Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers October 1962 Judicial and Statutory Trends in the Law of Adoption Sanford N. Katz Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Contracts Commons, Family Law Commons, and the Juvenile Law Commons Recommended Citation Sanford N. Katz. "Judicial and Statutory Trends in the Law of Adoption." Georgetown Law Journal 51, (1962): 64-95. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. JUDICIAL AND STATUTORY TRENDS IN THE LAW OF ADOPTION SANFORD N. KATZ* In this analysis of the recent developments in American adoption laws, the author emphasizes the complexity of the adoption process and its tradi- tional concern for the welfare of the child. Utilizing the model adoption legislation recently drafted by the Department of Health, Education, and Welfare as a guide, Professor Katz indicates that the modern tendency is toward greater recognition of the need for safeguarding the interests of all of the parties to an adoption proceeding. INTRODUCTION Today, adoption is not only the juridical act creating certain civil rela- tions between two persons; it is also a social process. The social implica- tions are based upon the fact that the history of adoption in the United States is part of the history of child welfare and particularly of the treat- ment of the dependent child.' Because of this emphasis on the child and his well-being, in recent years the American approach has placed continually greater emphasis upon the interrelationship between the legal and the social problems involved in this area. With this in mind, this article will undertake to analyze some of the similarities and differences between adoption laws in the United States, using, as a point of reference, a single modern statute thought to be a guide to enlightened legislation-An Act for the Adoption of Children,2 drafted by the Children's Bureau of the United States Department of Health, Education, and Welfare. Throughout the course of this article reference will also be made to the Act's companion statute, An Act for Termination of the Parent-Child Relationship; 3 for the drafters of the Model Adoption Act envisioned a "package plan"--4.e., that states would adopt the Model Adoption Act and the Model Termination Act * Assistant Professor of Law, The Law School, Catholic University of America; A.B., Boston University; J.D., University of Chicago. I See Thurston, The Dependent Child (1930). For an interesting account of the treat- ment of orphans and adopted children in nineteenth century America see Clothier, Some Aspects of the Problem of Adoption, 9 Am. J. Orthopsychiatry 598 (1939). 2 Children's Bureau, U.S. Dep't of Health, Education, and Welfare, Legislative Guides for the Termination of Parental Rights and Responsibilities and the Adoption of Children 49 (1961) [hereinafter referred to as the Model Adoption Act (MAA)]. 3 Children's Bureau, U.S. Dep't of Health, Education, and Welfare, op. cit. supra note 2, at 37 [hereinafter referred to as the Model Termination Act (MTA)]. LAW Or ADOPTION together. Finally, in discussing these two acts in relation to the existing law of the different states, some attempt will be made to evaluate and compare the advantages and disadvantages inherent in the various posi- tions. By so doing, it is hoped that all the considerations, both social and legal, which surround the adoption proceeding will be brought to the attention of all those concerned with this important area of the law. PREREQUISITES TO ADOPTION Before discussing the substantive problems involved in an adoption, it seems necessary to turn our attention to the preliminary matter of pre- requisites to the adoption proceeding. Especially important are two pre- requisites which have been advocated over the years.4 These are (1) that in a nonrelative adoption, the placement must be made by a licensed social service agency, and (2) that a judicial proceeding to terminate the rights of the natural parents in the child must antedate the petition for adoption. It is in satisfying these prerequisites that the Model Adoption Act and its companion statute best exemplify the meeting of the realms of law and the social sciences. THE REQUIREMENT OF AGENCY PLACEMENTS Turning to the first of the above-mentioned requirements, section 6 of the Model Adoption Act provides that except for the related adoption5 no adoption petition will be entertained unless "the child sought to be adopted has [first] been placed for adoption with the petitioners by a child placement agency." This type of "agency placement" is to be con- trasted with a private or independent placement. That kind of placement is exemplified by the private placing of a child by a physician where the physician knows that one of his patients, an unmarried mother, for ex- ample, wants to give up her child for adoption and that another of his patients wishes to adopt a child. His arranging the adoption without resorting to a social service agency for study and investigation would be an independent adoption, or, as it is sometimes called a "private place- ment." The dangers inherent in this latter type are clear and for this reason 4 See, e.g., Poller, Parental Rights-The Need for Law and Social Action (1958); Stevenson, King, Verry & Gallagher, Current Problems in Child Adoption, 24 Postgraduate Medicine 526-28 (1958). 