Introduction
This resource is designed to help public defenders better understand the adoption process when working with clients who are mothers or expectant mothers facing difficult circumstances. Our goal is to provide clear, compassionate information that enables you to discuss adoption as one of several options your clients may wish to consider.
1. What is the legal definition of adoption?
Adoption is a legal process that permanently transfers all parental rights and responsibilities from birth parents to adoptive parents. Once finalized, an adoption creates the same legal relationship between the child and adoptive parents as exists between biological parents and their children. Birth parents’ legal rights and obligations to the child are terminated through this process.
2. What is the modern adoption landscape like?
There are several types of adoption that may be appropriate depending on your client’s situation:
- Open adoption: Birth parents maintain some form of contact with the child and adoptive family
- Semi-open adoption: Communication occurs through an intermediary like an adoption agency
- Closed adoption: No ongoing contact between birth parents and adoptive family
- Kinship adoption: A relative adopts the child
- Foster-to-adopt: Children in foster care are adopted by their foster parents
Most modern adoptions include some degree of openness, which can be tailored to the birth mother’s comfort level and preferences.
3. What rights do birth mothers have during the adoption process?
Birth mothers have significant rights throughout the adoption process, including:
- The right to change their mind about adoption prior to signing consent documents
- The right to select the adoptive family (in most private adoptions)
- The right to create an adoption plan including their preferences for contact
- The right to independent legal counsel separate from the adoption agency
- The right to receive counseling and support services
It’s important to emphasize that legally, no one can force a mother to place her child for adoption.
4. What support services can birth mothers legally receive?
Birth mothers can legally receive support for pregnancy-related expenses, which may include:
- Medical expenses not covered by insurance
- Reasonable living expenses during pregnancy and briefly postpartum
- Counseling services
- Legal representation
- Maternity clothing
These payments must be documented. It is crucial to understand that payment cannot be contingent on placement of the child or consent to adoption, as this would constitute baby-selling, which is illegal in all states.
5. How can I help clients distinguish between ethical and unethical adoption practices?
Ethical adoption practitioners:
- Provide counseling about ALL options (parenting, adoption, kinship care)
- Never pressure a client toward a particular decision
- Offer separate legal representation for birth parents
- Have transparent fee structures
- Follow all state laws regarding waiting periods and revocation rights
- Provide access to support services before, during, and after placement
Red flags include pressure to make quick decisions, reluctance to discuss all options, promises that sound too good to be true, or discouragement from obtaining independent legal counsel.
6. What should my clients know about post-adoption contact agreements?
Post-adoption contact agreements (PACAs) outline communication between birth parents and adoptive families after adoption. These may include provisions for:
- Photos and updates
- Letters or emails
- Phone or video calls
- In-person visits
In many states, these agreements are legally enforceable, though enforcement mechanisms vary. Even when legally enforceable, the best agreements are those built on mutual trust and respect between birth and adoptive families.
7. How does adoption affect my client’s criminal case?
If your client is facing criminal charges, choosing adoption does not automatically impact the outcome of their case. However, demonstrating responsible decision-making regarding their child’s welfare may sometimes be viewed favorably by the court or prosecutor.
Some points to consider when advising clients who are facing criminal charges:
- Choosing adoption may demonstrate to the court that your client is making thoughtful decisions about their child’s future
- In some cases, this may factor into sentencing considerations or plea negotiations
- If incarceration is likely, adoption provides an opportunity to select a permanent, stable home rather than leaving the child’s placement to chance
- The adoption process can run parallel to criminal proceedings, allowing decisions to be made deliberately rather than reactively
- Some adoption agencies specialize in working with incarcerated parents and can provide specialized support
That said, a client should never be made to feel that choosing adoption will result in leniency, nor should they choose adoption for this reason alone. The decision to place a child for adoption should be based on what is best for the child and the parent’s situation, not on potential legal benefits.
8. How does voluntary adoption differ from child welfare involvement?
For clients involved with child protective services (CPS), understanding the difference between voluntary adoption and involuntary termination of parental rights is crucial:
Benefits of voluntary adoption:
- The birth mother retains control over many aspects of the process
- She can personally select the adoptive family from profiles of waiting families
- She can establish terms for ongoing communication and contact
- The child avoids entering the foster care system
- The process is generally quicker and less traumatic than court-ordered removal
- The narrative for the child becomes “my birth mother made a plan for me” rather than “I was taken away”
- Birth mothers often receive more comprehensive support services
- The stigma associated with CPS involvement is avoided
If CPS is already involved or likely to become involved, encourage clients to consider voluntary adoption as a proactive step that maintains their agency in an otherwise disempowering situation. Many clients don’t realize that voluntary adoption is still an option even after CPS involvement has begun, as long as parental rights have not yet been terminated by the court.
9. What resources are available to support birth mothers?
Birth mothers should be connected with:
- Licensed adoption agencies with qualified counselors
- Independent adoption attorneys
- Birth parent support groups
- Post-placement counseling services
- Community resources for housing, education, and career development
Many adoption agencies provide referrals to adoption-informed counseling services. These supportive services are crucial for helping birth mothers process grief and loss, regardless of how confident they feel about their adoption decision.
10. How can I discuss adoption in a non-coercive, supportive way?
When discussing adoption:
- Present it as one of several options, not the only solution
- Use neutral, non-judgmental language
- Focus on your client’s long-term goals and values
- Acknowledge the complexity and permanence of the decision
- Emphasize that a good decision takes time and support
- Connect clients with resources that present balanced information
- Recognize the grief that often accompanies adoption decisions, even when birth mothers are confident in their choice
Remember that your role is to ensure your client has access to information and resources to make an informed decision that feels right for their unique situation.
Conclusion
Public defenders play a crucial role in ensuring that clients who are considering adoption receive ethical treatment, understand their rights, and have access to appropriate resources. By providing judgment-free information and connecting clients with reputable adoption professionals, you can help ensure that any adoption decision is made freely, with full understanding of the options and implications.
This resource was created by KidsFirst Adoption Services. Founded in 1999 by Inna and Steve Pecar, KidsFirst is dedicated to supporting both birth parents and adoptive families throughout the adoption process. For more information or referrals, please contact us.