Indiana Law Review Permanence and Parenthood: The Case for Abolishing the Adoption Annulment Doctrine Margaret M. Mahoney* Introduction Most parent-child relationships are biological relationships, established by procreation. Although the state is not involved in the formation of such family relationships, the legal system immediately recognizes and assigns great significance to them. In the eyes of the law, the parent-child status is laden with rights and obligations during the child' s minority and even after the child reaches adulthood. 1 Under the family laws of every state, the parent-child relationship may also be created by adoption. 2 Such a relationship comes into existence by an order of a family court, exercising clearly articulated statutory powers. 3 Thereafter, the adoptive parent-child status involves the same legal rights and duties as the parent-child status established by procreation. For example, the Connecticut adoption statute summarizes the legal effect of adoption as follows: All rights, duties and other legal consequences of the biological relation of child and parent shall thereafter exist between the adopted person and the adopting parent and the relatives of such adopting parent. Such adopted person shall be treated as if such adopted person were the biological child of the adopting parent, for all purposes. 4 As a general rule, the legal system intends the parent-child status to be permanent. Whatever the realities of the relationship between a biological or * Professor ofLaw, University ofPittsburgh. I am indebted to two University ofPittsburgh law students, Katherine Voye and Amber Lilley, for their research assistance; and to the staff of the law school's Document Technology Center for their help in preparing this manuscript. 1 . See generally SCOTT E. FRIEDMAN, THE Law OF PARENT-CHILD RELATIONSHIPS ( 1 992) (describing regulation of parent-child relationships in various legal fields); Margaret M. Mahoney, Stepfamujes and the Law (1994) (same). 2. Additional methods exist for establishing parent-child relationships in the law. See Paula Roberts, Truth and Consequences: Part I. Disestablishing the Paternity ofNon-Marital Children, 37 Fam. L.Q. 35, 35-36 (2003) [hereinafter Roberts, Disestablishing Paternity] (describing methods for establishing the paternity of children born outside of marriage); Paula Roberts, Truth and Consequences: Part II. Questioning the Paternity of Marital Children, 37 FAM. L.Q. 55, 55-56 (2003) [hereinafter Roberts, Questioning Paternity] (describing the presumption ofpaternity in marriage, which creates the legal status of fatherhood for the husband of a child's biological mother). 3 . See 2 Joan Hemtz Hollinger, Adoption Lawand Practice § 1 .0 1 [ 1 ], at 1 -3 (2007). 4. Conn. Gen. Stat. Ann. § 45a-73 1(1) (West 2004); see also Mark F. Testa, The Quality of Permanence—Lasting or Binding? Subsidized Guardianship and Kinship Foster Care as Alternatives to Adoption, 12 Va. J. Soc. POL'Y & L. 499, 532 (2005) ("Equating the duties of adoption with the legally binding obligations of natural parenthood is sound policy."). 640 INDIANA LAW REVIEW [Vol. 42:639 adoptive parent and his or her child as it unfolds over the years, in the eyes of the law, the connection is important and lasts until the death of either party. This Article focuses on the phenomenon of parents seeking to terminate the relationship status earlier, most often before their children reach adulthood. As described at length herein, two legal doctrines govern in this area: the termination of parental rights statutes enacted in every jurisdiction and the abrogation of adoption doctrine. The primary legal vehicle for terminating the parent-child status is the termination of parental rights statute, enacted in each state, which authorizes judicial orders terminating all of the rights and responsibilities of parenthood. These laws are designed primarily for the benefit and protection of minor children. For example, child welfare officials may seek a termination order based on ajudicial determination that the parent is unfit to rear the child and that severance of the legal status would serve the child's interests. 5 Regarding the voluntary termination of parental rights, these state statutes anticipate two primary circumstances in which the court may accept a parent's voluntary surrender of his or her role. First, the parent may agree to terminate his or her status in order to free a child for adoption by another adult. 6 Second, the parent may consent to end his or her legal relationship as to a child who has been adjudicated dependent or neglected within the child welfare system, whether or not adoption by another adult is planned. 7 The termination of parental rights statutes may also be applied in other, less common situations, which are the focus of this Article. The reported cases involving parents who seek to end their legal status outside the contexts of a pending adoption or child welfare proceeding fall into a few discrete categories. As to both biological and adoptive noncustodial parents, a common theme is the desire to be released from child support obligations. 8 In addition, the noncustodial parent may be motivated by a desire to completely sever ties with the child's custodial parent. This motivation surfaces, for example, in termination cases involving an adoptive stepparent who is subsequently divorced from the child's custodial parent. 9 Finally, noncustodial parents who have not maintained contact with their children may believe that a termination order 5 . See Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 9.4, at 357 (2d ed. 1988). 6. See 2 HOLUNGER, supra note 3, § 2.01 [1], at 2-5 to -7. 7 . See Douglas E. Abrams & Sarah H. Ramsey, Children and the Law 506-09 (2000) (discussing permanent, non-adoptive placements that may be preceded by termination of parental rights). 8. See Cottrell v. Cottrell, 522 S.W.2d 433, 434 (Ark. 1975) (stating that a stepfather seeking to terminate his status four years following a final adoption decree "admitted that he was trying to set aside the adoption of the child because he didn't think he should pay child support" following divorce from child's mother); see also infra text accompanying notes 60-66 (discussing additional cases). 9. See 2 HOLUNGER, supra note 3, § 8.02[3][b], at 8-47 to -48 (collecting cases). 2009] PERMANENCE AND PARENTHOOD 64 1 would align their legal status with the parties' real relationships. 10 Financial considerations play a less significant role in most cases where custodial parents seek to terminate the parent-child relationship. Exceptional cases arise, however, when parents who are overwhelmed by the expense of caring for a child with special needs seek to terminate their status. 11 Another category of cases involves custodial parents who believe that their children, for whatever reasons, have not bonded with other family members, have behaved in ways that disrupt the family, or present a danger to themselves or others. 12 Often, the custodial parents in these circumstances assert that removal of the child from the family would be the best result for all family members. 13 Recent media coverage of international adoptions involving troubled children has raised public awareness of this final category of cases. 14 Whatever the motivations of parents who seek to terminate their status under state termination of parental rights statutes, the best interest of the child standard will govern the judicial analysis of their claims. As to adopted children, however, a second doctrinal avenue exists in many jurisdictions for the parent- initiated termination of parental rights. The doctrine of adoption abrogation or annulment empowers the courts in certain circumstances, generally unrelated to the protection and welfare of children, to enter orders setting aside earlier adoption decrees. The basic rationale for this additional termination doctrine appears in an early law review article about the abrogation doctrine: "Under the principle that what the court has created through its order, it can also put asunder, there would seem to be legal basis for setting aside adoption orders." 15 The law of adoption annulment has two intertwined strands. The first strand, which dominates modern abrogation legislation and many judicial opinions in this field, is procedural. Namely, state rules of civil procedure generally allow for the subsequent vacation of final court orders in limited circumstances, such as where fraud or procedural irregularity tainted the initial judicial proceeding. 16 The authority of courts to set aside final orders in this manner creates an exception to the general principle of finality in civil litigation. The exception is designed to achieve the ultimate goals of fairness and justice in cases where 10. See, e.g., In re Jessica M., 802 A.2d 197, 199 (Conn. App. Ct. 2002) (involving petition of mother who had not seen her children for more than six years). 