Adoption Law in South Dakota

Are you familiar with the adoption laws in South Dakota? If not, you really should do some research before you consider whether or not South Dakota is the appropriate state for you to adopt from. Today's episode is going to be incredibly helpful for you. We're having a conversation with John and Beth Hughes, who were adoption attorneys in the state of South Dakota. They're going to walk us through the process, how Native American adoptions differ from other adoptions, and also how the state of South Dakota is a "gavel state" and what that means. Now let's check out our conversation with John and Beth. John and Beth, thank you so much for joining us today.

Beth: Well, thank you for having us.

Amanda: We are so excited to learn more about adoption in South Dakota. But before we dive into that, we'd love to learn a little bit more about you and your practice.

John: Okay, um, I have been an adoption attorney as part of my practice for 32 years this summer. The driving factor—I guess the driving factor in becoming involved in adoption was our own infertility journey in the 1980s. And so, through connections with friends, church, and young married groups, we were asked to assist with our first interstate adoption, which was in 1991, which involved twins from another state; obviously, it was interstate. And so we, you know, my background really is as a corporate commercial law firm in Omaha. And then we moved back home, closer to our home in Sioux Falls, South Dakota, back in 1984. And we just started being given opportunities to help young women make adoption plans that came to us from a number of different backgrounds and through referrals. And then we started working with couples as well, who were interested in knowing what they needed to do to become legally qualified to adopt a child. And so that's really just been a natural outflow of our own life experience and our own circle of friends and acquaintances that led us into this really important work.

Amanda: Thank you. Beth, do you want to share a little bit more about your role within the agency? Or excuse me within the firm?

Beth: We're a private adoption firm. Thank you for pointing that out. And I did not work with John in the adoption practice or in his adoption practice for the first part of our marriage. I was a broadcast journalist. But then we were able to after we had our three sons, and I stayed at home for a little over two years. And then I joined his practice in 2000.

John: Yeah, 1999-2000, somewhere in there. And it was about when I had had enough adoption experiences over a 10-year period to really apply for fellowship at what was then the American Academy of Adoption Attorneys, and I became a fellow in 2003. And for those out there that are familiar, you have to complete at least 10 interstate adoptions and 50 adoptions in order to apply. And so it took us 12 years to get that many experiences. And then Beth really came on board when the growth of our adoption practice was getting to the point where she could really step in and lend a hand, especially in working with expectant mothers who were considering adoption. That's really an area that Beth has just excelled in over the years: doing that initial intake, establishing trust, sharing information, and then having me handle the legal aspects of the information provided to her. And then, if she wanted, we would be very happy and privileged to help her go through the process of getting the required counseling and, eventually, looking at profiles to see. After we had an opportunity to find out from her what she was looking for in a family, we could actually become involved in the matching process as well.

Beth: It's such a privilege to work with birth mothers, especially women considering adoption, because they're almost always choosing adoption because their lives are not in a good place. So we always say we're very birth mother-centric. When they make that break, that choice of adoption, we want them to come out on the other side better off for having made that decision. And we do almost exclusively open adoptions. And of course, it's all the birth mother's choice, but she almost always chooses open adoption. And we found that when they are respected and have all the information, they do need to make their decision. And they choose a family that they become like extended family with, that John Oh, if a rising tide lifts all boats, then everybody—the baby, the birth mother, and the adoptive family—are better off, because adoption should never be exclusive. It should always be inclusive. So it's such a privilege working with John, and I'm not an attorney. But you know, I can't do what he does. And it wouldn't make sense for him to do all the birth parent services that I do. But together, the sum total is greater than the individual parts. So it seems to be working.

Overview of Adoption Process in South Dakota and the Challenges Faced by Birth Mothers and Adoptive Families

Amanda: It's great. Well, thank you for all that you're doing for our community. And again, thanks for your time today. And I'd love to jump into just an overview of the adoption process in South Dakota, just from start to finish. Again, we may have viewers in different areas of their journey from an adoption perspective. So, you know, the first step is home study, and then kind of walk us from there. Through the process, please?

