by Gay Courter
Every natural parent automatically possesses both rights: primary and secondary. Primary rights would be the right to have physical custody of a child and includes the responsibility to support and give loving, stable care to that child. Secondary rights would give the parent, or another party, the right to know the whereabouts of the child as well as for the child to know the whereabouts of that person, as well as the right to visit the child on a schedule that is agreeable to all parties. In actuality, secondary rights would virtually legalize open adoptions.
How might this work on a practical basis?
Let’s say a cocaine-addicted mother gives birth to an addicted child with medical problems. The mother agrees to go through a detoxification program, but her history indicates that she has failed to keep these promises in the past. Besides, it will be at least eighteen months before she could be drug-free, have housing, and financial security. Under today’s laws, the child would be placed into foster care until the mother got her life together. The mother would then be given many opportunities to parent the child, with the child returning to foster care again if she failed. After repeated problems, the social service department could reevaluate the situation, decide whether the mother had been given every chance to succeed, and then begin the long involuntary process of terminating parental rights. The mother would be assigned an attorney, who would argue for his client using every loophole to give her the benefit of every doubt. In the meantime, the child could reach three or four years old and may have only spent a few hours or days with his mother. The foster family who raised the child could be asking to adopt him, but there is no guarantee that they would be the final parents either. Or the child could have lived in a succession of foster homes. Shockingly, the children who come into the foster care system as infants remain there the longest, precisely because of these scenarios.
If, at birth, the mother agreed to relinquish only her primary parental rights, the baby would immediately be freed for adoption of his primary rights. He would go to an adoptive family within weeks of birth and they would know that he could never be removed from their household and offered back to his birth mother. This child would be guaranteed a safe, permanent home. In the meantime, the addicted mother would be given services to assist her. During her rehabilitation she could visit with her child and she would always be informed where her child was residing. She would know that her child was cared for and she would be applauded for her decision to offer her child security, but she would not be denied the possibility of ever again having a relationship with or knowledge of the child.
Young mothers who find themselves pregnant before they are ready to raise a family would have another option besides abortion, caring for the child themselves, or giving them up for adoption forever. If they knew they could have some limited contact with their baby, they might be much more willing to consider adoption.
When families are in crisis, as Gregory K.’s parents were, and children are placed into the purgatory of foster care, the parents might more readily consider giving their children to another family on a long-term basis if they were not being denied the last vestige of contact with their children. Certainly the Colby parents would have signed away their primary rights to their daughters years earlier. It was only because we created a de facto open adoption that they voluntarily agreed to terminate parental rights.
Division of parental rights also might have solved the Kimberly Mays and Baby Jessica cases. When the Twigg family learned that Kimberly was their daughter, they could have applied for and received secondary rights at once. They could then have been her secondary parents without threatening Kimberly’s security. Of course secondary rights could not be abused. Guidelines for visitation would be set by mediators who work with families. Harassment or misbehavior on the part of the secondary parents would be grounds for the elimination or suspension of these claims. Older children would fully participate in the decision to see their secondary parents. However, in almost every case, the secondary right holders at least would always be notified of the child’s location and vice versa.
This could become more and more crucial as medical technologies rely on genetic material and related biological products to cure diseases. Bone marrow and other transplants are best done between compatible family donors. Years after birth a child may need a parent’s tissue or genetic contribution, or a parent may require a child’s, in order to remain healthy. To deny access to this hereditary information could be life-threatening. Also, communication between birth and adopted parents would put an end to the frustrating decades of searching that some children (and birth parents) go through in order to understand their identity and offer closure to this mystery in their lives.
A situation like Baby Jessica’s—the little girl who was given up for adoption until the mother changed her mind—might have been salvaged with this solution. Her birth mother gave up her parental rights, but lied about who the father was. When the real father surfaced, he sued and eventually won his right to have Jessica. However, had he been offered secondary rights immediately, he would have continued contact with his daughter, but she could have remained with her primary (and psychological) adoptive family.
Some parents would choose not to retain any rights to their children, and thus both primary and secondary rights would be relinquished for adoption. Some adopting families might not wish to continue a relationship with a birth parent and would only adopt a child who was totally free for the adoption of both primary and secondary rights. In egregious abuse cases, courts could involuntarily remove both primary and secondary rights. These hearings would be similar to those today for involuntary termination of parental rights with all parties being represented by counsel. However, in less drastic cases, judges could swiftly remove primary rights because of the fundamental belief that every child deserves a safe, secure home.