11. See, e.g., In re Jurga, 472 S.E.2d 223 (N.C. Ct. App. 1996); see also infra notes 29-32, 52-57, and accompanying text. 12. See 2 Hollinger, supra note 3, § 8.02[3][a], at 8-44 to -46 (discussing adoption annulment cases involving children with behavioral issues). 13. Id. § 8.02[3][a], at 8-44. 14. See, e.g., Cindi Lash, More American Parents Find They Can't Cope with Troubled Russian Children, PITTSBURGHPOST-GAZETTE, Aug. 14, 2000, at Al ; Pat Wingert, When Adoption Goes Wrong, NEWSWEEK, Dec. 17, 2007, at 58. 15. Joseph T. Helling, Note, Adoption: Annulment ofStatus, 29 NOTRE DAME Law. 68, 69 (1953-54) (footnotes omitted). 16. See infra notes 189-93 and accompanying text (discussing the doctrines that authorize courts to set aside final decrees in limited circumstances). 642 INDIANA LAW REVIEW [Vol. 42:639 errors affected the litigation outcome. Adoption annulment involves the application of judicial power to set aside final orders in this manner to final adoption decrees. The second strand of the abrogation doctrine is substantive. The state statutes establish specific grounds forjudicially setting aside an adoption decree, thereby terminating the legal parent-child relationship. 17 The grounds set out in the state adoption codes for this purpose have shifted significantly over the decades. Early abrogation statutes established grounds relating to the condition of the adopted child, such as the child's race, mental or physical health, or behavior. 18 With a few notable exceptions, the state legislatures have repealed these bases for adoption annulment. 19 At the same time, many state legislatures and courts have established grounds relating to problems surrounding entry ofthe initial adoption order, such as fraud or procedural irregularity. These grounds for annulment of the adoption order re-focus the analysis on the first strand of abrogation law, the procedural strand, which embodies the power of courts to set aside final orders in the interests of justice. 20 This Article evaluates both strands ofthe doctrine of adoption annulment and concludes that neither procedural nor substantive considerations justify its continued existence. As discussed in Part V, adoption decrees differ in significant ways from the typical court order in the system of civil litigation for which judicial power to set aside the decree in appropriate cases is deemed necessary. The ultimate goal of justice in civil litigation is not furthered by allowing the adoptive parent, whose own successful petition to the court gave rise to the adoptive parent-child relationship, to subsequently challenge the propriety of that process. Additionally, as discussed in Part IV, abrogation rules establishing substantive grounds for the voluntary termination of the adoptive parental status, unrelated to the welfare of children, are inconsistent with basic family law principles. These principles include the evenhanded treatment of parent-child relationships in the law, and public policies favoring permanency in parent-child relationships except in the circumstances carefully defined in parental termination statutes. Thus, the abrogation of adoption doctrine should itself be abrogated. Part I of this Article describes the general principle ofpermanence of parent- child relationships in the law and briefly focuses on formal family law programs designed to support the goal of stability. Part II focuses on the termination of parental rights statutes enacted in every state as an avenue for parents who seek to terminate their status and the operation of the best interest of the child standard in this context. Part DI explains the alternative avenue for terminating parental rights, the abrogation of adoption doctrine, and explores the historical development of the doctrine, the modern statutes, and the limited role of 17. See infra Part III.A (discussing evolution of the grounds for adoption annulment under state abrogation statutes). 18. See Helling, supra note 15, at 75-76. 19. See infra notes 115-18 and accompanying text. 20. See infra note 118. 2009] PERMANENCE AND PARENTHOOD 643 considerations relating to the child's welfare. Part IV sets forth the substantive reasons for preferring termination of parental rights statutes as the exclusive avenue for legally ending parent-child relationships at the behest of the parent. Part V takes the position that the judicial adoption model does not necessitate or justify rules authorizing the judicial setting aside of final adoption decrees. There are compelling reasons to eliminate the abrogation doctrine, and no good reason for maintaining it as a means for adoptive parents to terminate legal ties to their children. Finally, the Conclusion of this Article summarizes additional recommendations associated with the proposal to abolish the adoption annulment doctrine such as enhanced family support programs, standing for all parents to file petitions under state termination of parental rights statutes, and continued application of the best interest of the child standard to resolve requests to terminate the parent-child status. I. The Permanence of Parent-Child Relationships The permanence ofparent-child relationships, whether created by procreation or adoption, is an important principle in our family law system. Generally speaking, the stability that results from the maintenance of existing family ties serves the interests of children, their families, and society as a whole. 21 Family laws reflect this view about the importance of stable family relationships. 22 Most parents share the view embodied in this legal principle about the permanency of their status. 23 Throughout history, however, there have been parents who, for a variety of reasons, prefer at some point in time to relinquish the rights and responsibilities of their status. 24 Some parents make alternative, informal arrangements for their children's care, or simply abandon them. 25 Others, however, seek a legal declaration terminating the parent-child relationship. 26 In the modern context, the primary legal vehicle for parents who 21. See Anne L. Alstott, No Exit: What Parents Owe Their Children and What Society Owes Parents 16-20 (2004). 22. See generally Symposium: The State Construction of Families: Foster Care, Termination ofParental Rights, and Adoption, 12 Va. J. Soc. Pol'y & L. 365 (2004-05); Testa, supra note 4, at 499 (distinguishing the concept of legal permanence from family commitments that are not legally binding, within the child welfare system). 23 . See ALSTOTT, supra note 2 1 , at 5 ("To be sure, parents do not ordinarily perceive 'Do Not Exit' as a command from the state. Good parents provide their children with continuity of care out of love and a sense of moral obligation."). 24. See Carol Sanger, Separating from Children, 96 COLUM. L. Rev. 375, 388-99 (1996) (collecting work of family historians). 25. Alstott, supra note 21, at 44-47 (noting that de facto abandonment of children in families is often accompanied by breakdown of the parents' relationship); Gregory A. Loken, "Thrownaway" Children and Throwaway Parenthood, 68 TEMP. L. REV. 1715, 1716-27 (1995); Sanger, supra note 24, at 390-95. 26. The number ofparents who seek to legally terminate their parental status is not large, and is not clearly documented. For example, a follow-up study of 5 16 foster children who were adopted 644 INDIANA LAW REVIEW [Vol. 42:639 wish to achieve this end is the termination of parental rights statutes enacted in every state. The doctrine of adoption abrogation is an alternative route to terminating one's parental status, available only to adoptive parents. 27 Various public and private programs that provide assistance to families support the goals of maintaining stable parent-child relationships and avoiding child abandonment or the legal termination of parental status. The design and implementation of effective family support programs may address the concerns of parents, biological or adoptive, who might otherwise desire to terminate their status. For example, public programs designed to encourage the adoption of children in foster care provide financial support and other types of services to help sustain post-adoption relationships for this category of families. 28 in New York City in 1996 attempted to answer the question: "Had any adoptions been abrogated, or had adopted parents' parental rights been terminated?" Trudy Festinger, After Adoption: Dissolution or Permanence, 8 1 CHILD WELFARE 515, 526 (2002). The study revealed that nine of the children "were in placement during the study period," id. at 527, although the author did not clearly conclude that adoption abrogation or termination ofparental rights had taken place in these cases. Festinger noted generally that "[l]ittle is known about the frequency ofdissolution following legal adoption because it is so difficult to obtain accurate data." Id. at 517. Another measure of the frequency of parent-initiated termination proceedings is the number ofreported judicial opinions on point. As to adoption abrogation, a scholar collecting cases on this topic observed that "[t]he cases in which the [adoptive] parent has himself sought annulment . . . are few in number." T.C. Williams, Annotation, Annulment or Vacation ofAdoption Decree by Adopting Parent or Natural Parent Consenting to Adoption, 2 A.L.R.2d 887 § 3 (1948 & Supp. 2007). As to petitions by parents under the state termination of parental rights statutes arising outside the settings of a child welfare proceeding or proposed adoption, research for this Article uncovered fewer than fifty cases on point. 