What is an Adoption Set Aside?
It is what they call an adoption reversal or the undoing of the adoption. It is extremely hard to find out anything about adoption set-asides because they are very, very rare. The States, Counties and Agencies try to keep them off the records and only talk about their "successes."
When the adoption starts to unravel and the child's problems have intensified to the point your family's well-being is at stake, you have no option but to try to get out of the adoption. It is the most gut wrenching decision, but is the only thing you can do for your family.
First starts the hunt for an attorney. Most family attorneys or adoption attorneys don't want to take the case. They are very rarely won. In our research we have only heard of a few set asides out of our state and still have not found one set aside in our state that has gone through the Judicial system. We have heard of cases where the parents had enough evidence to prove fraud on the part of the County. The family had specified that they did not want a child who had any sexual issues and then found out the County had withheld the sexual information from the family. Threatened with a lawsuit, the county took the child back without going to court. However, the child had to keep their family name. Unfortunately, the family still has a tie to the child that they don't want to have and the State and County won't do anything about it.
When you do find an attorney the $5000 retainer is just a drop in the bucket of the expenses to come. In our case, to date, we have spent over $65,000 in attorney fees. This has been on going for almost four years and we are still in Court with the case. As it stands now, it looks like we will lose the case and have to go back on appeal, which will cost us even more money!
Which brings us to the trial part of the set aside. The Juvenile court that hears the adoptions and the foster placements is the same court that will hear the set aside. These are a very close-knit group of attorneys and Judges that see each other almost every day. They are friends, which makes it even harder to break through the good ol' boys club!
This is David and Goliath and you are David. You are up against the State Attorney General, The County Counsel, Social Services Attorney, and the minor's attorney. Not to mention the Judge who is friend's with these people.
In California, you can file a set aside based on Family Code 9100. The code reads as follows:
Family Law Code 9100
(a) If a child adopted pursuant to the law of this state shows evidence of a developmental disability or mental illness as a result of conditions existing before the adoption to an extent that the child cannot be relinquished to an adoption agency on the grounds that the child is considered unadoptable, and of which conditions the adoptive parents or parent had no knowledge or notice before the entry of the order of adoption, a petition setting forth those facts may be filed by the adoptive parents or parent with the court that granted the adoption petition. If these facts are proved to the satisfaction of the court, it may make an order setting aside the order of adoption.
(b) The petition shall be filed within five years after the entry of the order of adoption.
(c) The court clerk shall immediately notify the department at Sacramento of the petition. Within 60 days after the notice, the department shall file a full report with the court and shall appear before the court for the purpose of representing the adopted child.
Based on these criteria we have a case for the set aside. Critical information was withheld from us. We started the set aside based on the fact that the child had Reactive Attachment Disorder (RAD). If he had RAD before we adopted him then they withheld the information from us and we should be granted a set aside based on fraud. If he just developed RAD then this was a new diagnosis that was a result of "of conditions existing before the adoption to an extent that the child cannot be relinquished to an adoption agency on the grounds that the child is considered unadoptable, and of which conditions the adoptive parents or parent had no knowledge or notice before the entry of the order of adoption" and we should be granted a set aside.
Once we started subpoenaing records to try to prove that he had RAD before the adoption, suddenly we were getting information that we had no idea about! We received a report of him jumping on his sibling's arm until he broke it. Another report of him having oral copulation with a boy in one of the residence cottages. Yet another, about him residing with a registered sex offender relative for 6 months. Another one about him being caught with his toddler sibling rubbing her private parts. And another one of him being caught with a sibling in the closet with no clothes on. All of this was a shock to us.
Where were these reports before the adoption? Why weren't they included in the original presentation? We were told we had "ALL" of the records on this child.
And the most frightening part of all is that if we had not filed this lawsuit and set aside, we still would not know! It has taken over three years of subpoenas to get the information! There could still be more reports that are out there that we don't have. Every time, in the last three years, that we have received newly released evidence there is more frightening information. And with each new release the information gets worse!
A direct quote from our Judge is "Oh, well. Buyer beware." Buyer beware!?!?!? Are you kidding me? This is not a used car we are talking about!
We did not adopt a child from a shady company in an old gas station on the corner. We adopted a child from the State. It never occurred to us that we would have to worry about whether the State was hiding anything or would not disclose "everything" to us regarding the child. We were told that as foster parents we could not have background information or know everything about the minor, but that all the information would be disclosed and given to us at the adoption signing.
After all, we live a state that has some of the best consumer protection laws in the country. Why then would we think that the State did not have the child's and our best interest in mind?
*Should we worry about trusting the State on matters of great personal and social importance like adoption?
*Should we worry that the children that are being "protected" by Social Services workers will not receive the correct therapy, guidance and placement.
If we purchase a car from a State licensed auto dealer, we are guaranteed that the dealer must disclose if the vehicle has any frame damage or other mechanical issues that cannot be repaired or if the vehicle has been returned under the Lemon law. Why would we expect less when it came to a child?
We trusted the honesty and integrity of our State and the judicial system. We should have acted as a skeptical consumer obtaining a product with a "No Return" policy.
When our Adoption Case Worker got on the stand our attorney questioned her about the various statements that she had made to us, including that his behaviors were "normal for older children that are being adopted." Her answer to each of these questions was that she "did not recall saying that." Lie after lie after lie. It was amazing and shocking! We thought she was our friend and cared about us and wanted what was best for our chosen child and our family!
Another comment from our Judge was that he didn't care what we didn't know and he didn't care what lies the Social Workers had told us, he only carried about what we knew. Our case is based on fraud and non-disclosure and if we are not allowed to present what was withheld then how can we prove fraud? He has made his decision before we had even stepped foot in the courtroom!
He also said that some of the behaviors that our child had presented before the adoption "would have been a "red flag" to him. These were the same behaviors that we were questioning his Case Worker about and his State appointed therapists. They kept telling us this was "normal behavior for older children that are being adopted." The State Social Workers even admitted in the State's investigation for Court that they had "tried to normalize the child's behavior" to us. We should have followed our gut! We should have listened to the voices screaming in our head that this was not normal! But we trusted our government and that a system for the people and by the people would operate in the child's and our family's best interest!
We trusted that if there was behavior that was a problem or a danger that the courts or Social Services would step in and not allow the adoption. We assumed that at the review hearings that they were having every three to six months, that the Judge would stop the adoption if he saw any "red flags." After all, they are the trained professionals. They deal with this every day! They are aware of the various problems.
We have found that you will be looked at as the villains. You are looked at as horrible people that are abandoning this poor child that has already suffered loss and separation. But you are not the bad guys! You are as much a victim as the child and the State, Counties and Agencies are responsible! They are the villains! They are the ones who omitted critical information!
Our conclusion and personal observation is that the Courts, States, Counties, and Agencies don't care that you do not receive all of the information on the child! They don't care if you are deceived through omission. This child is just a number on their books that they want to remove from one column and place in another column. They don't care who gets hurt in the process including the child.
It is up to you to get all of the information on the child you are going to adopt!
Trust your gut! Knowledge is power! Be powerful!