Gregory K.’s case made the plight of older children in the system more visible. Even so, when I brought up the idea of finding the Colby sisters a permanent home together, the social work professionals scoffed at me. Since then, though, many people who have heard of the Colby situation have indicated that they might consider doing what the Slaters did. Perhaps they might not take on three children but would consider one or two. Adoptive homes must be recruited aggressively. An African proverb reminds us that “it takes a whole village to raise a child.” Respect for human rights begins with the way a society as a whole cares for its children. Throughout human history, tribal members pitched in to rear the children communally, especially when the parents died or were incapable of doing so. There are almost 100,000 children in this country waiting for adoptive families and another 300,000 in out-of-home placements, many of whom are unlikely to be reunited with their original families. Adoption is their best chance for permanence. While some experts doubt they will ever find homes for most of these children, I believe there may be a vast untapped group of families that might be convinced to open their hearts to a homeless child. For instance, as part of their mission to protect unborn children, the large committed corps of prolife advocates might adopt some of these unwanted children who need love and protection for quite some time after their birth.
Many people are not interested in becoming foster parents. They don’t wish to be employees of the state and have their homes monitored by social workers. Nor are they willing to invest love and energy in a child for an indeterminate time. But if they knew that the child would receive both financial support and become a lifelong family member, their attitudes might change.
When she was eighteen, Alicia and I talked about what she wished had been different in her life and how I might have been a better guardian. “I wanted Ruth or somebody else to adopt me,” she replied plaintively. I flushed with shame because I had never realized this. Red Stevenson had signed the consent to terminate his parental rights when his daughter first pressed charges against him, and Tammy had been out of the picture. The HRS workers told me from the beginning that nobody would adopt Alic
ia because of her age and background, and I took their comments at face value. Now, after my experience with the Colbys as well as learning more about other difficult-to-place adoptions, I don’t believe any child is inherently unadoptable. Ruth might have considered adoption if she had known that this is what Alicia desired, and there might have been other homes we could have found. Without an adoptive family, nineteen-year-old Alicia has nobody to turn to because the Levy family did not remain her foster parents. Today I am the only person who accepts her collect phone calls.
More families need to know that they can receive subsidies if they adopt difficult-to-place and special needs children. Counseling and medical services can be provided. With open adoption made more viable, additional services may be required to help a child adjust to the various adults in his life. Therapeutic assistance to alleviate guilt and help with the new family’s attachment process might be necessary in many cases, but this would be a bargain compared with the up-front and long-term costs of foster care. When people ask me how the Colby children cope with contact between their real parents and adoptive parents, I repeat what I once told Nicole, “You can never have too many people who love you.” Also, it is important to remember that while termination of parental rights is legally forever, once a person turns eighteen, she is free to contact whomever she wishes. Less than two years after her adoption by the Slaters, Simone Colby will reach her majority. If she wants to visit—or even live with—either parent after that, she may. Both her birth parents realize this and also understand that by making their children’s life easier now, they are more likely to have a relationship with them throughout their lives.
While lawyers are essential in preserving rights and representing clients, attorneys in cases that pit children against parental figures must try to find a way to be less adversarial and arbitrate more situations so they reflect the best interests of a child at the time of the current crisis while also keeping in mind the continuum of the child’s life. However, if cases are settled too swiftly, attorneys will collect fewer fees. We know that the Colby sisters desire communication and contact with their biological family, but we do not know where this might lead. It is possible that they may become alienated from their natural father or mother, they may have a friendly, but distant relationship, or at some point in their lives one or more of the sisters might very well establish a stronger bond with their parents. As young adults search for their identities, reconciliation with their birth families is sometimes part of the process. Thus, it came as no surprise to learn that Kimberly Mays, who had claimed she “hated” the Twiggs and never wanted to visit them again, turned to them when problems with her custodial parents developed. I would not be surprised to learn that Gregory K. tried to contact Rachael to make peace with her at some time in his life. If these doors can be left open—if only a crack—the child is better served than if he feels he has to bolt one shut in order to move ahead.
The concept of dividing parental rights strikes fear in parents who think the state might move in to control their parenting or relinquish their children to others to raise. Nobody has any interest in telling functioning families how to bring up their children. Just as the Gregory K. case raised the specter of children suing their parents for “divorce” because they had too many chores or didn’t get the right brand of sneakers, these suspicions are groundless. So great is the fear of abandonment, children will frequently plead to remain with abusing families. One visit to dependency court will convince anyone that the children who appear there have been so battered and bounced from home to home that any solution that gives them equilibrium and stability should be attempted. These terminations will not be casual decisions. They will be made by professionals and ordered by a judge. In fact, judges and attorneys who are bewildered by the complicated cases that broken and dysfunctional families create are already attempting to work out legal solutions by interpreting current parental rights statutes casually for the sake of the children.
The best interests of any child, then, should be reflected in the ultimate best chance for a permanent, safe, nurturing environment. There is no one right path to this end. Sometimes children absolutely cannot flourish in their families of origin. Sometimes a stressed family might respond to a galaxy of services and turn itself around to be able to provide for its children. Foster care must only be the most temporary of solutions, with every child in that status heading toward either a rapid reunification with the biological family or an intensive plan to find an adoptive home, possibly with an ongoing relationship with the biological parents, possibly with that relationship severed for the child’s sake. Any local or national program that places the general goals of a prescribed scenario (i.e., family reunification) above the needs of an individual child will fail a good proportion of the children. That is why each child not only deserves—but should be required to have—an advocate firmly speaking out for him at the earliest possible moment.