27. Additional doctrines authorize the voluntary relinquishment ofchildren by their parents. In recent years, many state legislatures have enacted so-called "safe haven" laws that allow the parents of newborns to leave them, anonymously and without any continuing responsibility, in designated locations. See Carol Sanger, Infant Safe Haven Laws: Legislating in the Culture of Life, 106 COLUM. L. Rev. 753, 754-55 (2006). Sanger collected statutes from forty-six states, enacted within the period 1999 to 2006. Id. at 754 n.5. Another avenue for voluntarily relinquishing parental rights is established under state laws that permit legal fathers to "disestablish paternity," by proving the biological paternity of another man. See generally Roberts, Disestablishing Paternity, supra note 2 (regarding non-marital children); Roberts, Questioning Paternity, supra note 2 (regarding marital children). Divorcing parents have, on occasion, tried to terminate the parental rights of one of them by contract or stipulation. The law confers no authority on parents to end their rights and responsibilities in this manner. See, e.g., R.H. v. M.K., 603 A.2d 995, 998-99 (N.J. Super. Ct. Ch. Div. 1 99 1 ) (refusing to incorporate into divorce decree the parents' agreement to terminate father's rights); see also In re Marriage ofJackson, 39 Cal. Rptr. 3d 365, 371-75 (Ct. App. 2006) (affirming the trial court's reversal of its earlier order granting mother's post-divorce motion, unopposed by custodial father to terminate her parental rights). 28 . See Cynthia R.Mabry&Lisa Kelly, AdoptionLawTheory, Policy, and Practice 728-29 (2006) (discussing post-adoption services); see also ALSTOTT, supra note 21, at 40 2009] PERMANENCE AND PARENTHOOD 645 In the case of In re Jurga, 29 the North Carolina Court of Appeals described the direct connection between the limitations of a public support program and the decision of parents to file a petition under the state termination of parental rights statute. The petitioning parents in Jurga lost state support for their son's institutional care in North Carolina when they moved out of state. Their petition to terminate parental status was part of a plan to shift legal responsibility for their child to willing relatives who remained in North Carolina.30 The state court of appeals ruled that the parents lacked standing under the child welfare code to seek termination of their status in these circumstances. 31 In reaching this result, the Jurga court acknowledged the "dilemma faced by the [parents]" who were confronted with a choice between their own relocation and the continuation of their son's care. 32 Parent-child relationships may also be threatened in cases where parents consider their children to be impossible to live with, disruptive to the family, or a danger to themselves or others. At the most formal level, the courts that supervise child welfare and juvenile justice systems are the sources of state support for families in these circumstances. 33 Here, parents may seek support and necessary services, 34 ranging from family counseling to the placement of children outside of the family home. 35 The goal is the resolution of underlying problems, enabling the family to function and obviating the parents' inclination (highlighting the need for support for parents of children with disabilities, in order to avoid abandonment of children by parents). 29. 472 S.E.2d 223 (N.C. Ct. App. 1996). 30. Id. at 224. 31. Id. at 225. For a general discussion of limitations on parental standing under state termination of parental rights statutes, see infra text accompanying notes 49-58. 32. In re Jurga, All S.E.2d at 226. 33. In many states, courts exercise jurisdiction within the child welfare system over children who are abused or not receiving adequate care from responsible adults. See Sarah H. Ramsey & Douglas E. Abrams, Children and the Law in a Nutshell 1 -2 (3d ed.). At the same time, the state juvenile courts traditionally have exercised jurisdiction over "delinquent" children, who commit offenses that would be criminal if committed by an adult, see David J. HERRING, Everyday Law for Children 102-05 (2006) (discussing the evolution of "the juvenile court movement"), as well as children who are determined to be "in need of supervision." See Clark, supra note 5, § 9.5, at 361 ; RAMSEY & ABRAMS, supra, at 417-18, 445-56. The latter category is often defined by statute to include minors who are truant from school, disobedient toward their parents, or generally "incorrigible." See id. at 418-19. In recent decades, reformers have called for the transfer ofjurisdiction over such "status offenses" from the juvenile justice system to the child welfare system. See CLARK, supra note 5, § 9.5, at 361-62; RAMSEY & Abrams, supra, at 417 (describing a Pennsylvania statute, 42 Pa. Cons. Stat. § 6302 (2004), which includes status offenses within the definition of child dependency under the child welfare law). 34. See Carol S. Stevenson et al., The Juvenile Court: Analysis andRecommendations, THE Future of Children, Winter 1996, at 4, 13-14 (describing parent-initiated jurisdiction of the juvenile courts in the case of "ungovernable" children). 35. See CLARK, supra note 5, § 9.5, at 365-66. 646 INDIANA LAW REVIEW [Vol. 42:639 to terminate family relationships. The connection between the remedial purposes of judicially supervised family support programs and the permanence of family relationships became clear in the Indiana case of In re Adoption ofT.B? 6 The adoptive mother in T.B. first "sought the intervention of the . . . Juvenile Court[,] . . . [which] entered a preliminary order finding [her daughter] to be a child in need of services and placed [her] in a residential care facility." 37 Just weeks later, the mother "filed a petition to revoke [her daughter's] adoption in the . . . court which originally granted the adoption." 38 In spite of opposition by the department of social services, the trial court granted the annulment, on the ground of fraud in the initial adoption proceeding. 39 Notably, a threshold issue on appeal in this case questioned the jurisdiction of the adoption court to act at a time whenjurisdiction in the juvenile court continued. The Indiana Supreme Court ruled that simultaneous jurisdiction was proper, but reversed the trial court's annulment decree on the merits. 40 As a result, the troubled mother-daughter relationship remained the subject of the "child in need of supervision" proceeding in the juvenile court. Both the mother in T.B. and the parents in the Jurga case 41 sought to terminate all legal ties to their children following involvement with state support programs that did not meet their needs. These cases illustrate that in some situations, surely, enhanced support programs for families would deter parents from taking such drastic action. The two cases discussed in this Part illustrate the two legal avenues available to parents who seek to terminate their legal status. The biological parents in Jurga filed a petition in family court to terminate their parental rights under the state child welfare code, 42 while the adoptive mother in T.B. sought an adoption annulment order in the adoption court. 43 These two avenues for terminating the parent-child status, and the differences between them, are discussed at length in the following Parts of this Article. 36. 622N.E.2d921 (Ind. 1993). 37. Id. at 922. 38. Id. at 923. 39. Id. For a discussion of fraud as the basis for annulment claims see infra text accompanying notes 139-58. 40. Id. at 924-25. In approving the simultaneous jurisdiction of the juvenile court and the adoption court in the annulment proceeding, the Indiana Supreme Court stated: "An action for adoption and a CHINS [child in need of services] proceeding ... are separate actions which affect different rights. The CHINS proceeding is directed at helping the child directly by assuring that the child receives necessary assistance. Adoption, on the other hand, establishes a family unit." Id. at 924 (citation omitted). 41. See supra notes 29-32 and accompanying text. 42. In re Jurga, 472 S.E.2d 223, 224 (N.C. Ct. App. 1996). 43. r.#.,622N.E.2dat923. 