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Avoiding Contested Placements, Red Flags and the Ethical Representation of Placing Parents in Adoptions

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Avoiding Contested Placements, Red Flags and the Ethical Representation of Placing Parents in Adoptions

In this practical webinar, you will learn how to ethically and effectively represent a placing parent in an adoption starting with the initial meeting with the client through the adoptive placement and thereafter. Adoptions are unique with regard to the receipt and sharing of confidential information as well as avoiding conflicts of interest in representation.

Presenters

Colleen Quinn
Owner
Quinn Law Centers

Transcript

Colleen Quinn:  Hi, this is Colleen Quinn, and welcome to Quimbee. Today we're going to talk about the ethical representation of placing parents in adoptions. But let me tell you a little bit about myself first. I've been practicing law now for 32 years in Richmond, Virginia. I own the law firm of Locke and Quinn along with my partner, and as part of that, I run the Adoption & Surrogacy Law Center.

   In my practice of adoption and surrogacy law, I have served as president and on the board of trustees of the Academy of Adoption & Assisted Reproduction Attorneys. When I first became a member of the academy, one of the first things I was assigned to do was become the chair of the Birth Parent Rights Committee. As part of that process, in being chair for six years, I really learned a lot about the ethical representation of placing parents in adoptions. That's what we're going to talk about today, how to properly represent placing parents versus not properly represent them.

   One of the first things that we are going to do is that I'm going to apologize in advance for using the term birth parent at any time in this presentation. Some adoption proponents, especially social workers in the field, will readily point out that a more appropriate term is placing parent or something similar. However, the adoption statutes in most states like Virginia, refer to such placing parents as birth parents. In fact, a couple of states actually use the term natural parent. Please, at all costs, avoid the term natural parent.

   I'll tell you a quick story about the use of the term birth parent versus placing parent. I was presenting for a large audience up in Washington DC, which consisted of a lot of attorneys and social workers. I was on a panel of about five people. One of the members on the panel, who is a well-known social worker, who's written many books on the topic, was part of the panel. As I was presenting, I kept using the term birth parent because that's what's in Virginia statute and most statutes.

   At one point, this gentleman pointed out to me and said, "Colleen, birth parent's not really a proper term." And I said, "Oh, well, what term would you prefer that I use?" The gentleman said, "Expectant parent with a placement plan." I said, "Well, you know we attorneys get paid by the word, don't you?" in an effort to deflect to the kind of verbal reprimand I had just received. But at any rate, it just stuck with me for a long time, and I try when I can to use the term placing parent as opposed to birth parent, although most birth parents that I have represented don't seem to be offended by the term birth parent and just acknowledge that that's in fact what they are.

   At any rate, we're going to talk today first about some conflicts of interest in representing a placing parent. So most state ethical codes and the model rules of professional conduct provide that it's a conflict of interest for an attorney to represent both the adopting parents and the placing parents in an adoption. The best practice is to always have separate representation for the birth parents. It's much more difficult for a placing parent to challenge an adoption if they've received separate legal representation.

   When a placing parent goes unrepresented, the integrity of the adoptive placement is at much greater risk. Most judges expect that a placing parent will be represented, especially if you are going before a court and giving an in-court consent. In some states, unlike Virginia, where a in-court consent is not required for a private placement, placing parents may go unrepresented. They may just sign a consent before a notary or out of court. However, the best practice, the most ethical practice is to always have separate representation for the placing parent, especially the placing mother, even if it's an out-of-court consent that's being signed, or relinquishment, or entrustment.

   Also, when an attorney or even a social worker is representing a birth parent, typically, his or her fees are being paid by the adoptive parents. In such event, it's always important to explain to the birth parent in writing, with a signed disclosure and a waiver form signed by the placing parent, that even though you're being paid by the adoptive parents, your job is to represent that birth parent, and that's your ethical obligation.

   When we look at the conflicts of interest under the model rules of professional conduct, rule 1.7 conflict of interest, current clients, that rule sets out the proposition that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. That's basically the rule that requires that we have separate representation for adoptive parents versus placing parents.

   That rule further says that a concurrent conflict of interest exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer. That's basically the role that makes it clear that we really can't represent adoptive parents and placing parents because the placing parent always has the option of changing their mind, and they may not decide to go through with the adoption. So there is definitely a conflict of interest that exists in trying to represent both.

   If we look further at the model rules of professional conduct, and we look at rule 1.8 that says, that a lawyer shall not enter into a business transaction with the client, or knowingly acquire an ownership, possessory security, or other pecuniary interest adverse to a client, unless... And then the role sets out a number of different terms that includes the client giving informed consent in a writing signed by the client to the essential terms of the transaction and the lawyer's role in the transaction.

   That role basically is the role that makes it clear that we want to put in writing to any placing parent that our job is to represent them. However, we are being paid by the adoptive parents, and we want to make sure that the placing parent is okay with the fact that payment is coming from somebody else.

   Another role that you need to be aware of under the model rules of professional conduct is rule 4.3, dealing with an unrepresented person. That rule talks about in dealing on behalf of a client with a person who's not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

   The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel. If the lawyer knows or reasonably should know that the interest of such a person are or have a reasonable possibility of being in conflict with the interest of the client, this rule becomes very important, especially when you're representing a placing mother, but a placing father or birth father might also be involved, and the two might be in conflict about the adoptive plan.

