What makes a house a home is not merely the brick and mortar of a building, but the foundation of a family. As the saying goes, “home is where the heart is” – where one experiences love, support, and growth. Some children do not have a place to call “home” until they are adopted after their natural parents’ parental rights are terminated.
In many circumstances, adoption presents the children with stability and a nurturing family. However, other children consider their placement with their natural parents to be their first true home, despite its shortcomings that led to their removal.
Adoption can be the traumatic realization by children that they may never return home to their parents.1 The natural parents may also experience emotional harm when faced with the possibility of never seeing their child again, causing the parents to combat the termination of their parental rights.2 Unfortunately, this only prolongs the instability for the child, as the child remains in temporary placement.3
To alleviate some of the emotional harm to children that may occur as a result of adoption, and to aid natural parents in coping with their parental rights being terminated, some states have embraced the idea of open adoption, codifying it into statutory provisions.4
edu brooklyn.kemp marquette Brooklyn Kemp is a 3L student at Marquette University Law School, Milwaukee.
Open adoption occurs when the natural parents still have ongoing contact with the child whom they have relinquished for adoption.5 Some states have recognized that achieving termination is a substantial impediment to adoption; even some parents with no realistic opportunity to receive the children back into their custody will aggressively refute termination of their rights because of their fear of never seeing the child again.6
Long-term foster care, which may be the result of a long-contested TPR petition, does not provide the stability that children need.7 Additionally, children, particularly older children, may experience difficulty in coping with permanent separation from their natural parents.8 Therefore, some states have decided that open adoption may be considered when it is in the best interests of the child.
Open Adoption in Wisconsin
Wisconsin currently does not recognize open adoption.9 The Wisconsin Supreme Court has held that promises between the natural parents and the adoptive parents that allow the natural parents to maintain contact with the child are “legally unenforceable.”10
Once parental rights are terminated in accordance with Wisconsin law, there is a “legal severance” of the relationship between the child and the natural parents.11 The adoptive parents do not need to honor any promises that permit the natural parents to continue seeing the child.12
Although the current state of the law repudiates the concept of open adoption, Wisconsin legislators may want to consider altering its current adoption scheme to allow for open adoption in certain instances – when it is in the best interests of the child.
Adoption and Foster Care in Wisconsin
According to statistics regarding children in Wisconsin, 7,091 children were placed in out-of-home care in 2015.13 Just 643 of those children were legally adopted through a public child welfare agency, while the rest either waited to be adopted or remained in the state’s care.14
According to the Wisconsin State Journal, the number of children in foster care in Wisconsin reached a ten-year high just last year, creating the need for more foster parents.15
To attempt to alleviate some of the strain on the foster care system, as well as to reduce the emotional trauma on children and their natural parents, Wisconsin could implement open adoption to help children find their forever homes.
Benefit of Open Adoption: Easing Stress on the Foster Care System
The Wisconsin foster care system is struggling to manage the masses of children brought into the system.16
Due to the surge in numbers, Coalition for Children, Youth, and Families attempted to recruit more than a thousand new foster families in 2016.17 With an estimated 350 children being removed from their homes each month, according to 2016 statistics, Wisconsin is in desperate need of foster parents.18
Terminating parental rights can be a lengthy process that only contributes to the inadequate housing available in foster care. Prior to a TPR petition being filed, a child has already been placed in foster care for about 15 months or more, depending on whether the dispositional order has been extended to beyond its initial expiration date.19 The TPR process can be lengthy as well, particularly if the natural parents choose to appeal.20 Throughout this entire time period, children remain in foster care if no relatives are found to house them.21 This reduces foster families’ abilities to take on more children.
Open adoption could help to alleviate some of the strain on the system because open adoption may, in some instances, reduce the amount of time children will be in foster care, opening up space for more children in the foster families.22
Experts opine that the greatest obstacle in finding permanent homes for children is terminating parental rights.23 Natural parents of children, particularly older children, will often feel a connection to their child and resist the termination of their rights to their child.24 Allowing the natural parents to maintain some contact with the child after adoption may give the natural parents more incentive to acknowledge their inability to care for the child and to consent to their other rights to the child being severed.25
Of course, a suitable adoptive family will need to be found, but the overall time span of terminating parental rights will be reduced.
Benefit of Open Adoption: Aiding Emotional Health of Children and Natural Parents
The masses of children being placed in foster care not only puts a strain on the system, but also takes a toll on the emotional health of the children themselves, both in the context of long-term placement in foster care and in having all ties with their natural parents severed.26
The detrimental effect of what is termed “foster care drift” is particularly injurious to children, causing developmental problems, attachment issues, and other psychological stresses.27 Foster care drift is a reality for many children, as they are moved from foster home to foster home, never receiving any consistent care or sense of stability.28
Although it is unlikely that open adoption will be the solution for all of the children in foster care, as an adoptive home may be difficult to find, it may aid some children in spending less time in foster care if their natural parents consent to termination of their rights and a permanent home can be found.