2009] PERMANENCE AND PARENTHOOD 647 n. Termination of Parental Rights Statutes The termination of parental rights statutes in every state provide for severance of the legal parent-child relationship by judicial order based on specific statutory standards relating to the welfare of the child. The effect of such a court order is the complete severance of legal ties. For example, the Tennessee statute provides: An order terminating parental rights shall have the effect of severing forever all legal rights and obligations of the parent . . . and of the child .... The parent . . . shall have no further right to notice of proceedings for the adoption of that child . . . and shall have no right to object to the child's adoption or thereafter to have any relationship, legal or otherwise, with the child. It shall terminate the responsibilities of that parent ... for future child support or other future financial responsibilities even if the child is not ultimately adopted. 44 These state laws usually operate in one of two legal contexts: child welfare and state adoption codes. First, child welfare codes authorize various forms of state intervention in families in order to protect children, and provide for the ultimate judicial termination of children's relationships with their parents. 45 The serious step of termination in this context may occur either with the consent of the parent or involuntarily. Notably, state laws require the courts in these cases to address the future disposition of the affected child, whose well-being is the central concern of the termination order. 46 Second, the termination of parental rights is also addressed in the state adoption codes, where the voluntary or involuntary termination of rights is a prerequisite to the adoption of children by other adults. Common fact patterns involve the surrender of newborn children, and consent by noncustodial parents to the proposed adoption of older children by their stepparents. As in the child welfare system, the best interest of the child is the governing standard in these circumstances under the state adoption codes. The analysis in this Article focuses on efforts by parents to obtain a judicial order terminating their legal status, outside these common settings of a pending adoption or child welfare proceeding. The analysis is complicated by a lack of uniformity among the states in organizing their child welfare laws, adoption laws, and other provisions affecting children. 47 A particular state may have more than 44. Tenn. Code Ann. § 36-1-1 13(/)(1) (West 2002). 45. See ABRAMS & RAMSEY, supra note 7, at 375-76. 46. Clark, supra note 5, § 9.4, at 359. 47. Traditionally, child welfare laws and adoption laws constituted separate areas of statutory regulation. See, e.g. , Okla. STAT. ANN. tit. 10, § 7006- 1 . 1 (C) (West 2007) ("The provisions ofthis section [dealing with termination of parental rights within the child welfare system] shall not apply to adoption proceedings and actions to terminate parental rights which do not involve a petition for deprived status of the child. Such proceedings and actions shall be governed by the Oklahoma 648 INDIANA LAW REVIEW [Vol. 42:639 one statutory provision to which parents may look when they initiate the termination of their rights. 48 A threshold question here is whether the state legislatures intended to allow parents to initiate the judicial termination of their status outside the context of a child welfare proceeding or proposed adoption. The laws in some states appear, on their face, to create such standing for parents, and have been so construed by the state courts. For example, a provision in the Texas Family Code states that "[a] parent may file a suit for termination of the petitioner's parent-child relationship. The court may order termination if termination is in the best interest of the child." 49 Other state statutes, however, are less clear about the standing of parents to seekjudicial termination of their status outside the specific context of a pending adoption or dependency adjudication. Further, some state courts have construed ambiguous adoption and child welfare codes to deny standing. For example, in C.J.H. v. A.K.G., 50 the Tennessee Court of Appeals denied standing to unmarried parents who filed a joint petition to terminate the father's status under the voluntary termination provision of the state adoption code. According to the court, "there is no statutory authority for use of these procedures outside the context of an adoption or a plan for an adoption." 51 Adoption Code.")- In recent years, certain states have implemented reforms that unify many aspects of the legal regulation of children, including the standards and procedures for terminating parental rights. See Barbara A. Babb & Gloria Danziger, Introduction to Special Issue on Unified Family Courts, 46 FAM. Ct. Rev. 224, 225 (2008); Andrew Schepard, Editorial Notes, 46 Fam. Ct. Rev. 217, 218-19 (2008). For example, an Indiana law titled "voluntary petition" authorizes the filing of a petition to terminate rights, upon the request of the parent, either by a "licensed child placing agency" in probate (adoption) court or by the "office of family and children" in juvenile (child welfare) court. See Ind. Code § 31-35-1-4 (2008). 48. See, e.g., State ex rel B.M.S., 2003 UT App 51, 65 P.3d 639 (Utah Ct. App. 2003) (ruling that father must proceed under a voluntary relinquishment statute containing a presumption against termination when child support was at issue, rather than another termination provision that omitted the presumption regarding parental obligations). See generally In re H.J.E., 359 N.W.2d 471, 474 (Iowa 1984) (disallowing on jurisdictional grounds a biological father's petition to terminate his rights under the Iowa voluntary relinquishment provision, in light of a pending proceeding under the state's involuntary termination provision). 49. Tex. Fam. Code Ann. § 161.005(a) (Vernon 2002), applied in Linan v. Linan, 632 S.W.2d 155, 156 (Tex. App. 1982) (denying the petition of an adoptive, noncustodial father under the best interest of the child standard). In a recent opinion, the Texas Court of Appeals observed that "[a]lthough this provision was enacted in 1973, it has not been widely invoked." Dockery v. State, No. 03-05-007 13-CV, 2006 WL 3329794, at *1 (Tex. App. Nov. 14, 2006) (footnote omitted). 50. CJ.H. v. A.K.G., No. M2001-01234-COA-R3-JV, 2002 WL 1827660, at *1 (Tenn. Ct. App. Aug. 9, 2002). 51. Id. at *7; but see In re Bruce R., 640 A.2d 643, 645 (Conn. App. Ct. 1994) (rejecting mother's argument that a voluntary termination provision in the state adoption code, currently codified at Conn. Gen. Stat. Ann. § 45-a-7 15(a) (West 2004), "was 'not conceived' to allow a 2009] PERMANENCE AND PARENTHOOD 649 Parental standing has also been denied in some cases when parents proceeded under the voluntary termination provision of the state child welfare code. For example, in In re Jurga, 52 discussed in Part I, 53 the North Carolina Court of Appeals denied standing to biological parents who sought to terminate their rights as part of a plan to assure ongoing institutional care for their minor son after they moved out of state. 54 The court ruled that the termination provision of the child welfare code established "'the exclusive judicial procedure to be used in termination of parental rights cases,'" 55 and that "it expressly limits the persons and agencies who may petition for termination, and in no wise includes natural parents jointly seeking termination of their own parental rights."56 Although the court expressed sympathy for the parents and their goals in this case, their sympathetic circumstances did not change the result. According to the court, "[w]hile not insensitive to [the child's] circumstance and the dilemma faced by the [parents], we must follow established law."57 The denial of access to the courts in this manner precludes parent-initiated severance even in cases where the court might determine on the merits that the child's interest would be served by such a result. The better legal model, illustrated by the rest of the cases discussed in the remainder of this Part and the Texas statute quoted above, 58 authorizes parent petitions to terminate their rights subject to strict substantive standards that protect the interests of children. Most courts ruling on parental requests for the termination of all ties to their children assert a strong presumption that children's interests are not served by removing a parent from the legal picture, at least where no dependency adjudication has been made and no adoption by another adult is pending. In many cases, the potential loss of financial support for the child is a crucial consideration. For example, the Utah termination statute creates "a presumption that voluntary relinquishment or consent for termination of parental rights is not in the child's best interest where it appears to the court that the primary purpose parent to seek and receive a termination of his or her own parental rights 'absent pending adoption [or] state custodial placement"') (quoting statement of mother), aff'd, 662 A.2d 107 (Conn. 1995). 52. 472 S.E.2d 223 (N.C. Ct. App. 1996). 