Why does the system make it so hard to give an orphan a home?
On the night of Sunday, June 2, 1996, someone set a fire in the entryway of a two-story apartment building on 17th Avenue in Brooklyn. The fire spread to the walls and ceiling of the first floor, then up the staircase and into the apartment on the left. When the fire trucks arrived at 1:08 a.m., heavy black smoke was billowing from the windows.
"I can vividly remember a woman in the street screaming as we pulled up, `There are people upstairs,'" says John Kroon, who at the time had been a firefighter for just 15 months. While his colleagues hooked up their hoses and pushed their way into the lobby, Kroon climbed a 24-foot portable ladder to a second-floor window. Breaking through it, he climbed into a darkened, smoke-filled bedroom.
The hose from Kroon's breathing equipment caught on a dresser drawer, yanking off his face mask and pulling the dresser on top of him. As he struggled to put the mask back on, he choked on the acrid smoke and felt the intense heat rise further, suggesting that the room would soon ignite. Moments later he found an unconscious woman on the floor, dragged her to the window, and handed her over to another firefighter on the ladder.
Sure that there must be a child somewhere in the room, because there had been a child guard on the window, Kroon felt around systematically, encountering one stuffed animal after another. Squeezing each object he touched, he finally felt something human, huddled under the bed behind a row of teddy bears and dolls. He pulled out a little girl and handed her through the window.
The woman, 30-year-old Elayna Allen, was taken to Victory Memorial Hospital, where she was pronounced dead at 1:42 a.m. from cardiac arrest brought on by smoke inhalation. Her 3-year-old daughter, Francine, was taken to Jacobi Medical Center in the Bronx, where she was placed in a hyperbaric chamber, which delivers oxygen at high pressure. Both of her lungs had collapsed, and a tube was inserted into her chest to remove the gases that had accumulated there. Then she was transferred to the pediatric intensive care unit at Brooklyn Hospital Center.
"Why it dark?" Francine asked when she woke up. A CT scan and an MRI indicated that her blindness was not caused by brain damage, and her vision returned eventually. A few weeks later she had recovered sufficiently to be transferred to the Rusk Institute of Rehabilitation Medicine at NYU Medical Center in Manhattan. That's where my wife met her.
Michele, then a rabbinical student at the Jewish Theological Seminary, was interning as achaplain at the hospital. In early July, Francine's maternal grandmother, Evelyn Allen, requested a visit from a Jewish chaplain. Michele began seeing Francine a few times a week, and she started telling me about the charming, lively little girl with the pretty blue eyes.
One night in late July, Michele broached the possibility of adopting Francine. Evelyn, legally blind and in poor health, did not feel up to caring for her; the father's identity was unknown; and no other relative had come forward. Evelyn was looking for a nice Jewish couple to adopt Francine, and she had asked Michele if we might be interested. We were.
Evelyn said we should call Everett Wattley at the New York City Administration for Children's Services. Wattley agreed to send an ACS caseworker to do a home study, which is required by New York and most other states before a child can be placed with adoptive parents. In addition to an inspection of your home, the study involves probing questions about your family history, marital happiness, disciplinary philosophy, ability to deal with stress, and various other matters considered relevant in evaluating your qualifications for parenthood.
At least, that's what the adoption books say. Our experience was a bit different. On a Thursday morning in early August, ACS caseworker Stephen Francois arrived at our apartment on the Upper West Side of Manhattan, late, sweaty, and exhausted. He had taken the wrong subway and walked over from the East Side. We gave him some water, and he took his blood pressure pills. He sat at our dining table, right near the front door, and surveyed the immediate surroundings, pronouncing them clean. Although we were glad to have passed this test, we were disappointed that he didn't make a more thorough inspection, since we had been up half the night sweeping, mopping, and dusting. Francois told us apologetically that he would have to ask us some personal questions. I steeled myself for a harrowing inquisition. He asked us what we did, where we worked, and how much each of us made. He left after about 20 minutes, saying he would call his supervisor, Wattley, and tell him we had checked out.
Later that day, I talked to Wattley, who said that he had received Francois' report but that the adoption was a private matter and should be handled by a private agency. He recommended several. After a few phone calls, I learned that we would need another home study, criminal background checks, and a lawyer. Through the Jewish Child Care Association (JCCA), I arranged for an "emergency" home study and picked an attorney whose fees seemed the most reasonable.