Furthermore, open adoption may benefit children and natural parents by allowing them to preserve some semblance of a relationship.29 Children, particularly older children who have developed relationships with their parents, may suffer emotional hardship when permanently separated from their natural parents.30
According to studies, parental visitation exhibited a positive correlation with high measures of intellectual and emotional development.31 Other studies indicated that children with continued contact with their natural parents felt greater security than children without any interaction with their past parents.32 Additionally, children may have siblings that are still living with the natural parents.33
Open adoption could allow children to retain their connections to their natural parents and siblings if it is in the children’s best interests.
Negatives of Open Adoption
Despite the potential benefits of open adoption, there are also disadvantages to incorporating it into the child placement scheme.
For instance, open adoption may only add to the confusion and instability that children may feel.34 Some experts believe that parental visitation could upset children.35 Additionally, the presence of their natural parents may hinder children’s ability to assimilate into a new family, especially as the children are unsure of who to view as the ultimate authority figures.36 If there are disagreements between the adoptive parents and the natural parents, this confusion and stress will only increase.37
Open adoption may also serve as a deterrent for some families considering adopting.38 The possibility of natural parents interfering with the child’s life in the adoptive family is daunting. However, in the context of infant adoptions, a study demonstrated that over “90 percent of adoptive parents were satisfied with their open adoptions more than four years after placement.”39
Although other studies indicate that adoptive parents felt uneasy about open adoption at first, they shared that they became more comfortable with it over time.40 These studies illustrate that perhaps open adoption does not pose as much of a deterrent to prospective adoptive parents as one may assume.
Perhaps the greatest obstacle to open adoption relates to logistical issues.41 In order to ensure that the open adoption is going well, that the child is transitioning smoothly into the adoptive home, and that the natural parents are not overstepping boundaries, a court will likely need to retain jurisdiction over the case.42
The terms of an open adoption may need to be enforced or modified in accordance with changed circumstances or if the child’s best interests are no longer best served by the agreement.43 Continuing jurisdiction over the case will require the use of precious judicial resources and may result in further intrusion into the adoptive family’s life, disrupting the stability of the child.44
The question arises about whether expending more resources and a greater possibility of interference is justified by the potential opportunities for more children to receive permanent homes in less amount of time.
Other Considerations for Open Adoption
When considering open adoption, Wisconsin should analyze several issues. Some of these issues include the standard to be used in open adoptions, the factors to be contemplated when determining whether open adoption is an option, and the nature of the communication between the child and the natural parents.
As for determining the appropriate standard to be used in open adoptions, some advocate for a consideration of not only the best interests of the child but also analyzing interests of the natural parents.45 However, the best interests of the child standard has always been the paramount concern and should continue to be in the open adoption context.
A TPR case is already done in two phases, the second of which is considering the best interests of the child, analyzing a variety of factors under Wis. Stat. section 48.426.46 Open adoption could be considered in this phase if the natural parents and the adoptive parents both consent. At that point, it is necessary to determine if open adoption would be in the best interests of the child according to some of the same factors used in considering whether parental rights should be terminated.47 Although courts may want to consider the bond between the child and the parents as a factor, the best interests of the child should always be the paramount concern rather than any interests of the parents.
Continued exposure to the natural parents may be harmful to the child, even as the natural parents cite their own potential emotional harm if they are not allowed to see their child again. Experts state that substance abuse is the largest contributor to the surge of foster care children in Wisconsin; terminating parental rights may in many cases be more advantageous to the child than visits or communication with a parent under the influence of illegal substances, no matter how much the parent may claim emotional harm.48
As previously mentioned, many of the factors already cited in section 48.426 could be used to decide whether open adoption should even be considered for a child. Of particular significance are the factors regarding the age of the child and the relationship between the child and natural parents.49
Some commentators believe that open adoption is more appropriate for older children. Older children have had opportunities to develop meaningful relationships with their natural parents and may experience more emotional trauma when separated.50 Infants, on the other hand, will have no recollection of their natural parents, making the severance much less traumatic.51
Lastly, the courts should consider the nature and extent of the communication between the children and the natural parents. Options may range from updates from the adoptive parents to scheduled visits with the child.52 Ideally, courts will decide the best choice on a case-by-case basis as well as relying on the wishes of the adoptive parents.
Wisconsin may benefit from implementing open adoption, especially as the numbers of foster children increase.
