an impasse. But that is not how Joan Hollinger and her allies saw it. Instead, they focused on the twins to build a different legal argument.Convinced that Bridget and Lucy would suffer if taken from the only home they had ever known, Hollinger wrote a friend-of-the-court brief in favor of the adoptive parents, asking the court to limit the scope of the Indian Child Welfare Act. The court must impose on the tribe a higher standard for membership, she argued. ÒTo make the principles of [the law] come alive, there has to be a significant cultural and political tribal tie on the part of the birth parents,Ó Hollinger says. ÒBridget and LucyÕs adoptive parents should not be expected to turn them over and vacate what was a perfectly legal adoption simply because these twins have a few drops of Indian blood.ÓHollinger also offered the judges a way around a legal finding that Bridget and Lucy are indeed Pomo. She argued that even if Bridget and LucyÕs adoption is deemed invalid, the twins deserve a separate hearing to determine who will raise them. The claims of birth parents and adoptive parents should then be weighed from the perspective of a childÕs constitutional right to liberty and to due process. It was a line of reasoning that neatly upended the long-enshrined principle of overriding parental rights. In July, CaliforniaÕs Court of Appeals followed HollingerÕs lead when the judges ruled that the adoption should stand unless the Pomos could prove the birth fatherÕs tribal ties. More strikingly, the judges added that even if the tribe can prove its claim to the twins, Bridget and Lucy have a right to a separate custody hearing. They cited HollingerÕs friend-of-the-court brief when they wrote: ÒIt is essential that the Court not automatically ÔreturnÕ children to individuals who are socially and psychologically strangers to them.ÓNeither the US nor the California Supreme Court have opted to review Bridget and LucyÕs case, which means that the appellate ruling will stand. The decision made no headlines. ChildrenÕs groups did not step forward to claim victory. But the small group of professors and lawyers fighting for adoption law reform found cause for celebration. ÒIf a child showed up on your doorstep, you wouldnÕt just return it. YouÕd want to make sure it was going to be okay,Ó says Barbara Bennett Woodhouse, a law professor at the University of Pennsylvania who worked with Hollinger on the case. ÒThatÕs the analogy for what the court did here.ÓJoan Hollinger sees her interest in adoption as a natural extension of her pro-choice politics. If the sexual revolution sought to make it easier for women to choose abortion or raise their children in one-parent homes, it also should support a motherÕs decision to give a baby to someone else to raise. ÒItÕs curious to me that so many people assume there is a conflict between the pro-choice world and adoption, because to me adoption always seemed like one logical outcome of the commitment to choice,Ó says Hollinger. ÒMy commitment is to the idea that women should exercise choice over reproduction and over the circumstances under which they want to parent.ÓHer beliefs differ markedly from the view that adoption means, more or less, making the best of a bad thing. Traditional thinking has it that a child is better off with fit biologic parents; only if the couple cannot care for the baby should another mother and father be allowed to step in.Hollinger began to rethink that premise as a young lawyer living in upstate New York in the early 1970s. She had two small children of her own, and the woman who cared for them daily contracted uterine cancer and became infertile. Hollinger helped the woman adopt a son, and in the process discovered her own professional calling. ÒIt was like a whole world of family building just opened up out of the blue,Ó she remembers.For Hollinger, the adoption raised moral and practical questions. What did it mean to adopt children? What legal standards governed the field? When Hollinger began teaching law at the University of Detroit a few years later, she shaped her research around those questions. In the late 1980s she wrote the treatise Adoption Law and Practice, a state-by-state summary and analysis that adoption attorneys refer to as their bible. Hollinger was not alone in pioneering adoption reform. Elizabeth Bartholet, a Harvard law professor and adoptive mother, writes incisively and passionately in support of transracial adoption. Woodhouse, who teaches constitutional and family law at the University of Pennsylvania, helped formulate the constitutional argument that adopted children have their own due process rights. Woodhouse and Hollinger got to know each other pulling giddy bicoastal all-nighters to write a friend-of-the-court brief on behalf of Baby Jessica. ÒWe stayed up all night laughing at each otherÕs jokes,Ó Woodhouse recalls.ItÕs not easy for these adoption advocates, most of whom consider themselves politically liberal, to argue for curtailing the identity claims of minority groups or the rights of birth parents, many of whom are poor, single women. Their position is particularly uncomfortable since the conservative push to end welfare dependency has come to include the not-so-veiled threat that poor women do not deserve to keep babies they cannot afford to care for. ÒI find it embarrassing to be an adoption advocate at a time when the governor of California is making a pitch to redistribute the children of the poor,Ó Hollinger admits. ÒPeople who are more humane and liberal need to grab back the language and the discourse.