   In such a case, any conversations with the father, there needs to be a clear disclosure to the father that the lawyer is representing the placing mother and not the father, and to make it abundantly clear to the father that if he needs to have legal advice, he needs to seek out separate legal counsel. This also applies, this rule applies, sometimes when adoptive parents hire an attorney to represent a placing mother, but they haven't attained counsel for themselves.

   Again, it's very important to explain to the adopting parents that you've been hired to represent the placing mother and that you're not able to give legal advice to the adoptive parents, and it's advisable for the adoptive parents to be sure to retain their own counsel. At any rate, in this rule, we need to be sure that we tell unrepresented folks exactly what our role is and who we are representing, and that we can't provide legal advice to somebody else that we are not representing.

   All right. Let's talk about some of the... I mentioned that I belong to the Academy of Adoption and Assisted Reproduction Attorneys. Here we're going to talk a little bit about the academy's code of ethics. The academy's code of ethics also has a conflict of interest provision that basically prohibits multiple representation. Under the ethics code, number three, it states that a fellow shall not simultaneously represent multiple parties with potentially conflicting or competing interests, where such representation is prohibited.

   In such an event where such representation is permitted, a disclosure and waiver shall be required. In all of my arrangements, whenever I represent a placing parent, I always have a retainer agreement with the adoptive parents that says, "Mr. and Mrs. Adoptive Parent, or Mrs. And Mrs. Adoptive Parent, or Mr. And Mr. Adoptive Parent, depending on who's adopting, or it could be a single adoptive parent, but my retainer agreement basically says that you are paying me, but I do not represent you. I represent the placing parent.

   And then I have a separate retainer agreement with the placing parent that says that my goal is to represent them. However, payment for my services is coming from the adoptive parents. The retainer agreement goes on to state that should a conflict arise, and should the placing parent change their mind about the adoption and doing the adoption, then the adoptive parents no longer are going to pay for my services. And at that point, any further services will need to be paid for by the placing parent.

   The academy code of ethics also has a rule on fee agreements for legal fees and scope of representation. Under that rule, ethics code number six, it states that a fellow shall inform the fellow's client at the time the fellow accepts employment, of the scope in terms of the fellow's services and the fees to be charged for those services. The fellow shall provide the client with a copy of a written retainer agreement that accurately reflects the scope in terms of such services and states the jurisdiction or jurisdictions in which the fellow is licensed to practice law.

   So it's very important in the fee agreements, with both the adoptive parents and with the placing parent, to spell out the full scope of services. If the placing parent has additional legal issues, such as they might have run into trouble with the law, they might have traffic tickets that they need to resolve, they might have issues with their landlord, I need to make it clear to the placing parent that my practice is in adoption law and not in some of those other areas, and that the scope of my services is limited to helping them with their adoption plan and not with some of the other legal issues that they might have.

   I also want to make it very clear where I practice law. I'm only licensed in the state of Virginia. And if the placing parent is going to be signing entrustments, or relinquishments, or consents under the law of another state, I want to make it very clear that I'm not licensed in that state, and that I have conferred with counsel in that other state to make sure that we have a good understanding of that state's law.

   Under the code of ethics for the academy, under six B, which again, addresses fee agreements, it states that a fellow should not enter into any agreement or arrangement with any person or entity that would have the effect of restricting the ability of the fellow or the ability of counsel for any party to exercise independent professional judgment on behalf of, or to provide necessary complete and competent legal services to his or her client.

   However, a fellow might accept an engagement that limits the representation of counsel to specific issues, as long as, one, limitation is clearly specified in a written retainer agreement between and signed by the fellow and his or her client. And two, the limitation concerns specific legal issues and is not an arbitrary and unreasonable limit on the number of hours counsel may spend or the amount in fees counsel may occur on the representation. This provision does not prevent a fellow from entering into agreement to provide services on a flat fee basis.

   Basically, what does all that mumble jumble mean? Well, it means that we need to spell out exactly how are our fees going to be incurred? Are we going to be doing it on an hourly basis? Are we going to put a limit to the number of hours that we might spend on the case, or will it be unlimited so long as the services continue to be needed? Are we going to do the arrangement on a flat fee basis? That can be pretty dangerous to do when you're representing an adoptive parent or a placing parent in a private or parental type placement.

   It might be okay to do a flat fee case if it's a simple adult adoption, a relative adoption, or a step parent adoption and where everybody's in agreement. But many times in private or parental cases, there can be a lot of unexpected issues. And so, venturing to do a arrangement on a flat fee basis in those sorts of situations can be a little bit dangerous. Let's go on to the next prong of the code of ethics, number six, for the academy.

   Under six C, it says that a fellow may not accept or retain compensation for representing a client from someone other than the client, unless, one, the client is given informed consent in writing. Two, the payment arrangement and terms do not interfere with the fellow's independent professional judgment, nor with the attorney-client relationship. Three, the fellow maintains and respects all client confidences under this code and all other applicable legal ethics rules.