Five days later, the JCCA's social worker, Dina Rosenfeld, came to interview us. This time, it was more like the interview described in the adoption books. Rosenfeld, an experienced social worker who teaches at NYU, stayed for two and a half hours, asking detailed, searching questions. We were struck by the fact that ACS, which is supposed to be a neutral overseer, did such a lackadaisical job of investigating us, while the private agency that we hired to do a home study scrutinized us much more carefully. It turns out that you get what you pay for, even if you pay to be interrogated. At the end of the interview, Rosenfeld left us with a stack of forms, saying that the background clearances, checking for criminal records and histories of child abuse, were the most important. That night we scrambled to fill out the forms and get three letters of reference.
We were in a hurry because Francine was ready to be discharged from the hospital, and if she couldn't go home with us, she would have to stay in a foster home. All of us, including the hospital staff, wanted to avoid that, since it would mean that a girl who had just lost her mother and gone from one hospital to another would have to live with strangers before finding a permanent home. Francine already knew Michele and me as the people who took her out for ice cream, brought her little presents, blew bubbles with her in the courtyard, floated bath toys with her in the fountain, and picked tomatoes with her in the hospital garden.
It was sad to see Francine, healthy and fully recovered, tied to a wheelchair with a sheet. The nurses kept her restrained that way because most of the other kids were seriously disabled and needed to use wheelchairs. It wasn't safe for a 3-year-old to wander around in all that traffic.
On Thursday, August 22, we took Francine to see our apartment for the first time. She fell asleep in the car on the way there and awoke barely in time to have milk and cookies before we had to take her back to the hospital. We weren't sure exactly what to tell her. On the one hand, we were buying bedroom furniture for her, and the psychologist at the hospital had said we should be preparing her to go home with us. On the other hand, nothing had been decided legally, and we worried about jumping the gun. The feeling of uncertainty was compounded on September 1, when we arrived at the hospital for a visit and were told that we were no longer allowed to take Francine off hospital grounds. Apparently, the administration was worried that we might abscond with Francine, pretending we were going to Baskin-Robbins when in fact we were heading to Buenos Aires.
Two days later, we had our first hearing in Brooklyn's Kings County Family Court. We were asking the judge to make us Francine's guardians or, failing that, award us temporary custody, so we could take her out of the hospital. Unfortunately, the judge who had awarded temporary guardianship to Evelyn, Stephen Bogacz, was on vacation, and instead we got Judge Paula Hepner, who was inexplicably hostile and suspicious. She insisted that we could not possibly have obtained a home study and background clearances so quickly. Our lawyer, Ben Rosin, assured her that we had requested the home study in early August, with Francine in mind.
Hepner was accusing us of lying, but I couldn't imagine what she thought our motive was. Did she think that Michele had enrolled in rabbinical school so she could work as a chaplain in a hospital where she might find an orphan to adopt? Perhaps this strategy deserves a separate chapter in The Complete Idiot's Guide to Adoption, between "What You Should Know About Birthmothers" and "Playing the Waiting Game." In any event, there is nothing improper about commissioning a home study before you find a child. "Ideally," advises Colleen Alexander-Roberts in The Legal Adoption Guide, "the prospective parents have a home study completed before they locate a baby to adopt." Should this not be possible, however, a home study "can usually be accomplished quickly." Tell it to the judge.
Whatever it was that set Hepner off, it was quickly apparent that she had no intention of letting us take Francine home. She said the JCCA home study was not good enough, that we also needed one from ACS (which had advised us that we needed a private home study). She appointed an attorney named Philip Skittone as Francine's "law guardian," yet another person who was supposed to look after her interests, to evaluate the case and make a recommendation at a hearing three and a half weeks later.
The next day I called Everett Wattley at ACS to find out what happened to Stephen Francois' home study. Wattley promised he would fax the report over to the courthouse in Brooklyn in time for the next hearing.
We arrived for our second family court hearing at 2 p.m. on Friday, September 27, and discovered that Judge Bogacz had never received the ACS report. The ACS's courthouse liaison said the only record the agency had of any report connected with Francine's case had to do with Bogacz's order for an investigation of Evelyn, back when she was petitioning the court to become Francine's guardian. ACS had just received that (now obsolete) order, which Bogacz had issued three months before. The liaison said Wattley had told him there never was a report on Michele and me. I told Ben, our lawyer, that I had spoken to Wattley repeatedly about the report, and there was no way that there could have been a misunderstanding. Ben called Wattley, who suddenly remembered talking to me but still insisted that there was no report. Finally, we got Francois, the ACS caseworker, to scrawl out a couple of pages and fax them to the courthouse.
