In Re Baby Girl D.
In Re Baby Girl D.
Dissenting Opinion
dissenting.
I respectfully dissent. I agree with the majority that all fees paid by adopters must promote the child’s welfare. For this reason, the majority may well be correct in holding
Nevertheless, for the following reasons, I believe Superi- or Court properly remanded these cases to the Orphans’ Court Division of the Court of Common Pleas (Orphans’ Court) to make specific factual findings in each case. First, I believe there is insufficient evidence in the record to support the general conclusions of the Orphans’ Court in these cases. Second, while I agree with the majority that all fees paid by the adopters must promote the child’s welfare, I disagree with the majority’s per se rule requiring a direct benefit to the child. I believe the distinction between direct and indirect will at best prove elusive and will probably lead to anomalous results. So-called indirect benefits under certain circumstances promote the needs and welfare of the child and may at times be essential to its well-being.
I
I share the majority’s concern that helpless infants not be bartered or sold like commodities in our society, but I find these records to be equivocal.
The Adoption Act, 23 Pa.C.S. §§ 2101-2910, enacted October 15, 1980 and effective January 1, 1981, mandates that the Orphans’ Court appoint counsel to represent the child in a contested involuntary termination proceeding and authorizes the appointment of counsel or a guardian ad litem at any time for a child who has not reached the age of 18 years. 23 Pa.C.S. § 2313(a).
In these six adoption cases, each presented by the same attorney and involving the same unlicensed intermediary employed by an unlicensed agency,
The majority justifies on two grounds the Orphans’ Court’s holding that any expenses paid by the adopters that do not directly benefit the child must be proscribed. The first assumes that if the adopters are allowed to pay for any other expenses, intermediaries, such as Family Planning,
The majority further justifies its action by assuming that any service provided by the adopters to the natural mother will unduly and improperly influence her in her decision on whether to relinquish her parental rights. From this premise the majority concludes that the buying and selling of children can be prevented by not allowing the adopters who will receive the child to finance any of the expenses other than reasonable, unreimbursed lying-in expenses, counsel fees for the adoption proceeding and the costs of the proceedings. Maj. op. at 454-455.
In these six cases the fees paid by the adopting parents that have been prohibited by the Orphans’ Court and affirmed by the majority include fees for counseling both the natural mother
Facts to support the assumptions the majority makes are difficult to gather within the context of this judicial record, which contains conflicting testimony combined from sepa
II
From the language of the majority’s opinion, I fear its per se rule that all fees paid by the adopting couple must directly benefit the child will preclude consideration of the unique circumstances that develop with each adoption. Under the text of its opinion, if the natural mother were afflicted with a life threatening illness that could also kill the child she carries, the adopters could not come to her aid because the natural mother would directly benefit from the treatment. Maj. op. at 456-457 n. 5. This would be the case even if all of the evidence clearly indicated that she intended to relinquish her parental rights to that particular adopting couple. It is difficult to understand how the needs and welfare of the child are promoted under such circumstances. On the other hand, if the adopters were financing the natural mother’s face lift, there would be no benefit to the child, and there would be a legitimate concern that financing this operation was a form of consideration for the baby.
It is for this reason that courts have traditionally examined the propriety of fees for adoptions on a case by case basis. As our Superior Court noted in a recent examination of the propriety of certain fees in adoption proceedings:
*465 A contract wherein a mother of a child agrees to adoption of her child by another in consideration of a monetary consideration to herself is void as against public policy. See Savannah Bank and Trust Co. v. Hanley, 208 Ga. 34, 65 S.E.2d 26 [1951]. Where the monetary consideration is to flow to the child such a contract is not void as against public policy. See Savannah Bank and Trust Co. v. Wolff, 191 Ga. 111, 11 S.E.2d 766.
Gorden v. Cutler, 324 Pa.Superior Ct. 35, 53, 471 A.2d 449, 458 (1983) (quoting Downs v. Wortman, 228 Ga. 315, 315, 185 S.E.2d 387, 388 (1971)). The Superior Court further noted that while there is little Pennsylvania precedent on point, what can be derived from those cases is:
that a contractual agreement ‘benefitting a child’ will not ipso facto be categorized as against public policy without first looking at the facts of the particular case. Such an approach is not only laudable, but it is consistent with those courts which have been confronted with the validity of contractual agreements that provide for the payment of pre-natal care in adoption cases. See Anno., Right of Natural Parent to Withdraw Valid Consent to Adoption of Child, 74 A.L.R.3d 421, § 18; Anno., What Constitutes Undue Influence in Obtaining a Parents [sic] Consent to Adoption of Child, 50 A.L.R.3d 918, § 4.
