Sunday, May 4, 2014

Maryland Adoption Professionals Take Heed When Overseeing the Payment of Adoption-Related Living Expenses

This is the final post in my series about Maryland's new adoption law, which now allows adoptive parents to help birth parents with certain living and transportation expenses.  The first post in this series explained the history and need for changes in the types of reimbursable expenses allowed in Maryland, as well as the new law which took effect October 1, 2013.  My second post compared important provisions in Maryland law to laws in other states, including allowable adoption expenses, adoption consent and revocation laws, and enforceable post-adoption contact agreements, and concluded that Maryland law provides several important protections to birth parents when an adoption is finalized in Maryland.  As a result of these laws, and recent changes now allowing birth parents to obtain much-needed help with certain living and transportation expenses, I concluded that Maryland may see an increase in the number of adoptions being finalized in state.  In implementing this new law, adoption professionals finalizing adoptions in Maryland are advised to take certain measures to maintain the integrity of the adoption process. 

First, before any living expenses are paid, the birth mother must provide written documentation from her medical provider stating she is unable to work or otherwise support herself due to medical reasons associated with either the pregnancy or birth.  If a birth mother receives such written advice prior to the birth, she should obtain a separate, written note if her doctor agrees that she cannot work or support herself for a time period after the birth as well.   

Second, the birth mother must provide written documentation of the food, clothing, and housing expenses for which she is requesting assistance, and all expenses must be verified by the adoption professional or attorney for the adoptive parent(s).

Third, and most importantly, no money should be paid directly to a birth parent, particularly by an adoptive parent.   Instead, all eligible expenses should be paid by the adoptive parents' adoption professional or attorney directly to the third-party provider.  The adoption professional or attorney should establish a separate escrow account early on, after identifying and verifying all expenses of a birth parent that may be paid by an adoptive parent.  A birth parent's estimated expenses can then be collected, deposited in that account, and paid on a weekly basis if possible, directly by the adoption professional or attorney to the landlord, other third party, or if necessary for the purchase of a gift card to a grocery store or maternity clothing store.  Cash payments, even from the adoption professional or attorney, to a birth parent should be avoided.   

Fourth, the adoption professional and potential adoptive parents should maintain meticulous records documenting each and every payment, including the date, amount, payor, payee, and a description of what the payment is for.  Such records will be necessary for preparing the accounting that must be filed with the court when the adoption is finalized.   It will also be helpful when seeking the adoption tax credit -- although it will not be required to provided with your return, the IRS will likely request copies of such documentation to support the claim.  

Fifth, because Maryland strictly prohibits anyone from compensating a birth parent for placing a child for adoption, adoption professionals should counsel adoptive parents against making any payments directly to a birth parent.  This advice should be explained to them in person, and given to them in writing, preferably in the adoptive parent agreement.  Any existing adoptive parent agreement should also be amended to include a description of the terms of an escrow account and how permissible birth parent expenses will be paid and documented, and to notify their clients of the financial risks involved should a birth parent decide not to proceed with an adoption plan.  Similarly, representation agreements with birth parents should include a provision stating that they agree not to accept any payments of money or other tangible items directly from a prospective adoptive parent, and that should an adoptive parent attempt to make such a payment, that they will notify their adoption professional immediately.

It is important that adoption professionals finalizing adoptions in Maryland take certain precautions and develop procedures to ensure that no unauthorized payments are made to a birth parent that could jeopardize the adoption.  If you are an adoption professional finalizing adoptions in Maryland, what other measures are you taking  in response to these recent changes in the law, to protect the integrity of the adoption process?

Photo Credit: adamr, published on 28 June 2012.  Stock Photo - image ID: 10089068

Monday, March 31, 2014

Maryland Adoption Expenses - 3 Part Series: Birth Parents Benefit When Placing in Maryland

Adoption Attorney Maryland
by Sheri A. Mullikin

Living expenses. Enforceable post-adoption contact agreements.  Consent laws that enable birth parents to wait until after the birth before they sign away their parental rights. Revocation laws that give birth parents up to thirty days to change their minds.  These are just some of the favorable adoption laws in Maryland for women and men pursuing an adoption plan for their unplanned pregnancy.  Laws in other states, however, are not so friendly to expectant parents with an adoption plan.  As the second in a three-part series on a recent changes in Maryland's adoption law, today's post looks at how Maryland adoption law addresses these important issues to birth parents, and compares that to similar laws in other states.  

With the rise in interstate adoptions involving birth parents from one state and adoptive parents from another, largely due to the use of the internet in locating and making an adoptive match, choice of law issues are an important consideration.  Sometimes, a state will not allow an adoption to be finalized in-state by out-of-state residents; however, in many cases the parties will have a choice. Adoption professionals and attorneys involved in an interstate adoption must examine the laws of the home state of all of the parties early on in the process to determine which laws would be most advantageous to their clients.  State laws on allowable adoption expenses, consent revocation periods, and the availability of enforceable post-adoption contact agreements are just some of the important considerations in determining where an adoption should be finalized.  

