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The United States of America

  • Chapter
The Politics of Adoption

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 41))

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Abstract

This chapter begins by examining the social and legal contexts that shaped the development of the adoption process in the U.S. and traces the legislative steps that produced the present framework of adoption law. A consideration of the emerging characteristics of adoption practice leads into an overview of contemporary adoption law and policy. The chapter then applies the template created earlier (see, Chap. 3) to reveal the legal functions of the adoption process and concludes with some comment on the more distinctive aspects of adoption in the US. It gives particular attention to the growing tension between religious beliefs and human rights as a decision-making determinant of adoption issues. In the main, this chapter updates the progress made in this jurisdiction regarding the key issues (e.g. information rights) as presented in the 2009 book and takes account of key developments in adoption law and practice up to and including 2014.

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Notes

  1. 1.

    Estin, A.L. 2010. Families across borders: The Hague children’s conventions and the case for international family law in the United States. Florida Law Review 62: 47–108, at p. 66.

  2. 2.

    See, U.S. Bureau of Statistics at: http://www.census.gov/compendia/statab/2011/tables/11s1335.pdf

  3. 3.

    See, Center for Disease Control, National Vital Statistics, 2009.

  4. 4.

    See, The Pew Research Center. The decline of marriage and rise of new families. November 18, 2010, at: http://pewsocialtrends.org/2010/11/18/the-decline-of-marriage-and-rise-of-new-families/2/#ii-overview

  5. 5.

    See, U.S. Bureau of Statistics at: http://www.census.gov/compendia/statab/2011/tables/11s1335.pdf

  6. 6.

    See, further, The Heritage Foundation. The divorce rate is declining but still high, at: http://www.familyfacts.org/charts/120/the-divorce-rate-is-declining-but-still-high

  7. 7.

    See, statistics collated at the Centers for Disease Control and Prevention which reveal that fewer women in the United States are having children. Between 2000 and 2009, pregnancy rates for U.S. women fell by 12 %, or nearly 6.4 million pregnancies. The pregnancy rate in 2013 was the lowest it had been in 12 years. See, further, at: www.cdc.gov/nchs/data/databriefs/db136.htm

  8. 8.

    See, The Independent Review, 5th January 2005, as cited by Hilpern, K., in her feature article ‘The Daddy of All Game Shows’, at p. 3.

  9. 9.

    See, for example: Jones, J., ‘Adoption Experiences of Women and Men and the Demand for Children to Adopt by Women 18–44 years of age in the United States, 2002’, National Centre for Health Statistics, Vital and Health Statistics, 23(27), 2008; Chandra, A. et al. 1999, May 11. Adoption, adoption seeking, and relinquishment for adoption in the United States. National Centre for Health Statistics, Advance Data No. 306.

  10. 10.

    See, U.S. Bureau of Labor Statistics at: http://www.census.gov/compendia/statab/2011/tables/11s1335.pdf

  11. 11.

    410 U.S. 113 (1973). It has been estimated that third party adoptions declined from a high of 89,200 in 1970 to 49,700 in 1974 and 47,700 in 1975.

  12. 12.

    (99–830) 530 U.S. 914 (2000) 192 F.3d 1142.

  13. 13.

    See, the report ‘Abortion Incidence and Service Availability in the United States, 2011’, Guttmacher Institute, 2014.

  14. 14.

    537 A 2d 1227 NJ (1988).

  15. 15.

    851 P.2D 776 (1993).

  16. 16.

    Author acknowledges with thanks the advice of David Smolin on this matter (note to author, 27.11.2014).

  17. 17.

    For example, Planet Hospital in California—the world’s largest medical tourism country—expected to send at least 100 couples to India in 2008 for surrogacy, up from 25 in 2007. In contrast to the estimated $50,000 spent in the United States, surrogacy in India typically costs $10,000–$12,000.

  18. 18.

    See, for example, Smerdon, U. 2008. Crossing bodies, crossing borders: International surrogacy between the United States and India. Cumberland Law Review 39: 15–85.

  19. 19.

    See, United States of America v. Mark Jonathan Newton, United States District Court, 1: 12-CR-0121-SEB-DKL, per Barker J (25th June 2013) 8.

  20. 20.

    Department of Justice, ‘Hogsett Announces Charges Against Four Men in International Child Exploitation Conspiracy’ (Press Release, 28th June 2013) at: http://www.usdoj.gov/usao/ins

  21. 21.

    See, Selwyn, J., and W. Sturgess. 2002. Achieving permanency through adoption: Following in US footsteps. Adoption & Fostering 26(3). London: BAAF, at p. 40.

  22. 22.

    Ibid, citing National Adoption Information, 2001.

  23. 23.

    Ibid, citing Children’s Bureau, 2001.