Gorden v. Cutler, Id., 324 Pa.Superior Ct. at 51-52, 471 A.2d 457 (emphasis added).
In Enders v. Enders, 164 Pa. 266, 30 A. 129 (1894), a grandfather offered his daughter-in-law $20,000, and her son $10,000 when he reached maturity, “if she would permit him to take her son and educate him, the boy to make his home with him until he was of age, she to have the privilege of visiting her child when she desired, and to have him at her home whenever convenient.” Id., 164 Pa. at 270, 30 A. at 129. This Court reasoned that if the agreement had been between strangers, and the natural parent was trying to relieve herself of all maternal obligations, then the agree
Pennsylvania’s Adoption Act, to my mind, requires a case by case analysis by the Orphans’ Courts. In recent amendments, the legislature has not proscribed any particular fees. Instead, it has left the matter to the Orphans’ Courts to decide only whether they were excessive in the context of particular cases. Section 2533(c) of the Adoption Act, which was added in 1982, provides:
Appropriate relief. — The court may provide appropriate relief where it finds that the moneys or consideration reported or reportable pursuant to subsection (b)(8) are excessive.
23 Pa.C.S. § 2533(c). As noted supra at page 3, the Adoption Act requires the adopting parties to provide a report of their payments to the intermediary, 23 Pa.C.S. § 2531, and the intermediary to provide:
An itemized accounting of moneys and consideration paid or to be paid to or received by the intermediary or to or by any other person or persons to the knowledge of the intermediary by reason of the adoption placement.
23 Pa.C.S. § 2533(b)(8). Therefore, under the Adoption Act, the Orphans’ Court can and should determine whether any particular fee is excessive. The Act does not seem to me to authorize the Orphans’ Court to rule in or out whole servic
Ill
The economic realities of shrinking government aid for social services cannot be ignored. And, as appellant admits, it is becoming more difficult for conventional adoption agencies to meet their financial needs through donations.
Because of these problems, I, like Superior Court, would vacate the Orphans’ Court’s order and remand all six cases to that Court with instructions to hold further hearings consistent with this opinion. In this way the Orphans’ Court could determine whether the fees paid by the adopting parents promoted the child’s welfare under the circumstances. Under this standard some fees, such as lying-in expenses, would clearly benefit the child, while others, such as the sliding scale fee, would provide no benefit to the child at all. This analysis, however, would provide more flexibility to the Orphans’ Court to look at all the circumstances when dealing with fees for less conclusive services such as room and board.
. This Section of the Adoption Act was amended by the Act of June 23, 1982, P.L.617, to read as follows:
(a) General rule. — The court shall appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. The court may appoint counsel or a guardian ad litem to represent any child who*461 has not reached the age of 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child. No attorney or law firm shall represent both the child and the adopting parent or parents.
. Family Health Council of Western Pennsylvania, Inc., t/d/b/a Family Infertility and Adoption Center and Family Planning Council of Western Pennsylvania received a license from the Department of Welfare on January 13, 1983. Reproduced Record at 231-233a.
. While the Orphans' Court also prohibited fees paid for advertising, the majority concluded that the evidence in the record was not sufficient to conclude that advertising fees were improperly charged to adopters. Maj. op. 459.
. It appears from the record that all parties, as well as the Orphans’ Court, assumed that the nominal intermediary, Elizabeth Cessna, acted as an agent of Family Planning within the scope of her authority. Id. at 2. Therefore, we will hereinafter treat Family Planning as the actual intermediary.
. It should be noted that the 1982 amendments to the Adoption Act permit the court to charge the costs attendant to an adoption proceeding to the county.
(b) Payment of costs. — The court, in its discretion, may order all or part of the costs attendant to a proceeding under this part to be paid by the county wherein the case is heard, the adopting parents or apportioned to both, provided that if the adopting parents shall be ordered to bear all or a portion of the costs of this part that:
(1) the court may direct that the payment of the fees or a portion thereof may be paid by a court ordered schedule of payments extending beyond the date of the involuntary termination hearing; and
(2) the fee shall not exceed $150.
