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Bar News - June 12, 2009

Mediated Adoptions Bring Permanency for Children in Foster Care


Many Bar members are aware of the Rule 170 Mediation Program and recent efforts to bring more litigants to the mediation table through the establishment of the Office of Mediation and Arbitration. Those whose practice does not take them into the family law arena may not be familiar with voluntarily mediated adoptions. A 2006 change in the adoption statute authorizes for the first time in New Hampshire the creation of enforceable agreements regarding contact after adoption between birth parents and adoptive parents for children who are in the custody or guardianship of the Department of Health and Human Services.

This change has brought about a steady request for mediations and appears to be a big success. According to Patricia Lindquist, Permanency Program Specialist for the Department’s Division for Children, Youth and Families, there were 33 mediations resulting in adoptions during 2006, the first year of the program, 50 in 2007, and 56 in 2008.

The purpose of the new statute, codified at RSA 170-B:14 II, is to "facilitate the timely achievement of permanency for children who are in the custody or guardianship of the department." It allows for legally enforceable agreements for ongoing communication or contact that is in the best interests of the child, recognizing the party’s interests and desire for ongoing communication or contact that is appropriate given the role of the parties in the child’s life.

The agreements must be the product of a mediation conducted by court-approved mediators. The agreements can be enforced or modified by bringing an action in court; however the moving party must first certify that they have participated in mediation or attempted in good faith to participate in mediation to resolve the issue.

Remedies for breach of an agreement may include modification, enforcement or discontinuance of the agreement, but may not include a set-aside of any surrender of parental rights or decree of adoption. Modifications of the agreement cannot serve to expand, enlarge or increase the amount of contact between the birth parents and the child or place new obligations on the parties to the agreement. Sanctions on restraining orders may be imposed for breaches of an agreement, and attorney’s fees with costs may be awarded for actions that are wholly insubstantial, frivolous and not advanced in good faith.

A Sense of Stability Important

"It is important for children to have a sense of stability, a sense of belonging to a family," reports Gail Snow, Child Protection Administrator for DCYF, "yet some children who have been in foster care and cannot return home safely still have a need for contact with their birth family." The mediation process provides an opportunity for birth parents to plan for their children’s future that they might not otherwise have. Snow is very confident that there are some children who might not have been adopted were it not for the voluntarily mediated adoption option.

The Child Protection Act requires the state to file a petition to terminate parental rights when a child has been in an out of home placement for 12 of the most recent 22 months, unless the child is being appropriately cared for by a relative, there is a compelling reason for determining that filing a petition would not be in the child’s best interest, or the state has not made reasonable efforts as the state deems necessary for the safe return of the child to the child’s home. The federal Adoption and Safe Families Act also established strong public policy in favor of providing adoptions for children who cannot be returned to their families.

Experience and Training Vital

Attorney Karen Borgstrom is the Director of the Office of Mediation and Arbitration, which recruits and trains the mediators who work on these cases. She reports that these mediators each have a wealth of experience in mediation and trial work, and they receive special training in order to address the needs of the children and families involved in these circumstances. She is also putting together trainings for prospective adoptive parents, attorneys representing parents, and attorneys and social workers from DCYF. Some of these trainings have been presented in collaboration with the court system, DCYF and Casey Family Services.

Borgstrom’s goal is to educate all of the parties so that the process works the best it can, so that the children get the best result. Borgstrom had extensive experience at mediation prior to taking on her current position, and mediated some of the first voluntarily mediated agreements regarding adoption. She says that there is the greatest chance for the agreements to be honored if the participants feel that the process is fair. Mediators can make sure that each party’s position has been heard, and can initiate discussion about difficult issues without making parties feel as though they are being spoken to. "The act of bringing it up and talking about it can help the birth parent or other party come to a conclusion on his/her own, making them part of the creation of the agreement."

Recently she has been involved in the establishment of protocols to help the courts and the parties maintain consistency and fairness. Birth parents and adoptive parents must agree to engage in mediation. Children over 14 are invited to participate in mediation and their written assent is required for an agreement regarding their adoption. The protocols establish a process for the court to review the agreements before they are adopted, and for a waiting period after the mediation and before a surrender of parental rights.

Mediation Breaks down Barriers

Kara Buxton is a supervisor in the Concord District office of the Division for Children, Youth and Families and has participated in at least five mediations. She sees theses mediations as an opportunity for all. "It is surprising how often the parties are able to come together and find common ground after coming to the process with different ideas about what is best for the children." She said the process helps break down barriers and helps birth parents and adoptive parents begin a cooperative relationship. She noted that the process had been especially helpful for teenagers who wanted the sense of belonging to a family, but were unwilling to let go of their relationship with their parents.

Vanessa Wilson, Wilson Law Office in Claremont, has been involved in at least five mediations, both as a Guardian ad litem and as an attorney representing parents. She believes the process is working very well and is fair to parents. She notes that the hardest part as an attorney representing parents is that there frequently is not a relationship between the parents and the adoptive parent, so she does not know what to expect from the adoptive parents. She suggests that the process might improve if DCYF could facilitate more contact between the foster parent and birth parents.

Jessica Bladen, Leahy & Deneault in Claremont, recently concluded a successful mediation representing a parent and noted that that it was a great way for parents to let go without feeling as though they are sending a message to the children that they are giving up on them.

Karen Borgstrom agrees that, by and large, the process is working well. Judge David King, Chief Judge of the Probate Court also believes that the process has worked well for the court system and the children it serves.

David N. Foley is with the NH Division of Youth & Families; He has been a member of the NH Bar since 1991. Foley represents Sullivan County on the NHBA Board of Governors and is its liaison to the NH Bar News Editorial Advisory Board.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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