MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
SUBCOMMITTEE ON ASSEMBLY BILL 28
Seventy-Second Session
February 26, 2003
The Committee on Judiciary’s Subcommittee on Assembly Bill 28was called to order at 3:09 p.m., on Wednesday, February 26, 2003. Chairman William Horne presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
SUBCOMMITTEE MEMBERS PRESENT:
Mr. William Horne, Chairman
Mr. Bernie Anderson
Mr. Rod Sherer
GUEST LEGISLATORS PRESENT:
Assemblyman Tom Collins, Assembly District No. 1, Clark County
Assemblyman R. Garn Mabey, Jr., Assembly District No. 2, Clark County
Assemblyman John Oceguera, Assembly District No. 16, Clark County
STAFF MEMBERS PRESENT:
Danielle L. Christenson, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Angela Howald, birth mother, Reno
Michael Capello, Director, Washoe County Department of Social Services
Maire Burgess, Adoption Supervisor, Washoe County Department of Social Services
Karen Dickerson, Deputy Attorney General, Office of the Attorney General, representing the Division of Child and Family Services, Department of Human Resources:
Edward E. Cotton, Administrator, Division of Child and Family Services, Department of Human Resources
Myra Sheehan, Nevada Trial Lawyers Association
Kathleen Baker, Nevada Trial Lawyers Association
Eric A. Stovall, adoption attorney
Helen Foley, adoptive parent
Nancy Petersen, MSW, Child Welfare Training Coordinator, School of Social Work, University of Nevada, Reno, and adoptive parent
Lasca Wallace, foster/adoptive parent
Michael Rasmussen, attorney and adoptive parent
Lucille Lusk, Nevada Concerned Citizens
Rick Tierney, Nevada Association of Social Workers
The Subcommittee will come to order on Assembly Bill 28, the post-adoptive contact bill.
Assembly Bill 28: Provides procedure for parties to adoption to enter into enforceable agreement for post-adoptive contact. (BDR 11-207)
Madam Secretary, please note that the members of the Subcommittee are present.
I want to start by giving a brief overview on how I read this bill, particularly since I have received a number of e-mails and letters. First, in my interpretation of this bill, this mechanism will provide clarity that was not there before. We had a Nevada Supreme Court decision that roughly said that these post-adoptive contact agreements that people have been entering into for quite some time and are continuing to, it is actually in our Nevada Administrative Code, were not enforceable because they were not in the adoption decree. Therefore, this bill is an attempt to make it enforceable by requiring that any of these agreements are included in the adoption decree. These agreements are voluntary by the parties, the adoptive parents and the birth parents.
During the Committee hearing, testimony and some suggested amendments, I was pleased to see, particularly the one on modification of the agreement rests with the adoptive parents, particularly because we do not want birth parents running to court particularly to expand any particular agreements they have gone into. Also, I have been in contact with Judge [Gerald W.] Hardcastle, [Clark County, Family Division, Department D, Eighth Judicial District], who sees a great deal of this. He advised me at first that he was back and forth on this, but he agrees that this is a practice that has been and is continuing to go on. This is going to allow us to basically enforce agreements, which the parties have voluntarily gone into. No one is forced to go into these agreements. There seemed to be some confusion with some of the correspondence; some actually believed that to adopt a child you have to go into this agreement. Just wanted to clear that up, get that going.
A big part of this, if we indeed decide to go through with this, is educating the public and putting people’s fears, adoptive parents’ fears, a legitimate fear, that they are going to adopt a child and then have somebody over their shoulder constantly maybe undermining their family, their rights as parents, to raise the child as they see fit. We want to address that and hopefully relieve the fears, if we decide to go forward with this. Because we have a special session tonight at 5:00, our time is going to be limited. If I see that we are running short on time, I will begin to put people on the five-minute clock. I will try not to do that for now. I would like to see that we get everybody in, and I do not show a lot of people stating that they want to speak. Before we get started, does Mr. Sherer or Mr. Anderson have anything you want to add?
Assemblyman Anderson:
First of all, I want to thank you for taking this assignment. The bill, I think, is a step to try to solve that, as you indicated, the problems in the Supreme Court. There is much misunderstanding, I believe, about what our intent here is of the bill. I hope that we are able to do this; I have not had a chance to look at the witness list yet. I am hopeful that some of the people who have a specific interest that showed on this particular bill initially have an opportunity to be heard. I know how complex I found it when it was first approached that we might want to do this because it does appear to be an area where there is a great deal of misunderstanding. And if we can clarify that, it is in the best interests of anybody who is looking for the best interest of the child. In this state, that is what the number one thing is, the safest place that we can put a child and keep a child so that they can nurture and develop as they should.
Assemblyman Sherer:
One of the things I think is a great start but there are a lot of things that we need to look at, such as foster parents and also major other parts of the bill. Giving it more towards the adoptive parents than the natural or birth parents so that they have a little more control, unless you are looking at the child that is in the ages of eight to ten or above who are able to have a part of it, being able to work that contract out together.
Chairman Horne:
We are going to start with those who are in favor of the bill.
My name is Angela Howald, and I am the birth mother in the Supreme Court case 38572 that you have been discussing. I am here on behalf of birth parents. I was offered one of these post-adoptive contact agreements when I relinquished my child. It was, for me, a bargaining tool. I did not know that the post-adoptive contact agreement was not legal until I met with a lady named Muriel Skelly in the family court system in Reno, and she told me that “you have a closed adoption,” but I had chosen an open adoption option and that is how the Supreme Court case came to be.
I would like to say that I could speak on behalf of the best interest of children, but I think the best interest of children is if adoptive parents want a closed adoption and the birth parent is in agreement, that is in the best interest of the child. But if an adoptive family wants an open adoption with a post-adoptive contact agreement and the birth parent does too, that is in the best interest of the child. But right now, birth parents are being deceived, they are being misled, they are being lied to; these agreements can be null and void, and like you said, the Supreme Court is saying that legislation has to mandate these agreements being legal. And not only that, they have also provided—there is a copy of a sheet I provided for you (Exhibit C)—they are saying in a situation like this in the future, where mistake of fact is a reason for a lawsuit to come before any courts in the future, where a post-adoptive contact agreement was a reason for a birth parent relinquishing, that adoption can be contested. We have to decide if we want this to happen. Do we want to overturn it in the future, having an adoption overturned, or do we just want to make this legal? It is in the best interests of everybody for nobody to be lied to.
