Adoptions, parental rights loophole puts families in flux

A Tri-Cities couple’s adopted sons may be taken away, and a Spokane woman’s daughter was adopted while she fought to keep the girl.

The separate child custody cases illustrate a gap in Washington law that makes it possible for adoptions to be finalized while the biological mother or father appeals termination of their parental rights.

A bill to close the loophole failed to come to a vote in the Legislature this session, leaving it up to the state court system to correct it through a rule change.

In two Washington state cases last year, higher courts overturned decisions to terminate parents’ rights, but the children had already been adopted by other families.

“We are victims, as are birth parents, as are the children,” said Jill Mailloux, of Richland, who with her husband, Jim, adopted two brothers, ages 5 and 7, in February 2010.

Seven months later, the boys’ biological mother, who is from Snohomish County, successfully argued in Court of Appeals Division I that her rights to her sons should never have been taken away.

“The social worker said, ‘Yes, there is an appeal, but they never get granted, don’t worry about it,’ ” Mailloux recounted.

In a separate case in June, the state Supreme Court overturned the 2006 termination of a father’s right to his 10-year-old daughter, who was adopted more than four years ago.

Both cases have resulted in a legal morass likely to result in the children being taken away from their adoptive families.

In several other cases, the state Supreme Court declined to review parental terminations after the children in those cases were adopted while their parents appealed.

In one such case, the parental rights of Angela Hauseur to her son and daughter were terminated in December 2006 in Pend Oreille County Superior Court.

Hauseur’s children, now ages 15 and 13, were taken from her by Child Protective Services three years earlier because of her use of methamphetamine and resulting neglect. After Hauseur was arrested for possession with intent to deliver the drug in 2005, the children became wards of the state.

Hauseur, who now lives in Spokane, served a five-month sentence, after which she completed three months of inpatient drug treatment.

Despite being clean and sober since entering prison in May 2005, Hauseur was denied contact with her children. The state sought termination of her parental rights and those of the children’s father, who was no longer involved in their lives.

The termination was ordered by Pend Oreille County Superior Court Judge Allen Nielson on December 21, 2006.

“I did everything they asked of me and was still denied my children,” Hauseur said.

She appealed the termination order on the same day it was issued, claiming that the state had made no attempt to reunite the children with their mother and was “laying the groundwork” for adoption at least 15 months before her rights were terminated.

A month and a half later, with the appeal still pending, the adoption of Hauseur’s daughter was finalized. Her son remains in foster care.

“I don’t see how they could let this happen,” Hauseur said. “I was told the whole time they could not adopt her, that it was automatically stayed. That was not the case.”

In February 2009, Hauseur’s appeal was denied by Court of Appeals Division III, and she appealed to the Supreme Court, which denied review without comment last month.

Officials at the Department of Social and Health Services, which plays key roles in both the termination of parental rights and the placement of children in foster families wishing to adopt, declined requests for interviews.

However, the department issued a statement through its Spokane spokesman, John Wiley.

“The Children’s Administration does not have a policy on finalizing adoptions when the termination of parental rights is under appeal,” Wiley said.

“This is a legal issue,” he said, “and the adoptive family and their attorney decide whether to move forward to adoption finalization while the (termination of parental rights) is under appeal.”

“If the family chooses to move forward,” the department advises the adoptive family attorney that the termination order is under appeal. “The Department then follows the wishes of the adoptive family and their attorney on the matter. The law also says a child has a right to a speedy resolution of the dependency,” he said.

The apparent conflict between granting biological parents every consideration before terminating their rights and providing permanency in the lives of children in state care can have devastating results, according to the Office of the Family and Children’s Ombudsman.

“Policymakers should consider the risk-benefit of finalizing adoptions when an order terminating parental rights is under appeal and whether state law, court rules or department policy should prohibit or limit this practice,” the ombudsman’s office wrote in a 2010 report.

Mailloux, the adoptive mother in the Tri-Cities case, agrees.

When the biological mother of her two boys won her appeal in September, state social workers and the attorney general’s office advised her to get a lawyer.

The Mailloux family spent $30,000 in legal fees arguing without success that they should be allowed to intervene in the case in Snohomish County Superior Court where the dependency case originated.

“We are not asked our opinion,” Mailloux said. “We are not consulted about decisions they are making about the boys. Yet we are 100 percent their legal parents.”

For the time being, the boys remain with the adoptive parents, while the court attempts to sort out the matter.

Mailloux and her husband testified in the Legislature in support of Senate Bill 5597, which would automatically stay a termination order for 30 days. As proposed, if a termination of rights order is appealed within that time, the stay would continue until the appeal is complete or until it is lifted.

The bill was later amended by its author, Sen. Jerome Devlin, R-Richland, to bar a court from finalizing adoption while an appeal of a parent’s termination order is pending unless the court finds that allowing the adoption to be finalized is in the child’s best interest.

SB5597 failed to reach a floor vote, in part because the legislation competed with a rule change proposed to the Supreme Court by the state Office of Public Defense, which requires notice to be filed in the appellate courts when adoption proceedings are begun while a termination order is under review.

“The courts don’t like us telling them what to do,” Devlin said.

Managing attorney Sean Flynn said the Office of Public Defense did not oppose Devlin’s legislation, but prefers the rule procedure.

“We are very concerned about constitutional implications of having an adoption finalized before a parent has received due process,” Flynn said.

The proposed court rule is open for public comment until April 30.

“If they don’t do this rule and do it right, we will be back next year,” Devlin said.