Skittone, Francine's law guardian, showed up two and a half hours late. I overheard him telling Evelyn's lawyer and the hospital's lawyer that he was not ready to make any recommendation regarding custody, because he didn't have enough information. It had been nearly a month since the last hearing, and all Skittone had done was talk to a social worker at the hospital on the telephone. He hadn't talked to Michele or me; he hadn't talked to Evelyn; he hadn't talked to anyone at the hospital who had treated or cared for Francine; he hadn't visited the hospital or met Francine. No wonder he didn't have enough information.
When we went into the courtroom, Skittone reiterated his firm position that he was not prepared to take a position. He asked for permission to hire a social worker, at the taxpayers' expense, to help him with the case. Judge Bogacz asked why he needed a social worker. Skittone said a social worker could interview "the child" and other people involved in the case. "Can't you do that?" Bogacz asked. "Yes," Skittone replied, "but I'm not a social worker." Perhaps sensing that his argument needed a little reinforcement, he said the case was "very unique," involving a child "who is different from every other child." He claimed the case was complex and contentious. "No, it isn't," I muttered, and Ben sternly hushed me. The lawyers are supposed to do the talking.
Ben noted that we had background clearances, plus a "glowing report" from the JCCA. Evelyn wanted us to have custody of Francine, and so did the hospital's social worker. He added that Francine had already been in the hospital longer than necessary (her original discharge date had been in mid-August). When it became clear that Bogacz was inclined to grant us temporary custody, the supposedly noncommittal Skittone started arguing against us. It could be confusing for Francine if she went home with us, he said, and then something came up (exactly what he had in mind wasn't clear) that disqualified us as parents. Observing that it could also be confusing for Francine if she had to stay in the hospital, Bogacz gave us temporary custody. Throwing Skittone a bone, he agreed to let him hire a social worker. He also noted that the ACS report seemed a bit sketchy–not surprising, since it had been dashed off a couple of hours before–and ordered a more complete one for the next hearing, which he scheduled for December 2.
So Francine finally came home with us at the end of September 1996. We worried that she would have trouble adjusting, but she turned out to be remarkably resilient. "Cheer up, Francine," we used to say as she walked down the hall, smiling broadly and belting out a mangled song she had halfway learned from a CD.
From time to time, Francine would talk matter-of-factly about her "old Mommy," who "got dead." Once she was walking down Broadway with Michele when she saw the exhaust from a truck and said softly, "I don't like smoke." When Michele asked her why, she said there was a lot of smoke the night her mother died; she remembered seeing Elayna running toward her, then falling down. Michele asked her what happened next. "Look!" Francine replied. "The light changed red!" After a while, it occurred to us that when you're 3 years old you have no idea how life is supposed to be. So far as Francine knew, every little girl lives first with one mother, then with another, and in between stays in a hospital where she's tied to a wheelchair.
About a month after we took Francine out of the hospital, we got a call from Leslie Cummins, the social worker hired by Skittone. We arranged to meet with the two of them at his office in Brooklyn. Skittone's handshake was clammy and flaccid; he talked to Francine in a squeaky voice, mispronouncing words on purpose. ("Would you like a pwesent?") He said he used to be an elementary school teacher; we figured his students must have hid the blackboard eraser and made faces behind his back.
While Francine drew pictures, Cummins asked us how she was doing, whether she talked about her mother, how we were getting along with Evelyn, how we handled discipline, what Francine's schedule was like. In contrast to Skittone, with his patronizing smile and gratingly cheerful demeanor, she seemed competent and genuinely nice. Skittone kept interrupting our responses to her questions with questions of his own. We left after an hour and a half, with Skittone declaring us "uniquely well qualified" as parents. He said he hoped we knew that he was just doing his job; he didn't understand why our lawyer seemed so belligerent. I shrugged and kept my mouth shut.