Adoptive parents do not have to choose a post-adoptive
contact agreement; an open adoption is the overall term where birth parents can
see their children. It is misunderstood
in the legal system what open adoption really is. But as a
birth parent I can tell you that this has broken my heart, the deception, and I
have not seen my baby. I would just ask
you, put it on the line, make it legal, or close it down. I have written to the Child and Family
Services telling them this is not legal, post-adoptive contracts are not legal,
and they sent it to the Attorney General.
The man who addressed my issue told me, “Who is going to stop us from
offering them?” Well, I am here to
try. Either stop offering open
adoption, post-adoptive contact agreements, or make it legal and not limited.
I was offered once a year for three years to see my baby. On the “Today” show this morning, in a post-adoptive contact agreement, this birth parent saw her child once a month and had a phone call once every two weeks. I felt so cheated. I could not believe that it could have been so much better if it was legal and clarified. We could open the doors or close the doors. Adoptive parents and birth parents can choose which way they want to go. I would like to thank you for addressing this issue. Mr. Anderson, I really appreciate bringing this before the Legislature again. That is all I have to say.
Assemblyman Sherer:
How old was your child when you put him up for adoption?
Angela Howald:
My little girl was three months old.
Assemblyman Anderson:
I hope you had an opportunity to look at the piece of legislation. I want to draw your attention specifically to page 2, lines 20 to 23, “failure to comply with the terms of an agreement for post-adoptive contact may not be used as the grounds to,” then to (b), “revoke, nullify, or set aside a valid release for consent to an adoptive or relinquishment for adoption.”
Angela Howald:
Correct.
Assemblyman Anderson:
So, what this bill does in reality is say that if you had an agreement and you are unhappy with the agreement, you get to come to court but that is not necessarily going to mean that you get to set aside the whole adoption. It merely means you have the opportunity for the court to look at whatever it is that you are asking for, nothing more than that.
Angela Howald:
Correct.
Assemblyman Anderson:
So, in reality, it reaffirms the right of the adoptive parents, if I am reading this correctly. It reaffirms the rights of the party adopting the child that they are going to have control of the child.
Angela Howald:
Yes, I understand.
Michael Capello, Director, Washoe County Department of Social Services:
I brought with me today Maire Burgess, who is the Adoption Services Supervisor. In Washoe County, we assumed responsibility for providing the entire range of child welfare services in January of this year [2003]. And at that time, we inherited the adoption services unit that had historically been provided by the Division of Child and Family Services, part of the child welfare integration that has originated from Assembly Bill 1 from the 17th Special Session. So, we are here today and I am going to have Ms. Burgess, who has the program history for the adoption program operated out of Washoe County, give you some testimony about our experiences with the adoption process.
Maire Burgess, Adoption Supervisor, Washoe County Department of Social Services:
I have supervised the adoption program for over ten years, first for the Division of Child and Family Services, which was in Washoe County and then stretched to the northern region with the counties surrounding Washoe, and now with Washoe County Department of Social Services. As a representative of Washoe County Department of Social Services, I am in favor of the passage of A.B. 28. Not only will this bill promote permanency and be in the best interest of children, it will solidify that a breach of the agreement does not put in jeopardy the validity of the adoption or the relinquishment related to that specific adoption. Since June 2000, the state and Washoe County have finalized 205 adoptions for children who were in the foster care system. Of those, 54 adoptions were considered open; 29 of the 54 were between foster parents and birth parents. These agreements were negotiated between the birth parents and the adoptive parents strictly on faith. All parties were aware that the agreement, as they knew it, was not then sanctioned by the Nevada Revised Statutes. These amazing families came together to expedite permanency for their children in spite of the risks involved.
It is the practice of both the state and county agencies to foster openness between the birth and adoptive parents for the following reasons:
It should be noted that not all parents are provided the opportunity to enter into an open adoption agreement. If there is a threat of harm to either the child or the adoptive parent, Washoe County Department of Social Services will proceed with the termination of parental rights of that parent. If that termination is granted, then all further contact between the birth parent and the child is severed.
Our agency is also responsible for providing services to families who are adopting through the private sector. In the past six years, there has not been a private adoption the agency has been involved in that did not include some level of openness beyond placement and the finalization of the adoption. Most of the private agencies that we work with will not even consider a family for adoption if they are not willing to enter into some level of an open adoption agreement with the birth parent. Openness is right for children, the birth parent, and the adoptive family. Open adoption gives all parties an opportunity to provide a safe, healthy, and informed future for the child. It takes away the mystery and the shame that used to be tied to adoption; it provides knowledge, hope, and acceptance to the adopted child. A child can never be loved by too many people. I thank you for the opportunity to address your Subcommittee, and I am available to answer any questions, if you have any. [Ms. Burgess submitted a prepared statement for the record (Exhibit D).]
Chairman Horne:
I was wondering if you could define for us the various different types of open adoption. There seemed to be some confusion regarding the various parties, open and closed.
Maire Burgess:
Are you talking of children who have been in the foster care system or in the private, where the birth parent and adoptive parent meet up and then come to us for services?
Chairman Horne:
Are the provisions different whether they are foster children or come in?
Maire Burgess:
I will explain both. It is easier for me to do the privates right off the bat, because usually what occurs is that a birth parent and adoptive parent through some other medium have connected, and by the time they come to us for the services to ensure that all the legal documents and all the birth parents’ rights have been explained, and that all of the different services are available to a birth parent should they choose to keep their child, we have a whole litany of things that we have to explain. They usually come to us and they have already decided what they believe is going to work best for them. That would even include the tremendous number of birth parents that appear, the families that we service that are in other states, and they will have already had contact for months before the birth of the child. When they come to us, they have already reached an agreement, and they could range anywhere from visits for the first few years and then cards and letters and pictures or phone calls, or sometimes it is just correspondence. But that is something that has been agreed upon even before we meet them, most of the time. So we do not really discuss much more than “what is your contact and how do you all feel about it, are you comfortable about it?” And then they go on and we are not involved in the actual discussion of it.