  24. 24.

    Ibid, citing Adoption and Foster Care Analysis and Reporting System, 1998–1999.

  25. 25.

    See, General Accounting Office, 1989 as cited by McFadden, E. 1998. Kinship care in the United States. In Adoption & Fostering. London: BAAF. 22(3): 8.

  26. 26.

    The number of foster homes available decreased from 137,000 in 1984 to 100,000 in 1989. By 1993, kinship care accounted for approximately one-third of placements in New York and about one-half in Illinois.

  27. 27.

    See, AFCARS, ‘Trends in Foster Care and Adoption’, 2007.

  28. 28.

    See, further, AFCARS, at: http://www.acf.hhs.gov/sites/default/files/cb/trends_fostercare_adoption2012.pdf

  29. 29.

    See, Katz, S., ibid. at p. 294.

  30. 30.

    In 1980, the National Council For Adoption (NCFA) was formed to promote adoption as a positive option, provide and disseminate information on adoption, review and perform adoption research and promote excellence in adoption standards.

  31. 31.

    See, Vandivere, S., K. Malm, and I. Radel. ‘Adoption USA: A Chartbook’ based on the 2007 nationwide survey of adoptive parents conducted by the National Survey of Children’s Health, US Dept of Health and Human Services (Office of the Asst Secretary for Planning and Evaluation), Washington, DC, 2009.

  32. 32.

    See, further, at: http://www.statisticbrain.com/adoption-statistics/

  33. 33.

    See, further, Stolley, K.S. 1993, Spring. Statistics on adoption in the United States. In The future of children: Adoption, at pp. 26–27.

  34. 34.

    See, Hollinger, J.H. 2005. Adoption law and practice, vol. 1. New York: Matthew Bender/Lexis-Nexis update.

  35. 35.

    The Intercountry Adoption Act 2000, s 303 (42 U.S.C. § 14932).

  36. 36.

    See, further, data published by the Performance and Innovation Unit (U.K.), 2000.

  37. 37.

    See, Zill, N. 2011, May. Adoption from foster care: Aiding children while saving public money. The Brookings Institute, at: http://www.brookings.edu/research/reports/2011/05/adoption-foster-care-zill

  38. 38.

    See, the Children’s Bureau report (1999) which noted that one half of all children adopted from foster care were adopted by their foster parents and that 86 % of those received adoption subsidies. Note that some states have legislation that expressly prohibits lesbians or gays from adopting children in foster care.

  39. 39.

    See, Polier, S. 1959. Amendments to New York’s adoption law: The permanently neglected child. Child Welfare 38: 2.

  40. 40.

    See, Pennypacker, S. 1961. Reaching decisions to initiate court action to free children in care for adoption. Child Welfare 40: 1; also Polier, S. 1958. Parental rights. New York: Child Welfare League of America.

  41. 41.

    See, The Evan B Donaldson Adoption Institute. 2004. What’s working for children: A policy study of adoption stability and termination, at: http://www.njarch.org/images/Disruption_Full%20Report_Evan_B_Donaldson.pdf

  42. 42.

    See, for example, Reno v. Flores, 507 U.S. 292, 303–304 (1993); Santosky v. Kramer, 455 U.S., at 766; Parham, 442 U.S., at 605; and Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

  43. 43.

    See, AFCARS, ‘Trends in Foster Care and Adoption’ 2013, op. cit.

  44. 44.

    See, AFCARS, annual reports, op cit. This data source reveals that of 2007: about 661,000 children were adopted from foster care (37 % of all adopted children); 153,000 (23 %) were adopted by relatives; and most (54 %) had special health care needs.

  45. 45.

    Ibid, 2007, which reveals the following figures for annual adoptions: 2000, 51,000; 2001, 51,000; 2002, 53,000; 2003, 50,000; 2004, 52,000; 2005, 52,000; 2006, 51,000; 2007, 53,000; 2008, 55,000; reaching 57,000 in 2009. Thereafter there has been a decline with 52,000 adopted in 2012 (when the total number in care and the number designated as ‘waiting for adoption’ were the lowest for at least 10 years).

  46. 46.

    Ibid. The care population, however, decreased annually during the same period from 524,000 in 2,002 to 511,000 in 2005 and to 397,000 in 2012.

  47. 47.

    See, Hollinger, J.H., Adoption Law and practice, op. cit.

  48. 48.

    See, further, Buckwalter-Poza, R. 2014. ‘America’s unseen export: Children, most of them black. Pacific Standard, 24th June, 2014, at: http://www.psmag.com/navigation/politics-and-law/outgoing-adoption-americas-unseen-export-children-black-84084/

    Also, see, Selman, P. 2012. The rise and fall of intercountry adoption in the 21st century: Global trends from 2001 to 2010. In Intercountry adoption: Policies, practices, and outcomes, ed. J. Gibbons and K. Rotabi. Farnham: Ashgate.