   Wow. This one is packed was a lot. Let's break it down a little bit. The first one is the client has given informed consent in writing. Well, that's the retainer agreement that I talked about. We want to make sure we have separate ones for both the adoptive parents and the placing parent. Two, the payment arrangement and terms do not interfere with the fellow's independent professional judgment, nor with the attorney-client relationship. We want to make it very clear to the adoptive parents that our job is to look out for the placing parent.

   This can be really tricky, especially when you're assisting the placing parent at the hospital and the adoptive parents also were at the hospital and they have a whole lot of questions about how the adoption's going to happen, how the baby's going to be released to them, et cetera. It's important to keep reminding the adoptive parents that you can provide some logistical advice, but not legal advice.

   It's also important to make sure that you've conferred with the adoptive parents' legal counsel ahead of time and basically told that legal counsel, "Hey, I'm going to be at the hospital with the placing parent, having her sign all of her paperwork for the adoption, maybe having her sign all of her inter-state paperwork for the adoption, and the adoptive parents are going to be there also."

   It can be a little bit awkward when the adoptive parents are asking for legal advice. In many cases, I've had to tell the adoptive parents, "Hey, I'm happy to provide you with some of the logistical information. For example, here's the healthcare power of attorney that my client, the placing parent, has signed. I'm giving you a copy. I've given a copy to your lawyer, and this is what allows you to make medical decisions for the child."

   However, when the adoptive parents start asking legal questions, I have to say, "Remember, under the retainer agreement that I previously sent, my job is to represent the placing parent and I cannot provide you legal advice because my goal is to represent the placing parent and I can only provide them with legal advice." Prong number three, under this ethics code, says that the fellow maintains and respects all client confidence is under this code and all other applicable legal, ethical rules.

   Wow. This one is packed with a lot too, because the nature of adoptions is that a lot of times the placing parent shares a lot of really interesting client confidences. It could be that the placing parent smoked marijuana or did a lot of drinking during the pregnancy, and they may not want the adoptive parents to know about that. In adoptions, it's really, really important to let the placing parent know that it will be very hard to not share any client confidences if they might impact the adoption, and if there might be issues with regard to the child's health because of that confidential information.

   So I make it very clear when I'm representing a placing parent that anything they share with me will potentially be shared with the adoptive parents, unless they expressly tell me I can't share that information. The nature of adoptions is that the parties typically share a lot of background information. The adoptive parents might share their profile with the placing parent. The placing parent typically fills out background forms about their medical, their educational, their social background, then the whole medical background of their families, their pregnancy plan, and it's normal for those background forms to be shared.

   So this prong becomes very important. We need to make sure that we advise the placing parent that if there is something in particular they do not want shared, then that needs to be separated out and discussed. All right. Continuing along with the academy's code of ethics, rule number six, and this is prong number D, and basically, prong number D says that a fellow shall not enter into an agreement for a charge or collect an illegal or unconscionable fee.

   Advanced fees collected by a fellow shall be returned to the fellow's client if not commensurate with the services that have been provided by the fellow. In determining whether a fee is unconscionable, the factors to be considered shall include but not be limited to the following, the amount of the fee in proportion to the value of the services performed, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly, the time limitations imposed by the client or by the circumstances, the time and labor required, and the experience reputation and ability of the fellow performing the services.

   Basically, this rule applies to keeping your services in line with what you are charging. I've seen many adoptions where lawyers will set a flat fee that is way, way higher than the services that are being rendered. It's really important to make sure that whatever services we are providing are billed in line and are commensurate with the services that we've provided and not completely out of whack.

   All right. In your materials, I've actually included some sample retainer language for you when you are representing a placing parent. It may be that you've been hired by an adoption agency and not the adoptive parents to represent the placing parent. So I've included, in your materials, alternative language to either Dear Adoptive Parents or Dear Agency, or Dear Paying Party, whoever might be paying for your services, that basically you are telling them that they are paying for your services, but that your representation will be as to the placing parent.

   I specifically spell out how much the retainer is going to be, what my hourly rates are, what the hourly rates are of my staff or any other attorneys in my firm, and also what sorts of costs might be incurred as part of my services. And then, in the retainer agreement, in order to make sure that I meet the academy's rules with regard to not having my fees or services be out of line with what I've provided, I add this specific paragraph.

   In the retainer agreement, it says, "It is expected that payment for my services will continue to be made by you unless a serious and adverse conflict arises between you and the placing parent, in which event, I will look to the placing parent for payment. Moreover, should there be remaining funds from the retainer after the placement, or should the adoption not occur, or should the placement disrupt, any unused retainer funds will be refunded to you."

   It's really difficult when a placement does disrupt and the adoptive parents generally are crushed, and they generally want to have as much of their money back at that point as possible. That's when it becomes really critical to do very detailed billing so that they can understand exactly what services you provided. Having minimal time entries in your billing system is not a good idea. I make sure that my time entries are extremely detailed so that the adoptive parents can understand exactly what services I provided.

   This can become really critical, especially if the placement doesn't go through, in order to justify the services that you rendered, especially if there's not much of a retainer left to refund to the adoptive parents. In your materials, I've also included some sample language for representation of the placing parent. Again, I spell out specifically what the hourly rates are going to be for me and the other folks at my firm, and also what sort of costs might be incurred.