Prior to Maryland's adoption of a new law allowing birth parents to be compensated for certain living and transportation expenses, many Maryland birth mothers sought to place their children with adoptive parents in states that would provide them with the financial assistance they needed to complete their adoption plan.  With the passage of Maryland's new law, which was discussed in the first part of this blog series, Maryland now joins thirty-seven other states that permit payment of living and transportation expenses for birth mothers.  While Maryland law may not be as broad as other states such as Kansas, which allows payment of any necessary living expense, or Utah, which allows reimbursement of all reasonable living expenses, it is certainly a welcome help for birth mothers struggling to make ends meet while pregnant and during the post-partum period.  The new law is also not as restrictive as that in some states that may allow payment of living expenses only for a limited time period (ranging from thirty days to six months) or up to a set dollar amount.  See, e.g., Iowa Code § 600.9(2)(d) (2014) (imposing 30 day limit); Arizona Code § 8-114(B) (2014) (imposing a $1,000 maximum absent court approval).

Maryland's new living expense law makes Maryland's adoption laws more favorable for birth mothers than adoption laws in many other states, increasing the likelihood that parties to an adoption will choose to finalize an adoption in Maryland.  In addition to payment of expenses for housing, transportation, food, clothing, adoption counseling, and legal representation, birth mothers in Maryland have the benefit of revocation periods that are much longer than most other states.  Birth parents have thirty days to change their minds after they sign a consent to adoption before their consent becomes irrevocable.  Maryland Code Ann., Fam. Law § 5-3B-21(b) (2014).  In comparison, in most states, a consent becomes irrevocable immediately or up to ten days after signing.    See, e.g., Arizona Rev. Stat. Ann. § 8-106(D) (2014); 750 ILCS 50/9 sec 9(A) (2014); Mass Gen. Laws Ann. Ch. 210, § 2 (2014); Missouri Rev. Stat. § 453.030 (2014); Utah Code 78B-6-126 (2014).  Additionally, in Maryland, a consent to adoption can only be signed after the child's birth.  Maryland Code Ann., Fam. Law § 5-3B-21(a)(2) (2014). In comparison, in a few states, birth mothers may sign a consent before the birth and in nearly a dozen states, birth fathers can sign a consent at anytime.  See, e.g., Alabama  Code § 26-10A-13 (2014) (birth mother and father); 750 ILCS 50/9 § 9(C) (2014) (by father only in Illinois); N.C. Gen. Stat.§ 48-3-604 (2014) (by father only); 23 PA Cons. Stat. § 2311(c) (2014) (father only), Utah Code § 78B-6-125 (2014) (father only).

Finally, birth parents in Maryland have the benefit of very favorable laws making post-adoption contact agreements between birth and adoptive parents enforceable.  Maryland Code Ann., Fam. Law § 5-3B-07 (2014). At this time, adoption laws in nearly one-half of the states, including Colorado and New Jersey, do not address the enforceability of post-adoption contact agreements, leaving the parties to such agreements without a remedy in the event one party refuses to abide by the terms of the agreement.  And some state laws actually state that post-adoption contact agreements are unenforceable.  See, e.g., N.C. Gen. Stat. § 48-3-610 (2014); Ohio Rev. Code § 3107.65 (2014); S.C. Code Ann. § 63-9-760 (2014).

As a result of Maryland's new living expense law and other favorable adoption laws, it is likely that we will see an increase in the number of domestic adoptions being finalized in Maryland. As adoption professionals implement this new law, it is advisable that they develop documents and procedures to ensure that all payments are made in accordance with applicable law.  My next post will provide practical advice to these professionals as they encounter birth parents seeking assistance with living and transportation expenses.

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Thursday, March 20, 2014

Maryland Adoption Expenses - 3 Part Series: New Law Will Help Birth Parents With Living Expenses

In January, I gave a presentation to the local bar association on recent changes in Maryland's adoption law, which now permits adoptive parents to cover certain living expenses of a birth parent. I have broken down that presentation into a three part series, with today's post discussing the recent changes in Maryland's adoption law.  Part two in the series will focus on how Maryland's adoption law, including allowable adoption expenses, compares to other states. I will conclude the series with recommendations for adoption professionals on how these changes will impact their practice.

by Sheri A. Mullikin, Attorney at Law

Assistance with living and other expenses is an important consideration to expectant women contemplating an adoption plan Prior to October 1, 2013, the only expenses Maryland law permitted adoptive parents to pay on behalf of a birth mother were "customary and reasonable" costs for adoption counseling, hospital or medical expenses related to the pregnancy or birth, and legal services related to the adoption.  Living expenses of a birth mother, including housing costs, food, clothing, transportation, and other necessary expenses could not be paid by a prospective adoptive parent.   Consequently, expectant mothers residing in Maryland intent on pursuing an adoption plan often sought to place their unborn babies with adoptive parents living outside of Maryland, particularly if they were already in the midst of a difficult financial situation prior to the pregnancy.  Birth mothers would seek adoptive parents from states with more favorable adoption laws and would often resort to the internet and unregulated facilitators to locate parents for their unborn child.  As a result, hopeful adoptive parents residing in Maryland faced long waits for a child from Maryland or also resorted to an interstate adoption to build their family. 