53. See supra notes 29-32 and accompanying text. 54. 472 S.E.2d at 226. 55. Id. at 225 (quoting In re Curtis, 410 S.E.2d 917, 919 (N.C. Ct. App. 1991)). 56. Id. at 226 (citation omitted). 57. Id.; see also In re K.L.S., 350 S.E.2d 50, 51 (Ga. Ct. App. 1986) (ruling that the term "written consent of the parent" in the termination provision of the child welfare code anticipated consent to the proposal of another party, usually the state, and did not authorize "petitions by parents seeking judicial imprimatur of their own, voluntary abandonment of parental responsibility"); In re B.L.G., 731 S.W.2d 492, 499 (Mo. Ct. App. 1987) (stating that under termination statute requiring all petitions to be filed by a juvenile officer, "the juvenile officer who files the petition must act in a role beyond that of a mere tool of a parent whose primary motivation is that of avoiding parental responsibilities"). 58. See TEX. FAM. CODEANN. § 161.005(a) (Vernon 2002); .sw/?ranote49 and accompanying text. 650 INDIANA LAW REVIEW [Vol. 42:639 is to avoid a financial support obligation." 59 The financial support factor was determinative in the case of Ex parte Brooks, 6® when the Alabama Supreme Court denied the joint petition of divorced parents to terminate the noncustodial father's parental rights. In Brooks, the child's parents had divorced during the mother's pregnancy, "mainly because [the mother] would not agree to her husband's insistence that she have an abortion." 61 During the next four years, the father did not provide financial support to, or communicate with, his son. The parents' petition to terminate the father' s status under the Alabama Child Protection Act was supported by a court- appointed social worker but opposed by the child's guardian ad litem.62 In filing the petition, the mother expressed concern that the father might interfere with her sole custodial authority sometime in the future, and the father clearly wished to be free of any future obligation to the child. 63 After the trial court in Brooks denied the parents' termination petition, the intermediate appellate court reversed, ruling that a termination order would serve the best interests of the child. 64 Finally, the Alabama Supreme Court reinstated the trial court order, stating that the child welfare code authorized termination only "[w]hen a child's welfare is threatened by continuation of parental rights" and "was not intended as a means for allowing a parent to . . . avoid his obligation to support the child." 65 As to the mother's concern about possible custodial interference by the father, which might harm the child in the future, the court noted the absence of any such conduct to date and the availability of remedies, including the ultimate termination of parental rights, if problems arose 59. Utah Code Ann. § 78-3a-414(6) (West 2004 & Supp. 2008) (current version at Utah Code Ann. § 79A-6-514 (West Supp. 2008)), applied in State ex rel B.M.S., 2003 UT App 51, 65 P.3d 639 (Utah Ct. App. 2003). 60. 513 So. 2d 614 (Ala. \9S7), overruled by Ex Parte Beasley, 564 So. 2d950(Ala. 1990). 61. Id. at 615. 62. Id. at 616. 63. Id. 64. The opinion of the intermediate appellate court appears at In re Stephenson, 513 So. 2d 612, 614 (Ala. Civ. App. 1986), overruled sub nom. Ex Parte Brooks, 513 So. 2d 614 (Ala. 1987). 65. Brooks, 513 So. 2d at 617; see also In re Jessica M, 802 A.2d 197, 206 (Conn. App. Ct. 2002) (reversing probate court decision that granted voluntary termination petition of mother who had not seen her children for more than six years); In re Bruce R., 640 A.2d 643, 647-48 (Conn. App. Ct. 1994) (reversing trial court decision to grant father's termination petition, and remanding for full consideration of financial issues), aff'd, 662 A.2d 107 (Conn. 1995); Dockery v. State, No. 03-05-007 13-CV, 2006 WL 3329794, at *3 (Tex. App. Nov. 14, 2006) (disallowing voluntary termination petition offather who owed child support arrearages to his adult, nineteen-year-old son, because father "provided no evidence that termination was in the child's best interest"); Linan v. Linan 632 S.W.2d 155, 156 (Tex. App. 1982) (denying voluntary termination petition filed by noncustodial, adoptive father two years following his divorce from the child's adoptive mother); State ex rel. R.N.J., 908 P.2d 345, 351 (Utah Ct. App. 1995) ("Only in the most aggravated and difficult cases do the best interests of the child call for the court to relieve a living, capable, and solvent parent of the obligation to support the parent's child."). 2009] PERMANENCE AND PARENTHOOD 65 1 in the future. 66 Quite clearly, on the facts of the Brooks case, the state termination statute could have been used against the father in an involuntary termination proceeding initiated in a different context, such as a stepfather adoption proceeding. The fact that the father's past behavior constituted grounds for termination (most likely abandonment) in such a proceeding did not, however, enhance the parents' claim in the voluntary termination proceeding. 67 The courts in other states have assigned even greater weight to the issue of financial support. Thus, in a case involving a divorced, adoptive stepfather, the Minnesota Court of Appeals ruled that noncustodial parents generally have no standing to seek to terminate their status unless adoption by another adult is pending. 68 According to the court, "the best interests of a child are not served by permitting a noncustodial parent to terminate parental rights voluntarily unless that termination is accomplished to facilitate adoption of the child. Adoption assures that the child will not lose valuable rights to support." 69 There are fewer reported cases involving custodial parents who initiate termination of their status outside the context of a child welfare proceeding or pending adoption. Often, these cases involve children who present special demands or challenges that their parents feel unable to meet. For example, the parents in In re Welfare ofD.C.M. 70 adopted a twelve-year-old child who had been diagnosed with emotional and behavioral problems. One year after the adoption was final, the parents successfully petitioned to terminate their rights, because they were "unable to cope with D.C.M.'s problems and the way his behavior affected their family." 71 The termination statute in Minnesota, applied in the D.C.M. case, included two prongs: first, "[t]he juvenile court may upon petition, terminate all rights of a parent to a child . . . with the written consent of a parent who for good cause desires to terminate parental rights"; 72 and, second, "the best interests ofthe child must be the paramount consideration, provided that the conditions [relating to good cause] are found by the court." 73 The juvenile court in D.C.M. applied this statute and granted the parents' petition. On appeal by the county, the court of 66. Brooks, 513 So. 2d at 617. 67. See In re T.M.C., 52 P.3d 934, 937 (Nev. 2002) ("Even if the parent engages in conduct that satisfies the parental fault provisions of [the child welfare code], the child's best interests must be served by the termination of parental rights for such termination to be appropriate. Here, [the father's] contention that the child would be better off without him and his continued financial support is unpersuasive."). 68. In re Welfare of J.D.N., 504 N.W.2d 54, 57 (Minn. Ct. App. 1993). 69. Id. at 58; see also Cartwright v. Cartwright, 635 S.E.2d 691, 693 (Va. Ct. App. 2006) (denying standing to noncustodial parents under the provision of the state child welfare code that permits voluntary termination petitions by parents). 70. 443 N.W.2d 853 (Minn. Ct. App. 1989). 71. Mat 854. 72. Minn. Stat. Ann. § 260C.301(1 )(a) (West 2007). 73. Id. § 260C.301(7). 652 INDIANA LAW REVIEW [Vol. 42:639 appeals affirmed, ruling that evidence of the child's disruptive behavior satisfied the statutory "good cause" requirement. 74 As to the requisite best interests of the child analysis, the appellate court highlighted the testimony ofprofessionals who favored termination and observed that "[t]he [parents'] rejection of [the child] appears complete and . . . [subjecting [the child] to additional reunification counseling is not in his best interests." 75 The number of reported cases involving petitions filed by parents pursuant to state termination of parental rights statutes, outside the setting of a child welfare proceeding or pending adoption, is small. However, the stakes in each case, for the family and society, are very high. Termination laws presume a strong correlation between permanence in established parent-child relationships, whether biological or adoptive, and the best interests of the child. As illustrated by the case of D.C.M., the state statutes that confer standing on parents enable them to disprove this correlation and terminate their legal status. As in D.C.M., a termination order will be entered based on the court's assessment that this result is best for the child. m. Abrogation of Adoption Statutes The laws of most states provide an alternative legal avenue for adoptive parents who seek to terminate legal ties to their children. The doctrine of adoption annulment or abrogation involves the judicial setting aside of a final adoption order, which created the parent-child status, upon petition of the adoptive parent. 