In the Context of Adoption, What Does It Mean To Live in An “Agency State”?

Prospective adopters, researching on the web, learn that there are a number of types of adoption professionals. [1] Since so many states allow facilitators to match and allow attorneys to handle adoptive placements, and Massachusetts does not, a discerning adopter begins to have questions about what it means for their adoption process to be living in an, “agency state.” A few states (e.g. Connecticut, Colorado, Delaware and Massachusetts) are “agency states.” Within each state, there are variations on the meaning of this term. With respect to the state of Massachusetts,[2] there are seven key questions to consider:

Q. 1 . Who can complete or facilitate an adoption placement in Massachusetts?

A. Unlike most other states in the country, in Massachusetts, private adoptions are prohibited, and attorneys are not allowed to arrange placement of children, although they can assist families with legal consultation and finalization. In Massachusetts, only licensed child placing agencies, such as the Department of Children and Families or private agencies incorporated and licensed in the Commonwealth of Massachusetts, are permitted to place or facilitate placement a child for adoption. There are exceptions, e.g. with respect to relatives, and, thus, it is appropriate to consult with a Massachusetts agency as to the applicability of their services and to request a legal opinion from your attorney for specific situations.[3]

Q. 2. Can an adoption professional or agency, other than a licensed Massachusetts adoption agency, advertise, offering any adoption services to citizens in Massachusetts? A. No. Massachusetts’ regulations provide that expectant parents, parents considering an adoption plan and prospective adoptive parents within the state are given services consistent with state expectations and standards. Massachusetts laws (102 CMR 5.00 et. seq.) and regulations do not permit out of state entities (agencies, attorneys or facilitators) to advertise in Massachusetts or hold themselves out to residents that they can offer any adoption services to Massachusetts residents.:[4] Many phone books contain unauthorized advertising and the web is ubiquitous but, given ‘geotargeting’ of ads, both phone books and on-line advertising by out of state entities directed to Massachusetts residents conflict with the legal requirements and limitations of this state’s practices and laws.

Q. 3. Since out of state adoption professionals (agencies, attorneys and facilitators) are not authorized to legally advertise in Massachusetts, what should they do if expectant parents call them requesting services?

A. Out of state providers should explain, “We’re not authorized to provide services to you in Massachusetts. Here’s a list of Massachusetts adoption agencies which are authorized to provide services to you.” An out-of-state entity is not permitted, at any point, to provide phone counseling, engage in medical record gathering or offer to provide matching services for an expectant parent living in Massachusetts. They should refer expectant parents to Massachusetts licensed agencies with the understanding that the expectant parents are served solely by the Massachusetts agency.

If expectant parents wish, they can express interest in a family in an out of state program. Their Massachusetts agency would complete an inter-office agreement with the other entity as a pre-requisite before there is any work begun. The agreement would specify what work would be done in cooperation between the two offices – the Massachusetts agency would provide the expectant parent options counseling, including reviewing matching options. The out of state entity is expected to cease communications with the expectant mother at the point of referral and the Massachusetts agency would coordinate all aspects of adoption services within the state.

Q.4. In Massachusetts, who can complete home studies?

A. Another aspect of being an “agency state” is that, in Massachusetts, only agencies

that are licensed by the state can complete home studies for families that reside within the state. Home studies must be prepared by a qualified professional, employed and supervised by a Massachusetts licensed child placement agency. [5] A home study completed by a freestanding social worker or other professional in Massachusetts, outside of a licensed Massachusetts agency, is not valid in this state.[6]

Q.5. What if a family, with a home study from another state, is to receive a placement in Massachusetts? Regulations, as applied, are generally considered to accept a home study if prepared according to the regulations and requirements of the state where the home study is prepared. The Massachusetts agency will review the home study for compliance with the requirements of home studies in this state.[7]

However, some Massachusetts agencies’ policies require that a home study be completed by a licensed agency in the state of preparation, as opposed to a free-standing social worker. Where a home study is completed by an agency, there is the expectation that the home study social worker will have engaged in ongoing relevant continuing education as well as review and supervision with more experienced clinicians. Agency social workers will be accountable to agency policies, state agency regulations and standards and the state’s licensing body for compliance with those standards. It is wise to inquire about a specific agency’s policies as they may require that home studies be completed by an agency professional (e.g. social worker), rather than free-standing professional, for placements within this state.[8]

Q.6. If Massachusetts prospective adopters are interested in working with another adoption entity other than their home study agency, what are the steps to take, given MA is an agency state?

