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Utah lawmaker wants to make some open adoption agreements enforceable

Published February 5, 2013 5:51 pm

SB155 • Senator will retool bill and bring it back to committee.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

After hearing from representatives of the state's largest adoption council, a Utah senator plans to redraft a bill that would make open adoption agreements enforceable so long as they apply only to cases involving children in state custody.

Sen. Lyle Hillyard, R-Logan and an attorney, on Tuesday told the Senate Judiciary, Law Enforcement and Criminal Justice Standing Committee, that he came up with SB155 after working with a mom who would have consented to an adoption — and thus avoided a trial to terminate her parental rights — if such a provision had been in place. He said such cases often involve children who are older and have relationships with parents and extended family who'd like to continue to have contact with them when appropriate after an adoption.

"If they know they could still preserve some rights you would find cases that we now try would be resolved and settled," Hillyard said, adding it is often helpful to children to continue such relationships and know many people love them.

But Hillyard agreed to rework the bill after meeting with the Utah Adoption Council (UAC), which expressed concerns about its application to private adoptions. In addition to limiting it to children in state custody, Hillyard also will make clear that adoptive parents have the ultimate say when disputes about contact arise and that failure to abide by an agreement is not grounds to disrupt an adoption.

In the past two years, 1,045 children were adopted from foster care, according to state data.

As of 2011, about 26 states had statutes that specifically addressed open adoption arrangements governed by written, enforceable contracts. In some of those states, the law applies to all adoptions while in others it affects children of a certain age or only those in foster care. No state allows failure to comply with an agreement as grounds for setting aside an adoption decree.

Attorney David Hardy, immediate past president of UAC, said the group began discussing "post-adoption contact agreements" a year ago after hearing from a birth mother who supported making them enforceable. He said UAC has not reached any consensus, with some arguing that enforceable agreements would "cheapen" adoptive parents' authority. Larry Jenkins, a UAC member and adoption attorney, said that while Hillyard's bill would make such agreements optional, the practical effect would be to make them required in all adoptions.

Jenkins said that's not always in the best interests of children such as his toddler nephew, who is adopted and "literally has turned into a mess" after every contact with his birth mother.

Still, Jenkins said it was worth giving the idea a test with children adopted from state custody.

Stan Swim, a Pleasant Grove resident, adoptive father and past chairman of the National Council For Adoption, also spoke against enforceable agreements — a view shared by the council.

"That puts adoptive parents in a position that essentially no other parent is in unless it's through something like a divorce," Swim said.

He said open adoption agreements are better left to adoptive parents and birth parents to negotiate, with room to evolve over time. Swim said birth parents often move toward less communication over time, while adoptive parents become more comfortable with contact over time.

Dan Deuel, an adoption attorney and member of the Utah Council for Ethical Adoptions (UCEAP), said his group agrees an education campaign is needed. He said some birth parents may feel an adoption is the best option for their child but don't want to lose all contact.

UCEAP met Tuesday afternoon and its members voted unanimously to support the bill, according to president Wes Hutchins, an adoption attorney.

Hillyard asked the committee to table the bill until he reworks it.

"I just think this option being available, with the safeguards we've talked about, we should have a chance to try it and see how it works," he said.

brooke@sltrib.com

Twitter: @Brooke4Trib