Ó To refocus the politics of adoption, Hollinger, Woodhouse, and their allies argue from the premise that adopted children should not become footballs tossed around by adults who change their minds or minority groups who flex their political muscles. They urge courts toward an Òunflinching focus on the perspective of the children caught in disputes about their individual, familial, and communal identities.Ó Bent on reform, Hollinger spent five years drafting the Uniform Adoption Act, a comprehensive set of adoption laws, for the National Conference of Commissioners on Uniform State Laws. In the century of its existence, the conference has sponsored 200 pieces of legislation to eliminate state-to-state inconsistencies. Many of its projects quickly become law. But in the three years since the Uniform Adoption ActÕs completion, only Vermont has passed the legislation in its entirety while other states have written pieces into law.The act plunges into controversy from its opening premise, which states that Òadoption offers significant legal, social, and psychological benefits not only for children who might otherwise be homeless, but also for parents who are unable to care for their children, for adults who want to nurture and support children, and for state governments ultimately responsible for the well-being of children.Ó Adoption, then, is not a last-choice scenario but stands on its own merits. In the 140 pages that follow, the act breaks repeatedly with laws that grant rights to parents that trump those of children. Like the appellate ruling in the case of Bridget and Lucy, the act mandates a separate hearing to determine where children whose adoptions are contested will live. Depending on the circumstancesÑand a birth parentÕs past record can be consideredÑa judge can opt to award custody to the adoptive parents, even when an adoption does not stand up in court.Such provisions are a far cry from the rulings in the Baby Richard and Baby Jessica cases, which focused on redressing legal wrongs the birth parents had suffered. ÒTo me this is a due process issue,Ó says Woodhouse. ÒIf the police came to take an adult from the state he was living in and put him into custody elsewhere, there would be a due process right to a hearing. The constitutional question is whether children have the same right.Ó Woodhouse adds that the act does not open the door to carte-blanche dismissal of birth parent claims, despite accusations to the contrary. ÒPeople donÕt hear the nuances,Ó she says. For example, under the childrenÕs-rights provisions, a judge might make a different ruling based on the childÕs age. ÒYouÕre probably going to have a different result in the case of a six-month-old child than you would for a three-year-old,Ó Woodhouse says.But to birth parent advocates, the childrenÕs rights argument is not a solutionÑitÕs an excuse for the authorsÕ pro-adoption bias. Efforts to launch the Uniform Adoption Act in some states have met with concerted attacks from groups like Concerned United Birthparents, the Child Welfare League of America, Catholic Charities, the National Association of Social Workers, and the American Adoption Congress. ÒThe political reality is that the draftees are middle-class, politically connected appointees who empathize more readily with the ÔhavesÕ (adoptive parents) than with the Ôhave-notsÕ (birth parents),Ó wrote one contributor to the National Law Journal.Specifically, critics object to the short period of time birth parents have to change their minds about an adoption. Under the act, birth mothers get eight days after birth in which to revoke their consent and automatically regain their children. (California now allows ninety days in most cases.) ÒThwartedÓ fathersÑthose who do not learn of their childrenÕs birth until after an adoption takes placeÑhave six months to come forward, and they must show Òcompelling reasonÓ for not having acted as a parent from birth. And even if fathers can prove their claims, they do not automatically take charge of their children, but instead trigger a separate custody hearing.To defend the time limits, Hollinger explains that the act tries to avert late-stage ambivalence. Birth parents must be offered counseling and legal representation before giving up a child, options that few states now require. Adoptions must be executed before a neutral third party, as opposed to a hired attorney, as is now common. And birth mothers are encouraged to name their childrenÕs fathers (though not threatened with criminal penalties if they refuse). The idea is to eliminate the confused circumstances that lead to contested adoptions, in hopes of heading off most cases before they can start. But birth parents and their supporters are not reassured. They charge that by requiring a separate custody hearing when an adoption is contested, the act encourages adoptive parents to use delay tactics to strengthen their claims of attachment. Hollinger is sensitive to this charge, and she points out that the act instructs courts to handle contested adoptions expeditiously, though she knows that is no sure thing. ÒI take seriously the need to protect birth parents against losing their relationships with their children,Ó Hollinger says. ÒItÕs very difficult to achieve a balance. We tried.