23 Pa.C.S. § 2313(b).
. The Adoption Act as amended in 1982 clearly supports the concept of counseling for natural parents but does not mandate it:
(a) List of counselors. — Any hospital or other facility providing maternity care shall provide a list of available counselors and counseling services compiled pursuant to subsection (b) to maternity patients who are known to be considering relinquishment or termination of parental rights pursuant to this part.
(b) Compilation of list. — The court shall compile a list of qualified counselors and counseling services (including adoption agencies) which are available to counsel natural parents who are contemplating relinquishment or termination of parental rights pursuant to this part. Such list shall be made available upon request to any agency, intermediary, hospital or other facility providing maternity care.
23 Pa.C.S. § 2505.
. It should be noted that Children’s Home of Pittsburgh supports the position of Family Planning. Children’s Home of Pittsburgh has been in existence for over forty years, but as appellant admits, it is having difficulty financing adoptions through traditional methods. Appellants' Reply Brief, at 5-6.
Opinion of the Court
OPINION OF THE COURT
We granted the petition for allowance of appeal of the minor adoptees, through their guardian ad litem, to address the question whether expenses for locating, preparing and arranging an adoption are properly charged to adoptive parents by an adoption agency, Family Infertility and Counseling Center of the Family Planning Counsel of Western Pennsylvania, and, if so, whether any limits on those expenses are properly imposed by the orphans’ court division of the court of common pleas. The issue presented raises a question whether persons are profiting impermissibly from the placement of newborn infants in adoptive homes. The various courts of common pleas have taken differing positions as to allowable fees in adoption cases.
The question arose when investigators hired by the court under Orphans’ Court Rule 15.5 questioned “unusual” fees charged to adopters in cases involving the intermediary agency, Family Infertility and Counselling Center of the Family Planning Council of Western Pennsylvania. The questioned fees are for (1) counselling natural mothers; (2) counselling adopters; (3) advertising expenses; (4) room
STANDING
Appeal is sought by the infant children, through their guardian ad litem
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
Inherent in this provision must be the right of every individual not to be bought or sold. If individuals have the right not to be bought or sold, it necessarily follows that those individuals must have standing to raise that right in appropriate proceedings. Cf., Stapleton v. Dauphin Co. Child Care Serv., 228 Pa.Super. 371, 324 A.2d 562 (1974) (juvenile is a “party” to an action for custody under the Juvenile Act, Act of Dec. 6, 1972, P.L.1464, No. 333, 11 P.S. § 50-101 et seq., since repealed and replaced); Juvenile Act, Act of July 9, 1976, P.L.586, No. 142, 42 Pa.C.S.A. § 6337 (parties to proceedings under Juvenile Act, including children, are entitled to representation by legal counsel). The guardian ad litem was appointed by the court to represent the interests of the children in the proceedings sub judice. Thus, it follows that the guardian ad litem must have standing to challenge any procedure which amounts to a sale of the child whose interests she is appointed to protect.
REVIEW ON THE MERITS
The issue presented is whether the determination below, that impermissible and excessive fees were charged to adoptor parents by the adoption agency, was properly within the discretion of the judge of the orphans’ court division. This case presents a pure question of law regarding the authority of the orphans’ court division, as protector of the adoption process, to disallow certain fees charged to adoptor parents by the intermediary agency. We will find an abuse of discretion where the lower court’s judgment is
Traditionally, allowable expenses to adopter parents have been limited to reasonable unreimbursed lying-in expenses, reasonable legal fees incident to the adoption proceedings and costs of the proceeding.
As noted supra, expenses, which were charged to adopter parents and disallowed by the orphans’ court division, include fees for “counselling” natural mothers. The lower court found that counselling for natural mothers was required.
The intermediary agency argues such charges to adoptor parents ought to be permitted on grounds the counselling benefits the child.
Some adoptor parents were also charged for expenses of transporting natural mothers to Pittsburgh and of housing the natural mothers for periods of up to ten and one-half weeks prior to the birth. Room and board were charged in two of the cases sub judice. In both cases, the natural mother’s home was outside the Pittsburgh area. Again, the intermediary agency argues that room and board were medically necessary; however, the record does not support this claim.