   Again, I address the issue of, what if a conflict arises. And so, in my retainer agreement, I tell the placing parent, in the event a serious and adverse conflict arises between you and the adoptive parents over the course or performance of the agreement, you cannot expect that they will continue to pay my fees. And at that point, any legal work I perform on your behalf will become your responsibility. Now, the reality is, is that most placing parents are placing because they can't afford to raise the child.

   And so, if the placing parent changes their mind, don't expect to be paid. That's just the reality of the situation. At that point, you're going to pretty much have to consider yourself going pro bono. So even though I have this in my fee agreement, that I would expect the placing parent to pay my fees at that point, I generally don't expect them to be able to pay my fees. At that point, you just have to cut your losses and basically acknowledge that you're going to have to continue wrapping up the situation without being paid for your time.

   All right. So let's talk a little bit more about married clients, because this gets super tricky. And so, in my retainer agreements, especially if I'm asked to represent both placing parents, let's say the birth mother and father are married to each other, or they're living together and they have other children together, and it's very clear that the two of them are completely aligned in their adoption plan, and they're either going to jointly go through with it, or they're not going to go through with it, I then may go ahead and take on representing both of them.

   However, that can always be dangerous. And that's why this conflict of interest paragraph is very important to include in your retainer agreement. The sample language I have here is, "Even though you are married, there's the inherent risk of there being a conflict of interest that can arise in my undertaking representation of both of you. I'm not able to advise each of you individually as to your individual respective rights. Therefore, if an actual conflict arises between you, that has material to the representation and cannot be resolved, I will have to withdraw from representation as to both of you. Your signature to this retainer agreement indicates your acknowledgement of this disclaimer."

   You have to think very carefully when taking on the representation of both placing parents, because if one wants the adoption to still go through and the other changes their mind, then at that point, you've got to withdraw from the entire representation. I typically will only represent the placing mother because that's the safest route. However, there are times where the both placing parents want joint counsel, and it's critical to include this paragraph in your retainer agreement, if you decide that representing those placing parents makes sense.

   Other things to put in the retainer agreement is to address how the file's going to be kept. Is it going to be in paper or electronically only? And for how long? In my office, we've been trying really hard to go completely paperless. It's been an effort. But at this point, we're telling clients we're only keeping their file electronically, and we're only keeping it for a certain period of time. And if they want a copy of their file at the end of the representation, we're happy to provide it on a flash drive or electronically to them.

   Also, if you don't use encrypted technology, the current rules of ethics require that you tell clients whether you're using encrypted technology or not, especially for email communications. And then you also want to address whether interest is going to apply to any outstanding bills, and also when any additional retainer amounts might be needed if the retainer has been exhausted.

   Another thing that we want to talk about is confidentiality. I've talked about this a little bit before in terms of the birth parent sharing confidential information, and we're going to come back to this topic. Ethics codes in most states, in the model rules of professional conduct generally provide that information shared between the client and attorney is subject to attorney-client confidentiality. As I alluded to before, in adoptions, it's kind of backwards. So rather than information being kept confidential, it's usually shared. So we really need to be clear on information that's not going to be shared and needs to be kept confidential.

   Rule 1.6 confidentially of information under the model rules of professional conduct is the one that addresses confidentiality. Under that rule, it states that a lawyer should not reveal information relating to the representation of a client unless the client gives informed consent. The disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph B. And then B says that a lawyer may reveal information relating to the representation of a client, to the extent the lawyer reasonably believes is necessary.

   And then C says a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to information relating to the representation of a client. I like to get it in writing from my placing parent, that I have permission to share their background forms with the adoptive parents. I like to have it in writing from them if there is anything else that we need to share.

   For example, there could be drug or alcohol use during the pregnancy. There could be the fact that there are multiple possible birth fathers out there, or it could be embarrassing information about how the conception happened. Believe me, I've heard all sorts of stories. We've had folks that just have met each other in the bar and done it in the bathroom at the back of the bar. I've had folks that have met somebody, a stranger, and done it in the backseat of a car.

   I've also had a number of placing parents who have just passed out at a party, and they really have no idea who the birth father is. So it's important to be empathetic to the placing parent in terms of this confidential information, but also explain that, as part of their adoption plan or her adoption plan, some of this confidential information, even though it's super embarrassing, may need to be disclosed.

   In my retainer agreement, I've provided for you some sample language on confidentiality. Here's some sample language that I put in. "While the information exchange and the attorney-client relationship generally is considered to be confidential, the nature of adoptions is that detailed background information is as a matter, of course, conveyed between the parties. Therefore, if there's anything that you do not wish to have shared with the adoptive parents, please ensure that you are very clear in expressing what information you would like that to be kept confidential, and we will discuss whether that information can remain confidential or not as part of the adoption process."

   Other examples include whether the placing parent has any past criminal convictions, their financial information, their tax information. These are other aspects of the relationship that the placing parent may want to keep confidential, but may have to be shared.

   Let's talk a little bit about placing parent counseling. Most states require that placing parents are at least people provided the opportunity for mental health or adoptions options counseling. That's best done by a qualified adoption social worker. However, it can also be done by the attorney that represents the placing parent. The academy actually has a resolution that says, "Whenever possible, members of the academy shall endeavor to help birth parents understand the importance of and receive adoption counseling."

