This post is part of the Mental Health Monday series, in which iustitia examines one aspect of the intersections between mental health and the law. You can find previous posts here.
In 2012, a Tennessee judge reaffirmed that Torry Hansen, the woman who sent her adopted son back to Russia because of his mental health issues, must pay $150,000 in child support. Hansen claimed the then seven year-old boy was mentally unstable and that she was misled about his mental health status, so she placed the boy alone on a one-way flight back to Russia with no warning or notice to Russian authorities. The story of the Hansen family is in some ways an extreme example of situations that occur regularly across the U.S. Too often families find themselves in crisis due to the lack of preparation, resources, and support for families of children with mental health issues in the child welfare or juvenile justice system. As some of the most vulnerable members of society, children in the child welfare system and in adoption situations demand special attention when it comes to mental health and the law.
In 2009, approximately 424,000 children were living in foster care settings. Federal law recognizes that, on average, children in foster care have more mental health needs, and studies show that adopted children have a higher risk for mental health issues. Many children who find themselves in the child welfare or juvenile justice systems have been exposed to abuse, neglect, institutionalization, and experiences that can cause severe psychological and developmental harm. Children adopted internationally have much higher rates of fetal alcohol syndrome and brain damage. The odds of having oppositional defiant disorder (ODD) or attention-deficit/hyperactivity disorder (ADHD) are about twice as high in adopted adolescents according to some studies. It is no surprise, then, that mental health concerns are one of the main reasons adoptive parents seek post-adoption services.
The heightened mental health concerns associated with adopted children unfortunately lead to many failed adoptions, often referred to as “disrupted.” Failed adoptions drive a disturbing underground phenomenon—the “private re-homing” of children, arranged online, and with little to no government regulation. Adoptive parents, finding themselves overwhelmed and unequipped to deal with behavioral issues stemming from their adopted children’s mental health conditions, take to the internet—forums on Facebook or message boards on Yahoo, for example—to find a new home for the child, much like you would see for a family pet. The practice has become an underground lawless market for unwanted adopted children. The high costs of legal adoptions can make this underground Internet child exchange an alluring option. Worst of all, this circumvention of legal safeguards allows no scrutiny of the new guardians, leaving adopted children suffering from mental health conditions ripe for victimization by child predators and abusers.
A power of attorney document—a simple notarized statement declaring the child to be in the care of another adult—allows someone to act as guardian to the child and enables the new guardian to function as the parent in many ways, such as enroll them in school, make medical and legal decisions on the child’s behalf, and secure government benefits. It is an important tool that allows for flexibility that can be life saving in some situations, such as allowing a child to live comfortably and safely with her grandmother in a time of family crisis. But in the age of the Internet child exchange, it has become a legal loophole ripe for abuse.
As recent as 2013, no state, federal, or international laws acknowledged the existence of re-homing. In April 2014, Wisconsin became the first state to make it illegal for anyone not licensed by Wisconsin to “advertise” a child more than one year old for adoption or other transfer of custody. Wisconsin parents who want to transfer custody of a child to someone other than a relative must obtain permission from a judge or face up to nine months in jail or up to $10,000 in fines. Louisiana has also since banned non-legal adoption, and has penalties in place up to five years in prison or up to $5,000 in fines. Other states such as Ohio, Colorado, and Florida have been following suit by introducing and passing similar laws. Judge McCarty in New York issued an unusual pre-emptive ruling in a 2014 case in which parents sought to vacate their adoption. Although the parents did not mention the option of private re-homing in their request, Judge McCarty ruled preemptively that if the court were to deny their request, the parents would be prohibited from re-homing the children without court supervision, equating such practices with child trafficking.
One potential legal safeguard for interstate child exchanges is the Interstate Compact on the Placement of Children (ICPC). The ICPC is an agreement codified by all 50 U.S. states, the District of Columbia, and the U.S. Virgin Islands, establishing legal and administrative procedures governing the interstate placement of children. It requires parents to notify authorities in both states if a child is to be placed in the care of a new guardian in a different state, and therefore allows states to vet prospective guardians. However, codification of the ICPC varies by state, and, in practice, its enforcement is poor. Importantly, the ICPC fails to address any concerns regarding intrastate child exchanges.
Iustitia Legal Center encourages state and federal law to address these issues by developing preventative measures and increasing accessibility to post-adoption services.
Preventative measures should include requirements that adoption agencies provide proper training for adoptive parents, including managing expectations as well as providing tools and resources to prepare for worst case scenario behavioral issues associated with potential mental health issues and intellectual disabilities. Ensuring that children currently within the child welfare system receive diligent mental health care is vital to prevent adoptions from failing.
Post-adoption services are desperately needed to support adoptive families and ensure successful adoptions. Specialized post-adoption supports did not begin surfacing until the late 1980s, but development has considerably slowed since the 2000s. An increase in international adoptions and the emerging phenomenon of disrupted adoptions demands a better network of post-adoption services and support. An improved system that tracks the success of adoptions, including international adoptions, is crucial to protect children from the dangers of private re-homing resulting from failed adoptions.
Finally, state and federal law needs to recognize the practice of private re-homing and offer strong support services and resources for families in crisis post-adoption. Criminal sanctions are an important safety measure against these types of desperate practices that place the lives of mentally ill adopted children at risk. States should follow Wisconsin’s lead and implement similar legislation. In the meantime, judges dealing with cases requesting to vacate adoptions and relieve parents of their parental rights and duties should take pre-emptive measures prohibiting private re-homing in the event the parents are unsuccessful in their request.