Monday, June 22, 2009

Agency Threats to Remove a Child as a Means of Undermining Adoption Assistance Negotiations

State and county agencies frequently threaten to remove the child from a prospective adoptive family if said family becomes too assertive about negotiating adoption assistance benefits. In light of the long standing trend for special needs children to be adopted by their foster caregivers, many of the boys and girls who are objects of these threats have been in foster homes for several years and have forged healthy emotional bonds to the people want to provide a permanent home for them. I have encountered dozens of these disturbing situations over the years, and in only a handful of cases has the safety and suitability of the home maintained by the prospective adoptive parents been in question.

For agencies pledged to the promote the best interests of the children in their care, the threat to remove children from the only stable homes they have ever known is shockingly immoral, particularly when the primary motive lies in frightening prospective adoptive parents into settling for an inadequate amount of adoption assistance. The deliberate attempt to undermine the negotiation of adoption assistance through intimidation is probably against the law as well.

Federal law at 42 U.S.C 673 provides that adoption assistance payments be determined through negotiated written agreements between the state or county agency and the adoptive parents, based upon a thorough consideration of the child’s needs and overall family circumstances. The Code of Federal Regulations at 45 CFR 1356.40(f) stipulates that states “must actively seek ways to promote the adoption assistance program.” The Code of Federal Regulations at 45 CFR 205.10 not only guarantees adoptive parents the right to apply for Title IV-E adoption assistance, but also to appeal adverse decisions regarding the amount of assistance. Efforts to thwart these due process rights run counter to federal adoption assistance law and in principle place a state's federal funding in jeopardy.

Surprisingly, there appears to be no consensus among attorneys regarding the most effective course of action to take when a prospective adoptive parent is threatened with the removal of their child during a disagreement over the amount of adoption assistance. In the absence of clear laws or regulations forbidding arbitrary removal, a petition to the appropriate court for a temporary restraining order or injunction seems to be the most logical course of action. Some parents have attempted to enlist the support of the child's Guardian Ad Litem to intervene with the local court.

The frequency with which adoptive parents are terrorized with threats of losing their child during the course of adoption assistance regulations calls for legislation to prevent vulnerable children that have already lost at least one family from unnecessarily losing another. At minimum such legislation, should forbid agencies from removing children in pre-adoptive homes for reasons other than abuse, neglect or other causes associated with protective services regulations. In addition, any proposed action to remove a child from a pre-adoptive home should automatically trigger a hearing before a court of competent jurisdiction. At the hearing, the existence of a strong and healthy emotional attachment with the prospective adoptive parents should be a prime consideration for the court. Finally, the burden should be on the agency to show that the family that it studied and approved as suitable for the the child has become sufficiently detrimental to the his or her well being as to warrant a traumatic placement in a new household.