   Encouraging this counseling is significant to ensure that the birth mother has thoroughly thought through her adoption plan. We always want to ask the placing parent, "Would you like adoption options counseling by a social worker? I can provide you legal counseling, and I can also talk about your adoption plan, but you might want to have the opportunity to speak with a social worker who can talk to you a little bit more from a social side and not such a legal side."

   Many times though, the placing parent might not want to talk to a social worker, and that's okay. But I recommend that you get something in writing that basically acknowledges that it's been offered to the placing parent, and that she's decided that she really does not want to have adoption options counseling by a social worker.

   Let's talk a little bit more about the initial meeting or contact with the placing parent. To protect the integrity of the adoptive placement, it's essential to acquire as much information as possible from the birth parent, as early as possible in the process, then provide legal guidance to the birth parent. We also want to be looking for any potential red flags in the placement.

   I've provided for you, in the materials, my checklist of all the things that I do during the initial meeting with the birth parent. It's best, if possible, to meet with the birth parent in person. However, especially with the recent pandemic, it's not always doable. So the next best step is to try to do a zoom or a Skype or a FaceTime, a visual video type of meeting with them. Then the least of a choice, but still an option is to just simply do it by phone.

   Now, sometimes when you're hired to represent a placing parent, it's a little awkward because you've got to introduce yourself to this person and you've got to garner their trust. So I let them know a little bit about myself first, that I've represented birth parents for many, many years. I basically try to get to know a little bit more about them. I try to develop a little bit of rapport first so they know a little bit more about me and I know a little bit more about them, and I can build a little bit more trust with them.

   I also make it very clear that this is their adoption plan, and I'm there to assist them in their adoption plan for as long as they want to make it. It's important to use the right terminology. It really is their plan, and it's a really important plan. Placing parents are some of the most noble people that I've ever known. To have a child and then place that child for adoption is an extremely, extremely difficult decision. We want to make sure that we truly live up to our title as counselors, counselors in the law, with regard to representing placing parents.

   One of the things that we want to do is we want to find out a little bit more about, how did they reach their decision to place their child or child-to-be for adoption? Typically, I'll just ask them, "Hey, at some point you probably discovered that you were pregnant and that was a huge surprise. Tell me a little bit about how that came about. What were your thoughts at that time? Then I'll try to basically get them to the point where they talk to me a little bit more about how they reached their adoption decision.

   We also want to find out who is supportive or not supportive of their decision to do an adoption plan. I've got a case right now where we just found out that the birth mother's mother just threw her out of the house because she is not supportive of the adoption plan. Now that birth mother's living with the birth father, with the birth father's sister in very tight quarters. And one of the things we're trying to figure out is how the adoptive parents legally can assist with the situation.

   It's a pretty tricky situation because knowing that your own mom is not supportive of you in an adoption plan, makes it very difficult for a placing parent. However, we've got to be there and support that placing parent in that regard and in what she wants her plan to be. The other thing we want to smoke out is any and all significant people that don't know about the placing parent's adoption plan and could be an influential factor if they did know about the plan.

   I'll tell you a quick war story. Was representing a birth mom who was living at home, but she hid the pregnancy from her parents. She and the birth father, he also hid the fact that they were doing an adoption plan from his parents. Well, lo and behold, somehow both sets of grandparents found out about the adoption consent hearing and showed up and tried to talk the young man and young lady out of their adoption plan. It became quite a debacle at the courthouse, to the extent that the judge just simply dismissed the proceedings, but had the birth parents' counsel come before the judge.

   We actually came back for a second secret hearing that the grandparents did not know about so that these young people could go ahead and effectuate their adoption plan, which is what they really wanted to do. They didn't want to have the child have to stay with their family, which is what their parents wanted. But had we smoked out the fact that their parents weren't supportive of the adoption plan a little bit better, then the adoptive parents could have been a little bit more prepared when both sets of grandparents suddenly showed up at the consent hearing and created this debacle.

   So we do want to figure out who knows about the adoption, who doesn't know about it. And for those that don't know about it, why don't they know, and what would happen if they did find out about it? I've had quite a number of adoptions where the placement's being kept secret from other family members. And then, once the baby's born, those family members find out about the adoption plan, rush to the hospital, and essentially provide support to the birth parents, and it results in the adoption not going through.

   So we want to do as much prep work as possible and figure out who might not know about the adoption and what would happen if they did know. We also want to find out about the identity and whereabouts of any and all potential birth fathers and how their rights will be terminated or otherwise addressed. This can be tricky sometimes. I represented one young lady who was only 13 years old and had been running with a gang of about 15 different guys, any of whom could have possibly been the birth father.

   This is a pretty tricky area to talk to people about sometimes in terms of figuring out what they're willing to share. But we do want to figure out who the potential birth fathers are and we want to address them. Again, if we're representing the placing mom, it's always her plan, and in order for your plan to work, we're going to really need to know any and all possible birth fathers. Again, that's where the developing that rapport and trust becomes very important.