  49. 49.

    See, State News Service. 2006. State department issues final rules on intercountry adoption. Washington, DC, February 16, 2006 as cited by Mandell, E.R. 2007. Adoption. New Politics X1(2): 42.

  50. 50.

    See, Centre for Adoption Policy at http://www.adoptionpolicy.org/facts.html

  51. 51.

    See, Vandivere, S., et al., op cit at p. 7.

  52. 52.

    Ibid. (2005 update).

  53. 53.

    See, for example, Swarns, R.L. 2013. American adoptions from abroad at their lowest level in years. The New York Times, January 24, 2013.

  54. 54.

    See, Immigration and Nationality Act 2009.

  55. 55.

    Completion of Form I-604 Report on Overseas Orphan Investigation being required in all such cases.

  56. 56.

    The author acknowledges the advice of Joan Hollinger on this matter. See, further, Hollinger, J.H., Adoption law and practice, Chapter 11, for provisions dealing with the new Hague Convention Adoptee requirements….1019b][G] Matthew Bender, Lexis-Nexis, New York (2008 update).

  57. 57.

    Between 2004 and 2010, a total of 21,049 children were adopted from Russia. This flow ceased when Russia terminated its intercountry agreement with the U.S. Note that in January 2013 the ECtHR registered complaints filed by four American families challenging the so-called Dima Yakovlev law (named after Dima Yakovlev, a two-year-old Russian boy who died after his adoptive American father left him in the car for nine hours on a hot summer day), which terminated the 2011 US/Russia Adoption Agreement and prohibits US families from adopting Russian orphans. In fact it is estimated that a total of 14 Russian children have been killed by their U.S. adopters.

  58. 58.

    The Donaldson Adoption Institute in New York says costs have risen; the cost of an international adoption sometimes exceeds $50,000. See, further, at: http://adoptioninstitute.org

  59. 59.

    See, Estin, A., Families across borders: The Hague children’s conventions and the case for international family law in the United States, at p. 88. See, further, at: http://www.law.uiowa.edu/documents/Estin_BOOK.pdf

  60. 60.

    Note that Hayes compared domestic placements by public agencies and by ICA in the US in 2006, and discovered that intercountry adoptees were much younger than domestic adoptees: 42 % under 1 year; 84 % of ICAs under 4 years as opposed to 46 % from public (citing statistics from US Dept of Homeland Security 2007 and US Dept of Health and Human Services 2008).

  61. 61.

    See, The Donaldson Adoption Institute. 2013. A changing world: Shaping best practices through understanding of the new realities of intercountry adoption. New York: Donaldson Adoption Institute.

  62. 62.

    See, Davis, M.A. 2011. Children for families or families for children: The demography of adoption behaviour in the United States, The Netherlands: Springer, at p. 22.

  63. 63.

    See, for example, Kreider, R.M. 2003, August. Adopted children and stepchildren: 2000. Maryland, U.S.: U.S. Census Bureau, Census 2000 special reports. The full Report is available at: www.census.gov/prod/2003pubs/censr-6.pdf

  64. 64.

    See, Vandivere, S., et al., op cit at pp. 6–7.

  65. 65.

    Hollinger, J.H., Adoption law and practice, op. cit.

  66. 66.

    Ibid.

  67. 67.

    For example Arkansas, Alaska, Montana, New Mexico, New York, North Dakota, Ohio and Wisconsin; as cited by Bridge, C. and Swindells, H., op. cit., 2003 at p. 300.

  68. 68.

    See, Katz, S. 2001. Dual systems of adoption in the United States. In Cross currents: Family law and policy in the United States and England, ed. S. Katz, J. Eekelaar, and M. Maclean. Oxford: Oxford University Press.

  69. 69.

    Ibid, at pp. 280–281.

  70. 70.

    Ibid, at p. 281.

  71. 71.

    In 2000–2001, for example, it was estimated that 45 % of adoptions were initiated by private arrangement. See, further, U.S. Child Welfare Information Gateway: ‘How Many Children Were Adopted in 2000 and 2001?’ at: https://www.childwelfare.gov/pubs/s_adopted/s_adopteda.cfm

  72. 72.

    See, Laws, R. 2001. The history, elements and ongoing need for adoption support. In Clinical and practice issues in adoption, ed. V. Groza and K.F. Rosenberg. Westport: Greenwood, at p. 85, citing Brodzinsky, 1990.

  73. 73.

    See, Barth, R.P., R. Yoshikami, R.K. Goodfield, and M.L. Carson. 1998. Predicting adoption disruption. Social Work 33: 227–233 for evidence that post-adoption subsidies mitigate adoption disruption. Note that under Title IV-E of the Social Security Act, funding is available from federal government specifically for adopters of children with special needs.

