The practice of independent (non-agency) adoption in California may change radically if Senate Bill 11 becomes effective on January 1, 1994. Intense lobbying in the interim is expected to attempt to rework legislation, so this article will discuss how the bill's evolution and provisions reflect current philosophic disputes in independent adoption practice.

Pre-placement Home Studies

One of the most persistent criticisms of independent adoption has been that children are placed in homes without a pre-placement home study. A pre-placement visit to the home by a social worker, combined with personal interviews and a check of a criminal history and entries on the child abuse registry, is supposed to guarantee a safe placement.

SB 1148, in its first drafts, required such a pre-placement home study, but this provision is absent from the final version.

There is no empirical evidence that homes selected by agency social workers are better than homes selected directly by a birth parent. Uncovering a criminal record or a history of reported abuse is covered in current post-placement studies in California. This has proven to be a sufficient deterrent preventing marginal people from using independent adoption. The worst recent California adoption scandal, in which the child died after placement, concerned a couple with a full agency pre-placement home study.

Proponents argue that even an occasional disqualification of a family, and the resulting protection of a child, would justify the pre-assessment. Public confidence in adoption would increase. While admitting that almost no couples fail the post-placement placement home studies, some social workers attribute this to a reluctance to remove children already placed. However, this argument indicates that perceived fault must be minor, or the family would be disapproved.

Several objections persuaded the California Legislature to remove a requirement for pre-placement home studies from SB 1148. First, many independent placements are literally "last minute" events. A birth mother, forced by the act of birth to accept her pregnancy, desires to arrange an adoption. A couple is suggested by her doctor, or friends, or relatives. If the couple had not previously been actively involved in adoption, the pre-placement home study may entail a week to several months of delay, forcing a foster care placement which neither the birth parents nor the adoptive parents want.

Adoptive parents find the requirement of a pre-placement study somewhat insulting, since infertility, and the consequent need to adopt, hardly suggest any incapacity to parent. Fertile couples need pass no test to raise a family.

A final objection is financial. Pre-placement home studies would increase the cost of an adoption by $700-2,000, thus making it even more difficult for low-income families to adopt.

Finality of Consent to Adoption

The current California system requires a birth mother in California to sign the Consent to Adoption in the presence of a departmental social worker, which normally forces a delay of two months after placement. The Consent can still be challenged (although not easily withdrawn) until the adoption is final.

Agency relinquishments can currently be taken within a few days of birth, and become irrevocable almost immediately. This accelerated procedure is rationalized on the basis that agencies provide the birth mother with neutral counseling before a relinquishment may be signed. Yet this fails to explain the sudden maturity of agency birth mothers, or how the agency can remain truly "neutral" given the $10,000-30,000 each placement brings them. This author has talked to many birth mothers who describe the agency's counseling as perfunctory and the pressure to place as intense and persistent.

SB 1148, in its evolution, took many positions on this controversy. It always provided an outside period (120 days in the final version) after which a Consent to Adoption, signed now before placement, would become irrevocable. Initially, when the bill required pre-placement home studies, counseling, and advisement of rights, a Consent could become irrevocable only 72 hours after birth if the birth mother signed a waiver of right to revoke. A provision was added prohibiting a signing of the waiver until after the birth parent has met with a representative of the department of social services.

Whether the "right" compromise was made is impossible to answer. This author believes it responsible to allow some significant period during which a birth mother can change her mind. Returning the child to the birth mother after this time period is likely to cause the child only transitory disruption. Of course, the grief to the adoptive parents is incalculable.

To require meeting with an independent social worker, in my opinion, is also appropriate. Otherwise, the adoption would be controlled by attorneys dedicated to completing the adoption. In contrast, a social worker is trained to respond to doubt or denial by trying to get the birth mother to explore her conflicting feelings.

A countervailing policy is that many birth mothers don't want to be "bothered" by social workers, and purposely avoid agency adoption for exactly that reason. Requiring several pre-placement meetings and two post-placement meetings may be anathema to such birth mothers, and excruciating to those who want dearly to complete the process with as few embarrassing meetings and discussions as possible.

Counseling can identify birth mothers who have no true desire to place, and help them find other solutions to their pregnancy before adoptive parents are entangled in their lives. It can help a birth mother reach a decision in which she has confidence. It can help her overcome the pain of placement, and form a psychological structure to deal with the long-term effects of her adoption on self-image and self-esteem. In the short run, it can provide her with a "safe" place to discuss her feelings. But compulsory counseling is rarely productive, and many birth mothers simply do not want counseling and view it as boring, disparaging and intrusive.

SB 1148 takes a middle ground. Provisions require an offer of three counseling sessions, to be provided by a licensed adoption services provider or a psychotherapist. Upon request, the cost is to be borne by the adoptive parents. The legislation provides that despite payment by the adoptive parents, the counselor's duty is to the birth parent. Except for the payment of the fee, any contractual relationship with the adoptive parents or their attorney is prohibited.

A mandatory offer provides access to counseling without mandatory attendance at unwanted sessions. It remains to be seen if this system increases the number of birth mothers who elect counseling (which many attorneys already routinely offer without success).

Dual Representation

California allows a single attorney to represent both the adoptive parents and the birth parents. The California norm is probably "single representation," in which the attorney represents the adoptive parents, and the birth mother does not have independent counsel. A full analysis of this issue is worthy of an entire article in itself. Without separate representation, information about a birth mother's rights is controlled by a attorney whose income derives from satisfied adopting parents.

However, in most cases, the birth mother and the adopting parents are working together for a common goal. Injecting another attorney with a duty "protect" the birth mother may make the process more adversarial than it should be, as well as adding to the cost.

Requiring separate representation but limiting the amount for which the adopting parents are liable makes superficial sense. This limitation was part of SB 1148 one of its later stages. An offer of a separate attorney with a $500 limit of liability to the adoptive parents is now required in connection with obtaining consent for dual representation. But $500 does not go far with a adoption specialist (current fees from about $175/hour to $350/hour, with a mean of about $250/hour). Incompetent or inattentive representation is the most likely result of a low fee maximum. Higher required fee liability for separate representation imposes additional financial burdens on adoption, which is already expensive (and to be greatly more costly when SB II becomes effective).

Dual representation would be acceptable if adoption attorneys actually were somewhat balanced in their approach to adoption. In fact, private adoption attorneys are often professionally disposed toward adoptive parents since birth parents are not usually financially comfortable. Separate representation would be advantageous if the cost could be contained, and if the two attorneys did not act so much like, well, attorneys, making disputatious what should be a cooperate undertaking.

The final version of SB 1148 did not outlaw dual representation. The perceived unfairness to birth parents, combined with the clear favoritism shown adoptive parents by adoption attorneys, may still make the Legislature change its mind. A proposal to prohibit dual representation lost by only one vote last year.

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