Youth Consent Laws
Should Not Prevent Permanency
by Maryjane K. Link
A child welfare professional for more than 30 years, Maryjane Link is the executive director of Children Awaiting Parents, Inc. (publisher of The CAP Book) and board president of Voice for Adoption. Maryjane was previously a regional adoption specialist for the New York State Office of Children and Family Services, and is always a dedicated child advocate.
Published in the Winter 2008 issue of Adoptalk
Adolescence. It is a time of life when we are physiologically off-balance. Our brains are not fully developed, yet we must deal with the overwhelming intensity of peer pressure, hormones, and the need to carve out an identity apart from our families. Teen years are consumed with exploration, testing, and challenging choices. And, while some adolescents seem very confident in their desires, they typically lack the perspective to accurately assess and weigh the consequences of life-altering decisions.
Despite teens’ sometimes faulty perceptions, nearly every state and many U.S. territories have age-of-consent laws, formal policies that grant children and youth the authority to consent to or reject an adoptive placement. According to a 2007 Child Welfare Information Gateway study, the minimum age of consent ranges from 10 to 14. While it is important that they have input about life and family decisions, children and teens should not be allowed to jeopardize their future without the benefit of adult guidance or judicial intervention.
Current Safeguards in Consent Laws
About a third of states and territories simply list the consent age without detailing situations in which a child’s consent need not be obtained or should be disregarded. Others commonly waive the consent requirement in cases where:
- a child lacks the capacity to consent; or
- a judge determines that the consent does not serve a child’s best interests; or
- there are “extraordinary” circumstances.
Very few states or territories, however, list more than one condition that renders a child’s consent unnecessary, and the means by which a child’s “mental capacity” should be measured is not clarified. Only Colorado’s statute requires that children undergo counseling in connection with the consent.
New York leaves the question of consent up to the judge. As stated in Domestic Relations Law 111.1, “…[C]onsent to adoption shall be required…[o]f the adoptive child, if over 14 years of age, unless the judge…in his discretion dispenses with such consent.”
Room for Improvement
Years ago it was common practice in New York State to expect, even encourage, 14-year-old youth to sign papers stating that they would not consent to adoption. Workers could then change the child’s goal from adoption to independent living and stop trying to find adoptive families. Fortunately, many child welfare professionals have since changed their opinion and recognize that no one is too old to need a permanent family. Youth who reject the idea of adoption at 14 may later realize that life without the support, encouragement, and love of a family can be exceedingly difficult.
Sarah entered foster care when she was 6 and was freed for adoption at 13. Moved through a series of foster homes, she experienced three failed adoptions. Though Sarah still wanted a family, she had totally given up all hope that anyone wanted her.
After she turned 18, Sarah moved into a “transitional living home” on the way to independent living. Adoption was not on her mind and her foster parents never mentioned it. Then, when she turned 20, her parents asked if she would like them to adopt her. Sarah’s consent was immediate and she answered with an enthusiastic “Yes!”
Now a single mom with two small children, Sarah is happy to have a family support system. “When I am struggling it’s nice to know that Mom and Dad are there when I need them. I’m not used to it, but I love having it.”
To help more teens find a permanent family, consent laws should provide for both safeguards and mandated services to help youth better understand what adoption might mean for them. They need counseling and education, chances to offer their input, someone to protect their best interests, and workers who never stop trying to find stable, ongoing connections for them.
Counseling should be ongoing. Before being asked to consent, youth should have the chance to explore what life can be like in a permanent family, as well as what the future may hold if a long-term connection is not made. Counselors should help youth discuss their feelings about adoption—especially the negative feelings. Sometimes youth have misconceptions about adoption and are concerned that they will have to change their name or sever all contact with siblings or other birth family members. Counselors can relieve some of those worries.
Children and youth should also be involved in helping to shape their own future and be well-informed about the consequences of choosing any option available to them. Youth who have no input are much more likely to oppose adoption outright or not give the chosen family a chance.
Everyone who knows the child—from workers and teachers, to guardians ad litem and judges—should be vigilant about promoting the child’s best interests, even when the child does not agree. I believe that the consent statutes of every state and territory should stipulate that valid consideration of a child’s best interests in some cases may be more important than the child’s consent.
