This article is written by Chaithra Lakshminarayan pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from Lawsikho. 

Introduction

As it is once rightly said by a wise man, family is one of the strongest pillars of society. Erstwhile, our society was not open to adoption, religious institutions, conservative families were a few among many divisions of the society who did not accept the practice of adoption. Even today, there are not many who accept this as a blessing in disguise in various parts of the world. Open adoption provides an opportunity to the child, adoptive parents, and birth parents to communicate and stay in connection when it is appropriate and this is done considering the best interest of the adopted child. 

The author considers open adoption as a niche for development in the area of adoption although the same is quite famous offshore. The purpose of the article is to create awareness primarily about adoption, an option that helps the homeless get home. Secondly, to provide insight on open adoption agreement and lastly, to analyze the benefits and shortcomings of the open adoption agreement. 

Objective of the article

The objective of the article is primarily to approach the concept with a positive outlook. Further to analyze the significance of open adoption agreement and determine the clauses of an open adoption agreement and its applicability in India. 

This article mainly emphasizes the social and legal perspective of the open adoption agreements. The author’s view in this article is mainly to encourage the concept of adoption and identify and analyze the open adoption agreement. 

Open adoption agreement: Concept, legal background, and limitations

The concept of open adoption agreement is widely spoken in the United States of America (for brevity, “USA”). The open adoption agreement is legally enforceable in 29 states of the USA. According to the Washington State Department, “Open adoption agreements provide communication with or contact between child adoptees, adoptive parents, siblings of child adoptees and a birth parent or parents when it is appropriate and in the child adoptee’s best interests”. 

This agreement is built under the cornerstone of good faith therefore the parties to the agreement are expected to honor the contents of the agreement in letter and spirit. This agreement should not be confused with co-parenting the adopted child alongside the adoptive parents. The rights of the birth parents and their parental rights terminated on adoption. In all given scenarios, the paramount consideration is given to the adopted child under the agreement. Most often, this agreement is enforced informally however, there are few states in the USA that mandate the agreement to be written into a formal contract. 

Under one of the policies of the Washington State Department before an open adoption agreement can be considered for a dependent child, the caseworker must conduct a shared planning meeting before termination of parental rights hearing. The attendance must include the child’s caseworker and supervisor, adoption caseworker or supervisor, adopting family and attorney if family desirous, birth parent if applicable and attorney if birth parents desirous, siblings if applicable and appropriate, siblings parents if applicable, each child’s GAL or CASA as applicable, the age of the youth is 12 or older or as developmentally appropriate, the youths two identified participants other than the caseworkers, child’s attorney if one is appointed for the purpose, service providers for the child as appropriate. It is to be noted that the open adoption agreement can be considered with birth parents and/or siblings when the concerned authorities determine that post-adoption contact and/or communication is in line with the child’s best interest now and in the future. 

The law in Washington has taken into account the vivid areas that may benefit the child’s upbringing. According to which the continued contact or communication supports the child’s sense of well-being and security, need to maintain connections with biological family members, stability in the adoptive placement, desire to maintain contact. Further, it is to be taken into account that the continued contact or communication with the adopted child does not interfere with the physical safety and welfare of the child and the adopting parents. 

Before the court decides the matter and establishes an open adoption agreement, the caseworker shall have to discuss with the youth (who is of not less than 14 years or younger if developmentally appropriate) the youth’s interests in maintaining contact with birth parents and/ or known siblings. The law mandates the discussion in this regard and includes the type and amount of contact the youth feels would be beneficial and the youth’s understanding of an open adoption agreement. The law in Washington not only takes into account the interests of the child but also that of the birth parent and adoptive parents. From the interpretation of the law, it could be understood that the law mandates the child, birth parents, and adoptive parent’s understanding of the terms of an open adoption agreement, and the terms of the agreement are not enforceable unless the same is outlined in a court order. 

