In years gone by, if a parent in a child protection case lost at trial, then unless there were a chance of success at an appeal, this would spell the end of the parent-child relationship. The kids would be adopted out or be placed in the care of society indefinitely.
But that is no longer the case. After a hard-fought court case, if a child is placed for adoption, the parties can consider whether an “openness agreement” or an “openness order” should be put in place. But what exactly does “openness” mean? And how does one get “openness?”
This blog will be a brief review about the topic of openness in child protection cases, distinguish between an openness agreement and an openness order, and discuss when such openness is, and is not, warranted.
What is Openness?
The term “openness” includes any form of contact between the parent and the child, ranging from (on one end of a spectrum) exchange of letters and photos between the parent and the child to (on the other end of the spectrum) face-to-face contact.
Openness must be flexible – it’s not a one-size-fits-all model. The parties must understand and appreciate that as a child grows after they have been adopted, any relationship will be based on a child’s needs, wishes, developmental stage, and take into consideration other changing circumstances and issues so as to not interfere with the adoptive family’s ability to form a new family, with its own strong bonds.
Is It Only Between a Parent and Child?
No. Openness can occur with any member of the child’s birth family. This includes his/her brothers and sisters, the birth parents, aunts and uncles, grandparents, etc. However, for simplicity though, in this blog, I will only reference the “birth parents.”
How Does Openness Work?
The Child, Youth and Family Services Act (“the CYFSA”) allows for “openness” to occur through either an agreement or an order.
Under an “Openness Agreement,” a child’s adoptive parents and their birth parents enter into an out-of-court agreement that sets out the terms and conditions under which the birth parents will agree to have contact with the children in the future. Although the child protection agency does not necessarily need to be a party to this agreement, it would help everyone involved act as a “go-between” between the two sides. As you can appreciate, the adoptive parents may not want to have anything to do with the birth parents and/or vice-versa.
An openness agreement can be made before or after the adoption has been completed, i.e., the parties do not have to wait until the adoption has gone through to make such an agreement. In fact, it would be prudent to do so before the adoption has been granted to avoid the disappointment of being told that such relief is not welcomed by the adoptive parents.
Although the subject child does not need to agree to the terms of such an agreement, nor do they sign the agreement itself, the other parties (the adoptive and birth parents) must take into account the child’s views, where such views are discernable. Once again, as you can imagine, these views will be easier to ascertain as a child gets older.
One of the “pros” of entering into an openness agreement is that they can be drafted in a “bespoke” manner – it will be tailored to address the needs of the parties and the subject child. It can also be quickly changed if circumstances require it.
However, one of the “con’s” of entering into an openness agreement is that, as it is an “out of court” process, a judge/court may not be able to order someone to follow the agreement if a party changes their mind.
Whether a birth parent can apply for an openness order will depend upon whether there is, or is not, an order currently allowing for that parent to have access to the subject child. The legislation uses the terms “access holder” and “access recipient.” The two terms are quite different. It is important that the parents be noted in any court order as the “access holder” and the child as the “access recipient.”
Under the CYFSA, if the birth parent is an access holder, that parent can bring an application to a court. However, the adoptive parents do not have the right to participate in the process under this mechanism, i.e., they are not parties to the application.
Under the CYFSA, if the birth parent is not an access holder, then the child welfare agency, not the birth parents, must bring an openness application and requires both the birth parents and the adoptive parents to be given notice of the application and to be parties to it.
One of the “pros” of an openness order process is that the court has the ability to enforce compliance with the terms of the court order.
However, one of the “con’s” of such an order is that they require a court process to modify them, which does not allow the parties the flexibility or timeliness to address changing circumstances.
How Can a Parent Succeed in an Openness Application?
There is a two-step process for the parents to follow.
First, there needs to be a consensus to an openness order by all the parties, i.e., the child welfare agency, the child (if the child is 12 years old or older), the birth parents, and the adoptive parents.
Second, the court will only make an openness order if it is in the child’s best interests to do so. To determine if an openness order would be in the child’s best interests, the test is whether allowing the child to continue to have a relationship with the birth parents would be “beneficial and meaningful” for the child. “Beneficial” is defined as a relationship that is advantageous to the child. “Meaningful” is defined as a relationship that is significant to the child.
In helping the courts determine if the relationship is meaningful and beneficial, they will look at the factual situations of the parties, including (this list is by no means exhaustive):
- The history of the relationship between the parties
- The current relationship between the parties
- If the child is old enough, the express views, wishes, and preferences of the subject child
- Do the birth parents have issues with aggression, anger, impulse control? Are they confrontational and/or litigious?
- Do the birth parents show support for the adoptive parents, or have they been undermining the placement with the adoptive family?
- Are the birth parents open and honest in dealing with the other parties, or are they secretive and dishonest?
- Are the birth parents stable and well-adjusted, or are they dealing with personal issues, such as serious mental health problems, substance abuse challenges, or living a transient or chaotic lifestyle?
- Will the openness order interfere with the permanency of the adoption process?
As you can see, entering into an openness agreement or responding to an openness application is no easy task. It must be properly considered to determine if either arrangement is suitable for the birth parents, the adoptive parents, and for the child. The simple desire for birth parents to want to stay in their child’s life may not be enough to convince a child welfare agency or a court to enter into such an arrangement or that it is best for the child to do so. As such, like any legal arrangement, it is important that birth parents seek proper legal advice from a child protection lawyer who is ready, willing, and, most importantly, able to help them navigate the legal landscape of openness agreements and orders.