   We want to find out the support, non-support, or awareness of any and all birth fathers regarding the adoption plan. Do they know about the pregnancy? Do they know about the adoption plan? In addition, we also want to find out whether the placing parent have any Indian Child Welfare Act implications, that is, are they members of an Indian tribe that's registered on the national register, or could they potentially qualify as members of an Indian tribe?

   In such an event, we might have implications of ICWA, the Indian Child Welfare Act, and we need to know whether ICWA applies. ICWA consents are very different than most regular state court consents. Typically, with an ICWA consent, both birth parents have to wait until 10 days after birth, and it must be a court consent for both of them. So it's important to know whether ICWA applies.

   We want to also try to find out the prenatal care obtained by the placing mother, the extent of any drug use or alcohol use. I have had cases where the child was born with drugs in their system, or diagnosed with fetal alcohol syndrome. I had one case where I was representing the adoptive mother and the twins were born both with fetal alcohol syndrome. The adoptive mother was a single mom and she said she wasn't going to be able to parent those children. Had we known in advance, we could have planned better and lined up an adoptive family that was willing to care for twins with fetal alcohol syndrome.

   We want to find out how the placing parents chose the adoptive parents, if they've already been chosen, the level of financial assistance that the placing parent requires, and whether they're already in counseling or they want to have that counseling set up, that I alluded to before. During the initial interview, it's also important to find out, have they considered all of their alternatives to adoption? Have they really thought it through? Could they raise the child if they had family support or they had other types of support.

   We also want to find out, are they competent to consent? And in many cases where I have issues with whether my client is competent to consent, they might have a diagnosis of bipolar disorder or schizophrenia, I will actually go get a letter from their doctor saying that they are in fact competent to consent. If you have a placing parent that has been in and out of mental institutions, it's especially critical to not only get a letter from the doctor, but you may even want to ask the court to appoint a guardian ad litem as well, in addition to your own representation, just to cover yourself.

   We want to find out whether the placing parent has health insurance coverage, and if they don't, can we get them on coverage? This isn't just to save the adoptive parents' money. What happens if the placing parent decides to change their mind and parent? Well, we want to make sure that if they can't find health insurance, can they qualify for Medicaid? That'll protect them, especially if they decide not to go through with their adoption plan.

   We want to find out if sufficient information regarding the adoptive parents has been provided to the placing parent or whether we want to get more information for that placing parent. If the placing parent simply saw a one-page profile on an internet site, that might not be sufficient information. We want to make sure that that placing parent has received as much information about the adopting parents as they can, to make sure that their decision is completely fully informed.

   During the initial interview with the placing parent, we also want to go over the hospital process. We want to find out, have they preregistered, will they preregister? We want to talk to them about what a healthcare power of attorney and a HIPAA compliant medical authorization release are going to look like, and that they are willing to sign those documents to allow the adoptive parents to make medical decisions.

   We want to find out whether the placing parents want to see the child after the birth. Do they want to feed the child, change the child? What interaction do they want to have? We also want to talk to them about how the birth certificate application will be filled out at the hospital and naming the baby. Do they want to give the baby a special name? Do they want the baby to have a generic name such as Baby Boy Brown? Do they want to talk to the adoptive parents about what name the adoptive parents have selected? And do they want to mutually select a name together?

   Also, during the initial interview, we want to talk about, what sort of ongoing contact will there be? Does the placing parent want to have ongoing contact? Do they want to have that ongoing contact be enforceable? I've run into situations where I've been asked to represent a placing parent and been told that the adoption's going to happen under the law of a certain state, but that state does not allow for an enforceable ongoing contact agreement.

   But the law of the state where the placing parent is might allow for an enforceable ongoing contact agreement. In such events, I've actually had to say, "Hey, we can't do the adoption under the law of the other state because my client wants an enforceable ongoing contact agreement. So it needs to be under the law of our state, such as Virginia, where we can have enforceable, ongoing contact agreements that are written into the final order."

   We actually want to find out too where our placing parent's going to be after they place the child, especially if they need to come to any consent hearing. I've actually had cases where the placing parent has disappeared and we've had to hire private detectives to try to track them down. So it's important to tell your client that, "Hey, I need to know exactly where you are." You want to make sure you've got all sorts of contact information for them, and that you're going to be able to reach them.

   And then, we also want to get full and complete background information. As I mentioned before, typically the placing parents will fill out background forms. The academy forms that we use are about 40 pages in length and include all the background information that could possibly be obtained on the placing parent.

   All right, going back to our model rules of professional conduct, which can be a little boring at times to review, but are really important, rule 1.4 on communication says that a lawyer shall reasonably consult with the client about the means by which the client's objectives are to be accomplished. Keep the client reasonably informed about the status of the matter. Promptly comply with reasonable requests, for information and consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the rules.

   This provision creates a number of different things. We have an ongoing duty to make sure that our client knows of anything that might be important to the representation. If we learn that the adoptive parents are having issues in their relationship, that might need to be shared. It might impact the placing parents decision. We want to make sure that we are talking to the placing parent about their adoption plan and how are we going to accomplish that plan.

   We want to make sure that we keep them informed. It's especially important with placing parents because they're extremely nervous about their situation, to stay in close contact with them. This is where you end up doing a lot of texting. Many placing parents revert to texting. And so, text conversations with placing parents is pretty common and keeping frequent text communications can become really important.