Ó The actÕs protection of would-be adoptive parents from disqualification because of their race or ethnicity has also drawn fire even though it matches a 1994 federal act that removes racial barriers in foster-care and adoptive placements. And many adult adoptees protested a provision that seals adoption records for 99 years. Birth parents would have to allow themselves to be traced (though non-identifying medical information would be accessible).All this controversy has hurt the adoption actÕs chances for passage in several states. Intensive lobbying from adoption opponents killed the bill in Colorado, Maine, Mississippi, and Ohio. Other states such as North Carolina, West Virginia, Washington, and Tennessee have approved some provisions. The act has not been introduced in California.Given the charged history of adoption law, real change isnÕt likely to come easily. Despite the national outcry that surrounded the Baby Richard and Baby Jessica cases, no powerful lobby group exists to support reform. While birth-parent groups flood the faxes of newspapers and legislators, national interest in reform seems to move in fits and starts.Ironically, the constituency with perhaps the strongest stake in adoption law reform, adoptive parents, has done relatively little to change the political equation. Adoptive mother Peggy Stenbeck thinks she knows why adoptive parents have not pressed harder for change. ÒWe have to jump through so many hoops,Ó she says. ÒWhen people finally survive the emotional, financial, and legal trauma, they often just want to go away and be a family like everyone else.Ó But after a five-year court battle to keep her adoptive son, Stenbeck did not leave the issue behind. She knew that if California had passed the Uniform Adoption Act before her sonÕs adoption, she and her husband probably never would have been taken to court. ÒI felt strongly that no one should have to have that experience,Ó she says.A few weeks after the Stenbecks adopted their son, his birth father filed a counter claim, even though he had helped to plan the adoption. The man had a record of selling drugs and abusing the babyÕs birth mother, Stenbeck says. The Stenbecks won, but only after their case went to the California Supreme Court. The legal bills came to almost $100,000. Peggy Stenbeck is a homemaker; her husband works in a factory. ÒWe will be making payments for the rest of our lives,Ó she says quietly.Stenbeck has started an adoption reform effort out of her home. Called the Coalition for Adoption Reform and Education, the group tries to push for legislative changes and to inform the public about the benefits of adoption. The group lobbied the California legislature last session for a bill that would have decreased the time birth mothers have to revoke their consent to thirty days. Though it passed the Assembly unanimously, the proposed legislation died in a Senate subcommittee.Such a shortened time limit might have prevented the latest contested adoption case from going to the California Supreme Court. Haley A., who was placed for adoption at birth, turned three in February. Her birth mother, Elizabeth, never formally consented to the childÕs adoption. Instead, under a confusing provision of California law, Elizabeth gave the baby to a Martinez couple with a promise to forward her consent later. The months dragged on, but because Elizabeth had not signed a consent form, she had half a year to reclaim the child. Six months later, Elizabeth said she wanted Haley back. The adoptive parents resisted and the case has dragged on for nearly three more years.Hollinger, who is preparing a friend-of-the-court brief on HaleyÕs behalf, will urge the court to recognize that an adopted child has independent legal rights and should be granted a separate custody hearing. Maybe the court will accept her argument, but maybe notÑsince California law is still silent on the subject of childrenÕs rights, any ruling will be a matter of the judgesÕ interpretation.Stenbeck hopes her small organization will grow powerful enough to reform the laws that put Haley into limbo. In the meantime, she struggles to console those who canÕt wait. ÒI talked to a woman the other day who had just had a child taken out of her home,Ó she says. ÒWhat could I say?Ó

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