With foster children, I think the least we have had is cards, letters, and updates. We try to do it twice a year, depends on when the child’s birthday is, and then usually around the Christmas holidays. If the birthday falls right around in that time, then we choose May or something like that, to try to split it up so that they will get that. They oftentimes involve maybe report cards. I would say that contact, actual face-to-face visitation, is probably in the lower ten percent of those agreements, unless the child is of an older age, already knows their parent, and wants to see their parent; most of those are done with foster parents. They already know the birth parent; they know the good, the bad, and the ugly. They have had contact with them, they understand them, and they are not at all fearful to enter into that. Most of the agreements have a clause that if some point visitation is part of the agreement, that if in fact the child suffers from those visits and the therapist that is treating that child, in writing, states the reasons why the visits should be suspended for a period of time, that is usually part of the agreement. We have not had that happen yet.
Chairman Horne:
You were mentioning the foster child, older children, which occurred to me, oftentimes you have children that are in the foster care system for quite some time and, if they are lucky, they are with one family. But if that child comes up for adoption and is adopted—for instance, he had been with that one family for ten years—has that foster family tried to enter into one of these agreements. As I read the bill, and Ms. Lang can correct me if I am wrong, that this does not have a provision for foster parents to enter into such agreements.
Risa B. Lang, Committee Counsel:
It does not apply to them until or unless they became the adoptive parents.
Chairman Horne:
I remembered testimony during the Committee hearing in reference to older children wanting to enter into these agreements. I can see how an older child, [age] 10, 11, 12, would want an agreement to continue to see their foster family. But this does not address that at all. Any other questions?
Karen Dickerson, Deputy Attorney General, Office of the Attorney General, representing the Division of Child and Family Services, Department of Human Resources:
I am not here on behalf of the Attorney General’s Office; I am here at the request of my client and to maybe clarify some of the issues with regard to this bill.
Edward E. Cotton, Administrator, Division of Child and Family Services, Department of Human Resources:
I asked Karen to be here in case there were some legal issues, since I am not a lawyer and I would probably speculate incorrectly. Very quickly, I just want to make a couple points. As I testified at the hearing, the Division is neutral on this; we think open adoptions are a valuable tool. The concerns that I have, I would raise a couple. Again, I share this. We got a written statement from Clark County, but I am not sure there is anyone there to testify.
It is pretty similar and it gets into the word “enforcement” and what that means. It is very clear in the bill what it does not mean, but it is not clear on what are the consequences if an adoptive parent has a child that is part of an agreement where there will be visits and starts feeling that these are going bad and there are some real issues, and goes back to court, and the judge decides “you are going to continue them anyway.” At that point, if the adoptive parent still says “no, I’m not,” it is unclear to me what is going to happen. I have certainly been told by some of the advocates it does not mean the judge is going to throw an adoptive parent in jail or does not mean… but it does not say that. It does not say what will happen, what are those consequences if the adoptive parent, who is by law the child’s parent, says, “I do not want them anymore because I think they are bad for the child” and the judge disagrees. As I read this, there is some enforceability but we are not clear what that is. I like the statement that came earlier that maybe something could be worked in around a therapist or counselor statement to fortify that.
That leads into another concern that I think several of us have around the issue of, if there are disagreements, if the adoptive parent does not want the visits, raises some issues, maybe they are not clear, at this point it looks like the judge would hear that and make a decision. We do have some concerns that if a judge then brought the Division of Child and Family Services or Clark County or Washoe County Departments in and had us go out and do home studies, there is no fiscal note yet attached to this. And I do not see that this would prohibit that from happening; we would certainly want to have the option later on to say we certainly have high caseloads and do not have time to do that without some sort of looking at the fiscal impact. Two other very quick things. There was some testimony earlier about [how] adoptive parents do not have to choose, they can choose not to do this. There are some conflicts, and I testified at the hearing.
I am an adoptive parent of 2 kids out of the 27 foster kids I have had, and it is not quite like that. If you have a foster child for three years, and the child becomes available for adoption, and you are basically told that “we want to do this as an open adoption.” Your choice may be that I am not going to be the adoptive parent, which, if you do not want to, and you have a good reason but you still want to adopt the child, that is a very conflictual situation. So, it gets tough about how these get lined out and I just want to say that I have seen many open adoptions work very well. But I do not think that I wanted to leave the notion on the table that adoptive parents always have the right to choose whether to have it or not when they are going to adopt the kid; that may not be so. I think that is all I have to say; I guess the idea of enforceability, whether it is arbitration, how it is going to fall out, and whether or not we are going to be involved in resolving disputes are our biggest orders. I will answer questions, or I do not know if Karen wants to address some of the legal issues first.
Karen Dickerson:
I just wanted to put forth my experience with this. I have not worked in Washoe County that much, but I did fill in at a couple termination-of-parental-rights hearings, and my experience was not positive. My position is neutral, but in this particular experience the mother had…her children had been in our care for three years, they were huge problems because of the behavior and inherent problems with children that have not had adequate supervision or proper care. We could not even find an appropriate foster care home that would take them in Nevada until finally the paternal aunt agreed to take them who lived in Florida; it worked out beautifully. The children thrived, she got them tutoring and counseling over and above any the state provided.
However, when it came time to terminate the parental rights on mom, she was approached on at least three different occasions, prior to the termination of rights hearing, by the Division regarding whether she would agree to an open adoption. And she said she might consider that; the children were bonded with the mother and she did not have a problem with that, but she was very apprehensive about mom knowing where she lived and having visitation, [since] the children went through a lot of depression whenever they had contact with their mother. She wanted to be sure. Birth mother would not agree to anything prior to the hearing, so on the day of the hearing, the Attorney General’s office was ready to proceed and, all of a sudden, mom wanted an open adoption. We agreed to a continuance to the next day if they could work that out.
