Regarding adoption, Massachusetts is an “agency state.” Accordingly, only the Department of Children and Families (“DCF”) or a Massachusetts-licensed agency may locate or place a child for adoption. Massachusetts specifically prohibits private adoptions. Private adoptions are those in which an arrangement is made between a birth mother and the adoptive parents. In this post, we explain the function of DCF and licensed adoption agencies in the Commonwealth. We also consider the role of a lawyer in an adoption.
When and How are Agencies Involved?
There are some adoptions that do not require the involvement of DCF or a licensed adoption agency. For one, if the petitioner is either a blood relative or step-parent of the child to be adopted, there is no need for agency or DCF involvement. Same is true if a deceased parent’s will names the petitioner to be the child’s adoptive parent. In other circumstances, however, the process must involve DCF or a licensed adoption agency. For example, in certain cases, DCF or the licensed agency must approve the adoption petition in writing.
DCF is Massachusetts’ child protective services agency. It exists to protect children from abuse and neglect. Although DCF’s work is largely focused on the protective services piece, it also provides adoption services. When a child is in need of adoption, the matter is referred to the appropriate DCF adoption unit. The child will then work with a DCF adoption social worker. There is also some collaboration between DCF and other licensed adoption agencies.
Separate from DCF’s adoption units are private adoption agencies. These private adoption agencies also place children in need of adoption and provide related services. The Massachusetts Department of Early Education and Care (“EEC”) licenses these private adoption agencies. The only private agencies that can place children for adoption are those that EEC has authorized. Some licensed adoption agencies oversee the entire adoption process for a single fee. This can include bringing prospective adoptive parents and birth parents together and conducting the home study. It can also include all the legal work necessary through the finalization of the adoption in court. Meanwhile, other agencies charge separate fees for various phases of the adoption process.
The Home Study: An Example of Agency Involvement
In many cases, a home study is a prerequisite for an adoption of a child under age 14. DCF or a licensed private adoption agency conducts the home study. The study gauges whether the adoptive parent’s home environment is suitable for raising a child. Among the topics of investigation, DCF or the licensed adoption agency evaluates the adoptive parent’s parenting abilities, and employment, medical, and criminal histories. The agency also inspects the home to assess space, safety and privacy. DCF or the licensed adoption agency then prepares its conclusions about whether the prospective adoptive parent(s) is/are suitable for adoption.
Under some circumstances, the adoptive parent(s) can ask the court to waive the home study requirement. This may be the case for a stepparent or co-parent adoption, for example.
The Role of a Lawyer in an Adoption
The role of a lawyer in an adoption is not to directly place or search for an adoptive child. A family law lawyer can, however, advise prospective adoptive parents about the adoption process and ensure that they avoid various pitfalls. Depending on the specifics of the case, the role of a lawyer in an adoption can vary.
The adoption process can be long and arduous. And, there are various procedural steps one must take. One such step is to obtain consent for the adoption from the necessary parties. The parties who must consent to an adoption are case-specific. The age of the adoptive child and the child’s marital status come into play here. Whether the adoptive child was born to an unwed mother also matters. In a case involving an unwed mother, the court will likely either want the father’s consent or notice to the father. A family law attorney can help determine who needs to provide consent, what to do if the parties cannot obtain consent, and ensure that the parties give proper notice, if necessary.
What if a biological parent will not consent to an adoption? In that case, it may be necessary to file a petition to dispense with the parental consent requirement. Such a petition is only appropriate under certain circumstances. In this scenario, the family law lawyer can assess the situation and, if appropriate, can help with the necessary filings. For biological parents seeking to give consent for the adoption of their child, a lawyer can offer advice regarding the legal implications of that decision.
An attorney can also assist with other procedural matters throughout the adoption. To begin, a family law lawyer can ensure the parties file all the necessary paperwork to begin the case. The adoption process involves a lot of forms — from the petition itself to an Affidavit Disclosing Care and Custody to surrender forms. For the process to move forward as seamlessly as possible, a party seeking to adopt will want to be sure all the paperwork the court needs is complete and filed.
If a motion to waive a home study makes sense in a particular case, the family law attorney can help move that process forward. Furthermore, there are cases in which biological and adoptive parents envision post-adoption contact between the parties and adoptive child. This is commonly known as an “open adoption.” A judge must approve such an agreement as part of the adoption. In that case, a family law attorney can negotiate and write up that agreement.
If DCF has legal custody of the child a party is seeking to adopt, it would be a good idea to seek the advice of an attorney. The party seeking to adopt may need to intervene in the care and protection proceedings, and may want the advice of an attorney to do so.
A lawyer can also provide advice about and help families with post-adoption matters. For example, families may have questions about the adoptive child’s name and birth certificate after an adoption — an important issue that the lawyer can also help address during the adoption process. Or, questions may arise about matters like inheritance rights after adoption. In open adoption cases, issues may arise regarding a lack of compliance with the open adoption agreement. The advice and assistance of an attorney can prove helpful, even after the court finalizes the adoption.
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