By Diane I. Bonina and Ruth A. Bahe-Jachna

“I am not a can of soup.” Those are the words, recounted to one of the authors of this article, of a young child to a bewildered family friend. The child had been born in China and adopted as a baby by a family in the United States. When the adult family friend asked the child to explain her statement, the child explained what little she knew of her adoption story. She told how, as an infant, her birth mother had left her on an empty shelf in a market. Her birth mother had wanted someone who could love and care for her to find her, the child explained. But “I’m a girl,” she said, “not a can of soup.”

The child had obviously suffered a tragic loss and, in an attempt to deal with the lingering effects of her abandonment, needed to reaffirm her identity as a human being. She wanted to let others know, and therefore reassure herself, that although she had been left on a shelf, she was not an item to be bought and sold in a market. China’s one-child policy, which apparently led to this young child’s abandonment, allows families to have only one child in a country where sons are prized for both economic and cultural reasons. The policy, coupled with the culturally embedded devaluation of female offspring, has all but institutionalized the treatment of baby girls in China as chattel with little value, to be abandoned or worse.

It is tempting to view the treatment of children as chattel as unique to Third World communist countries. That similar violations could occur in the United States seems unthinkable. After all, children’s rights have been recognized in this country for over a century and are reflected in state legislation prohibiting child abuse, establishing juvenile court systems, and regulating child labor conditions. However, recent adoption decisions in the United States have resulted in the state-mandated abandonment of children. Such decisions, which have been preoccupied with the rights of adults, violate the U.S. Constitution and the human rights of children by denying children both the fundamental right to a family, thought to be so basic in our country, and a process through which their interests can be considered.

The Need to Move Beyond Parental Rights

In the now-infamous Baby Richard case, the Illinois Supreme Court awarded Richard’s biological father the extraordinary remedy of habeas corpus and transferred custody of Richard, a nearly four-year-old child who had spent all of his life with his adoptive parents and brother, to the biological father.1 Richard’s biological mother had placed him for adoption, and her rights had been legally terminated. Richard’s biological father, who was not married to Richard’s biological mother when Richard was born, argued that she had told him that Richard was dead, and that he had therefore been denied an opportunity to contest the adoption. The Illinois Supreme Court not only refused to stay the biological father’s original habeas proceeding while the parties went forward in the circuit court on a proceeding to determine custody based on the best interests of the child, but conducted the habeas proceeding in an expedited manner that ensured no best interests hearing would be held.

A best interests hearing clearly would have served to protect the rights of Richard and would have permitted the court to make a reasoned custody determination based on all the relevant evidence. This evidence included the facts that a court previously had heard and rejected testimony from the biological father that he had been diligent in searching for the child after his birth; the same court had approved the adoptive parents’ petition for adoption and entered a final order granting the adoption; while the biological father’s appeal consumed another two years, the child continued to live with his adoptive parents and brother as their lawful child and sibling; the child had formed solid familial bonds with his adoptive parents and brother, as well as with their extended family; the child was established in a neighborhood where he had lived for four years, and in a preschool, and had many friends and playmates; and the biological father, who was seeking custody, was a stranger to the child. Instead, the Illinois Supreme Court’s analysis focused on the rights of the biological father and gave no consideration to the rights of the child. The court treated Richard as little more than a chattel, an object to be taken from one party and awarded to another. Utterly ignoring Richard’s rights, the court “ordered and directed [the adoptive parents] to surrender forthwith custody of the child known as Baby Boy Richard” and refused to order that the transfer of the child be supervised in any way by a professional who could help Richard deal with the emotional consequences of this devastating event.

A subsequent case demonstrates that Illinois courts have continued to ignore the rights of children in the adoption context. In In re Brumfield,2 the biological parents of a child, known only as F.Y., were not married, although they had lived together for a time and separated before the child was born. During the first six months of F.Y.’s life, the biological mother had custody of the child, and the biological father occasionally visited F.Y. However, conflict arose between the biological parents, and the biological mother relinquished her parental rights and placed F.Y. for adoption when F.Y. was six months old. The court had not yet declared the parental rights of the biological father at that time. The adoptive parents filed a petition for adoption and became the lawful custodians of F.Y. The child continued to live with the adoptive parents for the next three years, while the court considered the adoptive parents’ request to intervene in the biological father’s parentage proceeding, in which he sought custody of F.Y. The appellate court ultimately affirmed the trial court’s determination that the adoptive parents lacked standing to intervene, although F.Y. had now been living with the adoptive parents for three years. The denial of intervention meant that no best interests hearing was permitted to determine who should have custody of F.Y.

