The wicked snatch fatherless children from their mother’s breasts, and take a poor man’s baby as a pledge before they will loan him any money or grain. -Job 24:9
In this post, I want to focus on what happens in the United States these days when a newborn infant is given up for adoption, and how voluntary relinquishment of a child removes the constitutional rights of birth parents to their own child. Perhaps if more people knew what signing a Consent to Adoption meant and how difficult it is to revoke one in court, fewer people would sign them or encourage birth parents to sign away the constitutional rights of themselves and their children.
The Rights of the Natural Family
In the United States, before any child can be adopted, the petitioners for adoption (usually, the adoptive parents) must prove that adoption is in the best interests of the child. The child’s own attorney, or guardian ad litem, must agree, for all adoption in the U.S. must legally serve the child’s best interests. Many people do not know that, under the law, the biological parents have substantial rights to assert, if only someone would support them in doing so. Many people also do not know that the laws in the United States support being raised by one’s biological parents as foundational to the child’s best interests–so foundational, in fact, that the right to raise one’s biological child, and the right to be raised by one’s biological parents, is a constitutionally protected right.
It is a right, that is, until a mother voluntarily gives up physical or legal custody of her baby. The act of surrender is, in point of legal fact, a terrible surrender for it abrogates the right of the child to be raised by his own parents, too. Those interested in the legal side of child welfare should compare guardianship and custody laws with adoption laws for an education in just how badly awry our adoption laws have gone, thanks to tweaking by adoptive parents, adoption attorneys, and legislators.
Because the right to raise the children one has given birth to is a constitutionally protected right, during guardianship or custody proceedings, it is presumed that the best interests of minor children is served by placement with the natural parent in the absence of clear and convincing proof showing that the natural parent is unfit. A large body of case law makes it clear that it is legally presumed that the best interests of the child is to be with his parents, unless being with the parents is contrary to the child’s welfare.
Furthermore, in the United States, any unfitness which might deprive a parent of the right to custody of his minor child must be positive and not comparative, and the mere fact that a child might be better cared for by a third person is not enough to deprive the parent of his or her right to custody of the child. So, for example, the fact that a child might be better cared for by another person is not sufficient reason for depriving a parent of custody of his or her child. At least, this is the case in guardianship proceedings.
In Alford v. Thomas, 316 P.2d 188 (Okla. 1955), the Oklahoma Supreme Court explained the natural and legal rights of biological parents thus:
“Parents have by nature, as well as law, the legal right to the custody of their minor children. This right will always control the judgment of the courts, unless circumstances of great weight and importance connected with the necessary welfare of the child exist to overcome such right.”
The Pitfalls of Voluntary Relinquishment
Unfortunately, nature seems powerless when court proceedings concern adoption rather than guardianship and custody, although even in some custody cases, courts may become confused. In a North Carolina Supreme Court case, Price v. Howard, the court ruled that any voluntary relinquishment of custody by a parent “would result in the loss of constitutional protections of the superior custody interests of parents in their children, and would allow the court to use the best interests of the child standard without a showing of parental unfitness or neglect.”
Stay with me on this, for in this one example of court-sanctioned legal skullduggery, we can see how courts moved from favoring biological parents to favoring adoptive parents. Voluntary relinquishment of custody removes the birth parent’s constitutional right to raise her child, and all presumptive rights, too. Before the adoption has ever been completed, she has forever signed away the presumptive rights she had. This is how adoptive parents win in court nearly every time.
This is why many people do not know that, the moment a birth parent hands her newborn over to eager adoptive parents, the chances of her getting that baby back are almost nil. Birth parents in child welfare cases in which child neglect or abuse have been substantiated have more chance of getting their children back than do birth parents of healthy infants arranging so-called open adoptions. This is because adoption in practice and by law favors adoptive parents, even though guardianship and custody law clearly identify being raised by one’s natural parents as in the child’s best interests. What is in the child’s best interests changes under adoption law, for natural parents no longer have presumed superiority in the world of adoption law.
Adoption laws, which are similar from state to state, create more hoops for the birth parent to jump through than you can shake a stick at. These hoops are created when a consent to adoption occurs; had the birth mother only entered a guardianship agreement, her constitutional right to reclaim and raise her child might be supported–although this is not always the case, either. So few birth parents have adequate legal representation that it seems silly for me to preach that they ought to be given good representation. How many attorneys for the birth parents have their fees paid by the prospective adoptive parents? How many are appointed by the courts? How many advise such parents to keep the baby for a week, breast feed him, have a go at parenting, and after it’s clear that they cannot parent the child, then to consider another placement for the child? Not many, I’ll wager. And I think this is the case with non-relative and relative adoptions, both. I have heard of it happening just as frequently when relatives offer to care for a baby or child, which is why sexually active people who are not ready to grow up and become parents ought to either quit having sex or ought to use reliable birth control: guardianship and adoption are terrible methods of birth control.