  74. 74.

    See, further, The U.S. Dept of Health & Human Services, Children’s Bureau, at: http://www.acf.hhs.gov/programs/cb/focus-areas/adoption

  75. 75.

    See, Mullender, M. (ed.). 1991. Open adoption. London: BAAF.

  76. 76.

    The following states will enforce open adoption contracts: California, Indiana, Minnesota, Nebraska, New Mexico, Oregon, and Washington.

  77. 77.

    See, Vandivere, S., et al., op cit at p. 45.

  78. 78.

    Some states have explicitly legislated to that effect, including: Alabama, Alaska, Arizona, Hawaii, Idaho, Montana, New Jersey, New York and the District of Columbia.

  79. 79.

    852 P 2d 44 Haw (1993); though this was not a ‘same-sex’ case.

  80. 80.

    See, E.N.O. v. L.M.M. 711 NE 2d 886 Mass. (1999) at p. 891.

  81. 81.

    See, Hollinger, J.H., Adoption law and practice, op. cit.

  82. 82.

    See: Colorado, In the Matter of the Adoption of T.K.J., 931 P.2d 488) (Colo. Ct. App. 1997); Nebraska, B.P. v. State (In re Luke), 263 Neb. 365; 640 N.W.2d 3742 (2002) but see Russell v. Bridgens, 264 Neb. 217; 647 N.W.2d 56 (2002) (Nebraska courts should recognize second parent adoption granted in another state if that state had subject matter jurisdiction to approve the adoption under its laws even if the adoption could not have been approved originally in Nebraska); Ohio, In re Adoption of Jane Doe, 130 Ohio App. 3d 288, 719 N.E.2d 1071)(1998); and Wisconsin, In re Angel Lace M., 516 N.W.2d 678 (Wis. 1994). Cited in Hollinger, J.H., Adoption law and practice, op. cit.

  83. 83.

    See, further, at: http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf

  84. 84.

    See, Brodzinsky, D.M., et al. 2002. Adoption agency perspectives on lesbian and gay prospective parents: A national study. Adoption Quarterly 5(3): 5–23. Also, see, the Donaldson Adoption Institute which reports that in 1999–2000, 60 % of the public and private adoption agencies responding to its survey accepted applications from prospective adoptive parents regardless of their sexual orientation. At least 40 % of these agencies had placed children with gay or lesbian adoptive parents.

  85. 85.

    See, for example, Fanshel, D. 1972. Far from the reservation: The transracial adoption of American Indian children. Maryland, U.S.: The Scarecrow Press.

  86. 86.

    See, Loving v. Virginia 1967.

  87. 87.

    See, Vandivere, S., K. Malm, and I. Radel. ‘Adoption USA: A chartbook’ based on the 2007 nationwide survey of adoptive parents conducted by the National Survey of Children’s Health, US Dept of Health and Human Services (Office of the Asst Secretary for Planning and Evaluation), Washington, DC, 2009 at pp. 5–6.

  88. 88.

    See, Stehno, S. 1990. The elusive continuum of child welfare services: Implications for minority children and youth. Child Welfare 69: 551–562. Also, Tatara, T. 1993. Characteristics of children in substitute and adoptive care: A statistical summary of the VCIS national child-welfare database. Washington, DC: American Public Welfare Association.

  89. 89.

    In Chicago, an initiative to address this problem was launched in 1981 by the Rev. George M. Clements when he established the “One Church, One Child” movement to recruit black adoptive parents for black children through the church network.

  90. 90.

    See, further: Buckwalter-Poza, R. 2014. America’s unseen export: Children, most of them black. Pacific Standard, June 24, 2014; and Payne, E. 2014. Florida moms, fearing racism, sending babies to Canada for adoption. OttawaCitizen.com, July 21, 2014.

  91. 91.

    See, a 2010 report by New York University, The London School of Economics, and the California Institute of Technology, This report found that a non-African-American baby is seven times more likely to “attract the interest and attention of potential adoptive parents than an African-American baby”.

  92. 92.

    See, Bartholet, E. 1995. Race, separatism in the family: More on the transracial adoption debate. Duke Journal of Gender Law & Policy 2: 99–105, at: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1213&context=djglp

  93. 93.

    The National Association of Black Social Workers, for example, campaigns against transracial adoptions, arguing that such a practice amounts to “racial genocide.” But see, ‘Limits on Transracial Adoption Hurt Children,’ The New York Times, Editorials/Letters (8th December 1993) at: http://www.law.harvard.edu/faculty/bartholet/pdfs/hurt.pdf

  94. 94.