Other cases also have dealt with the issue of custody in ways that disregard the rights of the children involved. The Maryland Court of Special Appeals recently relied on that state’s common-law “biological presumption” in upholding a trial court’s decision awarding custody of a child to a biological mother who had been convicted of murdering another one of her children.3 In that case, the child Cornilous had been in the custody of a foster mother for nearly three years, since he was three months old. During most of this time, his biological mother was incarcerated. Cornilous’s foster mother had been appointed his guardian and sought to adopt him. The court ignored Cornilous’s constitutional liberty interest, as well as the basic constitutionally protected interest in his personal health and safety, by refusing to consider the biological mother’s murder of her daughter as an “exceptional circumstance” sufficient to rebut Maryland’s biological presumption. Maryland’s biological presumption, like that of many other states, focuses on the rights of parents and ignores the rights and interests of children. The presumption itself is founded upon the outdated and erroneous view that a biological parent’s “natural” affection for a child will create a greater desire to properly care for the child than an unrelated individual would possess.4 By failing to hold that the biological mother’s murder conviction nullified the biological presumption (and failing to find that the murder of her daughter was relevant to an assessment of her potential to abuse or neglect Cornilous), the court ignored Cornilous’s constitutional interests. The Maryland Court of Appeals—the state’s highest court—has stayed the Court of Special Appeals’s decision, so there is hope that Cornilous’s best interests ultimately will prevail.5

There is no doubt that tearing a child from the only family he or she has ever known will inflict severe emotional harm on that child. Common sense dictates that a child who is removed from everything and everyone familiar to him or her will suffer the effects of that loss. Disruption of the parent-child relationship is likely to be particularly damaging:

The child’s psychological tie to a parent figure is not the simple, uncomplicated relationship which it may appear to be at first glance. While it is rooted inevitably in the infant’s inability to ensure his own survival, it varies according to the manner in which protection is given and the physical needs fulfilled. . . . Where the adult in charge of the child is personally and emotionally involved, a psychological interplay between adult and child will be superimposed on the events of bodily care. . . .

Such primitive and tenuous first attachments form the base from which any further relationships develop. What the child brings to them are no longer only his needs for body comfort and gratification but his emotional demands for affection, companionship, and stimulating intimacy. Where these are answered reliably and regularly, the child-parent relationship becomes firm, with immensely productive effects on the child’s intellectual and social development. Where parental care is inadequate, this may be matched by deficits in the child’s mental growth. Where there are changes of parent figure or other hurtful interruptions, the child’s vulnerability and the fragility of the relationship become evident. The child regresses along the whole line of his affections, skills, achievements, and social adaptation.6

A child who loses his parents will face great difficulty developing into a responsible and productive adult. He or she may be permanently scarred by the loss of loved ones. Indeed, research on loss and bereavement has shown that children who lose even one parent experience behavioral problems as well as significant sadness, depression, and anxiety.7

The effects of the loss of one’s family, whether a biological or psychological family, will be felt equally. A child knows nothing of biology or of blood relationships; rather, a child comes to recognize love.

Whether any adult becomes the psychological parent of a child is based thus on day-to-day interaction, companionship, and shared experiences. The role can be fulfilled either by a biological parent or by an adoptive parent or by any other caring adult—but never by an absent, inactive adult, whatever his biological or legal relationship to the child may be.8

Indeed, as the U.S. Supreme Court has recognized, “‘Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.’”9 Once a familial bond is forged, shattering a child’s world by removing the child from his family ought to be as unthinkable as abandoning a baby girl on the shelf in a market.