   We also want to make sure that we let the placing parent know that we're not allowed to provide them with or help them with financial assistance. That's a big no-no. But it comes up quite frequently where the placing parent might expect their own attorney to try to help them out financially.

   I also provide, in your materials, a legal checklist of the legal advice to be provided. The placing parent needs to be advised of all the applicable laws regarding the adoption and a choice of law. We want to make sure we use a legal counseling acknowledgement form, that I've included in your materials, that says we've covered there alternatives to adoption, the applicable laws that might apply, special issues that might apply to interstate adoptions, whether they need to waive the law of one state in favor of the other law, what payments are permissible that could be made by the adopting parents.

   We want to make it clear that we've told them that our fees are being paid by the adoptive parents, but representation is fully on their behalf. We want to make sure that we've covered hospital procedures and they acknowledge we covered that with them. We want to make sure that we've covered the birth certificate procedure and acknowledge that we've covered that with them. And we want to sure that we've covered the ongoing contact and whether there's going to be an ongoing contact arrangement.

   Then we also want to talk about whether there are any sources of public assistance that have been considered with regard to the adoption plan. Going back to the academy code of ethics, rule number 13 addresses information provided to clients. It says that a fellow may inform a client as to the fellow's understanding of the laws of a jurisdiction in which the fellow is not licensed, provided that the fellow discloses that the fellow is not licensed to practice law in that jurisdiction.

   Therefore, we need to ensure we get accurate information from an attorney in another state and including asking the other attorney for actual statutes or case law when we're trying to learn what the law of another state is. What I do in these situations, when I'm representing a placing parent that's in Virginia, that might be signing a waiver of Virginia law and consent to, let's say, the law of Kansas, is I ask the attorney in Kansas to provide me with any of the Kansas law, including the actual statutes, or any case law so that I can rely upon that. Then I make it very clear to my client, "Hey, I'm not licensed in Kansas, but this is what's been provided to me. And this is what I understand Kansas law to be."

   Let's talk a little bit about some red flags, because those are really important. If the placing parents are married or in a long-term relationship, and if they are especially placing a sibling child of children they're already raising, those are red flags. It doesn't necessarily mean the adoption might not happen, but they definitely are red flags that you might want to point out to the adoptive parents' attorney.

   If the placing parent's evasive and not really forthcoming about the identity or whereabouts of the birth father, that's a red flag. If they're primarily interested in financial gain, that doesn't look good. If they're being pushed into the adoptive placement by others, that's another red flag. And then, again, we talked about whether the adoption was being kept secret. If the placing parent is not mentally stable, or if they're extremely emotional regarding the placement of the child, or on the other hand, if they're extremely unemotional regarding the placement of the child, I consider all of those to be somewhat red flags.

   Also, if the placing parent's obsessive about keeping hospital items for the child, they basically say, "Well, I want to get the baby's hospital bracelet. I want to take the footprints home, I want to be able to see the baby at least once a week," those are all red flags.

   Key ethical items to keep in mind when we're representing a placing parent, what's their mental stability, how are we addressing birth father rights? Does the Indian Child Welfare Act apply? What's the background information? We also want to find out, are they working and what leave issues might they encounter? Do they know how to apply for family medical leave or short-term disability? As I already mentioned, we want to address their health insurance coverage.

   We talked a little bit about mental stability before, and we just want to make sure that we confer with an appropriate medical provider, if need be. You do need to understand, in representing placing parents, how putative birth father registries work, and how birth father rights are going to be addressed. So we want to make sure that we understand, especially if we are having the placing parent proceed under the law of a state in which we're not licensed, that we really understand how birth father rights will be terminated. And we want to make sure we explain that.

   In your materials, I've included some sample questions for when you're trying to smoke out from a placing mom who the birth father might be. If they're being a little bit evasive, you want to find out, do they know their full name or only part of their name? How do they meet? If they don't have a phone number address, can they get back in touch with them through mutual friends or contacts? Are they able to find them somehow through Facebook or Facebook Messenger? Do they know where they work? Do they know where any of the friends or family work?

   Do they know where he went to school? Watch out if the birth mother simply puts on a form that the birth father is unknown, more needs to be done. In your materials, I've included more information about birth father registries, and that some states are pure putative father registry states, where the birth mother may not have to name the birth father, even though she knows who he is. In other states, she might have to name the birth father, and there is no putative father registry. And that birth father might actually be appointed a guardian ad litem by the court.

   States differ dramatically in terms of birth father rights. So it's important that you know exactly what rights are involved and that you've conveyed, especially if you're representing the placing mom, exactly what laws are going to apply to the termination of any birth father rights. There are some states like Utah that actually provide that the birth mother has a constitutional right to privacy, which includes not having to name the birth father.

   There's actually a court opinion, a small one, in Augusta County, Virginia, where the mother was permitted by the court to refuse to identify the birth father. However, that's not the norm in Virginia and not the norm in most states. In your materials, I've included a case of Wyatt versus McDermott. That's a really important case to read if you are representing a placing parent. In that case, the birth mother went to an attorney and basically said that she wanted to place the child into a state where it was hardest for the birth father to object.