5 A related adoption is usually accomplished without agency involvement at the petition- ling stage. THE GEORGETOWN LAW jOURNAL [Vol. 51: p. 64 such" unregulated adoptions have been widely criticized on the grounds that they foster "black market" adoptions, that they can be arranged for profit,7 and that they can leave both the adoptive and the natural parents unprotected.' Aside from these criticisms, there is the equally important consideration that even "a lawyer who is well equipped to handle the legal aspects of adoption may not be qualified to decide many questions in- cluded in placing a child which properly lie within the realm of specialized social knowledge."9 It is this element of "specialized social knowledge" which, though an advantage of great importance, is generally lacking in independent adoptions, and which section 6 of the Model Adoption Act is designed to secure. The advantages of agency placement are also seen in an investigation of the services provided by such agencies. As intimated previously, the purpose of such services is both to promote the well-being of the child to be adopted, and also to recognize the needs and interests of both the natural and the adoptive parents. The services to the child would take the form of making a study of the child which would include his develop- ment history, his family history, and a medical and psychological examina- tion. In addition, the child would be placed in the home of a suitable adoptive family under the supervision of the agency. Similarly, with regard to the natural parents, casework help would be given to arrive at a decision regarding relinquishment of the child. For example, a social worker would discuss plans for the child, the problem of confidentiality, and preference for the religious upbringing of the child. And if the natural parent is an unmarried mother, specialized serv- ices' would be provided because of the existing social disadvantages for her and her child. Services to the adoptive parents would consist of case- work help, protection, the selection of a child suitable for them if their home can be used, and assistance in completion of legal adoption and 6 See, e.g., Reid, The Role of the Social Agency in Adoption, 20 Pediatrics 369 (1957); Stevenson, King, Verry & Gallagher, supra note 4, at 522, 524-25; Comment, Moppets on the Market: The Problem of Unregulated Adoption, 59 Yale L.J. 715, 729-30 (1950). 7 Hearings on juvenile Delinquency Before a Subcommittee of the Senate Committee on the judiciary, 84th Cong., 1st Sess. 2-5, 192-99 (1955); Laufer, Family Law, 34 N.Y.U.L. Rev. 1550, 1551 (1959). 8 There are, of course, risks in agency-placed adoptions. These risks are not legal ones, however, but simply the ordinary risks inherent in every adoption-e.g., the possibility that the child might not develop normally and might not be fully integrated into the family. Whether such risks are less in agency placements than in private placements is not certain. 9 Hearings on juvenile Delinquency, supra note 7, at 3 (remarks of Senator Kefauver). (Emphasis added.) LAW OF ADOPTION post-adoption counseling. These services would also have the valuable by-product of aiding the court in making the best disposition of the case by providing it with carefully drawn reports and recommendations pre- pared by trained social workers. The position taken by the Model Adoption Act in seeking to secure the advantages of such "specialized social knowledge" to the child and his natural and adoptive parents is also found in several existing state statutes. Thus, in Connecticut and Delaware the courts are prohibited from entering a decree of adoption for any child not related to the petitioners in some way, unless the placement has been made by a licensed child welfare agency.10 Likewise, in recent years it has been the practice in many American jurisdictions that before an adoption is decreed, the court must order a study made of the child, his natural parents, and his adoptive parents." This position, it is suggested, repre- sents a forward step in the history of American adoption laws, and a logical development of the American courts' traditional concern for the welfare of the child.