Fourteenth Amendment Considerations

The U.S. Constitution should protect the familial bonds forged by children. The Fourteenth Amendment protects all persons, including children, against the arbitrary infliction of serious harm by the state. In nonadoption contexts, the U.S. Supreme Court has held that this Fourteenth Amendment liberty interest encompasses the avoidance of arbitrary harm from state-mandated physical transfers from one residence to another. For example, the Supreme Court has held that due process is required when an adult is involuntarily transferred from prison to a mental hospital.10 The liberty interests at stake when a court is faced with deciding whether to remove a child from the only family he or she has ever known involve the most vulnerable of all humans and the most intimate of human relationships. The Supreme Court has recognized that “[f]amily relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life.”11 The Supreme Court has also recognized that the adoptive relationship is constitutionally protected and “recognized as the legal equivalent of biological parenthood,” because “a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship.”12

Courts that treat the constitutional rights of biological parents as paramount, and assume that such rights preempt consideration of all other interests, ignore the human rights of children and the Fourteenth Amendment’s applicability to children and adoptive parents as well. By focusing entirely on blood ties and the rights of biological parents, the Baby Richard court, the Brumfield court, and the Maryland Court of Special Appeals that decided In re Adoption No. 12612 ignored the rights of the children involved.

Richard, for example, had a constitutional right to the only family he had ever known, to the family that had lovingly raised, nurtured, and supported him for four years. The Baby Richard court was not wrong in considering the rights of Richard’s biological father; certainly, biological parents have constitutional rights. Yet those rights must be weighed against those of the children involved in adoption and custody cases. In the Baby Richard case, Richard’s rights ought to have been paramount because he was vulnerable and blameless, and because the greatest possible trauma in that case would be to Richard were he torn from his family—as he was. The loss that his biological father would have experienced had Richard remained with his adoptive family could not have rivaled Richard’s loss of the only parents and brother he had known throughout his four years of life. Moreover, Richard’s biological father, as an adult, was presumably better equipped to survive such emotional trauma. At the very least, Richard was entitled to have a court consider his interests.

A thoughtful dissenting opinion in In re Brumfield recognized that the rights of children must be placed on an even plane with those of biological parents. “In the face of the assertion [that] a parent has a constitutional right to the custody of his child, perhaps we should ask why this right is superior to the child’s interest in having the court carefully examine what is in the child’s best interest. Why are they not equal claims?”13 The dissenter went on to note that the majority’s “narrow application of standing . . . unfortunately gives support to the notion that a child is the property of his parent.”14 The dissenter pointed out that to move away from this property concept, it may be necessary to conduct a best interests hearing before removing a child from adoptive parents and placing him or her with a biological parent. This procedure permits a court to consider, among other things, the social and psychological ties that a child has developed with those who have assumed responsibility for his or her nurturing and support.15 “This approach places as much value on the child’s welfare as it does on the parents’ interests.”16

Although the Supreme Court has not yet expressly recognized the constitutionally protected status of the familial ties between an adopted child and his or her adoptive parents, it has ruled that the interest in maintaining stable family relationships may be treated by the states as weightier than the interests of biological parents. For example, the Supreme Court has held that a state may enact legislation that treats the best interests of the child as paramount and may deny custody to a noncustodial biological father in favor of a more traditional family setting.17 The existing body of Supreme Court case law demonstrates the Court’s awareness of the fundamental importance of the associational interests created by bonds of care, reliance, and need. Such associational interests of a child in his or her familial bonds and relationships are liberty interests deserving of protection under the Due Process Clause.

This protection requires a particularized process in which the competing interests of all of the parties can be considered. When competing interests of a constitutional magnitude exist, states may weigh them through a variety of mechanisms, depending upon the nature of the case. States, however, should not be free to weigh only some rights to the exclusion of others. Where an adoption is challenged, the child, the adoptive parents, and the biological parent(s) all have constitutional rights that must be weighed. Due process in the context of a challenged adoption should mean a fact-finding process that will reveal information about the specific relationships and needs involved among all of the parties. The process should produce a rational accommodation of the interests of all of the parties. The hearing need not result in exclusive custody for one set of parents, or, in the event that it does, need not require an immediate transfer of custody. In fact, a rational accommodation, as in other custody contexts, is likely to involve joint custody, a progressive transfer of custody involving psychological supervision, or, at a minimum, visitation. Such results would protect the liberty interests of the child and prevent lasting emotional trauma to the child.