The problem with these is, what Mr. Cotton was just explaining is, you have mom who has very good representation through the Public Defender’s Office, in this case in Washoe County, and prospective adoptive parent with no legal representation and just hanging loose with the Division telling her “it is in the kids’ best interest and you need to do this. It will finish it, Nevada supports these and you need to do it.” I do not think that is a situation that is really voluntary. What happened is, that day that the trial was supposed take place, the public defender’s office faxed the aunt this agreement that was very troubling to the aunt because it did have continuing jurisdiction by the court in Nevada. The aunt is thinking, “how long do I have to deal with this, am I going to have to go back to Nevada every time” this mom, who had kidnapped these kids out of the Division’s custody on at least one occasion prior to this. So she [the aunt] decided to seek legal counsel, which was very appropriate, and her legal counsel advised her to not to sign anything, it was not appropriate, and she should not agree to it. After that, two judges ordered mediation. They threatened to bring the kids back to Nevada if she did not agree to work with them on and do an open adoption. The end result was we finally got to termination and we terminated. The aunt was dragged through so much challenge, on top of legal fees for her own representation, to fight something that she was not even a party to. So that is the down side, and I just wanted the members of this board to know that.
Assemblyman Anderson:
I find that troubling in part; let me make sure that I understand. There is a termination hearing going on; if we adopt this regulation, are we forcing or giving the parent who is about to terminate their rights the opportunity to enter into an open agreement?
Karen Dickerson:
That is what is happening in reality.
Assemblyman Anderson:
If we pass this piece of legislation, are we sanctifying that as state law?
Karen Dickerson:
I hope not. That is my concern, that it would be a bigger hammer.
Assemblyman Anderson:
For the state or for the person whose rights are about to be terminated?
Karen Dickerson:
The birth mother. In a termination proceeding, the adoptive parent is not a party, and the child in effect is not available for adoption until that termination hearing occurs. To make these agreements by non-parties, and especially when the prospective adoptive parent is not represented by legal counsel, and is pretty much told that this best for the child, so you feel like the bad guy if you do not agree.
Assemblyman Anderson:
Why would the normal pattern of termination which precedes adoption currently, not continue to be the case? Would we not continue to the termination of the parental rights and then we would move forward to adoption in those types of cases? If we pass this legislation, I think the group we are dealing with are those people who are voluntarily putting their child up for adoption, who are entering into an agreement through an agency, which is sanctified oftentimes by the state, but they are going into it not because their parental rights are being terminated.
Karen Dickerson:
I agree.
Assemblyman Anderson:
So if we wrote into this legislation a very specific chain of events, so that termination had to be completed where the state was taking control of the child, we would be OK.
Karen Dickerson:
I would have to see the legislation.
Chairman Horne:
Ms. Dickerson, do you know if Nevada has recognized the need for these post-adoptive contact agreements from other jurisdictions?
Karen Dickerson:
Not that I am aware of.
Chairman Horne:
We have not recognized them, or have they been brought forth?
Karen Dickerson:
From other jurisdictions?
Chairman Horne:
If someone entered into a post-adoptive contact agreement in California and the adoptive parents moved to Nevada, has there been any instance in Nevada to where they have been asked to recognize that?
Edward Cotton:
No, because essentially once the adoption is done, we are out of it. So there is nothing in this bill, which is a good thing, that there is any post-adoptive involvement of our Division, if any way it may be some sort of services are requested because of a special needs child. But in terms of the agreement itself, we would not be aware or need to know that because the child is no longer in our custody or care.
Chairman Horne:
Is it your concern on termination of parental rights, for the most part, does this provide for those parents who do not want to go through the termination of parental rights and may be more likely to want to facilitate an adoption instead if they had this vehicle to do so?
Karen Dickerson:
I believe that is how it is being used. They agreed to relinquish their rights feeling that they have this open adoption agreement so they can have continuing contact.
Chairman Horne:
We have gone astray and inadvertently called Mr. Cotton, who was in the neutral. We are going to get back on track and call those who [favor the bill]. Then we will call those who are opposed to the bill.
Myra Sheehan, Nevada Trial Lawyers Association:
Two things I would like to say. First, I would like to say how impressed I am and how much courage it took for Ms. Howald to come up here. I want her to know that we are here today because of her and what happened in her case. It took a lot of courage. I would like to say to Ms. Howald, on the record, that I am an admirer of yours and that today is a day that you can walk away feeling proud no matter what happens. The other thing I would like to say to Ms. Dickerson: what a horrible story, what a horror story that is, it saddens me, it upsets me, but I am a family law practitioner; I have judges do things like that to me every day. It does not mean it is right, it does not mean they are following the law, it does not mean that it would not happen if this bill passes or that it will happen if this bill passes. It is happening now. That is what I would like to say about Ms. Dickerson’s story.
Eighteen other states have similar statutes; they have done this because it is good and it helps. Eighteen other states have found that it is important to do. What this bill does is allows the court to maintain jurisdiction for the parties, it allows them to have some kind of enforceability and to modify the agreement. That is what this bill does. What the Supreme Court case did not do, it did not address the enforceability or modification, it did not address the effect on the finality of adoptions, and it did not tell us how to deal with these consents that are already occurring. That is what we have to remember; what we are doing here is trying to fix something that is already occurring and it is not working well. Listen to Ms. Dickerson’s story. That is what we are trying to do here. What this bill does, it provides strict grounds for modification, it provides that the parties to the agreement will only modify it upon changed circumstances, and if it is in the best interests of the child. It provides that if there is a problem and somebody has to bring this before the court, whether it is the birth parent or the adoptive parent, that if they are brought before the court and they win, they get attorney fees and costs. That is remedies. The modification and the shifting of the fee provision will help discourage frivolous lawsuits from coming before the court, as everybody fears.