76 Unlike the provisions of the termination of parental rights statutes, the standards expressed in most ofthe state abrogation laws do not focus on the welfare of the adopted child whose ongoing status is the subject of the parent-initiated proceeding. This failure renders the abrogation doctrine unacceptable as a legal basis for terminating parent-child relationships. A. The History ofAdoption Abrogation Laws Adoption statutes in every state authorize the establishment by court order of the legally significant parent-child status between an adoptive parent and child. It is often said that adoption is a creature of statute, because common law courts did not assume the power to create new family relationships in this manner 74. D.C.M, 443 N.W.2d at 854-55. 75. Id. at 855. A dissenting judge opined that this analysis and result failed to place "paramount" importance on the best interests consideration, as required by the state statute, focused instead on "lessening the [parents'] burdens" under the good cause portion of the statute. Id. (Nierengarten, J., dissenting). 76. Adoptive placements may also be interrupted during the period prior to entry of a final adoption decree. This circumstance, sometimes called "disrupted adoption," see D. Kelly Weisberg & Susan Frelich Appleton, Modern Family Law 1 209 n.2 (2d ed. 2002), or "failed adoption," see Celia Bass, Matchmaker-Matchmaker: Older-Child Adoption Failures, 54 CHILD Welfare 505, 506-07 (1975), is beyond the scope of this Article. 2009] PERMANENCE AND PARENTHOOD 653 prior to the authorizing legislation in each state. 77 The adoption statutes were relatively late additions to state family codes, with the first enactments taking place in the mid-nineteenth century. 78 For example, in the case of Buttrey v. West, 19 decided in 1924, the Supreme Court ofAlabama summarized the historical development of the state's adoption laws prior to that date. According to the Buttrey court, the first Alabama adoption statute was enacted in 1852 to supplement the more limited common law in loco parentis doctrine as a means for establishing legal ties between biologically unrelated adults and children. 80 Under the statute, "the adoption of a child . . . accompanied by taking the child into the family, create[d] the status of parent and child, with the duty of care, maintenance, training, and education, along with the right to the custody, control, and services of the child." 81 Thejudicial authority to set aside an adoption order is similarly conferred by statute in most states, although some courts assumed nonstatutory authority for this purpose once their basic authority to enter adoption orders was established by statute. 82 Thus, the Alabama Supreme Court in Buttrey observed that the first annulment provision in Alabama, enacted in 1897, established judicial authority to annul an adoption "for good cause shown" and on "petition of [the] child, or the party adopting the child." 83 The grounds for annulling an adoption during this early phase of regulation focused primarily on the post-adoption condition of the child. A law review note published in 1953, by Joseph Helling, provides a summary of the early laws, 84 noting that "[t]he vast majority ofjurisdictions [had] adopted the view, either by statute or decision, that an adoption order can be annulled." 85 As to the grounds for annulment, eight state laws included the physical or mental disability of the 77. See CLARK, supra note 5, § 20. 1 , at 85 1 . 78. See id. ; Lawrence M. Friedman, AHistory of American Law 21 1-12 (2d ed. 1985). 79. 102 So. 456 (Ala. 1924). 80. Mat 457-58. 81. Id. at 458. 82. Nonstatutory authority to annul adoption decrees in this manner is typically premised on general rules governing civil litigation, which allow for the vacation of final court orders in certain circumstances. See infra notes 189-93 and accompanying text. 83. 102 So. at 458. The standing of the child to petition for adoption annulment, a feature of early annulment statutes, including the Alabama law quoted in the text, does not continue in modern abrogation doctrine. Additionally, some early laws included grounds relating to mistreatment of the child by the adoptive parents. See Williams, supra note 26, § 8[b] (discussing New York abrogation statute that allowed an annulment petition by the child or the child's representative based on the adoptive parent's "cruelty, . . . misusage, . . . refusal to support, . . . attempt to change ... the religion of the child[,] or . . . any other violation of duty"). In the modern context, parental misconduct may be the basis for the termination of parental rights by the state under the child welfare laws discussed in Part II of this Article. 84. See Helling, supra note 15, at 68. 85. Id. at 69; see also id. at 70 n.9 (collecting the state abrogation statutes). 654 INDIANA LAW REVIEW [Vol. 42:639 child, 86 two states included "discovery . . . that the racial ancestry of the child is different than that of the adopting parents," 87 and the New York statute established "misconduct or wilful desertion by the child" as a ground for adoption annulment. 88 Other state annulment statutes, including the Alabama law quoted above, contained the more general ground of "good cause,"89 which could be construed broadly to include the same types of child-related conditions and circumstances. For example, the Supreme Court of Alabama in Buttrey v. West90 made the following statement about the state's "good cause" standard: "[T]he [adoptive] parent has rights as well as duties . . . [and] [i]f these ends are defeated, without fault of the [adoptive] parent, by misfortune, ... or by perversity or ingratitude of the child . . . , the statute opens the door [to annulment]." 91 It appears that the court here was anticipating the more specific circumstances, such as illness or misconduct of the child, that appeared in other statutes of this era. These grounds for annulment enabled the adoptive parent to petition the court for termination in circumstances where the parent-child relationship proved to be difficult or contrary to the parent's expectation. Notably, the time limits for filing petitions under many early abrogation statutes were very lengthy or nonexistent. According to the 1953 summary of adoption laws, the "good cause" provisions generally involved no limitation whatsoever. 92 For example, the Alabama court in Buttrey considered the father's (unsuccessful) claim to set aside his twelve-year-old daughter's adoption ten years after the adoption became final.93 As to the disability and race-based grounds for adoption abrogation, a five-year statute oflimitations was the norm. 94 Besides the child-related grounds, the first generation of adoption annulment laws sometimes included grounds, such as fraud, duress, or procedural irregularity in the initial judicial proceeding, as a basis for vacating a final judgment under the state's general rules of civil procedure. 95 According to the 1953 law review note, these grounds for annulment were often established by the courts themselves rather than the legislatures, and often involved no time limit. 96 By the 1980s, most state legislatures had significantly revised their adoption abrogation laws. According to Anne Howard, the author of another law review note, published in 1983, almost all of the state legislatures by then had repealed the substantive grounds for annulment relating to the condition of the adopted 86. Id. at 75-76. 87. Id. at 76. 88. Id. 89. Id. at 75 (citing seven "good cause" statutes). 90. 102 So. 456 (Ala. 1924). 91. Mat 459. 92. Helling, supra note 15, at 75. 93. Buttrey, 102 So. at 457-58. 94. See Helling, supra note 15, at 75-76. 95. Id. at 76. 96. Id. at 71-76. 2009] PERMANENCE AND PARENTHOOD 655 child. 97 Thus, only "[r]emnants of each of these grounds [could] be found in various state statutes." 98 Specifically, only one state (Kentucky) retained racial differences as a ground for annulment, 99 a provision that remains to this day in the Kentucky statute. 100 Similarly, in 1983 only one state, California, retained (and retains to the present day) 101 a ground relating to the child's health. 102 The final remnant of the traditional grounds appearing in current abrogation laws is the "good cause" provision retained in the Hawaii adoption statute. 103 By 1983 many of the state legislatures had either replaced the traditional child-related grounds with, or retained standards in the annulment statutes relating to, problems in the entry of initial adoption decrees, such as fraud and procedural irregularities. 