Conclusion

Until courts stop treating children as chattel and begin to recognize and give meaningful consideration to the rights of children in these types of situations, children like Richard, the child F.Y., and Cornilous will continue to be the innocent victims of our judicial system. Today, Richard is nearly eight. Since he was torn from his mother’s arms when he was four years old, he has not been permitted to see her, his father, or his brother. Moreover, the biological father who fought so hard for custody of Richard apparently has left Richard and his biological mother and sister.18 That event could perhaps have been predicted had Richard received the best interests hearing to which he was entitled. The emotional consequences of the Illinois Supreme Court’s actions are not known, but they can be imagined. Richard apparently grieves for his adoptive parents and brother, Johnny. About four months after Richard was taken from his family, the former attorney for Richard’s biological father indicated to reporters that Richard had told his biological father that he had spoken to his adoptive parents and brother, Johnny.19 The phone call took place only in Richard’s imagination. The attorney also reported that when Richard once came home without a crucifix his biological father had given him (to replace a cross that he wore when he was taken from his adoptive family), Richard told his biological father that he had seen his parents and his brother Johnny, and that “Johnny took it.”20 Perhaps Richard cannot fathom a judicial system that would permanently tear him from the family that raised him and loved him for four years. Perhaps he cannot imagine the cruelty of a system that would utterly ignore his constitutional and human rights and treat him like a chattel. Perhaps he finds it necessary to escape these harsh truths by seeing that family and experiencing their love again, if only in his fantasies.

Diane I. Bonina is an attorney with Southwestern Bell Mobile Systems, Inc. d/b/a Cellular One-Chicago in Schaumburg, Illinois. Ruth A. Bahe-Jachna is an attorney with Foley & Lardner in Chicago, Illinois. Ms. Bonina and Ms. Bahe-Jachna were part of a team of lawyers at the law firm of Jenner & Block who represented the adoptive parents in the Baby Richard case. The ideas in this article rely in part on the position taken by that team of lawyers in its Petition for Writ of Certiorari to the U.S. Supreme Court.

Endnotes

1. In re Petition of Kirchner, 164 Ill. 2d 468, 649 N.E.2d 324 (1995) [hereinafter referred to as Baby Richard].

2. 284 Ill. App. 3d 950, 673 N.E.2d 461 (4th Dist. 1996).

3. In re Adoption No. 12612, No. 1832, Sept. Term, 1997 (Md. Ct. Spec. App. July 9, 1998).

4. In re Adoption/Guardianship No. A91-71A, 640 A.2d 1085, 1096 (Md. 1994).

5. After this article was submitted for publication, the Maryland Court of Appeals vacated the lower court’s judgment and remanded the case for further proceedings. The court of appeals instructed the lower court to determine on remand whether, in light of Cornilous’s biological mother’s murder of another of her children, there is any likelihood of her abusing or neglecting Cornilous. In re Adoption No. 12612, No. 83 (Md. Feb. 17, 1999).

6. J. Goldstein, et al., Beyond the Best Interests of the Child 17–18 (1979).

7. E. Kranzler, et al., “Early Childhood Bereavement,” J. Am. Acad. Child Adolesc. Psychiatry 513, 518 (July 1990).

8. Goldstein, et al., supra note 6, at 19.

9. Lehr v. Robinson, 463 U.S. 248, 260 (1983) (quoting Caban v. Mohammed, 441 U.S. 380, 397 (1979) (Stewart, J., dissenting)).

10. Vitek v. Jones, 445 U.S. 480, 490 (1980).

11. Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984).

12. Smith v. OFFER, 431 U.S. 816, 844 & n.51 (1977).

13. 284 Ill. App. 3d at 962, 673 N.E.2d at 469 (Knecht, J., dissenting) (emphasis added).

14. Id.

15. Id. at 962, 673 N.E.2d at 470.

16. Id.

17. Quilloin v. Walcott, 434 U.S. 246 (1978).

18. Bob Greene, “Now’s the Time to Give Richard What Is Due Him,” Chi. Trib., Jan. 21, 1997.

19. Bob Greene, “‘They Said I Should Come Over,’” Chi. Trib., Aug. 21, 1995.