South Dakota. Their state insect is the honeybee which is rather appropriate. Why? Their laws regarding post-adoption contact agreements have me all a-buzz. (I'm funny, no?) We start out rather specific and then get all kinds of confusing somewhere in the middle.

Take a look:

What may be included in postadoption contact agreements?
Citation: Codified Laws § 25-6-17
The natural parents of an adopted child shall retain no rights or privileges to have visitation or other postadoption contact with the child, except in cases where a natural parent consents to the adoption of a child by the child's stepfather or stepmother who is the present spouse of the natural parent, or in cases of voluntary termination where there is a written preadoption agreement between the natural parent or parents and the adoptive parents.

South Dakota is the first (alphabetical) state that we have seen address stepparent adoption with specific wording. Kudos for that. They also have given specific wording to address voluntary relinquishment which, in turn, leaves out any foster-to-adopt situations. I can't say enough how important it is to be specific with wording and South Dakota has done so. One should note, and I'll bring this point up later, that the agreement between adoptive and birth parents is the "preadoption agreement." Keep that in mind as you read on.

Who may be a party to a postadoption contact agreement?
Citation: Codified Laws § 25-6-17
The adoptive parents may enter into a written preadoption agreement with the natural parent or parents.

South Dakota leaves no room for any other birth family members to make an agreement. While that might seem like an easier time for some, many others would argue the benefit of biological grandparents and/or siblings having a right to contact as well. Obviously, a lack of agreement with those kinds of folks doesn't mean that they cannot have contact. It just means it isn't protected. Then again, is the contact agreed to by birth and adoptive parents really protected? Hmm, moving on.

What is the role of the court in postadoption contact agreements?
Citation: Codified Laws § 25-6-17
The courts do not have jurisdiction over the agreements: The South Dakota Supreme Court decision, People in Interest of S.A.H., 537 N.W.2d 1 (S.D. 1995), is abrogated by the South Dakota Legislature in so far as the case gave circuit courts the option to order an open adoption or posttermination visitation. This section does not apply to preadoption agreements entered into before July 1, 1997.

Well, now I'm intrigued! So, I pulled up the case online and read with interest. Of course, the really interesting parts come at the end. Let's do some quoting, shall we?

The record reflects that the trial court’s primary concern with open adoption in this case was with whether potential adoptive parents would accept or reject an open adoption. In S.A.H. this Court specifically stated that, "[a]lthough the interests of adoptive parents should be considered, parental rights are secondary to the interests of the child."

Whoa. That last sentence could go either way, couldn't it? For example, if you have a progressive-thinking judge in favor of open adoption, it could be stated that the best interest of the child is to continue to have contact, regardless of what the adoptive parents think. The opposite could happen with a judge who opposes post-adoption contact.

Furthermore:

We remand this case to the trial court to take evidence on the request for open adoption and to enter forthwith a final determination on the issue. The court should consider: "1) the psychological need of the child to know his ancestral, religious, ethnic and cultural background; 2) the effect open adoption will have on the child’s integration with his adoptive family; and 3) the effect open adoption will have on the pool of prospective adoptive parents."

South Dakota really has put an interesting spin on things. I'd like to do a poll of trial judges in the state and see whether or not they think the "psychological need of a child to know his backgrounds" would cause them to either enforce an open adoption or dismiss it. Some people would say that need is great for adoptees while others would say it isn't important at all. Many questions are brought forth by all of this talk.

Are agreements legally enforceable?
Citation: Codified Laws § 25-6-17
The agreements are not legally enforceable. Statutory law considers postadoption visitation an extraordinary remedy that may be exercised only by the adoptive parents when in the child's best interests.

Well then, all that wordiness was absolutely useless, wasn't it? If you're not giving birth families any recourse to say, "Hey, I got screwed by this PRE-adoptive agreement and I'd like the family to be reminded what they promised," well then, what's the point in making a pre-adoptive agreement. Again, it gives adoptive families the ability to fall off the face of the Earth as soon as the child is in their arms. I will never say that an adoption should be overturned because one side can't keep up with what they promised but when parents are placing their children on the basis of said agreement, it doesn't sit well that they don't even have an option to enforce said agreement.

How may an agreement be terminated or modified?
This issue is not addressed in the statutes reviewed.

Again, this is a problem when you understand that the agreement is made in the days prior to the adoption. Life ebbs and flows. There should be provisions made to change an agreement, whether it is for more or less contact. Neglecting to address the issue leaves families with questions that cannot be answered. These families deserve some kind of support should problems arise and they're not being offered such support.

South Dakota, while dropping the ball in the end, provided us with some interesting thoughts on open adoption. I see a need for some revision or clarification and a need to further support families after the adoptions are finalized. Hopefully something will happen for these families in the future. Until then, they're mostly on their own.

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For more on Post-Adoption Contact Agreements, read these posts.

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