Openness benefits adoptive parents. It benefits children that are being adopted, and it benefits those parents that are going to give up their children for adoption. What A.B. 28 does not do, it does not permit parties to set aside an adoption or a valid relinquishment consent to adopt; it does not do that. What this bill does not do, it does not require birth or adoptive parents to have post‑adoption contact if they do not agree to it. What this bill does not do, it does not require any specific type or frequency of post-adoption contact. That is what these parties contract for. What this bill does not do, it does not preserve the parental rights of the birth parents that give up those rights. They do not get any greater rights; it is a quasi-contractual agreement that says “I can have some kind of contact with this child that I have given the greatest sacrifice of my life to give up.” What this bill does not do, it does not lock adoptive and birth parents into a level of post-adoption contact that neither one of them are comfortable with.
We are asking that we have a bill that the Supreme Court has basically mandated us to do. Mr. Stovall is here; he is the attorney that was on that case, and he can tell you if I am correct in the things that I have just told you. I am bothered by the fact that this is so controversial. It is happening and there is no enforceability of it. You heard Ms. Howald; do you know what she asked you? Did you really hear what she asked you? She said, “Please do not allow these contracts to happen if you are not going to make them enforceable or if we are not going to have a law that tells us what we can do. Please tell me up front that when I give up relinquishment of my child for adoption, that I am doing it and it is final and there is no promise that I am going to have any contact.” She did not say, “Give me my baby back.” She said, “Tell me up front so I can make that choice.” There is no greater sacrifice that a parent can give than their child, and I think that a parent who makes a choice to do that is making the greatest sacrifice of their life. And what we are saying is, “It is already happening, we need a law, tell me how to write this law so that it works for everybody, but let’s not kill it.“
There is some opposition, and actually I am curious to hear the opposition. I have been told there is opposition to paragraph 4 that makes it a rebuttable presumption that an agreement for post-adoptive contact is included in an order of adoption. If that is in opposition, if there is opposition to that, I would be happy to work with whoever has opposition to talk about why that is important or if that is important or if we can get rid of it.
The other concern about enforceability is very interesting to me, because we can set out facts and terms of how this can be enforced. It does not seem to be a huge hurdle as far as I am concerned; because that is what the judges do every day. They decide how to enforce the laws in family court. We do not spell out every remedy when somebody does not allow visitation; there is not every remedy spelled out, the judges handle those. But I do not think we can overcome that. I will work with him, Mr. Cotton, if we need to have enforceability language, but let us not kill this bill.
As far as a fiscal note, I do not know how to address that. I will work with Mr. Cotton on that. I am here today, I am happy to answer any questions. I am a little frustrated because I think this is a good bill; I do not understand the opposition to it; I am willing to work with anybody on it to make it work and make it be right. I cannot say it enough: it is already happening. You kill this bill, it does not change it, it does not help it; it is already happening, and it is not working right, we are here to help fix it. That is what I want to do.
Kathleen Baker, Nevada Trial Lawyers Association, and as a private practitioner:
I do a great many adoptions, mostly special needs in conjunction with the adoption unit. I also do many private adoptions. What Angela Howald said is true; people need to know whether the adoptive agreements that they are signing are going to be enforceable or not. Right now, I generally represent the adoptive parents. They do not always tell me that they have an open adoption agreement, and there has been no statute that said to me, “Ms. Baker, if you are representing adoptive parents and they have an open adoption agreement, you need to incorporate that into the decree of adoption, or it is not going to be enforced.” I have a dozen or so open adoption agreements running out there someplace. And these people are not going to know what is going on with them. Not only that, my clients are the adoptive parents. They can say to me, “Don’t incorporate it. We have an open adoption agreement, don’t incorporate it.” They are my clients; I will not be able to incorporate it. Give me a statute that tells me I have to.
One of things that strikes me about an open adoption agreement and what we are doing here, we are trying to tell parties that we want to control the decisions they make in their private lives. This bill says that you are individuals who have the intelligence and ability to decide how you want to conduct your life, what you want to do with your adoptive children and the birth parents, and what the birth parents want to do with their biological children. People have the right to make those decisions and to decide for themselves whether they want to have any post-adoptive contact. I do not think that I have the right to tell my clients that they cannot do that. I do not think that as a state we should be telling people that you cannot decide to have an open adoption agreement with birth parents or vice versa.
Open adoption agreements do apply in cases that are heading toward termination. A lot of times it may be a way to short-circuit the termination process, but in non-termination cases in particular, the lack of the ability to have an agreement could result in the birth parent deciding that they want to keep a child that they would be better off having adopted by somebody else. That is not in the best interest for that child. If I keep a child that I am not able to take care of because I am denied even a card or letter or pictures once a year, that is not in that child’s best interest. That is something that we really need keep track of.
Ms. Sheehan talked about the enforcement process. I think that is something that can be worked out. The enforcement is going to come if the adoptive parent says, “I do not want to comply with the adoption agreement any more.” If the birth parent does not comply with it, it means they do not have the contact. The adoptive parent is not going to force them to do that. So the problem is going to come if the adoptive parent says, “I no longer want to keep the contact that I agreed to in this agreement.” At that point, we are going to have to figure out what to do with that. Most of the time we are talking about a breach of contract as monetary damages or attorney’s fees. I do not see forcing children to be seen by birth parents; I also do not think we should kill the bill because of that. I think as Ms. Sheehan said we have open adoption agreements. I have a couple sitting on open files right now and I do not know what to tell my parties. I do not know what to tell them about those agreements. So I would very much support this bill and would also be willing to work with any opposition to try to make it a bill that can be passed and give us some guidance.
Chairman Horne:
The enforcement part of this has been mentioned a couple of times today. You are right, it could be a nightmare; we do not want to send parents to jail for breach of contract or in contempt. But yet, we do not want to pass this and have no teeth or a revolving door to the mediation table, either. How do we sanction, such as paying attorney’s fees; do you believe that would be adequate? For instance, if the adoptive parent has said, “I no longer want to live by this agreement.” And they brought it forth to the judge and the judge said, “you have not presented any grounds for this new decision not to abide by this agreement, I order you to continue the agreement and you are going to pay attorney’s fees and costs.” Is that workable?
