Vermont Bar Journal, Vol. 40, No. 2 Fall 2015, Vol 41, No. 3 - Page 28

by Danielle Sweeney & Eric S. Louttit, Esq. THE CHILDREN’S CORNER The New “Enforceable” Post-Adoption Contact Agreement: Just Another Name for the Same Old Letter of Intent? For years juvenile defenders have used unenforceable letters of intent between birth parents and potential adoptive parents regarding future contact with the juvenile. These were useful tools in the attorney’s toolbox to attempt to resolve termination of parental rights (TPR) proceedings prior to actual full-blown litigation. This tool was especially advantageous where termination seemed inevitable. By voluntarily relinquishing their parental rights, pre-litigation, parents going through termination proceedings could avoid findings being recorded in their case that could be used by the state as evidence in any future juvenile proceedings. The major downfall of these letters of intent was that they were unenforceable in any court and they were not legally binding on the adoptive parents (though some would say they were morally binding). In January 2015, S.9 was brought to the Senate floor as An Act Relating To Improving Vermont’s System For Protecting Children From Abuse And Neglect.1 As part of that bill, laws concerning new post-adoption contact agreements were enacted.2 These new agreements were touted as being enforceable in the probate court and contrasted, with some fanfare, to the old unenforceable letters of intent. It was lauded as being a more powerful tool that would lead to fewer parental terminations going to litigation. Upon careful examination, it turns out this may be a fiction. The Rule In order to qualify for entering into a postadoption contact agreement, the juvenile must be in the custody of the Department of Children and Families, a TPR order cannot have been entered, the parent(s) seeking contact must be willing to voluntarily relinquish their parental rights, and the fam- 28 ily court must determine continued contact with the birth parent(s) is in the juvenile’s best interest. DCF, the child’s attorney, the child’s guardian ad litem, and the child (if over the age of fourteen) must all agree in writing to the terms of the agreement prior to the family court accepting it. The rule says this agreement is not legally binding until after the adoption is finalized by the probate court.3 Contact can take any form and can be as frequent or as infrequent as is agreed upon. Once the adoption is finalized the contact will continue until the child reaches the age of eighteen or until modification or termination is sought. Should the birth parent(s) petition to enforce any of the terms of the agreement, the burden of proof will be on the birth parent(s) to prove by a preponderance of the evidence that the enforcement will be in the child’s best interest. If, however, it is the adoptive parent(s) who seek to modify or terminate the agreement, the burden of proof will be upon them to prove by clear and convincing evidence that such modification or termination is in the child’s best interest. Any court modification of the agreement can only limit contact; it cannot expand it. Before the court will hear any such request the parties will be required to go to mediation or utilize some form of alternate dispute resolution.4 No matter what happens concerning this agreement or the subsequent adoption, after the birth parent(s) have voluntarily relinquished, the TPR shall not be effected. Nor shall the probate court’s resolution of any dispute have any effect on the adoption itself.5 Here’s the Yank This would all be well and good except for the language inserted into the require- THE VERMONT BAR JOURNAL • FALL 2015 ments for what must be included in the agreement; this language states that “an acknowledgement that once the adoption is finalized, the court shall presume that the adoptive parent’s judgment concerning the best interests of the child is correct.”6 It can be argued that this language renders the entire agreement unenforceable by hamstringing the court to accept as gospel the adoptive parent’s opinion of what is in the child’s best interests. It is interesting that, in a subsequent section of the law, the elements the court should examine in determining what is in the child’s best interest are listed, and the opinion of the adoptive parent(s) is not one of them. This is in direct contradiction to the offending language forcing the court’s hand in requirements for the content of the agreement. A much more important logistical problem with this law can arise where the proposed adoption fails to occur, for any reason. This would leave the birth parent(s) without any recourse or remedy but having already voluntarily relinquished their parental rights. In this case the birth parent(s) would be left out in the cold with regards to any contact agreement, even with subsequent adoptive parent(s), since the agreement must be entered into prior to TPR. Birth parent(s) would voluntarily relinquish their parental rights relying, to their detriment, on this agreement to provide them with some continued contact with the child. The state agrees to post-adoption contact agreements, in part, to avoid the time, effort, and expense of litigating the TPR to verdict. In cases where the originally proposed adoption fails to go to fruition, only DCF and the state benefit. Possible Fixes The following proposed modification of the inserted language could rectify the agreement’s being, in essence, unenforceable and a fiction. This change would also eliminate the contradiction concerning the determination of the child’s best [