    See, for example: the Hana Williams case at: http://www.slate.com/authors ; and the Huang case in 2013, where an American couple were convicted of killing their 8-year-old adopted African daughter at: http://innocenceprojectsa.com/multimedia-archive/the-huang-case-a-tragedy-in-the-middle-east/

  95. 95.

    See, for example, the Evan B. Donaldson Adoption Institute report, Finding families for African-American children: The role of race and law in adoption from foster care, May 2008, which depicts transracial adoption as inadequate to meet the needs of many African-American and other minority children in foster care and calls for an end to the policy of not allowing race to delay or deny placements, as mandated under the Multiethnic Placement Act 1994, and the Interethnic Adoption Provisions of the Small Business Job Protection Act 1996.

  96. 96.

    See, further, at: https://www.childwelfare.gov/pubs/twenty.cfm

  97. 97.

    See, Katz, S., ‘Dual systems of adoption in the United States’, op. cit. at p. 285. But also see (as cited by Katz) the positive findings of Somit, J. 1988. Independent adoptions in California: Dual representation allowed. In Hollinger, J.H., Adoption law and practice: Vol. 1. 1998 Supplement. New York: Matthew Bender, para 5.01–5.09.

  98. 98.

    The States that permit enforceable contracts include Arizona, California, Connecticut, Florida, Indiana (for children over age 2), Louisiana, Maryland, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, Oklahoma, Oregon, Rhode Island, Texas, Vermont (stepparent adoptions only), Washington, and West Virginia.

  99. 99.

    See, U.S. Department of Health and Human Services, Children’s Bureau, Administration on Children, Youth and Families, Administration for Children and Families, at: https://www.childwelfare.gov/pubs/f_postadoption.cfm

  100. 100.

    See, Hollinger, J.H. 2010. --> Chapter 11: -->Intercountry adoption: Legal requirements and practical considerations. In Adoption law and practice. New York: LexisNexis (as updated).

  101. 101.

    Ibid, citing: Tepper, T.S., Parents network for the post-institutionalized child. www.hagueregs.org/History%20Stuff/April2Meeting.htm. Last modified 24 Oct 2001.

  102. 102.

    Ibid, citing: http://www.childwelfare.gov/adoption/postadoption/; International Adoptions-Financial Resources, at: www.pueblo.gsa.gov/cic_text/children/adoption/interb.html

  103. 103.

    See, for example, Twohey, M., 2013. Americans use the internet to abandon children adopted from overseas. Reuters, Sep 9, 2013. Note also the State Department’s Annual Intercountry Adoption Report for FY 2013 which indicates that there were 88 cases of disruptions and dissolutions involving 92 intercountry adoptees (see, further, at: http://adoption.state.gov/content/pdf/fy2013_annual_report.pdf).

  104. 104.

    Pennsylvania sealed original birth certificates in 1984 and Alabama in 1991.

  105. 105.

    See, Bastard Nation: The Adoptee Rights Organisation. A history of sealed records in the U.S. The Basic Bastard, 2003. www.bastards.org.

  106. 106.

    Following the decision in ALMA Society Inc. v. Mellon 601 F2d 1238 (2nd Cir), cert denied, 100 S Ct 531 (1979); as cited by Katz, S., ‘Dual Systems of Adoption in the United States’, op. cit. at p. 292. The Supreme Court then held that the adult adopted applicants did not have a right of access to identifying information.

  107. 107.

    See, for example, Meyer v. Nebraska 262 US 390 (1923), Stanley v. Illinois 405 US 645 (1972) and Wisconsin v. Yoder 406 US 205 (1972).

  108. 108.

    See, for example, Troxel v. Granville (99–138) 530 U.S. 57 (2000) 137 Wash. 2d 1, 969 P.2d, affirmed.

  109. 109.

    Ibid, per Stevens J.

  110. 110.

    Essentially, the following U.S. Constitution and federal statutes are of paramount importance: the Indian Welfare Act (25 U.S.C., Chap. 21); the Adoption Assistance and Child Welfare Act 1980 (42 U.S.C., § 620); the Child Abuse Prevention and Treatment and Adoption Reform Act (42 U.S.C., Chap. 67); and the CRS annotated Constitution. The Code of Federated Regulations (45 C.F.R., Part 1356) also plays an important role.

  111. 111.

    Safe haven laws were a response to public concern regarding the abandonment of babies: in 1992 65 infants were found abandoned (57 live and 8 dead) and in 1997 out of 3,880,894 births in the U.S. (including 18,507 neonatal deaths) only 105 newborns were abandoned (72 live and 33 dead).

  112. 112.

    See, Bastard Nation: The Adoptee Rights Organisation. Legalized anonymous infant abandonment/Safe Haven laws. The Basic Bastard, 2003. www.bastards.org.

  113. 113.