Myra Sheehan:
Actually, that is what would happen. I was thinking about this, and I think the unspoken fear is whether a judge will go to the extreme and say, “If you are not going to enforce the agreement, we are going to take this child away from you.” I would like to tell you right now, there is law and statute that says the court may not change custody of a child to punish a parent for not listening to their orders. I can get the case for you, it is on point, I use it all the time in my family law cases, where one parent is denying the other parent visitation and doing things of that nature and the court is angry that the parent is not following the court’s orders. There is case law that says you cannot parent by taking custody away. So that is not going to happen, that is the unspoken thing that is underlying all this. Is this child going to be taken away? I do not think that is going to happen, it does not happen in cases where there are parents that are divorced.
So what are the other remedies? The only other remedies that the courts have, as Ms. Baker says, in violation of agreements of this nature would be probably money, such as, you will pay attorney’s fees. They would also probably order makeup visits. Here is the other thing, if an adoptive parent says “I do not think it is in the best interests of the child any longer to have visitation,” and they can come up with any good faith reason for that, they have a right to terminate that agreement. That is what this statute says; that you can modify if you can show some kind of changed circumstances. What we are trying to prevent is exactly what Ms. Dickerson was talking about. What we are trying to prevent is people saying I will do this, wink, wink, nod, nod, and then not really in their heart mean to do it and then try to breach that agreement, which is wrong and unfair. And if they have no basis, no changed circumstances, no good reason, no showing that it is not in the best interests of the child, then they should live by that agreement or at least the court should have some teeth to enforce it. Put the teeth in enforcing it, we can put in there, enforcement of this is, you will pay attorney’s fees and costs, and you will be able to have makeup visits of the same duration and amount that you were not given.
Chairman Horne:
The sanction of fees and costs is actually in there on page 2, subpart c; it is there. Any other questions from the Committee?
Eric A. Stovall, adoption attorney:
I was the attorney for the adoption agency. I have to return to Reno for a prior engagement, I do not know if you would want to hear me or not.
Chairman Horne:
I do not want to deny anybody an opportunity to speak, so we take you now. Mr. Stovall, you spoke at the first hearing? Please keep it brief, I will put you on the timer.
Eric A. Stovall:
My work for private adoptions, mainly representing the adoption agencies, really has not been mentioned today. These adoption agencies, and in California, adoption facilitators, will often be the ones talking with the birth mothers about contact agreements. Oftentimes that is how those contact agreements originate. This bill as amended will allow those contact agreements to continue. I think Ms. Sheehan is absolutely right in that we are having the contact agreements now, anyway. Every adoption I have done, probably over 150 in the last five years, almost every one had some type of a contact agreement. If we do not put in this legislation, we are going to have contact agreements “floating” out there, and as Ms. Burgess said, it is just whether or not people are going to act in good faith or not. I do not think that is good enough. While I did not agree with everything Ms. Howald said, I do agree with one thing she said, is that birth parents need to feel comfortable about entering into an agreement. If the agreement is not going to be enforced, if it is not enforceable, as they are not right now, they are not enforceable; that is a real problem. That is going to hurt adoptions and it is going to hurt kids, ultimately. The state of Nevada needs to ultimately go forward and produce legislation that is going to make these adoptions more readily available and make it so that people will want to get into them. An enforceable contact agreement, as is proposed here in this bill, will accomplish that. I think the safeguard is there, as far as the adoptive family is concerned, to allow for modifications of that agreement upon a change of circumstance; that is what we would want. Also, this bill would avoid litigation as an aftermath of the contact agreement that was not enforceable in Ms. Howald’s case. I know my client spent $30,000 to $40,000 in defending that action, eventually going all the way to the Supreme Court and winning there. This bill would have prevented that from happening, could have short-circuited the whole thing. So in that respect, I am very enthusiastic about the bill and getting it passed.
Assemblyman Sherer:
As far as the foster parents, what can we do to fit that in there so that provision also gets put in there?
Eric Stovall:
You can keep it the way it is right now, because as long as they are foster parents, they do not have the rights as adoptive parents. Once they become adoptive parents, then this bill would reach them. But until they cross that line and decide, “the foster parenting thing has worked out fine, I want to adopt the child,” then this contact agreement could be used. I do not see that as a real problem. I think there is always going to be isolated problems with whatever we do, but I think this solves most of them.
Assemblyman Sherer:
So we can just make sure that the contact agreement to start with is the right setup so that would not cause this problem to start with. You see, some foster parents that would live with that child for eight to ten years and all of a sudden they go up for adoption and then that would cut them all the way out of it. That is the only part that I see.
Eric Stovall:
As far as cutting them out, they still can adopt the child.
Assemblyman Sherer:
If the foster parents were taking care of the child, and another family came into adopt the child. Then they [the foster parents] would not be able to keep any rights or see the kids at all. Or would they be able to have some sort of a contract set up with the adoptive parent?
Eric Stovall:
I do not think that would be affected by this particular bill.
Chairman Horne:
Ms. Lang, could you clarify that?
Risa B. Lang:
This does not address foster parents; that issue would need to be handled separately. But this legislation is dealing with the actual adoption and the agreement between the adoptive parents and birth parent. So the situation where you are dealing with continuing contact with foster parents would be some type of a separate agreement. That is not covered by this.
Eric Stovall:
The foster parents would have it under a third-party visitation rule, as pointed out by Ms. Sheehan.
Chairman Horne:
Before I forget, Ms. Sheehan, you mentioned working on the language and draft, I wanted to point out to you, Ms. [Cynthia] Lu helped draft this bill and you should get with her as well.
Helen Foley, on her own behalf as an adoptive parent:
I do not know whether I am “for” or “against” the bill. I have some thoughts and concerns about it, and although I represent many different clients here at the Legislature, I am representing myself today. I am in the process of adopting a newborn child. I am concerned about many of the areas of this bill, and I have listened intently and understand all parties that have spoken. I agreed a lot with what Mr. Cotton said, but I also sympathized terribly with the birth mother feeling that she entered into a contract and now it is not enforceable. That is a terrible thing, especially when you are giving your child to another. That has got to be one of the most heart-wrenching things in the world. I have experienced that recently in a couple of different scenarios.