It is not clear when or how these laws evolved, but the thought that an adolescent whose hormones are raging and who only wants to break free from family life can make such a significant decision is counterintuitive. A 10-year-old is much more concerned about a new bike or a video game or the prospect of having a dog than the advantages of a future with a permanent family.
Consider other legal rights that youth gain at various ages. In most states youth cannot purchase cigarettes until age 18 or 19. Teens cannot drive alone until they are at least 16, have completed a training course, and have passed both a written and road test. They can’t legally buy alcohol until age 21. Federal and state governments set these limits to protect children.
Why should we assume that youth who have none of these “adult” rights can, without considerable guidance, wisely make the life-changing decision to accept or reject life with a new legal family?
Because workers and judges understand the importance of permanent family ties, they must keep working to help youth find the right family who can meet their needs. By continuing to fight for youth in their caseload or on their docket, workers and judges show youth that they are worthwhile and deserve a family who will accept them as they are. These adults should also be able to look beyond teens’ bravado and defiant exterior to realize how vulnerable they are without a stable caregiver who can help keep them safe.
Certainly there are times when children have very valid reasons for opposing placement with a particular family. But such case-specific consent decisions should never be regarded as a blanket denial of any adoption in the future.
Recently, a Wendy’s Wonderful Kids recruiter attended a service plan review. The Wendy’s Wonderful Kids program is designed to find adoptive families through intensive child-focused recruitment efforts; caseworkers voluntarily request these services for youth whom they feel can be adopted. Yet, during the review, the youth’s caseworker continually urged the 17-year-old to change his goal to “Another Planned Permanent Living Arrangement,” a.k.a. independent living.
Finally the young man turned to the worker and said, “I agree; I need to learn independent living skills. But I still need a family.”
At the time, a family in another state who shared many of his interests had been identified for the youth, and the first visit had been scheduled. This youth, who seldom smiled, will soon be moving in with the family and in a photo taken during his recent visit he is positively beaming! Why do caseworkers give up on these youth? Families can be found for teens and teens can accept new families.
At a recent appreciation dinner for foster parents, a new high school graduate named Charlie told his story and urged the audience to adopt the children in their care. “Our hearts are broken; you can fix them. Give us a chance to a future. Break the cycle; it’s in your hands. You can do it.”
To the judges in the audience he said, “Make the biological parents act fast, because the longer we are without a permanent home, the more we lose hope.”
Charlie, who was adopted from foster care at age 16, also shared this insight into the life of a foster child:
I am here tonight to share the hopelessness, fear, and utter feeling of loss at being taken away from my home and placed in home after home, but never really having a home of my own. And even when I got one, I was sure it wasn’t a forever home. It took years for me not to believe that someday, someone would come and take it away. The longer you stay in foster care the less you feel. To survive you have to shut the door to your heart because it has already been broken so many times, you can’t stand to have it broken one more time. The longer the door stays closed the harder it is to open it.
Although Charlie is now a successful college student, he is candid about the rough ride he gave his parents during their first few years together. Fortunately his family never gave up and weathered the tough times to help Charlie understand that he was a permanent part of their family. Other parents can show the same tenacity and accept the challenge of integrating rootless youth into their family and helping them make the most of their potential.
Sarah encourages kids in foster care not to sabotage placements. “Foster kids try to test the water and parents’ commitment. Don’t do that! If a family says they love you and they want to adopt you, take it and run with it.”
When difficulties arise with foster or adopted children, Sarah asks parents not to give up, but to remember that birth children can cause difficulties too. “You can’t test drive children. Don’t give up on them; stick with them.”
We must thoroughly examine permanency and consent issues with children and youth, listen to their concerns, respond to their questions, and help them make informed decisions. Youth who do not want to shut the door on their birth family need to know that adoption does not automatically sever ties. Many adoptive families facilitate contact with birth families, if only to reassure the birth families that their children are all right, and in turn reassure children that their birth families are okay.
Children, youth, and even young adults need safe, stable, and loving parents. Many of us work hard to find families for children. Caseworkers and foster/adoptive parents must help children understand the value of a family who will care about them forever, no matter their age. And consent-to-adoption requirements should never stand in the way of the family stability that children and youth in care so richly deserve.