A. It is important to note that Massachusetts has full service licensed adoption agencies which can provide all adoption services, including home study, matching, placement and finalization of an adoption. However, at times a Massachusetts resident wishes to consider working with other professionals, in addition to or other than their home study agency.

There are two requirements that should be firmly in place before the prospective adopter signs any contracts, pays any money or receives any adoption related services from an entity other than their home study agency:

(a) There must be a completed and approved home study which is current within the year. This would seem obvious but, at times, there are adoption professionals (particularly out of state) who seek to receive fees from and propose to match prospective adopters before their home study is completed and approved. The home study can be thought of as like a driver’s license – one can only drive if one has a valid driver’s license. Likewise, one can only engage adoption services if one has a current (not expired), completed and approved home study.

(b) The Massachusetts home study agency is required to complete an inter-office agreement with the other entity, whether in state or out of state. This gives the home study agency the opportunity to review the approach and practices of the other adoption professional to determine whether the other professionals will be providing services consistent with appropriate standards (e.g. both state’s laws and regulations) – this is an important protection for prospective adoptive families. The agency can clarify their roles (which office will provide what services, costs, expectations) and make sure all expectations are spelled out clearly ahead of time. This helps prevent confusion later if facts unfold differently than were expected.[9]

A point of common confusion in other states is whether an agency is required to provide services to an expectant mother who wishes to place her child with a Massachusetts family. While MA ICPC office looks for a thoughtful counseling summary and diligent legal work in the ‘sending state’, there is no requirement where the locus of the adoption work is in another state, that a licensed agency be used. If that state allows expectant parent counseling to be conducted by an independent professional or placement to be handled by a private attorney, there can still be an interstate placement into Massachusetts.

Q.7. If an expectant parent, living in Massachusetts, calls an out of state entity, can they offer to match her with one of the adopting families in their program?

A. All expectant parents and parents of an already born child who are considering adoption and living in Massachusetts, must work with a Massachusetts licensed adoption agency for any adoption services and any adoptive placement. Massachusetts, as a state, has high standards for services to expectant parents and parents considering adoption. State regulations provide for a coercion-free decision-making process.

Consistent with Massachusetts standards, biological parents are given a chance to consider alternatives to adoption before being matched with potential adoptive parents. They have the opportunity to talk with friends and family to see what support there might be for parenting, alone or with assistance. There is also the opportunity for expectant parents to assess the current crisis (e.g. loss of a job, housing &/or relationship, prospective or potential disruption or dissolution of existing adoptive placement) and to explore whether or not, during the foreseeable future, these circumstances could change.

When people call a toll free number or press on a link on their “smart-phone” and reach adoption professionals in other states, often the “counseling” is provided solely by phone, provided by ‘adoption workers’ in other states who may not be licensed or clinically trained individuals. They are frequently unfamiliar with Massachusetts standards. Profiles of possible adoptive families might be mailed to a woman immediately before she’s had a chance to think about all her options or acknowledge and explore her mixed feelings.  Perhaps money will be provided for various fiscal needs without clarification that she is not, thereby, obligated to make an adoption plan. She and the biological father might be ‘matched’ with prospective adopters and might be told the prospective adopters are paying her bills which can be experienced as pressure (in MA, it is the agency, not the adopters, which covers pregnancy related living expenses). The accepted practices of other states and locales may frequently be inconsistent with the law and regulations, as well as the ethics and standards, of Massachusetts. Under Massachusetts regulations, only a licensed MA agency can provide matching services for an expectant mother living in the state.

It is also important to note that – if a prospective adoptive parent or an adoption professional suggests that expectant parents relocate to a different state for the purposes of adoption, this is a frank violation of the ICPC (Interstate Compact for the Protection of Children). The ICPC is a set of regulations, adopted individually by the states, to prevent improprieties in the transfer of children over state lines. The ICPC requires that administrators in both states review the entire adoption planning documentation (known as the ICPC packet) before there can be interstate travel or placement activity for the purposes of adoption. Expectant parents have a right to the protections of their state laws and enticing them over state lines with the lure of financial assistance or avoiding the legal obligation to give notice of the adoption to the biological father flies in the face of the protections of the ICPC. See Secretariat Opinion No. 49, June 30, 1986 and http://icpc.aphsa.org/Home/resources.asp; and http://icpc.aphsa.org/Home/Doc/Guidebook_2002.pdf

Summary:

In Massachusetts, only a licensed child placing agency licensed by the Commonwealth of Massachusetts may work with prospective adopters and expectant parents residing in the state. Massachusetts agencies provide prospective adopters with professional services, referral and coordination with other adoption professionals with regard to each aspect of their journey toward parenthood. Only Massachusetts licensed adoption agencies can provide expectant parent counseling and matching services. Where a Massachusetts resident wishes to work with an out of state adoption professional for any aspect of adoption planning, there must be an inter-office agreement between their MA agency and the out of state entity.