I have been going through Catholic Charities in Las Vegas to adopt a child. I was matched with a birth mother who had three young children and her husband was in jail, fourth offense domestic violence. I took care of the family for five months; she was at risk. We went to the gynecologist almost every week and to the hospital for fetal assessments. I got very close to the family and certainly I would have signed something that we would have remained in close contact. I would have wanted my daughter to know her brothers and sisters. Unfortunately, just before the birth of the child, the father was released from prison and went into the drug court, which I was always pleased about the drug court, but I saw how he…it was a scam as far as his case was concerned.
The day the baby was born, she acted like she had never seen me before, so that relationship ended. And in many ways, that was very good because the agreement I had reached with her is that we would have been in contact. She did not know my last name, but I am a very public person and she would found me very easily. She had all my phone numbers; she called me all the time. And if we had had an agreement and then I realized I would have agreed to continuing jurisdiction of the court in everything that I did with my child, it would have concerned me deeply. It would concern me very much that this person could have had any influence in my child’s life. And when I set about this process of wanting to adopt a child, I wanted that child to be mine in every way.
Now, Catholic Charities has a fantastic program and we went through about 30 hours of class in really understanding about adoptions and the different opportunities of a closed adoption, which is absolutely closed, you do not know them, they do not know you. Or open adoption, which is a very long sphere of what that means. In my case, with the child that I adopted, I met the birth mother once after the child was born. And then she was placed with me. I am sending pictures occasionally and we agreed upon that. But, that is it. She does not know my last name; I do not know hers. I never met the birth father. They are not married. And that is it for an open adoption.
Now there are other people in my adoption class who have ongoing relationships with the birth mothers, they have invited them to the baptisms, and they come to the birthday parties. They have very close relationships, but all of them are considered open. And so, to have an agreement that would seek enforcement of the terms… Catholic Charities had concerns the other day and I did not get to talk to them very long. They feel that once birth mothers know that they can have some kind of enforceable contract, that it will encourage them to do that, whether they really thought it was appropriate or not. Some people would feel guilty walking away and not signing some kind of contract. I want to make sure that as many people adopt as possible. There are very loving, wonderful homes, and to hamstring them with something where they feel that the court is always in charge of this child, and it has it right in the decree of adoption. I see the dilemma when these post-adoptive contracts are not enforceable, and I ache for the woman who spoke. I do not know why through contract law there could not be a simple contract that is not attached to this adoption. I know that many judges, judge in many different ways. I am scared to death that even though it says that you cannot take the child away, and it does not set aside the order of decree of adoption, judges do what they do. I am fearful of that.
Chairman Horne:
Thank you. I want to reiterate, I have not heard that in these agreements the birth parent says, “I want in our agreement that you have to raise the child in a Catholic school, and I do not want the child to participate in football because it is a very dangerous sport.” Not in the realm in which parents make those decisions. I was of the understanding that we were talking about simple things like contact with mail, pictures occasionally, the occasional visit, but as you said in your testimony, in your adoption class, various parents have different agreements with different birth parents. They all drafted what they each were comfortable with; that is important to focus on. They have chosen to go into their own comfort level.
Helen Foley:
I appreciate that, but it just says, “…may enter into any enforceable agreement that provides for post-adoptive contact.” In listening to Ms. Dickerson, it seems that the woman who was having her parental rights terminated had the aunt over a barrel. She could have demanded anything in this post-adoptive contract. What was she to do, give up the children? Take it or leave it? It is the unintended consequences that scare me.
Assemblyman Anderson:
Ms. Foley, I do not know whether you have had a chance to read the Supreme Court decision that necessitated this; the Court is very divided in its opinion relative to the question of contract. In point of fact, it was because of the Supreme Court decision from this particular case that we saw the necessity for even approaching this particular subject, and the reason why these agencies are all here is because they recognize that, based upon this case, that the Court has said that all these contracts are unenforceable and has chosen to make that decision. However, the possibility of moving forward the other way with so carefully divided a Court would depend upon the next time a case managed to make it through the system. So if the Legislature remains silent on the issue, we will be back at it again. It is kind of like, “pay me now or pay me later.” I guess we do not like the pill, but if we do not fix the system, we are going to be constantly at it. We have the opportunity to fix it here and now, so it seems to me we should fix it correctly. I would suggest you might want to take a few moments to read that.
I agree with you; I do not think that we can make the assumption that the birth parent does not care about the child while it is moving the child from their control to your control. At the same time they want to make sure, that reassurance, that little nagging part at the back of their brain that says, “Did I do the right thing?” That is why these contracts exist is because they are going to get that occasional touch. I am very sympathetic to that particular argument. I know I had a difficult time thinking about this.
Helen Foley:
I would be more than happy to work on and sit in on the enforcement modifications that might be made.
Myra Sheehan:
I would be remiss not to tell you I brought two adoptive parents, Nancy Petersen and Lasca Wallace.
Nancy Petersen, MSW, Child Welfare Training Coordinator, School of Social Work, University of Nevada, Reno:
You do have a written copy of my testimony (Exhibit E). I am a social worker and I am on the faculty at the School of Social Work at UNR, and I do a lot of training in child welfare issues around the state. But I am also an adoptive parent and I have two children, ages 14 and 10. I think it is important to hear the perspective open adoption over time. My daughter is 14 and we have had an open adoption since she was born. I do have pictures of me, my daughter, my son, and our dog. This is my daughter with her birth mother and her birth half-sister. I just want to say we visit with her family frequently, she is Hispanic, her birth family lives in Fresno [California]; we have gotten to know her grandparents, her extended family. I think it has made a huge difference for her to be able to get to know her Hispanic background, in addition to her white background. There are lots of things I just simply cannot give her.
I think it is important for adoptive parents and birth parents to really understand and be educated about why open adoption is a good thing when it works, and it really does work a lot of the time. I have learned a lot about my children, my daughter, because I can talk to her birth family and I can understand things about her, that are not genetic, that I just do not get. But by getting to know her birth family, I have been able to understand over time. Frankly, right now she is 14 and she is becoming an adolescent. It has proven to be very supportive for me and for her to be able to contact her birth mother and her birth family and to get their support as she makes her way through some of these issues.