In 2013, Maryland Delegate Kathleen M. Dumais sponsored legislation to expand the type of permissible payments that may be made to a birth parent, in an effort to address the short-term and emergency financial needs these birth mothers face.  House Bill 363, patterned after a similar Virginia law, was passed unanimously, and took effect on October 1, 2013.  The new law, codified at Maryland Code Ann., Family Law §§ 5-3A-45 and 5-3B-32 (2014), provides that birth mothers can receive payment of "reasonable expenses for food, clothing, and shelter, if, on written advice of a physician, the birth mother is unable to work or otherwise support herself because of medical reasons associated with the pregnancy or birth of the child."  Id.(b)(2)(i)(3).  Additionally, birth mothers may receive payment of "reasonable expenses for transportation for medical care associated with the pregnancy or birth of the child."  Id.(b)(2)(i)(2).  Finally, birth parents may also be compensated for "reasonable expenses associated with any required court appearance relating to the adoption, including transportation, food, and lodging expenses." Id. (b)(2)(i)(4).

Women facing an unplanned pregnancy who want to choose life but are struggling to make ends meet now have even more financial resources available to them in support of an adoption plan.  In sum, Maryland adoption law now permits an expectant woman making an adoption plan to receive assistance with the following types of adoption expenses:

1.  expenses for maternity clothes, food, and housing, as long as a doctor certifies that she is  unable to work or otherwise support herself because of the pregnancy or birth;
2.    legal expenses;
3.    adoption counseling;
4.    medical expenses related to the pregnancy or birth;
5.    transportation expenses for medical care related to the pregnancy or birth; and
6.    expenses associated with any required court appearance related to the adoption, including transportation, food, and lodging.

My next post, the second part in this series, will discuss how Maryland's law allowing payment of certain living expenses compares to that permitted in other states.  

Saturday, February 15, 2014

Utah Proposes Legislation to Establish an Interstate Compact to Share Putative Father Registry Information

On February 10, 2014, Utah Senator Luz Robles introduced Senate Bill 63 to establish an interstate compact to share putative father registry information.  The proposed legislation is likely a response to several recent court cases in Utah, where women from other states gave birth and placed their children for adoption in Utah, without the knowledge or consent of the biological father.  

Currently, 34 states have a putative father registry.  Putative father registries allow biological fathers to preserve their rights by filing a claim with a state registry if they believe that they have fathered a child.  If the biological mother makes an adoption plan, a biological father who has registered with the state's registry would be entitled to notification of the adoption, enabling him to participate in the adoption, default on the petition, or pursue his paternal rights at or before the adoption hearing.   Problems arise, however, when a birth mother chooses to place the child for adoption with an adoptive parent located in a different state.  The number of interstate adoptions has risen dramatically in recent years due to the internet and social media.  In an interstate adoption, a birth father's rights can be thwarted even if he filed with the registry in the state where the child was conceived.  In such cases, a search of the registry in the state where the child is born would not identify any claims by the child's biological father and the adoption may proceed without any notice to the biological father. 

Under the proposed legislation, other states, even those that do not currently have a putative father registry, could pass legislation to join the compact.  As a party to the compact, upon request, a state must provide information in its putative father registry to other states who are a party to the compact in a timely manner.  Disclosure would be subject to the laws of the requesting party state regarding privacy, retention, and authorized uses of the information, but if the requesting party does not have a putative father registry, the disclosure would be subject to the laws of the supplying state. Disclosure, however, would not affect the application of the requesting party's laws, such as those regarding adoption and protection of putative father's rights, except as explicitly provided by the requesting party's laws.  Moreover, failure to provide accurate and timely information would not impact the application of the requesting party's laws, unless explicitly provided in such party's laws.

A national registry or interstate compact that would allow states to share paternity claim filings would go a long way to protecting the rights of birth fathers and providing stability to the adoption process. Birth fathers would no longer have to register their paternity claims with multiple states to ensure that they receive notification of a potential adoption.  It would also prevent birth mothers or even adoptive parents from forum shopping and choosing to finalize in another state for the purpose of avoiding notice to a birth father of a planned adoption and thus, preventing him from intervening in the process. It would also protect potential adoptive parents from expensive and often delayed legal challenges that could result in a disrupted adoption.  Attempts at creating a national putative father registry, however, have failed, prompting Utah to take action to address the problems inherent with the existing registry process at the state-wide level.   

The prospect of an interstate compact to share putative father registry information is an interesting development.  Reportedly, lawmakers in Arizona and Nevada are proposing similar legislation.  While an interstate compact would be better than the status quo, with several states now contemplating the sharing of registry information, perhaps now is the time for a renewed effort to pass federal legislation addressing the issue.