   It's a really good decision for you to read about. There's more in the materials. But basically, in that case, the birth mother was kind of two timing the birth father and telling him that she may want to do an adoption or that she may want to parent with him. She placed the child into Utah and did not let the birth father know that she actually was doing the adoption. In that case, John Wyatt ended up suing the attorney that represented the birth mother, the attorney that represented the adoptive parents in Utah, the agency out in Utah. That's when the tortious interference with parental relations, tort, was first recognized in Virginia. It's an important case, and if you're going to represent any placing parent, I highly recommend you read it.

   In addition, in your materials, there's a lot of information about compliance with the Indian Child Welfare Act. It's important that you understand the act, and that if the act is implicated, you may want to confer with other counsel that are specialized in ICWA. It's really important to discuss with the placing parent whether they have American Indian heritage and can they identify the specific heritage. And then, is that actually under a federal tribe? And then look at the actual tribal requirements for membership for that tribe.

   We've talked about the background information that needs to be obtained from the birth parent. If they return the background forms and they are woefully blank, then it's incumbent upon us to go back over the forms with them and get as much information as possible. We talked a little bit about leave issues and we do want to make sure that our placing parent is protected if they have any eligible sick leave or personal leave or family medical leave that might assist them.

   We always want to remember that the placing parent has a fundamental right to change their mind, but we also want to make sure that they're not accepting money unlawfully and then changing their mind. While there's no crystal ball, it's important to be on the lookout for adoption fraud and always be just a little bit concerned if the birth parent is accepting money from adoptive parents. We do want to ask them, "Are you working with any other adoptive parents?"

   And then, through the academy, we can actually network with other attorneys to make sure that that birth parent or placing parent's not working with other adoptive parents. It's really hard to smoke out fraud, but we do want to make sure that we're always on edge and alert for it. I've included in your materials, the code of ethics provision by the academy for fraud and misrepresentation.

   Finally, you also want to be familiar with the interstate compact placement act and know exactly how that works. If you're representing a placing parent in an interstate compact, and you've never done an interstate case before, then you should align with an attorney that has done interstate placements to make sure that it's done properly. In your materials, I've included a lot of applicable forms that apply to the representation of a placing parent.

   I've also included forms on how to handle living expense funds. The academy has a code of ethics provision as well on financial assistance, that basically says that a fellow shall ensure that all parties to an adoption are aware of laws in the state where the fellow is licensed to practice law as to the financial assistance to birth parents in an adoption. We want to make sure that any financial assistance complies with the law and doesn't violate the law.

   Another provision under the academy code of ethics is handling trust funds. If I am actually helping with the expenses that are being paid to the birth parent by the adoptive parents, I actually put those funds in a separate trust fund or separate account from the fund where my fees are being held. It's important to keep those separate.

   When we are handling living expense funds, we want to make sure we comport with all laws. We keep them in a separate fund, that we always get a acknowledgement of from the adoptive parents, that we're going to release the funds and get their permission. Then we get an acknowledgement from the placing parent of what funds they've received and exactly what they're for. In many cases, we want to try to pay for a phone bill directly or a rent bill directly, or provide a grocery store card.

   In the code of ethics, there's also a reimbursement of financial assistance provision that talks about, if we find out that a placing parent is basically accepting money from more than one adoptive family, or if the placing parent is accepting money from one set of adoptive parents and then changes her mind and switches to another set of adoptive parents, it's incumbent upon us to try to see if we can get the new set of adoptive parents to repay the old set of adoptive parents for any financial assistance they've provided.

   In your materials, there's some more information about conflict of law issues and which law governs. We want to make sure that we understand how the uniform child custody jurisdiction act works, if there is a tug of war between the laws of different states.

   Finally, let's talk about some of the best and worst arguments for attacking birth parent consents. The best arguments include not complying with ICWA, not complying with the interstate compact, the birth parent not having an attorney or having ineffective counsel, mental illness issues, procedural irregularities, fraud, and duress. Some of the worst arguments are that the Americans With Disabilities Act was not complied with because the birth parent was under a disability or that the birth parent revoked or objected after a super long lengthy revocation period, or simply had a change of heart.

   So, in your materials, I've included a lot of cases on some of the best arguments for attacking a birth parent consent and the worst arguments, to assist you in your representation. Let's talk about some final takeaways. Placing parents, as I mentioned before, can be really emotional. They're engaged in an emotional process. You want to know as much as you can to make that parent feel very secure in your representation.

   Also, always keep in mind that no placing parent is obligated to place their child for adoption. You want to make sure that they know you're there to look out for them and to help them with effectuating their plan, so as long as they want to make that plan. Finally, you want to make sure the adoptive parents know you don't represent them and you cannot provide them legal advice.

   We talked about how difficult that can be if you're assisting with discharge of an infant at the hospital while representing the placing parent. My final cartoon, we've got this little girl and she's got a little boy next to him. She's talking to another little boy and says, "We came from mommy's tummy, but Joseph is adopted, so he came from his mommy's heart." We always want to remember that placing parents really do place with their heart. It's an emotional process. We need to be there for them, and we need to make sure that we do so ethically and competently. Thank you so much for attending this Quimbee program today.

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On demand
1h 51s

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