Adopting a Child in Foster Care

When a foster child cannot be returned to his or her birth parents, it is the responsibility of state and local agencies to find a permanent home for the child. One of the most obvious solutions is for the child to be adopted by his or her foster parents. According to the U.S. Department of Health & Human Services' Children's Bureau, in 2005 (the most recent year for which data is available) approximately 514,000 children were in foster care in the United States, and more than 115,000 of those children were waiting to be adopted. As a foster parent who is considering adoption, or a prospective parent considering the adoption of a child in foster care, here are some legal issues to be aware of.

Differences from Traditional Adoptions

Several key factors differentiate foster-child adoptions from traditional adoptions. First, foster-care adoptions are usually handled by state agencies, though the state may outsource responsibilities to a private agency. Also, foster-care adoptions cost significantly less than traditional adoptions, or may even be free. If the child is considered a "special needs" child, subsidies may be available. (Special needs children include those who are: minorities; have siblings who also need adopting; were exposed to drugs or alcohol before they were born; are older than 5; or have mental, physical or emotional problems.) In addition, you may qualify for a federal adoption-tax credit.

Types of Foster-Child Adoptions

There are several ways in which prospective parents can adopt foster children. Prospective parents can:

• Adopt a child or group of siblings whose parents have already relinquished their parental rights or had those rights terminated.
• Take in a foster child whose biological parents still have rights. The foster parents agree, in advance, to adopt the child if he or she isn't reunited with the parents or placed with another biological family member. This type of adoption is called "concurrent planning" because multiple avenues of resolution are being pursued simultaneously.
• Adopt a child who was placed with you as a foster child, but whom you didn't originally intend to adopt.

Differences Between Foster Care and Adoption

Prospective adoptive parents who have experience as foster parents should understand that there are several differences in the legal rights and responsibilities of a foster parent and the rights and responsibilities of an adoptive parent. Specifically:

• Adoptive parents have full legal responsibility for the adopted child. As a foster child, the applicable child-welfare agency had legal authority over the child.
• Adoptive parents have full financial responsibility for the adoptive child. However, prospective adoptive parents should remember that state subsidies and an adoption tax credit may be available.
• Adoptive parents have full responsibility for decision-making. As foster parents, that responsibility was shared with the appropriate child welfare agency.

Adoption Tax Credits

Federal laws allow for parents to deduct certain expenses incurred during adoption. Parents are subject to certain income limits, but if they are eligible, the tax code allows for the following:

• Credit is given for qualifying expenses, which include adoption fees, attorney costs, court costs and travel expenses;
• Credit is subtracted from your total tax liability;
• Credits may be take in the year following the year in which expenses were incurred, or the current year in which the adoption became final;
• You may not take a credit for adoption expenses that were reimbursed by your employer, but reimbursed expenses may be excluded from your gross income;
• The adopt child must be under 18, or physically and/or mentally unable to care for himself; and
• The adoption of a child with special needs may allow you to deduct more qualified adoption expenses.

Related Resources on lawyers.com

Web Resources