104 The reformers had also addressed the issue of time limitations on annulment petitions, by adding statutes of limitation for the first time or reducing the time available for filing a petition. 105 These substantive and procedural changes marked the beginning of the modern era of abrogation law. The relevant provisions of the Uniform Adoption Act (UAA), revised twice since its first promulgation in 1953, illustrate this evolution in abrogation doctrine. The original UAA annulment provision allowed an adoption to be set aside if "a child develop[ed] any serious and permanent physical or mental malady or incapacity as a result of conditions existing prior to the adoption and of which the adopting parents had no knowledge or notice." 106 Next, the updated annulment section in the UAA of 1969 provided: [U]pon the expiration of [one] year after an adoption decree is issued the decree cannot be questioned by any person including the [adoptive parent], in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of 97. Anne Harlan Howard, Note, Annulment ofAdoption Decrees on Petition ofAdoptive Parents, 22 J. Fam. L. 549, 554 (1983-84). 98. Id. 99. Id. at 556. 100. See Ky. Rev. Stat. Ann. § 199.540(1) (West 2006); see also infra notes 123-24 and accompanying text. 101. See CAL. Fam. Code § 9100(a) (West 2004); see also infra notes 125-35 and accompanying text. 102. See Howard, supra note 97, at 554-56. Similar health-related abrogation statutes were repealed in Missouri in 1982, id. at 554, New York in 1974, Elizabeth N. Carroll, Abrogation of Adoption by Adoptive Parents, 19 Fam. L.Q. 155, 171 n.122 (1985), and Utah in 1975, id. 103. See Haw. Rev. Stat. Ann. § 578-12 (LexisNexis 2005). As to the misconduct of the child, the traditional ground discussed earlier in the text, New York's repeal of this ground in 1974 removed it completely from annulment doctrine nationwide. See Howard, supra note 97, at 557 n.41. 104. Howard, supra note 97, at 554. 105. Id. at 560-61. 106. Id. at 553 (quoting Unif. Adoption Act (1953), Historical Note, 9 U.L.A. 1 1 (1979)). 656 INDIANA LAW REVIEW [Vol. 42:639 jurisdiction of the parties or of the subject matter. 107 This version shifted the substantive focus from concerns relating to the condition of the child to procedural irregularities in the initial adoption proceeding, and added a one-year time limit on all annulment actions. The current annulment provision, introduced as part of the UAA of 1994, simply states that "[a] decree of adoption ... is not subject to a challenge begun more than six months after the decree ... is issued," 108 thus further restricting the time period for setting aside final adoption orders. Howard provided the following explanation for these legislative trends: "Over time, statutes have become more restrictive as to . . . grounds . . . and . . . the time in which an action may be filed. . . . [T]he overall implication of such a statutory survey is widespread recognition of the necessity of finalizing the familial status created by an adoption decree." 109 The same goal of finalizing adoptive relationships was emphasized in the legislative commentary when the Alabama legislature, which had earlier enacted the broadly-construed "good cause" provision discussed earlier, reformed the state annulment statute. 110 The Alabama drafters stated: "[I]t is imperative that the adoptee be assured a secure and stable environment without an untimely and unfounded interruption." 111 This commentary accurately notes that the abrogation doctrine threatens the stability of family relationships. The legal reforms of the late twentieth century moved toward the goal offamily stability by placing important limitations on the substantive and procedural scope of state abrogation laws. Even in their modern form, however, adoption annulment laws continue to fall short of the Alabama legislature's goal, "that the adoptee be assured a secure and stable environment without an untimely and unfounded interruption." 112 B. Current Abrogation Statutes Currently, the adoption codes in approximately two-thirds of the states include judicial annulment provisions, which permit designated persons, including the adoptive parents, 113 to petition to set aside a final adoption 107. Unir Adoption Act § 15(b) (1969), 9 U.L.A. 203 (1999). 108. Unif. Adoption Act § 3-707(d) (1994), 9 U.L.A. 98 (1999). The current provision includes additional limitations on the possible claims of biological parents seeking to set aside the final decree of adoption. See id. §§ (b), (d). 109. Howard, supra note 97, at 563. 110. See supra notes 90-9 1 and accompanying text (discussing the broad construction of the statutory "good cause" provision in the case of Buttrey v. West, 102 So. 456 (Ala. 1924)). 111. Ala. Code § 26- 10A-25 cmt. (1992). This commentary accompanied the enactment of the current Alabama annulment law, which provides that "[a] final decree of adoption may not be collaterally attacked, except in cases of fraud or where the adoptee has been kidnapped, after the expiration of one year from the entry of the final decree and after all appeals, if any." Id. § 26-10A-25(d). 112. Id. § 26-10A-25 cmt. 113. State adoption abrogation laws confer standing on persons other than the adoptive 2009] PERMANENCE AND PARENTHOOD 657 decree. 114 Only three states retain traditional grounds for adoption annulment relating to the condition of the child: Kentucky (race), 115 California (disability of child) 116 and Hawaii (good cause). 117 The remainder of the current state statutes focus on matters that are also the basis for setting aside final court orders under general rules of civil procedure, such as fraud or procedural irregularities in the initial adoption proceeding. 118 parents. For example, annulment of a final adoption order may be sought by the biological parent claiming fraud or process violations in the initial adoption proceeding. See 2 Hollinger, supra note 3, §§ 8.02[1] to -[2], at 8-1 1 to -43. In the past, abrogation laws also conferred standing on an additional category of petitioners, namely, heirs of the adoptive parent who sought to destroy the status of the adopted child at the time of the adoptive parent's death. See Williams, supra note 26, §§ 8[a]-[b] (collecting cases). 114. Ala. Code § 26-10A-25(d) (1992); Alaska Stat. § 25.23.140(b) (2008); Ariz. Rev. Stat. Ann. § 8-123 (2007); Ark. Code Ann. § 9-9-216(b) (West 2004); Cal. Fam. Code § 9100 (West 2004); Colo. Rev. Stat. Ann. § 19-5-214 (West 2005); Conn. Gen. Stat. Ann. § 45a-24 (West 2004); Del. Code Ann. tit. 13, § 918 (West 2006); D.C. Code § 16-310 (2001); Fla. Stat. Ann. § 63.182 (West 2005 & Supp. 2009); Haw. Rev. Stat. Ann. § 578-12 (LexisNexis 2005); IdahoCode Ann. § 16-1509A (West 2006); 750 III. Comp. Stat. Ann. 50/20b (West 1999); 750 III. Comp. Stat. Ann. 55/1 (West 1999); Ky. Rev. Stat. Ann. § 199.540 (West 2006); La. Child. Code Ann. art. 1262 (2004); Miss. Code Ann. § 93-17-15 (West 2007); Miss. Code Ann. § 93- 1 7- 1 7 (West 2007); Mo. Ann. Stat. § 453. 140 (West 2003); Neb. Rev. Stat. § 43- 1 1 6 (2004); N.H. Rev. Stat. Ann. § 170-B:2 1(11) (Supp. 2008); N.M. Stat. Ann. § 32A-5-36(K) (West 2003); N.Y. Dom. Rel. Law § 1 14(3) (McKinney 1999); N.C. Gen. Stat. Ann. § 48-2-607(a), (c) (West 2000); N.D. Cent. Code § 14-15-15 (2004); Ohio Rev. CodeAnn. § 3107.16 (West 2005); Okla. Stat. Ann. tit. 10, § 7505-7.2 (West 2007); Or. Rev. Stat. Ann. § 109.381 (West 2003 & Supp. 2008); S.C. CodeAnn. § 20-7-1800 (1985 & Supp. 2008); S.D. Codified Laws § 25-6-21 (2004); Tenn. Code Ann. § 36-l-122(b) (West 2002); Va. Code Ann. § 63.2-1216 (2007). 1 15. See Ky. Rev. Stat. Ann. § 199.540(1) (West 2006). 1 16. See Cal. Fam. Code § 9100(a) (West 2004). 117. See Haw. Rev. Stat. Ann. § 578-12 (LexisNexis 2005). 118. In addition to the laws discussed in the text, several states have also enacted provisions about the amendment of public records, especially birth certificates, upon the adoption of any person in the state or the annulment of an adoption. See Ga. Code Ann. § 3 1-10- 13(c) (West 2003 & Supp. 2008); IdahoCodeAnn. § 39-258(a) (West 2006); 410 III. Comp. Stat. Ann. 535/16(2), (3) (West 2005); Ind. Code §§ 31-19-12-1; 31-19-13-3 (2008); Iowa Code Ann. § 144.21 (West 2005); Me. Rev. Stat. Ann. tit. 22, § 2765(3) (2004 & Supp. 2008); Tex. Health& SafetyCode Ann. § 192.009 (Vernon 2001 & Supp. 2008); Utah Code Ann. § 26-2-25 (West 2004); Wyo. Stat. Ann. § 35-1-416 (West 2007). In some of these states, the record-keeping provisions are the only current provisions addressing the topic of adoption annulment. These record-keeping provisions typically appear in a regulatory compilation dealing with public records, rather than the state family code. Many states adopted for this purpose the provisions of the Model State Vital Statistics Act and Regulation §§ 11-12 (1992), which was promulgated several decades ago by the U.S. Department of Health, Education and Welfare, predecessor to the U.S. Department of Health and Human Services. A prior version of the Act and Regulations dated 1977 is available. See Model State Vital Statistics Act and Regulations (1997), 658 INDIANA LAW REVIEW [Vol. 42:639 The Hawaii annulment provision authorizes the adoption court to set aside an adoption decree within one year of its entry "for good cause." 