Mothers’ Rights

Right to Independent Legal Counsel

Position

Origins-USA, Inc. proclaims that every parent has the right to independent legal counsel to advise them of the consequences of surrender and alternative to surrender before signing any document surrendering their parental rights to their child.

Adoptions, both of children from within the US and from other countries, which take place following the signing of a surrender document where the parents did not have independent legal counsel should be voided and the parents should be entitled to the return of their child.

To assure independence of legal counsel, compensation for legal services must be paid from an independent source, not from prospective adoptive parents, an adoption agency, or any other party associated with the adoption. Origins-USA recommends that states establish funds to pay for legal counsel financed by the state’s general fund, a surcharge on petitions for adoption, or other mechanism which assures adequate and independent funding.

Supporting Evidence

The United States Supreme Court has long held that the right of parents to control the nurture of their child is a fundamental right guaranteed by the due process clause of the Fourteenth Amendment to the Constitution. Justice Sandra Day O’Conner summarizes the cases affirming this right in Troxel v. Granville, 530 U.S. 57 (2000).

“The Fourteenth Amendment provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’

The liberty interest at issue in this caseundefined the interest of parents in the care, custody, and control of their childrenundefined is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’

Two years later, in Pierce v. Society of Sisters, (1925), we again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

We returned to the subject in Prince v. Massachusetts, (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’; Wisconsin v. Yoder, (1972) (‘The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition’); Quilloin v. Walcott, (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., (1979) (‘Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course’); Santosky v. Kramer, (1982) (discussing ‘[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child’); Glucksberg, (‘In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the righ[t] . . . to direct the education and upbringing of one’s children” (citing Meyer and Pierce)).

In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

In surrendering a child, a parent gives up a constitutional right. In pleading guilty, a criminal defendant gives up constitutional rights such as the right to a trial by jury and the right to confront witnesses against him. A criminal defendant is entitled to an attorney to inform him of his rights and the likely consequences of his guilty plea such as the amount of prison time he could receive. Additionally, when a defendant enters a plea, a judge must assure that the defendant is knowingly and voluntarily waiving his rights.

Before surrendering a child for adoption, a parent needs to know:

• The parents are surrendering a constitutional right to nurture their child including the right to direct their child’s education, religions instruction, and medical care.
• Upon signing the surrender document, parents have no right to know anything about their child including whether the child was adopted.
• Parents have a right to negotiate an open adoption agreement with the adoptive parents but the agreement may not be enforceable. In states where the agreement may be enforceable, failure of the adoptive parents to comply does not nullify the adoption.
• When a child is adopted, the state creates a false (amended) birth certificate which lists the adoptive parents as though they were the natural parents. The original birth certificate is sealed and is unavailable to the parents, and in most states, to the child even after the child becomes an adult, unless he obtains a court order unsealing the original birth certificate.
• Court records of the adoption are sealed and can be unsealed only upon a court order.
• An adoption agency or prospective adoptive parents may not provide anything of value to the parents in exchange for surrender. Parents are not required to re-pay housing, medical or other expenses provided by the agency or the prospective adoptive parents if the parents decide not to surrender their child.
• In what circumstances can the parents revoke the surrender or overturn the adoption.

Although the consequences of losing a child to adoption can be as severe as being convicted of a crime, states do not require that parents considering adoption for their child be represented by an attorney. (States do provide attorneys to parents where the state seeks to terminate their parental rights.) In all likelihood, parents considering adoption are young with little resources other than from their families who may be pushing for the adoption. Often neither the expectant parents nor their relatives or others who may be advising them have any real understanding of the legal and  psychological consequences of adoption. (William Mild III, Due process in adoption? Hardly NJ esq 5/18/09, http://www.njesq.net/index.php?option=com_content&view=article&id=173:20090518-adoption&catid=6:this-issue&Itemid=17)

Adoption agencies often discourage parents from seeking legal counsel telling them they do not need an attorney even though the Child Welfare League of America recommends that parents receive legal services. (Standards of Excellence for Adoption Services, 2000, sec. 2.3).

Further, according to the Evan B. Donaldson Adoption Institute, “In some states, attorneys paid by and representing the prospective adoptive parents also may represent the women (and men when they are involved) considering placing their children. This practice of dual representation raises acute ethical and practical concerns” (Birthparent Study 2006) http://www.adoptioninstitute.org/publications/2006_11_Birthparent_Study_Executive_Summary.pdf  p. 3

If parents are represented by an attorney, the attorney has likely been referred by the adoption agency or the prospective adoptive parents’ attorney. The prospective adoptive parents pay for parents’ attorney either directly or through the agency. Although ethical rules dictate that “a lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services” (American Bar Association Model Rules, 5.4 http://www.abanet.org/cpr/mrpc/rule_5_4.html which have been adopted by most states) the realities are that an attorney who presents information which discourages parents from proceeding with a surrender may not receive additional referrals.

The only way to assure complete independence of counsel is to have an independent funding source. States can accomplish this through tax dollars or a dedicated funding source such as a surcharge on adoption petitions. States could contract with Legal Services or other non-profits to provide these services much as states contract with public defender offices to provide legal services for indigent defendants.

Continuing the criminal defendant analogy, if a defendant does not receive competent legal services, his conviction is set aside. Likewise, an adoption which takes place after surrender without legal representation should be void and the child returned to his parents.

Conclusion

The right to nurture one’s child is a constitutional right. Every parent has the right to an attorney to advise the parent before the parent surrenders the child for adoption. If a parent does not have an attorney, the surrender should be void.