Matrimonial Matters: Returning defective merchandise

By Sara Stout Ashcraft

Dolan Media Newswires

ROCHESTER, NY -- Recently the media have been abuzz with stories on the adoptive mother from Tennessee who allegedly placed her child, alone, on an airplane back to Russia with a note saying that he had behavioral problems and the adoption was not working out.

The child allegedly was violent, and his adoptive mother claimed she was not able to care for him. I certainly do not claim to be an adoption attorney, having been involved in only one adoption in my entire career. Gregory Franklin is an experienced adoption lawyer, however, a member of the American Academy of Adoption Attorneys and a frequent presenter on adoption topics. He also is one of my law partners, so I had an inside track on getting his views on the issue.

Franklin's view--

Such situations are hardly common, but they not unknown. Assuming the accuracy of the recent news reports, it would appear the adoptive mother had neglected her child and would be subject to a child protective investigation and legal penalties if she were found to have broken the law. Apparently authorities in Tennessee are looking into the issues, as one would expect.

The child could have entered the United States only after the adoptive mother either adopted the child in Russia, or a Russian court granted her full custody for purposes of an adoption in the United States. Under either scenario, the Tennessee adoptive mother had no legal right simply to place her child on an airplane and return him to the orphanage where he previously resided.

It is not uncommon for abused or neglected children, or those who spent many unhappy years moving from foster home to foster home or orphanage to orphanage, to exhibit symptoms like those the Russian child is reported to have exhibited. They are consistent with Reactive Attachment Disorder. Alcoholism is pervasive in many parts of the world, and it is likely that a child born in Eastern Europe would have been exposed to alcohol prenatally. Studies and medical experience have determined that, of all of the drugs and substances to which a fetus can be exposed, alcohol may have the most harmful effect. The effect of fetal alcohol exposure can be immaterial, but also can range from intermediate conditions like Fetal Alcohol Exposure all the way to significant disabilities encountered in children suffering from Fetal Alcohol Syndrome.

Several legal options exist for an adoptive parent in New York was is unable to continue caring for a child, including placement with a new family that then would adopt the child, or temporary or permanent placement with a county human services department. Another option, for which no services exist locally, would be to place the child in a safe environment for a brief period of respite.

Adoptions are not test-drives for children and their families -- they are permanent. Every reputable adoption agency and adoption professional is aware of the importance of pre-adoption preparation in the adoption of older children who may have special needs. Post-adoption assistance also should be available to families experiencing adjustment difficulties. One of the keys to a successful adoptive placement is education. Adoptive parents should receive expert instruction and counseling from the social worker who prepared their home study, and from other adoption professionals, concerning the risks inherent in an adoptive placement, as well as the benefits. Every adoptive placement involves a degree of loss and disruption for the adoptive child. If abuse and neglect, or the medical and psychological effects of prenatal drug or alcohol exposure are added to that loss, it should come as no surprise that many adoptive children are damaged in sometimes significant ways.

Those considering becoming adoptive parents should assemble a team of competent, experienced professionals who will be important resources throughout the adoption process. The team should include a social worker or agency to prepare the home study and counsel the adoptive parents on pre-and post-adoption issues, a doctor experienced in adoption -- international adoption, in particular -- who can read and accurately interpret foreign medical reports and, of course, an attorney who can provide legal guidance. Adoptive parents in crisis also should understand that their situation, while painful, is not unique and resources and services are available, to provide assistance and solutions.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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Published: Thu, Apr 29, 2010