Uncertain forever: The harmful impact of HB 612 on adoption

It is disturbing that a bill intended to improve our foster care system will result in more babies going into it, but that’s what HB 612 (passed by the NC House and now being considered by the NC Senate) will do if it becomes law. The bill changes adoption law significantly. It increases the risk of failed adoptions for adopting parents, deprives newborns of prompt and permanent adoptive families, creates uncertainty as to whether adoptions are ever really final, and increases the cost to taxpayers of foster care and adoption.

Independent adoptions and private agency adoptions place babies in permanent, safe, and loving families. In the overwhelming majority of these adoptions, the birth mother has decided either before or at the time of birth that she will be unable to keep her baby, the baby’s unwed father is not in the picture, and the baby is placed with the adopting family at the hospital. The time period soon after the baby’s birth is crucial for evaluating the legal rights and risks in a proposed adoption and for bonding with the baby.

Because adopting parents undertake significant emotional, medical, and financial risks and responsibilities, they need assurance that an adoption can be completed and be secure before they accept placement of a baby. But HB612 renders the adoption uncertain, at best, due to the following changes:

1. Ignoring That Time is of the Essence: Under present law, the time frame for a putative father to act like a parent to the child ends when an adoption petition is filed after the child’s birth. By then, the father had more than 9 months after conception to show tangible love and care for the child. There is a good reason for this time frame because this critical juncture is when a child needs a home.

HB 612 (Section 15.a), however, extends the time for a father to show his good faith until 3 months after birth (which is a full year after conception). So at the critical time after birth when a decision must be made about a child who needs a home, adopting parents are unable to determine the likelihood of a successful adoption. As a result of this unresolved legal risk, more children will go into foster care, and a crucial period of bonding (at least the first 3 months of the child’s life) will be lost to the child forever.

While this 3-month extension is a boon to any putative father who has been irresponsible for the first 9 months, it is a loss for the many babies who have to go into foster care instead of a loving adoptive home because of the shadow of uncertainty that HB612 casts over almost all newborn adoptions.

2. Uncertain Forever: HB 612 (Section 21.5) makes adoptions, even finalized adoptions, uncertain forever. HB 612 allows a biological father to come back into the picture at any time in the future, claim that the pregnancy or birth was concealed from him by the child’s mother, and initiate litigation to set aside the adoption and to take custody of the child.

Under existing federal health law, a mother has a right of privacy and has no obligation to tell any person that she is pregnant. But under HB 612, a man who knew of the pregnancy and did nothing (or who never even inquired as to the existence of a pregnancy or a child) could attack a finalized adoption at any time by claiming that the child’s mother concealed the child’s birth from him by not telling him.

Adoptive parents would never have an assurance that their adoption is secure and the child would never have assurance that he or she has a permanent home, although the security of attached parents and a permanent home is vital for children. What is certain is this lack of assurance will discourage adoption of children.

3. Eliminating Objective Criteria: The present law applies objective and discernible criteria that are consistent with U.S. Supreme Court precedents in determining the rights of a putative father who shows interest and responsibility for a child.

One of these requirements is that a responsible parent tangibly demonstrates love and care for a child by providing support for the child (or to the mother and child during pregnancy). Present adoption law requires a putative father to provide real support to the child to show his intent to parent the child. But HB 612 (Section 15.a) only requires a father to attempt to support the child.

“Attempt” in HB 612 is undefined, so a putative father could claim, and litigate over, all sorts of unverifiable “attempts” to provide support. These “attempts” never actually benefit the child (or the mother), but according to HB612, they somehow demonstrate good parenting. Unfortunately, a child can’t eat “attempted support.”

Many adoption attorneys and the Coalition of Licensed Private Adoption Agencies (“COLPAA”) oppose HB 612 because it would mean that there would be fewer newborn adoptions in North Carolina, as more North Carolina birth mothers either go to adoption-friendly states to place their children for adoption or give their infants to the state foster-care system.

The bottom line is that HB 612 puts the interests of a few putative fathers ahead of the interests of very many children. If HB 612 is passed, the time during which the welfare of children is paramount in the State of North Carolina will have also passed.