John: Yes, I would say our criteria, our requirements, for a family or an individual to adopt a child, have little variation from South Dakota to the other states that have to have a qualified home study provider. In our state, you can have a master's-level social worker with an independent practice, provide a home study, or obtain a home study from a licensed child placement agency. So those are the two pathways for home study. Most of the agencies will perform contract home studies; not all will, but most will. In general, we work with a family that contacts us, and then we give them a list of referrals for home study providers that we have confidence in. and then they go through that process. And, you know, it typically takes a few months for the home study to be completed. And you, of course, as an adoptive mom, are well familiar with that process. And as we know, it's really more about the relationship between the couple or the individual that's adapting than it is about the physical home and what's in it or not. There are just certain baselines that are met that are child-centric and child-safe. So, from the standpoint of the expectant mother in South Dakota, she is required to have counseling, and the counseling is required to be completed at least 15 days before she's in court. A licensed relinquishment counselor will cover four issues by statute that are required to be covered, essentially that she is not under the influence of any substance that would affect your judgment, that the process of adoption and choosing the family is entirely voluntary, free of coercion, free of any promises or payments, or those kinds of things. that she understands that there are public resources available. There's WIC and TANF and Section 8 housing, and some cases are available as alternatives to placing a child for adoption, and then she needs to be aware and fully understand that adoption has permanent emotional consequences. And so the licensed relinquishment counselor writes a report that actually goes to court, and the judge sees that as part of the hearing where she relinquishes her parental rights. In South Dakota, we have a separate part of our statutes that governs the voluntary relinquishment of parental rights to a child for purposes of adoption, and we have a separate adoption code. And like many states, the child needs to be in the home of the prospective adoptive family for six months before they can complete the adoption, obviously with the support of their home study provider. South Dakota is what we call aGavel State, which means parental rights stay intact until the relinquishing biological mother is in court and her rights are terminated. And the process of voluntary termination or voluntary relinquishment of parental rights for purposes of adoption is very heavily scrutinized by the court. Because, unlike in some other states, consents are not effective if they're signed outside of court. Now, with the exception of a man who could sign a consent and appoint the petitioning biological mother as his power of attorney to consent, consents are fully revocable until you're in court. And so we're unlike some other states that have specific time periods; for example, I can think of a number where there's a waiting period, either a waiting period to sign or a waiting period for a consent to be revocable. And many states do allow a consent to become irrevocable even if it's signed outside of a courtroom and not in front of the judge. But South Dakota is not one of those states. So it's a heavily judicially scrutinized process. But on the other side, where a young woman is committed to her adoption plan, we really don't see much in the way of having to wait to be in court as causing an undue risk of disruption. We, the young women that we work with, are by and large there at the time of the hospitalization, the birth, and the physical placement of the child. There are very, very few incidents of disruption after that point. 

Amanda: So I just want to make sure we kind of level the playing field for the audience. So there, you're going to kind of take the very first steps, right: you're going to get your home study approved; you're going to create your profile; you're going to share your profile; and ultimately, you're going to connect with an expectant family. And then if they've watched other episodes in this series, where we're talking with adoption attorneys in other states, they might have been familiar with the term "revocation period." So if you're saying in the state of South Dakota, that's not necessarily a term that applies because it is a gavel state. So you're waiting for that period, if you will, if you want to draw the same analogy to the finalization part until she actually appears in court and has signed all of that appropriate paperwork. And the judge has issued the order by tracking in the same understanding for really.

John: Well stated.  And so, of course, the biggest challenge for South Dakota and every other state is the number of women who are considering making an adoption plan. It's a very small percentage. In South Dakota, there are approximately 12,000 babies born each year, and approximately 6,000 of those babies will be discharged from the hospital to their biological mother. There are a huge number of those 6,000 on public assistance. And again, there's no judgment there. It's just the reality of our culture and the reality of the need to educate about adoption and what it can mean and what it doesn't mean, for example, your child losing contact forever. Some of the negatives that emerged in the last century, for example, have thankfully been completely obliterated, making adoption a really positive outcome for a young woman. But the bottom line is that we have roughly 30 to 50 adoptions a year out of the 12,000 babies that are born, so it's a very small number.

Beth: Nationally, we found—and I'm not sure if you've also put this on this page, Amanda—that about half of all babies born each year are placed for adoption. So that's not even 1%. It's half of 1%. So, and then I wanted to circle back: we were talking to young women choosing adoption. We have found, and I think this is important for people to know, that a lot of the birth mothers we've worked with over the years are in prison and have children. And these children are placed with relatives so that when the young woman goes to prison, these children will have child support following them. And so, when these women are released from prison, we found that some of them have child support obligations of $17,000 to $20,000 And when they try to get a job, then their paychecks are garnished, and it's hard enough being a felon and trying to find work. And it's almost like they can't ever get out from under that. So we've, we wish we could go back and tell these young women, If you place your child in an open adoption, your family can know that baby, but you won't have those huge child support obligations accruing. That's important. So many of them don't know that.

