Adoption

Adoption is the most permanent of the legal relationship options, and creates forever grandfamilies both inside and outside the foster care system.  In 2019, 36 percent of all children adopted from foster care were adopted by relatives.¹  For some grandfamilies, however, it may not be the most appropriate option and guardianship or legal custody may be better.  Before pursuing adoption, caregivers should understand all of the legal and financial ramifications of all legal options.

Legal adoption involves a judicial proceeding in which the following occurs:

1. Birth parents are proven unfit or voluntarily surrender all their parental rights (such as the right to visit) and responsibilities (such as child support) 
2. The court must generally terminate both parents’ rights and responsibilities unless --
   1. one parent is dead
   2. a step parent is adopting or
   3. in some states only, paternity was never established and need not be terminated

Upon termination of parental rights:  

1. Relative caregivers become the "parent" in the eyes of the law. A grandmother, for example, becomes “mom.” As an adoptive parent, access to services on behalf of the child is the same as for any birth parent.
2. Children can no longer automatically inherit from the birth parents' estate, be included on the birth parents' private health insurance policies, and receive benefits through the birth parent, such as military or disability.  Instead, children can inherit, be included on any private health insurance policies, and receive military or disability benefits as the adoptive child of the relative. Consequently, it is important to consider these financial ramifications when considering adoption.
3. Birth parents cannot reappear one day and go to court to attempt to reclaim their rights and responsibilities, as they can with other legal options.  

Although adoption also involves many families outside of the child welfare system, adoption is one of the primary avenues for creating permanence for children in foster care and is therefore highly legislated. This analysis of adoption will focus on:

1. State laws that provide preferences for relatives seeking to adopt children 
2. Adoption assistance programs that provide ongoing financial subsidies to “special needs” children adopted from the child welfare system 
3. Open adoption laws allowing the relative caregiver, birth parents, and child to develop an agreement for post-adoption contact

Relative Preference

At least a fourth of all states have explicit statutory provisions giving preferences to relatives in adoptions.  These preferences are in addition to preferences for placing children with relatives in foster care, which exist under federal law and in all states. 

In Minnesota, for example, relatives are prioritized for pre-adoptive placement.  Moreover, “an authorized child-placing agency may disclose private or confidential data to relatives of the child for the purpose of locating a suitable adoptive home...”  Minn. Stat. Ann. § 259.29.

In Ohio, If the agency is given permanent custody of the child and the foster caregiver or relative has informed the agency of their desire to adopt the child, the agency must consider giving preference to an relative over a non-relative caregiver when determining an adoptive placement for the child.  Ohio Rev. Code Ann. § 5103.161.

In Texas, adoption teams must attempt to place a child for adoption with an appropriate relative.  Tex. [Fam.] Code Ann. § 264.205.

Facilitate Relative Adoptions

Other state laws facilitate relative adoptions, but do not explicitly prefer them. 

In Alaska, if parental or other specified consent has been obtained, state law requires its courts to grant a petition to adopt a child by a relative who has had physical custody of the child for at least 12 months before parental rights have been terminated, unless the court finds the adoption is not in the best interest of the child.   Alaska Stat. § 25.23.127

Other states make it easier for relatives to adopt by allowing courts to waive certain requirements or by simply exempting relatives from requirements:

Open Adoptions

The majority of states have some type of statute concerning open adoption.  Kinship foster parents typically know at least one of the birth parents, so they are already “open” in that sense.  But these laws can facilitate post-adoption contact with the birth parents.  The court can use them to help develop an enforceable agreement so that the child can have clear, delineated post-adoption contact with the birth parents, siblings and/or other relatives.  Although enforceable by the courts, invalidation of the adoption is never a possible remedy for failure to adhere to an open adoption condition such as visitation.  

Adoption Assistance

After children are adopted by either relatives or non-relatives, ongoing monthly adoption assistance payments may be available.  All states provide adoption assistance on behalf of children with “special needs” adopted from the child welfare system. “Special needs” are defined by each state but are not typically limited to what are generally considered special needs.  They include characteristics or conditions that make it difficult to place a child with adoptive parents, such as being an older child or part of a sibling group. The subsidy payments usually end when a child turns 18 (age 19 to 21 in some states).

There are two general types of adoption assistance programs.  One is for children who are eligible under federal child welfare law, Title IV-E of the Social Security Act (Title IV-E) and are paid monthly subsidies using that pot of federal money.  The other are state adoption assistance programs that are not required to have the same restrictions found under federal law and consequently vary from state to state.  

Legal expenses in obtaining adoption can be very costly.  When adopting a Title IV-E eligible child with “special needs” from foster care, the federal government requires states to reimburse prospective adoptive parents for their non-recurring expenses up to $2,000.  Most states also reimburse these expenses under their state programs.  These expenses can include court filing fees, legal fees and transportation costs to and from the courthouse.

Under the federal program, monthly adoption assistance cannot exceed the foster care rate and children are categorically eligible for Medicaid; states seem to follow the same rate restriction for their programs and provide Medicaid for the children.

The North American Council on Adoptable Children (NACAC) website at www.nacac.org/help/adoption-assistance/adoption-assistance-us/state-programs/ has comprehensive profiles for each state’s adoption assistance program, along with other useful information.

The legal concept of adoption dates back only about 160 years. Adoption laws were not meant to interfere with the practice of relatives assuming responsibility for children whose parents could not care for them. One of the earliest statutes was enacted in Massachusetts in 1851. Only since 1929 have all states allowed legal adoption.²

Because a third of the foster care system is comprised of children in relative care and adoption has long been legally recognized as a preferred avenue for creating permanence for children, relatives are often encouraged by the child welfare system to adopt. Since studies have shown that children thrive in relative care, a subset of laws granting relatives preference in adoptions has arisen. In some cases, adoption well suits the needs of all involved. Caregivers may continue to get financial assistance through adoption subsidies and the child may have a greater sense of belonging, in addition to other advantages. 

Open adoption laws originated roughly twenty-five years ago and roughly doubled between years five and ten.  More are undoubtedly on their way. These laws are not designed solely for relative caregivers, but they can suit the needs of these families well. The enforceable contract can make birth parents more comfortable with the adoption since it provides for ongoing visitation, contact with the child or at the very least updates, such as yearly photos. Birth parents remain, in a sense, part of the family.

Finally, please note that the summaries of the laws and legislation in this analysis are based on the research conducted for this website and is available for all users in the state law and legislation database.  That database, as well as the other information on this website, is an ongoing project. If we have omitted any relevant information from this analysis or if you have any other comments or suggestions, please contact its author:  Ana Beltran, co-director, Generations United's National Center on Grandfamilies, at abeltran@gu.org.   

[1] AFCARS Report (2020).  Retrieved https://www.acf.hhs.gov/cb/report/afcars-report-27

[2] Schwartz, M. (1996). Reinventing guardianship: Subsidized guardianship, foster care, and child welfare, Review of Law & Social Change, 12,441-82.