Other expenses paid by adopters for services to the mother include medical expenses wholly unrelated to the birth
Modern medical science is making great strides toward determining ideal developmental conditions for a fetus in útero. With the relatively recent understanding of nutrition, appreciation for the value of vitamins in the daily diet, and studies of the effects of cigarette smoking and alcohol
Most adopters participated in infertility counselling and adoption counselling in a two-step process. First came infertility counselling. If, at the conclusion of the infertility counselling, the infertile couple desired to adopt, adoption counselling followed. Adoption counselling consisted of advice regarding advertising availability to adopt newborn children and warnings about a “black market” in adoptions. Although some of the adopters testified that this counsel-ling was a regular part of the adoption service, other adopters testified that counselling was optional. The court resolved this conflict in favor of a finding that counselling was required. One adoptive parent testified that the costs of adoption counselling were only billed to persons who adopted. Thus, the so-called counselling expenses are clearly an agency fee for an adoption, and not a fee for counsel-ling as such. Costs for counselling adopter parents range from $50-$75 per case.
The intermediary agency argues the fees for counsel-ling prospective adopters are proper because Department of
Finally, the court disallowed advertising expenses and ordered the intermediary agency to reimburse adopters for advertising costs in connection with newspaper ads and leaflets. Advertising for adoption has not been barred by the General Assembly and is certainly a legitimate means, in this society, of making one’s availability to adopt publicly known. The form of the ads in the instant case does not appear of record. Thus, we cannot determine whether the ads simply announced the availability of adopters, or whether they promoted the agency itself as the guardian’s brief suggests. Thus, the record does not support the lower court’s determination that advertising fees were improperly charged to adopter parents by the intermediary agency, and, on this record, this determination must be reversed.
We are all aware that because of the availability of effective contraceptives, the legalization of early pregnancy termination and the custom of many young women to delay parenting in order to establish careers, the number of white infants available for adoption is dwindling while the demand for them is increasing. The same young women who have delayed parenting to establish their careers, and who have difficulty conceiving, also have relatively high incomes.
The brief of Family Infertility and Counselling Center recites its sliding scale fee arrangement. Under this arrangement, the agency’s fee is calculated at seven and one-half percent of the adoptor couple’s gross annual income, with a ceiling of $7500.
The order of Superior Court is reversed, and the record is remanded to the orphans’ court division for entry of an appropriate, final order.
. Since the date the interlocutory appeal was allowed by Superior Court, adoptions have been decreed in five of the six cases sub judice.
. The guardian ad litem was appointed pursuant to the authority vested in the orphans’ court by virtue of 20 Pa.C.S.A. § 751 which provides, in pertinent part, as follows: "The orphans’ court division may appoint ... [o]n its own motion, a guardian or a trustee ad litem to represent the interest, not already represented by a fiduciary, of (i) a person not sui juris. . . .”
. The costs of the proceeding which are properly charged to adoptors are limited by statute to a maximum of $150, 23 Pa.C.S.A. § 2313.
. The adoptor parents’ agreement to pay the costs of counselling natural mothers was surely based upon some assumption that they
. It should be noted that all the children involved in these proceedings are newborn infants.
. One mother had a mass surgically removed from her breast, and the cost of the medical procedure was billed to the adoptive parents. The rationale for this was that the mass might be malignant and, if so, metastasize, threatening the fetus.
. The Department of Public Welfare, Office of Children, Youth, Families Social Services Manual provides at ¶ 2-1-16 that "The service provider shall insure, either directly or through referral, the availability of counseling and other services, as needed, to natural parents, the child and the adoptive parents.”
. Among the adopters in these cases, only one couple testified they did not receive adoption counselling, although they did receive fertility counselling. The husband is a psychiatrist and the wife a clinical psychologist.
. Contrast this with the usual adoption agency fee in Allegheny County which is S150-$200.
Reference
- Full Case Name
- In Re BABY GIRL D., a Minor, Baby Girl E., a Minor, Baby Girl B., a Minor, Baby Boy S., a Minor, Baby Girl S., a Minor, Baby Girl J.M.M., a Minor, Appellants
- Cited By
- 14 cases
- Status
- Published