Under the Washington law, the caseworker shall have to conduct a shared planning meeting at least 30 days prior to a termination of parental rights hearing. The agreement must specify the type of ongoing contact and/or communication that is most appropriate for the child now and in the future. The law mandates the contact and/ or communication must include at a minimum a letter and photo one time per year and may include letters, limited visitation, phone contact, electronic correspondence, additional pictures, a physical, mailing, or email address for each legal party if correspondence is a part of the agreement. The law also states that the agreement shall be effective from the date of adoption is finalized and that any contact in the intervening period shall be at the discretion of the competent authority. The law also speaks on future adoptive parents and it clarifies that the agreement only subsists between the existing parties to the agreement and does not include the future adoptive parents. 

The shared planning meeting decision is one of the many points to be taken into consideration. If the decision after the discussion does not support an agreement with a birth parent, the caseworker shall proceed with the termination of the parental rights petition. Also, if the meeting decision does not support an agreement with a known sibling, the caseworker shall document the decision in the child’s case records and the sibling’s case record if applicable using an exception to the policy form. Prior to termination of parental rights, a letter of intent may be taken under the law with a birth parent for a child that is not placed in an adoptive home. However, the letter of intent is not a legally binding contract with a competent authority, it allows the birth parent to express his or her wishes in terms of contact or communication he or she feels is in the child’s best interests. The law also mandates the letter of intent to include a statement that competent authority shall make all reasonable efforts to locate an adoptive family that shall agree to the conditions specified under the letter of intent. 

Among all conditions of a contract, consent is the key to execution. The law of Washington State mandates prior to filing an open adoption agreement before the competent court to be signed by the adoptive family, birth parents if applicable, sibling’s attorney or GAL if applicable, GAL or CASA, child’s attorney if applicable. The signed open adoption agreement may be presented to both the Juvenile Court of the respective state at the termination hearing and the Supreme Court of the respective state at the adoption hearing. Post execution and order by the competent court it is also significant to preserve the copy of the agreement in the child’s adoption file as a document in order to avoid confusion in any future legal disputes. 

In any event, if the adoptive parents feel that the contact with the child’s birth family is no longer in the best interest of the child, the adoptive parents can go ahead and terminate the contract in toto. Under the open adoption agreement, the situation of the adoptive parents is safer and more stable when compared to the birth parents.

There are a few impediments to the execution of an open adoption agreement. Firstly, the procedure established under the law of Washington is lengthy. This may take more time and money when compared to closed adoption agreements. Secondly, the agreement seems to be more in words than in actions as it is impossible to keep circumstances as a constant figure, for example, the adoptive parents may move to a different location which breaks the communication between the child and the birth parents by which the paramount interest of the child gets compromised over real-life situations. This may hamper the mental state of the child and may break the child’s stability and approach towards maintaining relationships. 

Therefore, the adoptive parents as well as the birth parents need to understand the interest of the adopted child. The adopted parents may have to avoid entering into an open adoption agreement if the same may hamper the child’s well-being. It is also of priority to know the law of the state before entering into this agreement so the parties to the agreement must consult the professionals and understand the law, procedures involved, and the commitment that the parties are entering into. 

Conclusion 

Hence, adoption being a sensitive concept, the parties to an open adoption agreement must act sensible and take all reasonable measures keeping the best interest of the child. On analysis, the author concludes that an open adoption agreement, although a beneficial concept for the betterment of the child, maybe too soon be applied in India where the concept of adoption by itself is not understood in general. In addition, as there are no effective laws in India to regulate the same the concept may fail in toto. 

Therefore, the Women and Child Ministry and the women and child departments in respective states should appoint a committee and analyze the concept, drawbacks and come up with an action plan prior to introducing the same under the adoption law in India. Upon doing so the child’s best interest can be protected w33ith effective laws. 

References

• https://www.dcyf.wa.gov/4300-case-planning/4320-open-adoption-agreements
• https://law.justia.com/codes/washington/2013/title-26/chapter-26.33/section-26.33.295/
• https://adoption.org/open-adoption-agreements-legally-enforceable-2
• https://kmccannlaw.com/adoption-attorney/open-adoption-agreements
• https://www.adoptivefamilies.com/openness/understanding-open-adoption/
• https://spence-chapin.org/7-myths-open-adoption/

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