A Case in Point
In one example of relative adoption, Mary, a young mother, has given her newborn baby to Aunt Flo to raise while Mary finds a job and a place to live. Aunt Flo, the savvy childless auntie, insists on a guardianship agreement, and Mary reluctantly agrees. Mary visits her baby several times a week, juggling school, work, and visits. By the time the baby is five months old, Aunt Flo wants to keep the baby, and Mary has graduated and wants her baby back. Mary has a job and an apartment, but she earns minimum wage and all her resources have gone into her apartment and all the trappings of motherhood that she’ll need to care for her baby.
When Aunt Flo and Mary go to court to fight over this baby, Aunt Flo will take Uncle Ed, and the judge will see a mature, married, moneyed couple standing before him, as compared with young, single, uneducated Mary, working for minimum wage. The law will specify a set of tests that Mary must pass before she, the baby’s own mother, will be deemed by the court to be “in the best interests of the child.” Since Mary visited three or four times a week, she passed the visitation clauses of the best interests and non-abandonment sections of the law. But what Mary didn’t know was that the law also specifies that she must have provided substantial support to the baby. “Substantial” is not spelled out in dollar amounts, so one has to go to case law to determine what U.S. courts have agreed is substantial enough to prove this mother loved her baby. Suffice to say that what Mary did for her baby-buy an Easter dress, some new shoes, a bag of diapers maybe-is not “substantial.”
“Substantial” is the support Aunt Flo and Uncle Ed gave to the baby: mortgage payments and utilities and all living expenses, divided by the number of people living in the home. This is substantial.
Mary is unlikely to get her baby back from the local court. The local court will probably uphold the guardianship; but if Mary appeals and gets all the way to the Supreme Court, she is likely to regain custody of her baby, because in guardianships it is always presumed that the child’s best interests will be served through being raised by her biological parents.
Sadly, if Mary signed adoption consent papers rather than guardianship papers, she will most likely never get her baby back if she is fighting people who have money and experience. In the most litigious nation on earth, we know how to kidnap babies legally, and we have been doing it since we were colonies.
Adoptive parents and their attorneys have many maneuvers available for keeping possession of a surrendered infant, even when a birth mother changes her mind. I have seen mothers one, two, or three days after surrendering in a state in which there is a clear 30-day revocation period fight to get their babies back, and lose. In the past, I periodically served as an expert witness for such birth parents, and my heart has broken as I have witnessed birth mothers pleading for their babies, tears running down their faces, breast milk dripping, while adoptive parents with the ink barely dry on their placement papers turn stone cold faces against the young woman they said they loved.
Yes, only a few days prior, in the hospital, these same adoptive parents had tears running down their faces; they said they loved this birth mother like a sister, a daughter, their miraculous, gift-bearing birth mother friend. These same parents become monsters within 48 hours of possessing the baby they fiercely believe is theirs because they have bottle fed him in a motel room for two days.
Pardon me for being judgmental, but I hope that a special circle of hell is reserved for adoptive parents like this. I know of some of them, people who got back on their airplanes and self-righteously flew home with their legally stolen babies. The fathers are usually attorneys or doctors, the mothers are professionals, too, who have taken a leave of absence from work until Baby is able to survive with nannies or quality day care providers in the home. They will get on their airplanes and fly home, and they’ll never tell their little Gift Child how his mother fought for him, and lost, crazy with grief. They will slam shut the adoption they promised would be open forever, the birth mother a permanent part of their family, because she betrayed them by deciding to raise her own baby, the baby her arms and breasts ache for.
Many moneyed prospective adoptive parents come to backward southern states such as Arkansas, Oklahoma, Florida, and even Texas to get babies for this reason. The more politically conservative a state is, the more likely that the surrender and revocation laws governing infant adoption favor adoptions and put birth parents over a barrel so they can be properly screwed.
If court proceedings in adoption were not closed to public scrutiny-and they are-the average American would be outraged by what passes for child welfare in the United States. Our adoption industry is largely controlled by men, most of them attorneys or judges, and by people with enough money to buy off birth mothers and to fight them when they get uppity. Although in most states, the adopted child is appointed his own attorney, a guardian ad litem, most of the time this attorney goes along with the attorney serving the adoptive parents’ interests. Attorneys for birth parents rarely have a chance of winning, because everyone knows that any parent who gives up her baby in the first place is not a very good parent and has surrendered not only her baby, but also her constitutionally protected right to raise him.
Where mercy for the birth mother abounded before, there is no mercy after she has let the baby go and later seeks to have him returned.
I do not know how any adoptive parent can justify raising a child who was ultimately wanted by his birth mother, but I have met some who think nothing of legally absconding with a child. I think they are monsters, and you can read forums and blogs written by such people who moan and wail about how the Big, Bad Birth Mother is trying to get her own child back. They are sickening examples of the worst kind of wickedness, and I want to thank Linda Webber for reminding me of this verse in her comment to one of my recent articles:
The wicked snatch fatherless children from their mother’s breasts, and take a poor man’s baby as a pledge before they will loan him any money or grain.Job 24:9, New American Standard Bible