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-

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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 [