Two weeks later, Cummins visited our apartment for a couple of hours and asked us some more questions. We still hadn't heard from ACS, which was supposed to send another caseworker over for the home study Judge Bogacz had ordered. With a week to go before the next hearing, I called Ben to find out what was going on. He said he'd had a heated conversation with Wattley about the report, then called the judge's office and asked them to issue another order. The next day, we heard from Miguel Nunez, another ACS caseworker.
On Wednesday, November 27, Nunez came by and chatted with us for about half an hour. He was very cordial, talking about his own son, a 5-year-old, and the challenges of parenthood. He asked about Francine's medical condition, whether she talked about her mother, how she was adjusting, how our lives had changed since she came to live with us. He walked around the apartment. Nunez said he wasn't sure what the judge was looking for, since someone from ACS had already done a home study. We noted that Francois' report had been written at the last minute. Maybe the judge would prefer a report that was typed, I suggested jokingly. Nunez said handwritten ACS reports were not at all unusual. The agency's budget was tight, and they couldn't afford enough typists. Plus, the job is very depressing, what with all the abused children. "Working for the city is a joke," he said.
When we arrived for the next hearing, on Monday, December 2, everything seemed to be in order. Evelyn had agreed to transfer the guardianship to us. The ACS report was there. Ben gave us copies of the reports from Skittone and Cummins, which were very favorable. The rows of long wooden benches were full, so we read the reports while sitting on the linoleum floor in the waiting room, our backs against the wall. The session was scheduled to end at 1 p.m., and Skittone did not show up until 12:30. On the way to the courtroom he was buttonholed by Beverly Smith, Judge Bogacz's law secretary.
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.
Judges, who make the ultimate decisions about where children should live, are more likely to be blamed when something bad happens. They must live in dread of seeing their names in The New York Times because a child died after they awarded custody to the wrong people. Our first family court judge was given the choice of taking that chance or shifting the responsibility to another judge. However slight the risk that Michele and I would turn out to be the next Hedda Nussbaum and Joel Steinberg, it was even less likely that newspapers would run stories about Judge Hepner's decision to leave Francine in the hospital for another month.
Skittone, the lawyer appointed as Francine's law guardian, did not have it in for us, as his favorable report demonstrated. He was just determined to do the job for which he was being paid, even if it wasn't really necessary. It would not be good for business if word got around that adoptions could be completed without the services that he and other courtroom hangers-on provide. As for the law secretary who insisted that we could not become Francine's guardians until we signed a visitation agreement that no else thought was necessary, she seemed to be genuinely concerned that Evelyn (who was, after all, represented by a lawyer) did not correctly perceive her own interests, and so she decided to intervene. Taking Francine away from us may have been an idle threat, since she never seriously doubted that she would get her way.
We became Francine's parents long before the law recognized us as such. But because we were so powerless, we continued to worry that something would go wrong until the day the adoption was finalized. At that point, the system's bias against action started working in our favor.
Now that Francine has been living with us for three years, there's no question that being her parents was worth all the trouble. But if we had known in advance how emotionally grueling the adoption process would be, I doubt that we would have started it. We never would have found out what it was like to have Francine as a daughter.
Francine, now 6, wanders into my office from the living room, where she was watching cartoons, and tries to slip a butterfly ring that she made in summer camp onto my pinkie. It doesn't quite fit. I ask her if she remembers when Michele and I used to visit her in the hospital. "I remember when you guys took me out of the wheelchair, and they said, `No, no, no,'" she says. "I wanted to go home, so I wouldn't have to be in a wheelchair."
I tell her that I'm writing the story of how we adopted her. I describe in general terms what we had to do. (Although she participated in several of the steps, I'm not sure that she understood they were all part of the same process.) "Why can't you just find a child walking around who lost its parents?" she asks. "Why can't you just take one home?"
My initial reaction is that Francine's reform proposal goes too far: There needs to be some assurance that adoptive parents are prepared to care for a child. But then again, if biological parents do not need to be certified by the government, why should there be a different standard for adoptive parents? Perhaps it is enough to have the consent of the birth mother or, in the case of an orphan, the nearest relative. The government's role would then be limited to verifying the consent and, as with any child, intervening in the event of abuse or neglect. A radical idea, perhaps. But compared to the arbitrary, unpredictable, byzantine system that we dealt with, it doesn't seem so crazy.
Senior Editor Jacob Sullum (email@example.com) is the author of For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health (The Free Press).