THE PROBLEM OF OPEN ADOPTIONS
By Atty. Michael H. Agranoff

As an alternative to a TPR trial and possible loss of your child forever, parents sometimes seek what are commonly called “open adoptions.” DCF, or often your own lawyer, may pressure you into signing an open adoption agreement.

An open adoption, briefly, is a contract between the parent being terminated and the prospective adoptive parent or parents. It says that you may visit the child occasionally, and have other privileges such as writing letters, receiving school reports, sending and receiving pictures, etc.

Open adoptions are allowed by state law. They are codified in C.G.S. Sec. 17a-112(b)-(h), and specifically approved by the courts. Michaud v. Wawruck, 209 Conn. 407 (1988).

The idea is that you waive a trial, and voluntarily agree to terminate your parental rights, so that you will be sure to get certain privileges regarding your child in return. The Court has to approve the agreement, as being in the child’s best interest, and that agreement is made a part of the TPR order.

The problem is that the open adoption agreement is not truly enforceable at present. If the adoptive parents do not abide by it, you cannot get the TPR overturned. The TPR is final, and the open adoption contract is a separate issue.

An adoptive parent need only say that your visitation or other contact with the child “is no longer in the child’s best interests.” For example, the adoptive parent may say that the child is frightened and cries after all visits; or that the child said that he hated to receive letters and pictures; or the adoptive family may even move to Wyoming. At present, as of early 2010, there is no successful Connecticut court case of a terminating parent suing an adoptive parent to enforce an open adoption contract.

Since the parent was terminated, and since the courts defer to the adoptive parent to determine the child’s best interests, it seems unlikely that open adoption agreements will mean a great deal in the foreseeable future. They can work, and do work, only if both terminating and adopting parents work together in good faith; but seeking help from the courts is not likely to be productive.

In other words, you have the right to voluntarily TPR and enter into an open adoption agreement. However, be sure that your lawyer advises you that this agreement, if breached by the adopting parent, will be hard or impossible to enforce.

Some terminating parents, not wanting to appear difficult, make informal agreements with the adoptive parents. In a 2009 case (118 Conn. App. 569), the parent and the preadoptive family had discussed open adoption. The parent’s lawyer actually mentioned this in open court, on the record. However, the open adoption agreement was NOT formally made a court order. The terminating parent’s lawyer had prepared an open adoption agreement, and sent it to the preadoptive family, but it was not yet signed. The lawyer explained that he expected it to be signed, and the court went ahead and granted the TPR.

As you might imagine, the preadoptive family decided to not sign the open adoption agreement. The terminated parent filed a motion to get the TPR overturned, on the ground that there was, as the common law calls it, a “mutual mistake.”

The court denied the motion. It found that the parent “had the opportunity to talk to her attorney about the termination proceeding and was satisfied with his advice and counsel.” [That lawyer was a state-paid lawyer]. Too bad.

In conclusion, voluntary TPR with open adoption is often a good choice. However, be sure that you understand exactly what your rights are before you consider it.