In 2018, our legislature amended several Ch. C. Articles that regulate the payment of money to parents when in connection with an adoption. Before the revision, a mother was allowed to receive financial assistance in the following categories:
- Reasonable medical expenses;
- Reasonable counseling and training expenses for adoptive parents;
- Reasonable court costs, travel costs, and attorney fees;
- Reasonable mental health counseling services for parents;
- Reasonable expenses incurred to collect family histories;
- Reasonable living expenses incurred by a mother.
The category in which many adoption professionals believed was being abused was “living expenses.” By way of context, R.S. 14:286. (Sale of minor children and other prohibited activities; penalties) prohibits the
[sale] or surrender [of] a minor child to another person for money or anything of value, or to receive a minor child for such payment of money or anything of value except as specifically provided in Children’s Code Articles 1200 and 1223….
Children’s Code Articles 1200 and 1223 are exceptions to the criminal statute’s limitations. Over the years, it is believed that some adoption professionals– agencies and attorneys– motivate mothers to “place” creatively using these rules. They create expectations with parents of receiving significant amounts of money, often in monthly payments, but which also included 5-10K lump sums on the day she signed her Act of Surrender. Many adoption professionals believed that those who might be following the letter but not the spirit of the Articles were doing a disservice to the mother and the adoption universe. Those critical of these practices argue the practices are wrong because a.) the funds were not for actual expenses incurred, b.) the overall assistance was too large (when compared with the original policy supporting the allowing such assistance) or, c.) were for items/services that were not appropriate for this specific process.
So, after a lot of debate, the Law Institute’s Committee recommended a revision to Ch. C. Arts. 1131, 1200, 1201, and 1223. Act 562 was enacted and became effective 8/1/18. A copy of the amended Arts. 1131, 1201, and 1223 are inserted here:
Art. 1131. Filing of surrender; institution of records check
A. Within three days after the surrender becomes irrevocable under Article 1123, exclusive of legal holidays, the agency or attorney for the prospective adoptive parents shall file the authentic act of voluntary surrender, together with a preliminary estimate and accounting of fees and charges in accordance with Article 1201 or 1223.1 and any certification for adoption or court order approving the adoptive placement required by Chapter 2 of Title XII in a court of proper venue as authorized by Article 1180.
Art. 1201. Adoption disclosure affidavit of fees and charges; form
A. Each petition for an agency adoption shall be accompanied by an affidavit executed by the petitioner and petitioner’s attorney containing an accounting of all fees and charges paid or agreed to be paid by or on behalf of the petitioner in connection with the adoption. The affidavit shall include the date and amount of each payment made, the name and address of the recipient, and the purpose of each payment. Receipts, or other documentation in the event receipts are not available, for each expense shall be attached to the affidavit.
Art. 1223. Fee disclosure; permissible reimbursement of expenses; court review; report,/p>
A. The petitioner shall file with the petition a current estimate and accounting of fees and charges in accordance with Article 1223.1. The petitioner also shall file a final adoption disclosure affidavit with the court not later than ten days prior to the date scheduled for the final hearing on the adoption.
B. Only the following services provided by the Department of Children and Family Services, or payment made through a licensed adoption agency, or an adoption attorney are permissible and not a violation of R.S. 14:286:
(1) Actual medical expenses, including hospital, testing, nursing, pharmaceutical, travel, or other similar expenses, incurred by the biological mother for prenatal care and those medical expenses incurred by the biological mother and child incident to birth.
(2) Actual medical expenses, including hospital, testing, nursing, pharmaceutical, travel, or other similar expenses, and foster care expenses incurred on behalf of the child prior to the decree of adoption.
(3) Actual expenses incurred for counseling and training services provided to the adoptive parents and for home studies or investigations.
(4) Actual and reasonable court costs, travel costs, and attorney fees incurred by the adoptive parents for their own representation in this adoption.
(5) Actual expenses incurred for counseling services provided to a biological parent or a child for a reasonable time before and after the child’s placement for adoption.
(6) Actual expenses incurred in ascertaining the information required by Articles 1124 and 1125.
(7) Actual and reasonable living expenses needed to maintain an adequate standard of living that the mother is unable to maintain otherwise due to lost wages for a period when she is unable to work.
(a) Living expenses in accordance with this Subparagraph may be paid for a reasonable time before the birth of her child and for no more than forty-five days after the birth and may include the
(i) Temporary housing expenses, such as rent or mortgage payments.
(ii) Utilities, such as electricity, gas, water, or telephone.
(iii) Food for the mother and any minor children residing in her home.
(iv) Transportation costs related to the pregnancy or adoption.
(v) Maternity clothing for the mother.
(vi) Personal hygiene products, cleaning products, and laundry services.
(b) Actual living expenses shall not include vehicles, salary or wages, recreation or leisure activities, permanent housing, gifts, or other payments for the monetary gain of the mother.
(c) The total and cumulative amount of living expenses paid to the biological mother during the term of the pregnancy by one or more agencies or attorneys under the provisions of this Article shall not exceed seven thousand five hundred dollars, except as otherwise specifically authorized in accordance with Subparagraph (9) of this Paragraph.
(8) Actual and reasonable attorney fees, court costs, travel, or other expenses incurred on behalf of a parent who surrenders a child for adoption or otherwise consents to the child's adoption.
(9) Any additional expense authorized by order of the court prior to payment upon a specific finding that the expense is reasonable and necessary.
C. The payment of expenses permitted by Paragraph B of this Article may not be made contingent on the placement of a child for adoption, relinquishment of the child, or consent to the adoption, and the prospective adoptive parent shall have no right to seek reimbursement of any payments solely on the basis of the mother’s decision not to place the child for adoption. However, the prospective adoptive parent may seek reimbursement of payments made pursuant to Paragraph B of this Article from a mother or any other person, agency, or attorney who accepts such payments if the person accepting payment knows that the mother on whose behalf payment is accepted is not pregnant at the time of the receipt of payments or that the mother is accepting payments concurrently from more than one prospective adoptive parent without the knowledge of the prospective adoptive parent who is seeking reimbursement.
E. If a court determines from an accounting that an amount that is going to be or has been disbursed for expenses listed in Paragraph B of this Article is unreasonable, it may order a reduction in the amount to be disbursed and order the person who received the disbursement to refund that portion.
F. If a court determines from an accounting that an amount is going to be or has been disbursed for expenses not permitted by Paragraph B of this Article, it may:
(1) Issue an injunction prohibiting the disbursement or order the person who received the disbursement to refund it.
(2) Refer the case to the district attorney for the consideration of criminal charges pursuant to R.S. 14:286.
(3) Refuse to approve the adoption, if in the best interest of the child.
G. The court shall not issue a final decree of adoption until it has reviewed and approved the final accounting.
H. A copy of the adoption disclosure affidavit and all orders of the court pursuant
to this Article shall be mailed to the Department of Children and Family Services.
Acts 1991, No. 235, §12, eff. Jan. 1, 1992; Acts 1999, No. 1062, §4, eff. Jan. 1, 2000; Acts 2001, No. 567, §1; Acts 2018, No. 562, §1.