    42 USC section 675 (E). See, further, Chap. 2.

  114. 114.

    42 USC section 671 section 15.

  115. 115.

    A ‘legal guardianship’ order bears a strong resemblance to the English ‘special guardianship’ order. Both offer a strategic half-way-house between long-term foster care and adoption that does not require the extinguishing of birth parents rights.

  116. 116.

    Federal funds were used as an incentive to encourage states to expedite the adoption of children in the public care system: states would receive <Footnote ID=”Fn116”><Para ID=”Par211”>Federal funds were used as an incentive to encourage states to expedite the adoption of children in the public care system: states would receive $ 4,000 for every child adopted beyond their best year’s total; an extra $ 4,000 for every child aged nine and older; $ 2,000 for every special needs child adopted above the baseline year; and additional federal funds if they exceeded their prior number of completed adoptions.</Para></Footnote>#x2009;4,000 for every child adopted beyond their best year’s total; an extra <Footnote ID=”Fn116”><Para ID=”Par211”>Federal funds were used as an incentive to encourage states to expedite the adoption of children in the public care system: states would receive $ 4,000 for every child adopted beyond their best year’s total; an extra $ 4,000 for every child aged nine and older; $ 2,000 for every special needs child adopted above the baseline year; and additional federal funds if they exceeded their prior number of completed adoptions.</Para></Footnote>#x2009;4,000 for every child aged nine and older; <Footnote ID=”Fn116”><Para ID=”Par211”>Federal funds were used as an incentive to encourage states to expedite the adoption of children in the public care system: states would receive $ 4,000 for every child adopted beyond their best year’s total; an extra $ 4,000 for every child aged nine and older; $ 2,000 for every special needs child adopted above the baseline year; and additional federal funds if they exceeded their prior number of completed adoptions.</Para></Footnote>#x2009;2,000 for every special needs child adopted above the baseline year; and additional federal funds if they exceeded their prior number of completed adoptions.

  117. 117.

    See, Woodhouse, B., op. cit. at p. 375.

  118. 118.

    See, Hollinger, J.H. 1998–2005. Adoption law and practice, New York: Lexis Publishing.

  119. 119.

    Note to author (12.07.08).

  120. 120.

    455 US 755 (1982).

  121. 121.

    See, Woodhouse, B. 2000. The adoption and safe families act: A major shift in child welfare law and policy. In The international survey of family law, 2000 edition, ed. A. Bainham. Bristol: Family Law, at p. 380 citing in support Gelles, R. 1996. The book of David: How preserving families can cost children’s lives. New York: Basic Books.

  122. 122.

    See, U.S. Department of Health and Human Services. 1997. Adoption 2002: A response to the presidential executive memorandum on adoption. Washington, DC: U.S. Department of Health and Human Services.

  123. 123.

    See, Senator Rockefeller of West Virginia, 143 Cong. Rec. 12199.

  124. 124.

    Adoptive Couple v. Baby Girl 12–399 (2013); 398 S.C. 625, 731 S.E.2d 550 (2012). See, 2013 U.S. LEXIS 4916, 2013 WL 3184627.

  125. 125.

    See, further, at: http://law.capital.edu/adoption/#sthash.r0UHEGH0.dpuf

  126. 126.

    Intercountry Adoption Act of 2000, codified at 42 U.S.C. sec. 14901 et seq. The Hague Convention was expected to be ratified by the U.S. by the end of 2004, then by 2007.

  127. 127.

    See, Hollinger, J.H. 2008. Adoption law and practice. New York: Lexis Publishing, at paras 002–11.

  128. 128.

    Ibid.

  129. 129.

    See, for example, Lindley for Lindley v. Sullivan, 889 F.2d 124 (7th Cir. 1989).

  130. 130.

    See, Woodhouse, B. The adoption and safe families act: A major shift in child welfare law and policy, op. cit. at p. 383.

  131. 131.

    71 Mass (5 Gray) 535, 537 (1856).

  132. 132.

    See, Department of Health and Human Services. 1999. Adoption 2002: The president’s initiative on adoption and foster care; Guidelines for public policy and state legislation governing permanence for children.

  133. 133.

    See, further, at: https://www.childwelfare.gov/pubs/factsheets/foster.pdf#page=3&view=Children%20Entering,%20In,%20and%20Exiting%20Care

  134. 134.

    See, Quiroz, P.A., 2007.

  135. 135.

    See, for example, the Ohio case of Burr v. Board of County Commissioners 491 NE2d 1101 (Ohio 1986) where the tort of ‘wrongful adoption’ first attracted judicial notice and Meracle v. Children’s Service Society (1986) where an agency was prosecuted for willful negligence. Also, see, Blair, D.M. 1998. Liability of adoption agencies and attorneys for misconduct in the disclosure of health-related information. In Adoption law and practice, vol. 2, ed. J.H. Hollinger and D.W. Leski. New York: Lexis Publishing, at para 16.01–16.08.