1 19 There are no reported cases construing the phrase "for good cause" under this statute. In the past, as illustrated by the opinion of the Alabama Supreme Court in Buttrey v. West, 120 the same "good cause" language was construed to include many traditional, child-related grounds for abrogation, such as "perversity or ingratitude of the child." 121 A modern court might construe this standard differently, in a manner consistent with the majority of current abrogation statutes that focus on matters arising from errors made in the original adoption proceeding. 122 No similar ambiguity surrounds the abrogation statutes in Kentucky and California, which also retain traditional grounds for adoption annulment. Although all other states have removed race-based grounds from their statutes, the current Kentucky law still allows an adoption to be annulled within five years of the final decree "[i]f a child . . . reveals definite traits of ethnological ancestry different from those of the adoptive parents, and of which the adoptive parents had no knowledge or information prior to the adoption." 123 There is no case law in Kentucky applying this statutory provision. In the modern context, the prospect of a parent relying upon his or her child's "ethnological ancestry" to terminate their relationship is repugnant, and the Kentucky law is predictably unconstitutional under the Equal Protection Clause. 124 The traditional ground for adoption annulment retained in the California adoption code refers to disability of the adopted child. The current statute provides: If [an adopted] child . . . shows evidence of a developmental disability available at http://www.cdc.gov/nchs/data/misc/mvsact77acc.pdf. 1 19. Haw. Rev. Stat. Ann. § 578-12 (LexisNexis 2005). The same provision authorizes suit for annulment in the adoption court based on fraud without any limitation on time to sue, and denies the availability of annulment decrees in any collateral proceeding. Id. 120. Buttrey v. West, 102 So. 456 (Ala. 1924) (construing the Alabama statute that provided for abrogation based on good cause, which was repealed in 193 1); see also supra notes 90-91 and accompanying text. 121. Buttrey, 102 So. at 459. 122. See Carroll, supra note 102, at 172-73 ("Although there is no current case law . . . defining 'good cause shown,' [this statutory standard] could be interpreted like . . . statutes which treat abrogation of adoption the same as revocation of other civil matters."). 123. Ky. Rev. Stat. Ann. § 199.540(1) (West 2006). The statute also provides for the annulment of adoption orders based on procedural defects, subject to a one year time limitation. Id. § 199.540(2). 1 24. See generally 3 RONALD D. ROTUNDA&JOHNE. NOWAK, TREATISEONCONSTITUTIONAL Law § 18.5, at 423-26 (4th ed. 2008) (summarizing general ban under the Fourteenth Amendment on state action that discriminates against individuals based on their race); Mabry & Kelly, supra note 28, ch. 7 (discussing changing attitudes and rules regarding consideration of race in the placement of adopted children). 2009] PERMANENCE AND PARENTHOOD 659 or mental illness as a result of conditions existing before the adoption to an extent that the child ... is considered unadoptable, and . . . the adoptive parents or parent had no knowledge or notice before the entry of the order of adoption, . . . the court . . . may make an order setting aside the order of adoption. 125 There is a five year time limit on the adoptive parent's right to file a petition for annulment under this provision. 126 In the 1991 case of Adoption ofKay C, 127 the California Court of Appeals explained the legislative policy underlying this adoption annulment provision. In Kay C, the court analogized the ground of mental disability to the general grounds established by state law for vacating any final court order, such as fraud, mistake and undue influence. Thus, the disability ground for vacating adoption decrees was described as the "legislatively perceived equivalent of mistake—the adopting parents' lack of knowledge or notice of a serious condition predating the adoption which, if known, would have affected their agreement to adopt." 128 In two cases decided in 2002, the California Courts of Appeal applied the standard for adoption annulment established in Kay C, requiring a "mistake" based on lack of informed consent by the adoptive parents. 129 The facts of these two cases were similar in significant ways, but the two trial courts, affirmed on appeal, reached different results. The parents in both cases knew that their children had experienced many difficulties prior to being adopted. In both, the first diagnosis of mental illness came after the adoptions were final. The court of appeals in In re Adoption ofNicole 0. 13° relied upon the fact that the parents "had no knowledge of [their daughter's] mental illness when they adopted 125. Cal. Fam. Code § 9100(a) (West 2004). A disability-based ground for adoption abrogation was first enacted in California in 1937. See In re Adoption of Katherine A. Anderson, 185 Cal. Rptr. 101, 103 (Ct. App. 1982). In 1993, the legislature replaced the earlier requirement of "evidence of being feeble-minded, epileptic or insane," Cal. Civ. CODE § 227b (West 2007) (repealed 1973), with the current standard of "developmental disability or mental illness." 126. See Cal. Fam. CODE § 9100(b). An additional provision in the California abrogation law establishes a three-year statute of limitations for "[a]n action ... to vacate ... an order of adoption, based on fraud." Id. § 9102(b). A one-year limit was established for "[a]n action ... to vacate . . . an order of adoption on any ground, except fraud." Id. § 9102(a). The apparent contradiction between the five-year time limit in the disability provision quoted in the text and the one-year limitation for proceedings based on "any ground, except fraud" was resolved by the state court of appeals in favor of the lengthier time limit under the more specific disability provision. See In re Adoption of Nicole O., No. G028897, 2002 WL 453619, at *4 (Cal. Ct. App. 2002) (affirming decision to grant annulment petition filed four and one-half years after entry of final adoption decree). 127. 278 Cal. Rptr. 907 (Ct. App. 1991). 128. Mat 913. 129. Id. 130. No. G028897, 2002 WL 453619 (Cal. Ct. App. Mar. 25, 2002). 660 INDIANA LAW REVIEW [Vol. 42:639 her," 131 in finding the requisite lack of informed consent under the Kay C. standard. By way of contrast, in In re Adoption ofK.G., 132 decided just a few months later in another division of the state court of appeals, the court ruled that knowledge of the child's troubled history at the time of adoption prevented the adoptive mother from meeting the "lack of informed consent" standard. 133 A notable difference between the two cases involved the absence of any party opposed to the parents' annulment petition in the trial court proceeding in the Nicole O. case, 134 whereas the Department of Social Services opposed the annulment petition in the K.G. case. 135 Results aside, the California courts in both of these cases applied the disability ground under the state abrogation statute in a straightforward manner, in deciding whether to grant the adoptive parents' requests for annulment. Neither court expressly considered the welfare of the children in deciding whether to sever legal ties with their parents. Rather, the focus of the analysis under the California statute was on the adults who had changed their minds about parenthood. Except for the abrogation provisions in Hawaii, Kentucky, and California, the grounds for annulment in modern state adoption statutes address matters that also arise under state-wide rules governing the vacation of civil court orders. The most common are procedural defects, such as the failure to provide notice of an adoption proceeding to the biological parent, and fraud. For example, the Alaska annulment statute provides: [U]pon the expiration of one year after an adoption decree is issued, the decree may not be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack ofjurisdiction of the parties or of the subject matter. 136 Like the old-fashioned grounds retained in Hawaii, Kentucky, and California, the grounds for adoption annulment specified in this Alaska provision do not focus on the welfare of the adopted child. Rather, they highlight the interests of adult parties and the integrity of the judicial system. Grounds for annulment that involve strictly procedural defects in the initial adoption proceeding are most likely to be invoked by the biological parents ofthe adopted children, whose rights may have been terminated without adequate 131. Id. at*l. 132. No. F039272, 2002 WL 31677027 (Cal. Ct. App. Nov. 26, 2002). 133. /