 Marla Ruth Allisan JD, LICSW

 


[1] Marla Allisan JD, LICSW is the Founder/Director of AAA Full Circle Adoptions & Family Building Center, Inc. Attorney Allisan, in her private practice, also represents foster parents with regard to post placement communication agreements and assists non-agency clients with co-parent and other adoption finalizations.

[2] This essay is not intended as legal advice. Please consult a licensed Massachusetts agency for clarification of agency state requirements and request an attorney’s legal opinion regarding the interpretation of regulations and laws as applied to any particular question or case.

[3] M.G.L.c. 210, Section 11A: Any person or entity other than a duly authorized agent or employee of the department of children and families or a child care or placement agency licensed under the provisions of chapter 15D, who causes to be published in the Commonwealth an advertisement or notice of children offered or wanted for adoption, or in any way offers to place, locate or dispose of children offered or wanted for adoption, or who holds himself out in any way as being able to place, locate or dispose of children for adoption shall be punished by a fine of not less than one hundred nor more than one thousand dollars. Any such person who shall accept payment in the form of money or other consideration in return for placing a child for adoption shall be punished by a fine of not less than five thousand and not more than thirty thousand dollars, or by imprisonment in jail or house of correction for not more than two and one-half years or in the state prison for not more than five years, or both.

[4] 102 CMR 5.01 Introduction, read together with 5.02 Definitions: Placement Agency as well as MGLc 15D, §6(c)M.G.L. c.15D, §6(c): http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter15D/Section6:(c) Relevant excerpt: “No person shall place or knowingly facilitate the placement of any child in the care or control of any other person not related to that child by blood or marriage, or in the care or control of any organization other than a licensed or approved placement agency, for purposes of adoption in the commonwealth. No person unrelated to a child by blood or marriage, and no organization other than a licensed or approved placement agency, shall receive a child for purposes of adoption, except from a licensed or approved placement agency….”.

[5]  102 CMR 5.05 (2) and 102 CMR 5.10 (5). 102 CMR 5.10 (5): “The assessment shall be completed by a social worker who meets the requirements of 102 MR 5.05 (2)” 102 CMR 5.05 (2): Any social work staff providing direct services to a child or family shall have or be supervised by an employee who has an advanced degree in social work or a related clinical field, and at least five years of experience in providing direct and clinical services to children and families which demonstrates a knowledge and understanding of placement, family reunification and/or adoption services and issues, as appropriate to the services provided.

[6] 102 CMR 5.10 (5) – first paragraph: “The licensee, shall, consistent with its current needs, promptly evaluate foster and adoptive parent applicants.” Throughout the regulation, it is only a licensee (agency licensed by the state) which is authorized to complete a home study.

[7] 102 CMR 5.10 (e)(2) and (f): “The licensee may perform a limited foster or adoptive parent assessment in the following circumstances:… (2) if the licensee receives a foster or adoptive parent assessment performed in another state in accordance with the laws of such state, completed not more than twelve months prior to the current application for approval.”  102 CMR 5.10 (f): “A limited foster or adoptive parent assessment shall be a review of the previous foster or adoptive parent assessment for compliance with 102 CMR 5.10 (4) and (5), and verification that such information remains current.”

[8] 102 CMR 5.08 (5) and 102 CMR 5.08 (7). 102 CMR 5.08 (7): “Placement Outside the Commonwealth: No licensee shall place a child outside the Commonwealth unless the foster or adoptive home is approved and supervised by a licensed or otherwise legally authorized agency, or unless the residential program is licensed or otherwise legally authorized to operate.”

[9] 102 CMR 5.08 (5) (b) Excerpted, in pertinent part:  “If the licensee works with another agency or person to effect the adoption of a child, the licensee shall enter into a written agreement which shall include but not be limited to the following…”[There are four elements required in the agreement, put briefly: articulated responsibility for various services; financial agreements; child’s status at the time; documentation of authority for the child to be placed.]

 

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