  136. 136.

    See, for example, the Donaldson Institute at: https://www.facebook.com/adoptioninstitute

  137. 137.

    See, the Intercountry Adoption Act 2000, s 3 (42 U.S.C. § 14902).

  138. 138.

    See, See, Hollinger, J.H. 2008. Chapter 11. In Adoption law and practice. New York: Lexis Publishing (as updated).

  139. 139.

    See, above, under ‘Emerging Characteristics of Adoption Practice’.

  140. 140.

    See, further, ‘Stalled adoption program in Guatemala leaves families in Limbo’. New York Times, December 8, 2012.

  141. 141.

    See, 8 U.S.C. § 1431 (1994), as amended by Child Citizenship Act 2000. Under 8.U.S.C. § 1101(b)(1)(F), an “orphan” for purposes of federal immigration law is a child who is under sixteen years of age at the time a petition on the child’s behalf is filed by a U.S. citizen to classify the child as the citizen’s “immediate relative.” The child’s birth parents both have to be deceased, or, if alive, must have disappeared, abandoned, deserted, or otherwise been separated from the child. A child may also qualify as an orphan if there is a “sole or surviving parent [who] is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption.” A sibling of an eligible orphan child may also satisfy the section 1101(b)(1)(F) criteria under certain circumstances (see, further, Hollinger, J.H., op cit).

  142. 142.

    See, 8 U.S.C. § 1101(b)(1)(G).

  143. 143.

    The parental right to custody has been deemed a fundamental right by the U.S. Supreme Court. See, for example, Santosky v. Kramer 455 U.S. 745 (1982).

  144. 144.

    See, for example, Parham v. J. R., 442 U.S. 584, 602 (1979); Casey, 505 U.S., at 895; and Santosky v. Kramer 455 U.S. (1982) at 759.

  145. 145.

    See, Hollinger, J.H., Chapter 11, op cit.

  146. 146.

    405 US 645 (1972) at f/n 9 where in reference to ‘custody or adoption proceedings’ it is stated that:

    Extending opportunity for hearing to unwed fathers who desire and claim competence to care for their children creates no constitutional or procedural obstacle to foreclosing those unwed fathers who are not so inclined (p. 657).

    As cited by Katz, S. 2001. Dual systems of adoption in the United States. In Cross currents: Family law and policy in the United States and England, ed. S. Katz, J. Eekelaar, and M. Maclean. Oxford: Oxford University Press, at p. 279. For further Supreme Court rulings positively affecting the locus standi of unmarried fathers see, Quilloin v. Walcott, 434 US 246 (1978), Caban v. Mohammed, 441 US 380 (1979) and Lehr v. Robertson, 43 US 248 (1983).

  147. 147.

    463 U.S. 248 (1983).

  148. 148.

    Ibid at p. 260, citing Caban v. Mohammed, 441 U.S. 380, 397 (1979).

  149. 149.

    See, for example, Caban v. Mohammed 441 US 380 (1979).

  150. 150.

    12–399 (2013); 398 S.C. 625, 731 S.E.2d 550 (2012). See, 2013 U.S. LEXIS 4916, 2013 WL 3184627.

  151. 151.

    Note that some states, such as Florida, have legislation that expressly prohibits lesbians or gays from adopting children in foster care: see, for example, Lofton v. Sec’y Dept Children & Family Services 358 F.3d 804 (11th Cir. 2004).

  152. 152.

    As identified by the Williams Institute of the UCLA School of Law in 2013, these states include Alaska, Iowa, Kansas, Kentucky, Maine, Nebraska, New Hampshire, North Dakota, Ohio, West Virginia, Wisconsin, and Utah.

  153. 153.

    Adar v. Smith, 622 F.3d 426 (5th Cir. 2010). The appeals rested on a claim that the Full Faith and Credit Clause and Equal Protection Clause of the U.S. Constitution binds states to respect and uphold the judgments issued by courts in other states.

  154. 154.

    For example, New York: see, 18 N.Y.C.R.R. § 421.16[h][2].

  155. 155.

    See, for example, the Christian Alliance for Orphans which, as stated on its website, “unites more than 140 respected Christian organizations and a national network of churches. Working together, our joint initiatives inspire and equip Christians to reflect God’s heart in caring for orphans in adoption …” at: http://www.christianalliancefororphans.org

    Also, see, Joyce, K. 2013. The evangelical orphan boom. The New York Times, September 21, 2013 and Joyce, K. 2013. The child catchers: Rescue, trafficking, and the new gospel of adoption. Public Affairs.