A lot of the books now are supporting open adoptions as the best practice, in an ideal world, because it does resolve a lot of the questions for the children, it really is a support to the adoptive parents, and it is a huge support for the birth parents. I agree when it was said that this is not the birth parents trying to undo the situation. It really is their opportunity to stay in touch and know that this was a good decision that was made and that their child is being well cared for and well raised. It has healed a lot of wounds that happen across the board with adoption.
I think that some of the fears about it seem to around the issue that adopted children are going to be confused or are going to have to choose between their birth parent and their adoptive parent, that somehow it is going to mess them up, or that they are really going to intrude on the adoptive family. In my situation, and I think in most situations when there is good education and good support and possibly good counseling, that really can be worked through, and it is not an issue. Some of those issues are going to be there in all adoptions. Children are always going to wonder about their birth parents whether they know them or not. They are going to feel that, somewhere deep down, a choice or torn between those two parents. It is real clear as a friend of mine has said, the adoptive parent is the parent because they do the day-to-day care taking, they are the ones that are there every time, and as my friend said, “You are the one your children fight with. You are there, reliable, their support, you are the one who goes with them over time.” I would just like to encourage people not be scared that somehow open adoption is a threat to birth families or adoptive families. It can be a very positive thing. I think it strengthens adoptive families, in my experience.
Lasca Wallace, a foster/adoptive parent:
I have just recently adopted a sibling group of three, twins that are two and their one-year old sister. I have chosen to have an open adoption with the family, the grandparents and the mother. I think it is very positive; the kids get to know their birth family. I get access to medical history. I feel the mother did decide to relinquish on the baby much sooner than the twins because she knew I would be keeping them and that she would be able to see them on occasion. So I am in favor [of A.B. 28.]
Michael Rasmussen, attorney and adoptive parent:
I have some strong views on many of the points that have been brought up. The one thing that I first want to clarify for this Subcommittee is, we have heard a little bit about open adoptions and closed adoptions today, and I hope that the Subcommittee would understand that there are two schools of thought, with arguments on both sides. Just as many people feel that open adoption is the way to go, there are probably just as many who are going to say closed adoption is the way to go. I, as an adoptive parent, kind of fall in the middle. That is one of the concerns I have about how this statute is applied. I have a semi‑open adoption: very minimal contact, there has been a lot of confidentiality kept, only first names are known, only exchanged letters one-way from us, the adoptive parents to the birth mother, and a few pictures along the way. Our agreement also will terminate at the third birthday of our child. So I think we fall into this semi-open adoption realm, and we have to find some way to make this statute, if it is going to be enacted, that it applies to only certain portions of the adoptions, those that are truly open where both parties are in full agreement to enter into these post-adoptive contact contracts. I guess I will go through and point out some of the sections that I find troubling in the legislation.
Chairman Horne:
Regarding your last point on the rebuttable presumption, you would be able to because we have the modification portion of the bill, and particularly you, as an adoptive parent, that power of modification rests with you. There has already been an amendment put forth. In the bill it says the parties may modify whatever… I think that in the Committee, we agreed modification rests with the adopting parents was best; we have had testimony today of that. I think that would address your concern.
Michael Rasmussen:
To me it seems we are attacking what is the natural parent’s right, which is to choose what is in the best interest of the child. And now we are making adoptive parents do something that a birth parent would never have to do. If you as a natural parent want to change something in a child’s life, you do not have to go to court to make it happen; that is a natural parenting choice. That is what I am concerned about protecting.
Chairman Horne:
And I understand that concern, but is it not within the universe of the agreement that you voluntarily entered into?
Michael Rasmussen:
But if I voluntarily entered into it, I am also saying that I am the adoptive parent and the day the decree comes down from the court, I am the parent.
Chairman Horne:
You are the parent with that agreement that you have entered into. Thank you.
Lucille Lusk, Nevada Concerned Citizens:
We had several points of concern, all of which have been covered by other individuals. So what I would mostly like to do is to offer to work with those who will be working on the development of language. I will say the greatest concern has already been addressed by the amendment offered by Ms. Sheehan at a previous meeting. I have not detected that anyone has a problem with that amendment, so that would be a very good start. There are three or four other points that are absolutely essential to be able to make this piece of legislation one that does not infringe on the rights of adoptive parents as Mr. Rasmussen has mentioned, and yet perhaps allow for the enforcement of an agreement that is legitimately entered into without pressure and that preserves the opportunity for closed adoptions, which, as had been mentioned, many individuals believe actually may be in the best interests of the child, realizing that others think that open adoptions are the better choice. I do not think that I have to go through those today because my perception is that you are going to say, “You folks out there, work on this and come back to us with language.” Am I reading you correctly? I will offer to participate in that process.
Rick Tierney, student intern, National Association of Social Workers:
I am here to support the bill.
Chairman Horne:
Is there anyone else in Carson City or Las Vegas who wishes to testify and did not get an opportunity to? I would like to say thank you everyone who came and testified and also shared personal stories. I think it was made very clear, because we have a Nevada Supreme Court case addressing this problem, and I think back to law school and particularly my legislative process class, when the courts would send down basically a subtle command and the Legislature ignored it, it only fostered more litigation. I think it is upon us to get something drafted and passed here. I appreciate also that everybody is on board willing to come together and get some good language in there that we think can work. I hope that we can do that.
To put it on the record, Professor [Annette] Appell from the William S. Boyd School of Law [UNLV] sent a memorandum (Exhibit F) in support of this. She works in the child welfare clinic there, which I had the honor of serving on during my last semester of law school. She also sent reports, “Final Report—Adoption with Contact Statutes: Origins and Outcomes” and “Children’s Legal Rights Journal.” She is the author of both reports.
If there is nothing further for this Subcommittee, we are adjourned [at 4:41 p.m.].
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman William Horne, Chairman
DATE: