Adoption Pains

Why does the system make it so hard to give an orphan a home?

Jacob Sullum from the November 1999 issue

(Page 3 of 4)

I could overhear snatches of the conversation, and after a while it became clear that they were discussing our case. They were talking about Evelyn's visitation rights. "Well, I'm not satisfied," I heard Smith say, and I got a sick feeling in my stomach. After Ben conferred with Smith, Skittone, and Evelyn's lawyer, he emerged to say, "There's a little wrinkle." Smith was insisting that a visitation agreement accompany the guardianship order, even though no one had requested one. She said Evelyn should get to visit Francine twice a week and every other Sunday. We should bring Francine out to Brooklyn half the time, and we should have Evelyn stay with us on holidays. We told Ben that we were adopting Francine, not her grandmother. We would continue twice-weekly visits, as we had agreed, and maybe we could come out to Brooklyn once in a while, but not on a regular basis. We both had full-time jobs, and it did not seem like a reasonable request.

Ben went off to negotiate with Smith. While we were waiting, an angry woman started shouting about her child. She was escorted out by a security guard but came back to make another scene. The guard asked her to leave, saying, "This is my house." Losing patience with her, he announced to the crowd, "All right, everybody, it's time for a show." Eventually, the angry woman left, nudged by an older woman who seemed to be a relative. Later another woman came running out of a courtroom, screaming that she had a headache from standing around all day for nothing. I sympathized. I wondered if that would be me after a few more hearings.

Ben came back and said the court was prepared to take Francine away and put her in a foster home if we did not sign a visitation agreement that satisfied Smith. We were shocked that she would make that sort of threat: How could taking Francine away from us possibly be good for her? Skittone walked by and smiled his goofy smile. There was an issue that needed to be resolved, he said, one he'd had in mind all along (this was news to us); our lawyer would explain it to us. We shouldn't worry.

Ultimately, we agreed to twice-weekly visits, plus one Sunday or overnight visit each month. We also agreed to pay for a car service to bring Evelyn from Brooklyn. Evelyn was confused. She said she wanted to arrange visits with us privately, without a court order. She was worried that she wouldn't be able to visit as often as Smith seemed to think she should. We reassured her that she wasn't required to come that often; she just had the right to do so. Since the visitation agreement had to be drawn up and attached to the guardianship order, we had to come back for another hearing.

On Wednesday, January 15, 1997, we arrived in family court at 9:30 a.m. After last-minute wrangling over the details of the visitation agreement, with changes written into the margins and initialed by everyone, we entered the courtroom. In a hearing that took all of two minutes, Bogacz made us Francine's guardians. No one asked any questions. No one testified. We had to wait an hour or so for copies of the guardianship order, which looked like something a child might have produced on a typewriter. We realized it was a copy of Evelyn's guardianship order, with her name whited out and ours written over it in pen. This was what we'd been waiting for. We felt exhausted rather than elated.

That December, we received papers from Ben that needed to be filled out before the adoption could be finalized, including affidavits attesting that we were in good health; Francine's medical history form, to be completed by her doctor; medical history forms for Michele and me, to be completed by our doctors; a financial disclosure affidavit (saying what, if anything, we'd paid or been paid to adopt Francine); a supplemental affidavit (regarding any changes in circumstances since the original filing); a marriage affidavit (attesting that we were, in fact, married); and a criminal background clearance form, including our addresses since 1973, when I was 8 and Michele was 5. We had already supplied much of this information, but we had to do it again because so much time had passed since we filed for adoption. We also had to submit our original marriage certificate, three more letters of reference, and our most recent tax return.

In January 1998, we went to Ben's office to be fingerprinted, which is not as easy as it looks (you have to roll your fingers just so). Three months later, we were visited by a probation officer named Renee. (I don't quite understand why, but the probation department had taken over from ACS.) Renee looked around the place and talked to Francine, who showed off some of her toys. We gave Renee a bunch of documents. She asked us about our income, our education, our occupations, our parents' education and occupations, our family histories, our childhoods, how we felt about being married, our approach to discipline. She said our file had been tagged "top priority" and we should expect to hear from the court within a month.

Not quite. In July another probation officer talked to Evelyn. In October one of Ben's paralegals called to tell us we were in the "home stretch," but the court needed a certified copy of Francine's birth certificate, an affidavit stating that her father's identity was unknown, and a report from yet another medical checkup on Francine. In November, the paralegal told us we had a court date for the final step in the adoption process: December 1, 1998.

Now that we were Francine's guardians, the venue had been switched to the New York County Family Court in Manhattan, where we lived. We were in and out of the judge's study in about five minutes. We swore to tell the truth, looked at some papers we'd already signed, confirmed that we had indeed signed them, and that was it. After more than two and a half years of jumping through hoops, it was pretty anticlimactic. "Today you are a daughter," I told Francine. The judge laughed.

After a child is adopted, a new birth certificate is issued--an odd custom that dates back to the days when you were supposed to keep adoption a secret. The birth certificate has the child's new name and lists the adoptive parents as the natural parents. Until history has been rewritten in this fashion (in Francine's case, it took more than six months), you cannot get a new Social Security card for your child, which means that the federal government does not recognize her new name. I discovered this the last time I did our taxes and foolishly tried to claim Francine as a dependent under what I'd been told was now her legal name. Once I realized the problem, I was able to clear it up with one phone call to the Internal Revenue Service. Compared to the adoption system, the IRS is a model of efficiency.

Thanks to a president and Congress bent on subsidizing all good things, I was also able to claim a tax credit for our adoption expenses. In our case, the credit did not work as social engineering, since we decided to adopt before it was approved. But we were happy to claim it, especially since our legal expenses had been much higher than we expected--and would have been higher still, had Ben not given us a steep discount because his initial cost estimate was wildly off.

Which raises the question of whether anyone really understands how this system works. Ben has completed more than 500 adoptions, and when we hired him he seemed to think our case was straightforward: There were no parental rights to sever, we had the consent of the child's guardian, and no one was contesting the adoption. I was an editor with a respectable magazine, and my wife was studying to be a rabbi. We had laudatory references and one favorable report after another. Yet it took more than two years from the day Francine came to live with us until she was officially our daughter. The Legal Adoption Guide says the average time in New York state is six months, and if anything our case was simpler than the typical adoption. Ben had thought Francine's adoption would be completed within a year. I still have no idea why it took so long.

I hesitate to draw lessons from our experience, since so many people who know a lot more about adoption than we do have written books about it. But the process described in these books is quite different from the one we encountered. Partly this is because the books are aimed mainly at people looking for newborn infants, rather than couples trying to adopt 3-year-old orphans. But it's also because the picture presented in the books is sanitized, perhaps so as not to discourage prospective parents. Again and again, the books say the adoption process is guided by "the child's best interests." But as we discovered, this is only one of several competing priorities motivating the people who run the system.

Two other goals--more or less universally shared--are making a living and staying out of trouble, which mean different things to different people. Not surprisingly, we found that social workers in private practice were more competent and thorough than government caseworkers, presumably because they have to compete for clients and more is expected of them. In our case, ACS's less-than-diligent approach caused nothing more serious than anxiety and frustration. But now and then, a child dies of neglect or abuse under the agency's watch, sometimes despite clear and repeated warning signs. A few cases of this sort were in the news while we were trying to adopt Francine, and we wondered how the same system that was giving us such a hard time could be so easy on parents who were obviously abusive.

Part of the explanation, I think, is the system's bias against action. No one wants to make a decision that can later be faulted. In our case, that incentive resulted in delays that were not justified by the circumstances. But when a child is in danger, the bias against action can mean that families are kept together longer than they should be. The first sort of failure never makes the news; the second kind sometimes does, but then the blame is apt to fall on the system in general rather than the poor, harried caseworker.