WE MUST LIFT OUR VOICES LOUDLY FOR THE SAKE OF CHILDREN
Marian Wright Edelman, founder and president of the Children’s Defense Fund, reminds us that “service is the rent we pay for living.” In The Measure of our Success she warns that “individual service and private charity are not substitutes for public justice, or enough alone to right what’s wrong in America. Collective mobilization and political action are also necessary to move our nation forward in the quest for fairness and opportunity for every American.” Even if you do not have the skills, time, or ability to advocate for children one-on-one, you still can vote for candidates who really are for kids and not just kidding when they say they believe in family values.
While children without homes and families of their own rarely make the news when they are compliant, they blaze in the headlines when they retaliate at a society that denied them affection and caring. Abused and neglected children are the breeding ground for criminal activity. The worse the treatment a child receives, the more vehemently he strikes back in the crimes he commits. The social costs of ignoring these children include drug and alcohol abuse, gang violence, sexual promiscuity, teenage pregnancy, and every sort of crime. There is an outcry to build more jails and to have tougher punishments, but as Jesse Jackson remarked, “It costs twice more to send a child to jail than to send a child to Yale.” It might be easy to ignore these children or label them as bad, but the background for each is much the same as that of Rich or Cory, Alicia or Julie. Many of the adults in our jails were children whom we have let down and ignored. Even when we intervened, they may have become products of a foster-care system that unwittingly became an abusive and neglectful parent. Because we never cared for them, they don’t give a damn about us now.
If this sounds like the far-fetched rantings of a bleeding-heart liberal, let me tell you about the latest case I just received. Sharonda James is a bright, lively girl of fifteen. Her mother was murdered when she was eight. Sharonda was in the room at the time. Sharonda’s father is in prison, again. Sharonda and her younger sister were raised by her maternal great-grandmother, who is now almost ninety and blind. Most of the time the sisters either fended for themselves or helped their grandmother, but she can no longer care for them. Her paternal grandmother tried to raise the sisters, but they refused to follow her strict rules, so she threw them out. Since then, they stayed in various homes of friends, relatives, and men. Sharonda has never received financial support other than that received by her grandmother and great-grandmother from Aid to Families with Dependent Children. She has been in the juvenile justice system for several years. All her arrests have been either for stealing food or clothing or for running away from home. After her last arrest, the judge, thinking that part of her problem might be the lack of a parent or home, ordered her into foster care. Lillian noticed that she had never been assigned a Guardian ad Litem and asked me to take the case because “nobody else will.”
HRS put Sharonda with the Fowler family (Lydia’s foster parents), forty miles south of her school, family, and friends. She was th
e only African-American child in that home, neighborhood, or classroom and demanded to be moved somewhere in her own community. Reluctantly, her caseworker agreed. During a rest stop at a convenience store, the caseworker went inside and a taxi drove up. Sharonda got into the taxi and disappeared. Nobody found her for six months. She surfaced again when she was arrested for stealing food. Her juvenile justice worker has used the detention system to provide housing for Sharonda because there is no place else to put her. She has spent most of her time in state custody in a punitive environment. These programs do not even attempt to reform or educate. Each time Sharonda is committed, she emerges more criminally sophisticated than when she went in and further behind in school. When Sharonda became ill recently, she was seen in a hospital emergency room and given a prescription for an antibiotic. However, because she was given a legal status that put her in a limbo between foster care and a family placement, she did not qualify for Medicaid benefits and thus could not get the medication. When I complained that she needed services, her HRS worker told me (and her) that to qualify for help, she should get pregnant.
Sharonda is one of two million children who will be in state custody this year. More than 500,000 will enter the correctional system, and more than 400,000 will be in foster care. At least another 700,000 children will be reported as abused or neglected and will receive some services even though they will remain in their homes.
Sharonda has fallen into a crack where she receives nothing in the way of assistance or programs. She is currently living with a friend who has two small children. She receives no food stamps or any other financial aid. She is not in school because her caseworker has not done the paperwork to enroll her. She has not seen a dentist or doctor (except in an emergency) in years. The first time I met her she had not eaten in two days. A week later she was arrested again for stealing jeans. This child is technically in foster care, but who is the neglectful parent? And how can the state justify its actions? Ironically, unless Sharonda hangs herself in a cell or commits a gruesome crime, nobody will ever find out about her plight because the privacy laws that are intended to shield her protect the system instead. Since Sharonda’s juvenile court records are sealed, the system avoids scrutiny and does not have to be accountable to anyone—except the guardian, now that she has one, and thus the courts. Yet even with my very late involvement in her life, what can we predict will happen to Sharonda in the months and years to come?
