What if My Adoption Fails? (2024)

When do adoptions fail?

Adoptions fall apart at different stages (with different legal consequences), and there are different reasons for each kind of failure.

What causes private infant adoptions to fail?

In private infant adoptions, about one-third of expectant mothers change their plans between matching and placement. A smaller — but still significant — number change their minds between placement and the termination of their rights. Many of our families have lived through failed adoptions, and they liken the pain to that of a miscarriage or stillbirth. It is a miserable ordeal for everyone involved, including the birth families.

Social workers say that birth parent counseling is by far the best insurance against a failed adoption. A counselor will help an expectant mother work through likely emotions before she has to make a decision. When the time comes to relinquish her child, she will already have worked through her grief. When the baby’s father is part of the decision, he should also be counseled. If he and the mother are at odds, social workers say the best practice is to have separate counselors, so that each birth parent can come to an independent decision.

Straight talk: Remember Baby Jessica and Baby Richard, two children who were returned to their birth parents years after placement? In both cases, the media focused on the children being torn from the only homes they had known. People were sympathetic to the would-be adoptive parents and faulted the birth mothers, who had lied about the children’s paternity. However, in both cases, the birth fathers had challenged the adoption within days of the birth, and much grief would have been avoided if the adoptive parents had recognized the inevitable outcome and returned the children immediately. Neither scenario could be repeated today: As a direct result of these cases, states have instituted “Putative Father Registries,” where men who believe they have may have fathered a child must register in order to file a claim of paternity later.

What if I meet the child and find problems I can’t deal with?

For most of our families, the first meeting with their child is a magical moment — of instant, overwhelming love. For others, it is a time of uncertainty. The child doesn’t look like the one in the referral photograph or video. The child has problems that weren’t disclosed in the referral. Or you just don’t feel right.

First, don’t panic. You must separate the normal anxiety of new parenthood from genuine worries about the child. Bear in mind that many — if not most — biological parents have moments of terror before, and after, their child’s birth. This is the moment to rely on your adoption support team, particularly on the families who have adopted in similar circ*mstances.

If yours is a domestic adoption, either private or from foster care, you should take time before placement to have the child fully evaluated. If the child has a condition you are truly not prepared to support, your attorney or agency will help you withdraw from the adoption. Most agencies keep lists of parents who specifically want to adopt a child with medical problems.

In an international adoption, your situation may be more complicated. You are in a foreign country, you may not have access to medical experts, there may be translation difficulties. Again, if you feel that you cannot support this child, lean on your agency to provide you with another referral while you are in country.

What happens if I can’t parent the child I bring home?

Good agencies have social workers and psychologists on staff or on call who can support parents after placement. If you feel you cannot cope with your child, lean on the agency. Don’t be embarrassed; these professionals have seen everything. They can help you find support, navigate the medical and educational system with you, and even find respite care if you need it.

What if we have finalized the adoption and still can’t make it work?

When an adoption fails after finalization, the legal issues are more complicated. Your parental rights must now be terminated in court and transferred to your state or to another adoptive parent. You will need expert advice from a social worker and an attorney; you and the child will also need emotional support.

While dissolutions are, mercifully, rare, they are usually the result of finding that the child has reactive attachment disorder so severe that it doesn’t respond to therapy, or that it has a previously undisclosed illness. If you are adopting a child who is at risk of RAD, consult a psychologist beforehand and learn what symptoms to look for.

Statistics indicate that about 10 percent of adoptions disrupt (fail between placement and finalization), and between one and three percent are dissolved (fail after finalization) because the child has problems that the adoptive parents are not equipped to support. These failures are far more likely to occur in older-child adoptions; social workers estimate that fewer than 1 percent of infant adoptions fail, while 30 percent of adoptions of teenagers fail. If you are adopting a teenager or pre-teen, line up expert psychological support for yourself and the child before homecoming.

Can I sue my adoption agency or attorney?

If you have reason to believe that an agency or professional didn’t give you all of the medical and/or social background information available regarding the child and his or her birth family, you may want to consider suing. The courts have started to address these issues by allowing lawsuits, commonly referred to as “wrongful adoption.”

Although brought under a number of different legal theories, most wrongful adoption lawsuits contain a count of misrepresentation or fraud, i.e., an allegation that the adoption agency or other professional, intentionally or negligently, failed to make a good-faith effort to find out and reveal material information to the adoptive parents. Not all information, however, is considered “material.” “Material information” is that information which, if it had been divulged would have caused the adoptive parents not to adopt the child.

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