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I was, then I became…

11 Jan

I have been watching the different posts about the Oklahoma adoption case where the father prevailed. That isn’t completely what this post is about though. This post is about the long-term implications of the legal act of surrender on the person surrendered, regardless of whether or not that person was adopted.

When I was surrendered I was legally severed forever from my family. They did not have any legal claim on me, nor I them. In law, I was not related to them, nor did I now have any common ancestor with any biological relative. That is how the law stands on this issue both in the legislative adoption process, and probate laws. The only two parts of the law to my knowledge that weigh in on who you are or aren’t biologically related too.

Yesterday, I read this:

IN RE: the ESTATE OF Thomas A. FLEMING

(you can read the paper here which is fascinating)

An interesting case in which Thomas A Fleming was surrendered by Margaret Mary Fleming in 1947 for adoption.

In 1947, the King County Juvenile Court entered a parental termination order stating Fleming was “permanently deprived of any and all maternal rights and interests in and to the said Baby Boy Fleming.” 

The state placed Thomas in the permanent custody of Catholic Charities Diocese of Seattle for the purpose of, and to approve his adoption. Thomas was never adopted and in 1996 died intestate. He had never married and had no biological children. After his death Margaret Mary Fleming and her son Antonio B Marzan (half-brother of Thomas), petitioned to be the heirs to Thomas’s estate.

In 1998, Judith Kovacs, the personal administrator of Thomas’ estate, filed a petition for determination of heirship.   Kovacs asked the court to find Fleming and Marzan were not entitled to inherit from Thomas because by court order all maternal rights had been terminated.   She argued Thomas’ estate should escheat to the State of Washington because he died intestate without any legal heirs.

Fleming and Marzan filed a response and objection to the petition. The superior court commissioner agreed with Kovacs and ruled the estate escheats to the State because Thomas was without legal heirs.   The commissioner found the 1947 order terminating Fleming’s maternal rights to Thomas also extinguished her right to inherit intestate, and Marzan could not inherit from Thomas because there was no longer a common ancestor between them.

Margaret Fleming passed away and Marzan as personal representative to her estate appealed the ruling but the Superior court upheld the ruling. The court had to determine two separate issues: what Margaret Mary Flemings legal status to Thomas A Fleming was based on the law at the time of surrender, and secondly, whether at the time of his death where the current probate law applies, if she is entitled her to be considered an heir.

Under the express language of the statute and termination order, Fleming lost all of her rights and interests in Thomas in 1947.   While the order could not change Fleming’s status as the biological parent of Thomas, it did end her legal status as his parent.   Since Fleming never reestablished the parent-child relationship, in the eyes of the law she was not Thomas’ legal parent at the time of his death in 1996.

Marzan argued that even if Margarets’ legal status was gone you could not change the common bloodline. Remember the legal status of the mother is based on the law at the time of surrender, but the intestate probate laws at the time death apply whether or not she is an heir. Marzan argued with an old probate case-law that consanguinity remains in the adoption cases, but that was before they changed the adoption law denying an adoptee the right to inherit from a biological relative.

Contemporary probate and adoption statutes provide ample evidence the Legislature has abandoned consanguinity as the overriding policy consideration where the parent-child relationship is terminated.   For instance, RCW 11.04.085 provides that an adopted child is not an heir of his or her biological parents.   Similarly, RCW 26.33.260(1) provides that an adoptive child enjoys complete inheritance rights from the adoptive parent.

Marzan accepted that aspect based on the Donnelly case (read the paper), but then challenged that Thomas had never been adopted, and that the act of adoption triggered the abandonment of consanguinity.

We reject this argument because it fails to consider that  adoption is a process rather than a single event.   Reading the adoption statute as a whole, it is apparent the Legislature considered adoption as a fluid process starting from the termination of the biological parent-child relationship and extending beyond the placement of the child into a new family. See RCW 26.33.120.   Washington’s adoption statute includes provisions for the filing of petitions for relinquishment of parental rights (RCW 26.33.080), hearings regarding those petitions (RCW 26.33.090), grounds for the termination of a parent-child relationship (RCW 26.33.120), and the effect of a termination order (RCW 26.33.130).   Given the overall statutory scheme, adoption cannot be narrowly construed as a single event when we are determining the intestacy rights of biological parents who voluntarily terminate the parent-child relationship.

The legislative policy identified in Donnelly applies to the entire adoption process, including the termination of the biological parent-child relationship.   The adopted child must be given a “fresh start.”   The legislative policy provided that all ties be severed at this point, not at the time the child is placed into the adoptive family.   In fact, the Legislature indicated so in RCW 26.33.130(2), stating:  “[a]n order terminating the parent-child relationship divests the parent and the child of all legal rights, powers, privileges, immunities, duties, and obligations with respect to each other.”   Given this, it stands to reason our holding in Donnelly applies not only to cases where an adoption has occurred but also to cases in which the parent-child relationship has been permanently severed in anticipation of an adoption.

The Court then goes on to determine if Marzan can be considered a legal heir as the biological half-brother.

Intestacy statutes establish a system of intestate succession whereby the line of descent and distribution flows through a decedent’s parents to reach the issue of parents.   The line must flow through a common ancestor.   Margaret Fleming, as the parent of Marzan and Thomas, was the only direct connection between them.   When Margaret Fleming’s parental rights were terminated, the effect was to permanently sever Thomas from her family line, leaving him without a legal parent.   Therefore, the line of intestate succession between Marzan and Thomas was severed as well.

Now to the point of this post…

The above demonstrates that we legally lose our biological history and that history includes our heritage both in adoption and probate laws. I became a person with an English ancestry when I was adopted. I lost my true ancestral heritage of the countries my ancestors immigrated from. That to me is not acceptable. It is problematic but it is hidden in same race adoption. It is easy to pretend my ancestors are English, I grew up with stories of my parents ancestors, but yet looking at myself I am not. I am a combination of two completely different countries, one who warred with England for what seems like generations if not centuries. I am not English, and do not have any English blood running through my veins. I am other than – yet legally, I am English through and through – right up there with the magic of rainbows and unicorns “poof – you are English”.  To bad the reality proves I did not magically inherit my [a] parents DNA with all those lovely longevity genes…that would have been nice…

So that is the long-winded rambling point to the post. The current news item that is being debated in adoption land boils down to: Once the deal is done, the child in the eyes of the law loses their ancestral heritage and magically obtains the ancestral heritage of the adoptive parents – and based on the horrific history of abuse to the Native Americans in this country – they were also fighting for the child to retain not only her cultural heritage, but her legally recognised ancestral blood line. It really is that simple.

Coincidently, I just took a break and found out that Joy has a post on her ancestry today that is well worth reading Ich bin ein Berliner.  Amanda at Declassified Adoptee in the past has also talked about the impact of losing your ancestral heritage.

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Posted by on January 11, 2012 in Adoption, adoptive parents, biological child

 

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