Post-Adoption Contact Agreements: Nebraska

Anything has to be better than the previous two states we’ve looked at, right? One would assume. Of course, I don’t know what’s better: states that seem completely oblivious to the issue(s) at hand or a state that almost gets it, on a few levels, but doesn’t quite “bring it” to the level necessary in a complex matter such as post-adoption contact agreements. Either way, it’s confusing and frustrating.

Welcome to Nebraska.

What may be included in postadoption contact agreements?
Citation: Rev. Stat. §§ 43-156; 43-157; 43-158
The department may, when planning the placement of a child for adoption, determine whether the best interests of such child might be served by placing the child in an adoption involving exchange of information.

Adoption involving exchange of information shall mean an adoption of a child in which one or both of the child’s biological parents contract with the department for information about the child obtained through his or her adoptive family.

An exchange-of-information contract is a 2-year, renewable obligation, voluntarily agreed to and signed by both the adoptive and biological parent or parents as well as the department.

When the department determines that an adoption involving exchange of information would serve a child’s best interests, it may enter into agreements with the child’s proposed adoptive parent or parents for the exchange of information. The nature of the information promised to be provided shall be specified in an exchange-of-information contract and may include, but shall not be limited to, letters by the adoptive parent or parents at specified intervals providing information regarding the child’s development or photographs of the child at specified intervals.

Any agreement shall provide that the biological parent or parents keep the department informed of any change in address or telephone number and may include provision for communication by the biological parent or parents indirectly through the department or directly to the adoptive parent or parents. Nothing in §§ 43-155 to 43-160 shall be interpreted to preclude or allow visitation between the biological parent or parents and the child.

Okay, I’m simultaneously impressed with the specificity of this state as we begin to explore their statutes and confused as to what Nebraska is stating within this statute. My question? Is this solely for families involved in a foster-to-adopt program or does it venture over into domestic newborn adoption? I ask because of the involvement of the illusive “department.” The department of… whom? In a domestic adoption situation, why would any department (unless they’re referring to an agency and/or attorney) be involved? If, therefore, we are speaking solely of foster-to-adopt situations, how, then, are domestic newborn adoptions to be factored into this equation?

Something that I do find interesting and may explore in further detail? The two year renewable contract idea. If done right, the contract could be revisited every two years to see if it was working for all family members involved and thus modified, to lessen or broaden contact, if things were not to the liking of all involved. Of course, this could be abused by unethical parties who signed the initial contract with plans of negating all contact on the first two year interval. Seems like a double-edged sword to me, no?

Furthermore, I’m 100% not “down” with the fact that visitation cannot be included in the contract. Why? I want specific reasons. My guess is that they don’t float.

Who may be a party to a postadoption contact agreement?
Citation: Rev. Stat. §§ 43-156; 43-162

An exchange-of-information contract is a 2-year, renewable obligation, voluntarily agreed to and signed by both the adoptive and biological parent or parents as well as the department.

The prospective adoptive parent or parents and the birth parent or parents of a prospective adoptee may enter into an agreement regarding communication or contact after the adoption between or among the prospective adoptee and his or her birth parent or parents if the prospective adoptee is in the custody of the department.

Here we see a difference in situations mentioned: the child whom is in custody of the previously-questioned department and an obvious domestic newborn adoption. I find it interesting that this is the only state, thus far, that states that the contract may be entered into after the adoption decree and not either before or at the same time. Of course, the time limit for entering into said contract is not stated and I wonder if there is an eventual limitation on that time. It would be nice if we had that answer.

What is the role of the court in postadoption contact agreements?
Citation: Rev. Stat. § 43-163
Before approving an agreement for postadoption contact, the court shall appoint a guardian ad litem to represent the best interests of the child concerning such agreement.

The court may enter an order approving the agreement upon motion of one of the child’s birth parents or one of the prospective adoptive parents if the terms of the agreement are approved in writing by the prospective adoptive parents and the birth parents and if the court finds, after consideration of the recommendations of the guardian ad litem and the department and other factors, that such communication with the birth parent or parents and the maintenance of birth family history would be in the best interests of the child.

In determining if the agreement is in the best interests of the child, the court shall consider the following factors as favoring communication with the birth parent or parents:

* Whether the child and birth parent or parents lived together for a substantial period of time
* Whether the child exhibits attachment or bonding to the birth parent or parents
* Whether the adoption is a foster-parent adoption with the birth parent or parents having relinquished the prospective adoptee due to an inability to provide him or her with adequate parenting

We’ve seen something like this before when looking at Louisiana. My questions, of course, are pretty evident. Regarding “living together” for a “substantial amount of time”: is the gestational period of nine months factored into that assessment? If not, how are domestic newborn adoption birth parents supposed to get past that hurdle? Secondly, considering newborn bonding, especially when brought into the context of adoption itself, is widely debated, how, exactly, would a birth mother prove that she just spent nine months bonding with the child in her womb? Furthermore, how would a biological father go about proving that bond as he didn’t carry a child in his non-existent womb?

And, can I rant? I do like the fact that, on their third factor, they’ve finally established a difference between foster-to-adopt situations and birth parents who have voluntarily relinquished. However, I’m a bit thrown off guard. Referring to the relinquishment as an “inability to provide him or her with adequate parenting” is somewhat (or more) offensive. True in some cases. Not in all. So in the ones that it is not true, exactly how would they be judged?

Are agreements legally enforceable?
Citation: Rev. Stat. §§ 43-160; 43-162; 43-165
The parties to an exchange-of-information contract shall have the authority to bring suit in a court of competent jurisdiction for the enforcement of any agreement entered into pursuant to § 43-158.

Any such agreement shall not be enforceable unless approved by the court pursuant to § 43-163.

An agreement that has been approved pursuant to § 43-163 may be enforced by a civil action, and the prevailing party may be awarded, as part of the costs of the action, reasonable attorney’s fees.

Okay, so if your t’s are cross and your i’s are dotted, you can appeal to the court to have the contract enforced. There are no (stated) stipulations on whether or not birth parents can petition the court and so it is assumed that they are allowed to do so.

How may an agreement be terminated or modified?
Citation: Rev. Stat. §§ 43-159; 43-165
When, after placement of a child for adoption, it is determined by the department, in consultation with the adoptive parent or parents, that certain or all exchanges of information are no longer in the best interests of the child, the department may enter into an agreement with the biological parent or parents to alter the original contract made between the department and the biological parent or parents.

The court shall not modify an order issued under such section unless it finds that the modification is necessary to serve the best interests of the adopted person, and:

* The modification is agreed to by the adoptive parent or parents and the birth parent or parents.
* Exceptional circumstances have arisen since the order was entered that justify modification of the order.

Again with this “department.” Why? Why are they in charge of determining whether or not birth parents should have access to their placed child’s information? Furthermore, it does not seem, from this wording, that birth parents are able to petition the court to modify the agreement to either protect themselves (it happens) or change things to fit current and ever-changing situations that life (and adoption issues) brings about. That doesn’t seem quite fair.

And so, Nebraska leaves us with mixed feelings. There are some decent ideas but the execution of said ideas seems to be off. Beyond that, the confusion between foster-to-adopt situations and domestic newborn placements needs to be worked out so that we’re not left wondering what to expect in differing situations.

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For more, read:

1. Post-Adoption Contact Agreements: Montana.

2. Post-Adoption Contact Agreements: Missouri.

3. Information from the State Statute Search at ChildWelfare.gov in November 2007.

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