Birth mothers, adoptive parents, adoptees, and others in Oregon have formed a Coalition and drafted legislation which would assure mothers have adequate information and sufficient time to make informed decisions about adoption. The bill creates a clear path to the courthouse, eliminating confusing and conflicting legal procedures and giving mothers one year to file actions to set aside adoptions where the mothers’ consent was obtained unlawfully.
The bill requires that the child must be returned to its mother when a mother revokes her consent or a judge finds a mother’s rights were violated.
The three cases below, which I’ve written about before, illustrate how the existing laws fail mothers in Oregon, my home state.
On June 21, 2010 15 year old Ashley signed an irrevocable surrender five days after giving birth by caesarian section and under pressure from family, friends, church members, the prospective adoptive parents, and the agency social worker. The next day her mother contacted the agency to revoke Ashley’s consent but the agency would not allow it.
Through an attorney, Ashley filed a lawsuit to revoke her consent. The attorney for the adoptive parents filed an adoption petition in a neighboring county the next day, forcing Ashley to pursue legal actions in two counties. Ashley and her family lack funds to pay the attorney and the attorney cannot continue pro-bono.
Two days after Janette gave birth to her son, she signed an irrevocable surrender to an adoption agency which placed him with adoptive parents the same day. The adoptive parents were with Janette during her hospital stay and made her feel guilty if she didn’t go ahead with the “adoption plan.” The agency told her she had to sign the papers before she left the hospital. The day after she left the hospital, she called the agency, begging to have her son back. She was told to get over it and stop calling. Although Janette had an open adoption agreement, the adoptive parents limited Janette’s visits with her son after six weeks, telling her that the promised visits would not work.
It took Janette two months to find an attorney to contest the adoption based on fraud and duress. The attorney filed the action eight months after the judgment of adoption was entered, well within the one year time limit Oregon allows for filing actions to contest adoptions. The Court of Appeals ignored the one year statute and dismissed her case, holding that an 11 month delay between signing the surrender and filing the action, during which time the adoptive parents bonded with the child, was unreasonable.
Before her child’s birth, Heidi contacted an adoption agency about placing her child for adoption. The agency told her that she had the right to revoke her consent for up to six months after the child’s birth. Heidi gave birth three weeks prematurely. The next day the agency presented her with a surrender which included an irrevocability provision. The agency read the agreement to her but did not did not explain the irrevocability provision as required by statute.
The agency placed Heidi’s baby with prospective adoptive parents the following day, two days after the child’s birth. Nine days after signing the surrender, Heidi tried to revoke her consent which the agency refused to allow her to do. Meanwhile, the prospective adoptive parents commenced an action to adopt the child without providing notice of the action to Heidi. She hired an attorney who had to file actions in three counties before the attorney could find out in which county the case was pending. By the time the attorney found out, the judgment of adoption had been entered. Heidi’s attorney then filed an action to set aside the adoption which the trial court dismissed on procedural grounds. The Court of Appeals reversed, sending the case back to the trial court for further action. By this time, the child was two-and-a-half years old. Sadly, the trial court refused to set aside the adoption.
None of these mothers received counseling that would have helped them make an informed decision. None of these mothers had legal advice before signing the surrender. None of these mothers had sufficient time after the birth of their child to make an informed decision. Until their child is born and mothers have recovered from the effects of child birth, they cannot internalize the reality of what they are considering.
All of these mothers encountered significant barriers to bringing their cases to court. Once in court, confusing and conflicting procedures consumed time and money, and in Janette’s case, barred her case from being heard at all.
Mothers in Oregon have fewer rights than consumers in commercial transactions where failure of sellers to make full disclosure nullifies the transaction and purchasers may cancel the contract within a specified period of time. Defrauded consumers may sue to get their money back, and, in some, cases recover their attorney fees.
The Coalition proposes legislation requiring:
• Counseling covering the grief and loss inherent in adoption, resources which would enable mothers to nurture their children, the desirability of keeping children in the original extended family if mothers are unable to care for the children, and the benefits of continuing contact between mothers and children.
• A minimum of 192 hours after birth before mothers may consent to adoption and 30 days to revoke consent, no questions asked.
• An independent attorney, paid by a surcharge on adoption petition filling fees, to advise mothers of their legal rights before they consent to adoption.
• Clear procedures which allow one year to file an action to contest an adoption, assuring quick resolution for mothers, prospective adoptive parents, and most importantly, for children.
• Recovery of attorney fees if a mother prevails.
• Return of the child if the mother prevails.
A state representative has submitted the bill to legislative staff for final drafting. If all goes well, our bill will be introduced when the Legislature convenes in January, 2011.
The Coalition welcomes your support! If you live in Oregon, have an adoption experience in Oregon, or are affiliated with an adoption-related organization, post your name and email address as a comment and First Mother Jane will be in touch with you. FMF won’t publish your name or address.
Thanks to the E. B. Donaldson Adoption Institute (“Safeguarding the Rights and Well-Being of Birthparents in the Adoption Process,” 2006); social worker and adoptive mother Anne Babb (Ethics in American Adoption, 1999); and the Child Welfare League of America (Standards of Excellence for Adoptive Services, 2000) whose recommendations form the basis for this legislation.