  156. 156.

    See, further, Joyce, K., ‘The tragic death of Ethiopian Adoptee Hana Williams, and how it could happen again’, at: http://www.slate.com/articles/double_x/doublex/2013/11/hana_williams_the_tragic_death_of_an_ethiopian_adoptee_and_how_it_could.html posted on Nov 11, 2013. Also, see, Washington’s Department of Social and Health Services (Office of the Children’s Ombudsman) which published a report on the ‘Severe Abuse of Adopted Children’ in September 2012, at: http://www.dshs.wa.gov/pdf/ca/SevereAbuseofAdoptedChildrenReport2012.pdf

  157. 157.

    A White Anglo-Saxon Protestant (WASP) is a term sometimes used in reference to persons of a more privileged and religious upbringing, usually English or of that cultural background. It can be used in a derogatory fashion, but not in this instance.

  158. 158.

    The site on Yahoo was named ‘Adopting-from-Disruption’, and had been live for 6 years before it and five similar sites were shut down by Yahoo in 2013.

  159. 159.

    See, further, Twohey, M. 2013. The child exchange: Inside America’s underground market for adopted children. Reuters, 9th September 2013, at: http://www.reuters.com/investigates/adoption/#article/part1

  160. 160.

    Colorado, Connecticut, Delaware and Massachusetts.

  161. 161.

    See, Hollinger, J.H. Overview of contemporary challenges to state adoption laws, at p. 4.

  162. 162.

    Ibid.

  163. 163.

    See, Curtis v. Curtis 71 Mass (5 Gray) 535, 537 (1856); cited by Katz, S., ‘Dual Systems of Adoption in the United States’, op. cit. at p. 283.

  164. 164.

    455 U.S. 745 (1982).

  165. 165.

    Hollinger, J.H., Adoption law and practice, op. cit.

  166. 166.

    See, Selwyn, J., and W. Sturgess. 2002. Achieving permanency through adoption: Following in US footsteps. Adoption & Fostering. London: BAAF, 26(3), at p. 75.

  167. 167.

    Note that under the Code of Federal Regulations (CFR) Title 8, § 320 et seq: “If a foreign adoption of an orphan was not full and final, was defective, or the unmarried U.S. citizen parent or U.S. citizen parent and spouse jointly did not see and observe the child in person prior to or during the foreign adoption proceedings, the child is not considered to have been fully, finally and completely adopted and must be readopted in the United States. Readoption requirements may be waived if the state of residence of the United States citizen parent(s) recognizes the foreign adoption as full and final under that state’s adoption laws.”

  168. 168.

    Including, for example, Alaska, Arkansas, Connecticut, Montana, New Mexico, New York, North Dakota, Ohio and Wisconsin.

  169. 169.

    See, for example, Suster v. Arkansas Dep’t of Human Services, 314 Ark. 92, 858 S.W.2d 122 (1993).

  170. 170.

    See, further, Child Welfare Information Gateway, ‘Finding and Using Postadoption Services’, Department of Health and Human Services, Children’s Bureau, Washington, DC, U.S., 2012.

  171. 171.

    See, further, at: http://www.irs.gov/Individuals/Adoption-Benefits-FAQs; http://www.adoption101.com/adoption_tax_credit.html

  172. 172.

    The author acknowledges the advice of Joan Hollinger on this matter.

  173. 173.

    See, Welfare Information Gateway. 2012. Access to adoption records. Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau, at: https://www.childwelfare.gov/systemwide/laws_policies/statutes/infoaccessap.cfm

  174. 174.

    Hollinger, J.H., Adoption law and practice, op. cit.

  175. 175.

    See, further, Child Welfare Information Gateway, at: https://www.childwelfare.gov/systemwide/laws_policies/statutes/infoaccessap.cfm

  176. 176.

    See, for example, In re J.N.H., 2009 Colo. App. LEXIS 569 (Colo. Ct. App. Apr. 16, 2009).

  177. 177.

    Nations currently facilitating access to records include the U.K., Sweden, The Netherlands, Germany, South Korea, Mexico, Argentina and Venezuela.

  178. 178.

    Delaware passed a disclosure veto law in 1998.

  179. 179.

    943 F. Supp. 886, 893–94 (M.D. Tenn. 1996).

  180. 180.

    164 Or. App. 543, 993 P.2d 833, 834 (1999).

  181. 181.

    See, further, Child Welfare Information Gateway, ‘Collection of Family Information About Adopted Persons and Their Birth Families’ at: https://www.childwelfare.gov/adoption/search/records.cfm

    Also, see, Welfare Information Gateway. 2012. Access to adoption records. Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau.

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    Kerry O’Halloran

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O’Halloran, K. (2015). The United States of America. In: The Politics of Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 41. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9777-1_8

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