Although there are drawbacks to open adoption, including expending more judicial resources, there are many reasons why open adoption could be advantageous.53 It may result in children being in foster care for a shorter period of time, allowing more children to be brought into foster families and alleviating the strain on the foster care system.54
Furthermore, children and natural parents alike may avoid psychological struggles of separation when they are allowed to maintain some form of contact.55
However, the state should consider carefully whether open adoption is suitable for a specific child, using a standard that evaluates what is in the child’s best interests.56
When in the best interests of the children, open adoption may help children finally find a place to call home without taking away the foundation of their past.
This article first appeared on the Marquette University Law School Faculty Blog on May 9, 2018. The editor and author thank Jonathan P. Cook, U.W. Law School 3L and legal intern at the Legal Aid Society of Milwaukee, for his assistance in reviewing this blog.
1 Judy E. Nathan, Visitation After Adoption: In the Best Interests of the Child, 59 N.Y.U. L. Rev. 633, 635-36 (1984).
2 Candace M. Zierdt, Make New Parents but Keep the Old, 69 N.D. L. Rev. 497, 503 (1993).
3 Nathan, Visitation After Adoption: In the Best Interests of the Child, 59 N.Y.U. L. Rev. 636.
4 Cynthia E. Cordle, Open Adoption: The Need for Legislative Action, 2 Va. J. Soc. Pol'y & L. 275, 277 (1995).
6 Zierdt, Make New Parents but Keep the Old, 69 N.D. L. Rev. 505.
7 Robert H. Mnookin, Foster Care -- In Whose Best Interest?, 43 Harv. Educ. Rev. 599, 611-12 (1973).
8 Nathan, Visitation After Adoption: In the Best Interests of the Child, 59 N.Y.U. L. Rev. 635.
9 See In re Termination of Parental Rights to Darryl T.-H., 2000 WI 42, 234 Wis. 2d 606, 610 N.W.2d 475; Stickles v. Reichardt, 234 N.W. 728 (Wis.1931).
11 In re Termination of Parental Rights to Darryl T.-H., 2000 WI 42, 234 Wis. 2d 610 N.W.2d 475.
13 Wisconsin’s Children 2017, Child Welfare League of America.
15 Matthew Defour, “Number of Foster Care Children in Wisconsin on the Rise,” Wisconsin State Journal, Dec. 30 2017.
17 Bonnie Petrie, “Wisconsin Faces a Shortage of Foster Families”, WUWM Milwaukee, June 20 2016.
19 See Wis. Stat. Ann. § 48.417.
20 See Jane Thompson, NC Department of Justice, “What Happens When a TPR Order is Appealed.”
21 Cordle, Open Adoption: The Need for Legislative Action, 2 Va. J. Soc. Pol'y & L. 275.
23 Zierdt, Make New Parents but Keep the Old, 69 N.D. L. Rev. 505.
24 Id. at 507.
26 See Cordle, Open Adoption: The Need for Legislative Action, 2 Va. J. Soc. Pol'y & L. 278.
27 “Developmental Issues for Young Children in Foster Care,” American Academy of Pediatrics, Nov. 2000.
29 Nathan, Visitation After Adoption: In the Best Interests of the Child, 59 N.Y.U. L. Rev. 636.
31 David Fanshel and Eugene Shinn, Children in Foster Care: A Longitudinal Investigation, Columbia University Press, 486-87 (1978)
33 Cordle, Open Adoption: The Need for Legislative Action, 2 Va. J. Soc. Pol'y & L. 278.
34 Joseph Goldstein, Anna Freud & Albert J. Solnit, Beyond the Best Interests of the Child, New York: The Free Press, 1973.
35 Id. at 56.
36 Nathan, Visitation After Adoption: In the Best Interests of the Child, 59 N.Y.U. L. Rev. 635.
38 Laurie A. Ames, Open Adoptions: Truth and Consequences, 16 Law & Psychol. Rev. 137, 147 (1992).
39 Cordle, Open Adoption: The Need for Legislative Action, 2 Va. J. Soc. Pol'y & L. 278.
41 Zierdt, Make New Parents but Keep the Old, 69 N.D. L. Rev. 503.
44 Id. at 504.
45 Reuben Pannor and Annette Baran, Open Adoption as Standard Practice, 63 Child Welfare 245, 246 (1984).
46 See Wis. Stat. Ann. § 48.426.
48 Defour, “Number of Foster Care Children in Wisconsin on the Rise”.
49 See Wis. Stat. Ann. § 48.426.
50 Nathan, Visitation After Adoption: In the Best Interests of the Child, 59 N.Y.U. L. Rev. 636.
52 Cordle, Open Adoption: The Need for Legislative Action, 2 Va. J. Soc. Pol'y & L. 279.
53 See supra Part I and Part II.
54 See supra Part I.
55 See supra Part I.
56 See supra Part III.