John: Yeah, it's a hidden trap that we've seen repeated over and over where, as best as possible, socking a relative will collect child support and other government assistance, which then becomes a liability and, in many cases, results in a judgment. And we've had several young women that have had child support judgments in that $15 to $30,000 range, and they'd like to work, but every time they do, the garnishments follow them. And there's really no way they're going to get out from under those child support judgments. And they're not dischargeable in bankruptcy. And it's a real paradox of our culture; it's like that, and we have some dear friends that are in the child protection field with the Department of Social Services in South Dakota, and we admire and respect them greatly. But so often, the areas of government that deal with child support, abuse and neglect cases, and adoption cases don't communicate with each other very well. Too many young women view adoption just by virtue of having been involved with child protection and having children removed and then sometimes returned, and then they don't differentiate and become Yeah, they become fearful. When we talk about the Indian Child Welfare Act, Amanda, that's one area where federal law has created a completely different set of rules for the voluntary placement of a child for adoption—that's an Indian child—versus the involuntary removal of a child from an Indian home. Really a different situation. Under the regulations that were promulgated and became law at the end of 2016, The Bureau of Indian Affairs now recognizes that a woman who is carrying an Indian child has a privacy right that does not require that the tribe be notified of a voluntary adaptive placement. And while South Dakota does not have a miniature or a mini-eQUEST statute, many states do—Minneapolis does. California does, Michigan does.

 But in South Dakota, we have really, I would say, great relationships with the nine tribes because they know that where we are involved in a voluntary placement, we're going to notice them anyway, even though it's not required. And they all will respect her decision to place the child outside of the placement preferences because they agreed that they don't apply to a voluntary placement. So we finalized the adoption of two Indian children this afternoon. That went through about two to three years of involuntary situations where rights were terminated. And it's very satisfying to do that, where I feel like everyone is just interacting with each other as human beings instead of this or that. And so we've done a number of voluntary Indian child adoptions over the years, where the birth mothers were determined to make an adoption plan with a non-native family living off the reservation. So I will post that if it's helpful.

South Dakota:  The Indian Child Welfare Act and the importance of openness in adoption.

Amanda: That is very helpful. And it is important to note that the adoption of Native American children is different. And it does require one a specialization in understanding that type of law, in addition to just understanding adoption law, which, again, if you know, folks have watched this channel, I preach that we've got to use adoption attorneys for that specific reason of just understanding adoption law, which is different than any other type of law. But specifically, if you are considering adopting a Native American child, be open to that as an opportunity. Do you need to have an adoption attorney that really understands the ins and outs of that? You know, it is really important. So let's break down for the audience what Equus stands for. And maybe just give one more time a high level overview of what that is and how it applies,

John: The Indian Child Welfare Act, which is a federal statute that was enacted, I believe, in 1978. And a former US senator from South Dakota was the prime sponsor of that legislation. The idea was to reduce and hopefully even eventually eliminate the renewal of the removal of Indian children from Indian families by the state without trying really hard to preserve the cultural connection of the child to the tribe. And so, in essence, what had always existed in Lakota culture was that the children belonged to the community. And so, the Indian Child Welfare Act makes it a part of federal law that before a child can be removed from an Indian home or from an Indian custodian, there has to be a process that takes place in state court whereby the child is deemed to be number one, unable to safely return home to either his or her immediate family, an extended family member, or another member of their tribe or another native tribe. In general, those are the placement preferences of the Indian Child Welfare Act. And so there is a lot of litigation between the tribes and the state government. And you know, all the states that have a significant Native population are involved in an adversarial position where the state is supervising, monitoring, and ruling out the possibility that this child can be returned to a member of their family, their extended family, or their tribe before rights can be terminated. In South Dakota, it has to be proven beyond a reasonable doubt that the child will essentially be put at risk of physical harm or worse in order to terminate parental rights for an Indian child. Then there has to be a good cause hearing to determine if there's a good reason to deviate from the placement preferences. And so, generally speaking, a child that will be freed up for adoption in South Dakota by a non-native family will go through 234 years of court action before that child is eligible to be adopted. The flip side is that in voluntary cases, as we mentioned, it's totally different. A young woman is given, and in fact, a native man who's a parent qualifies as a parent under federal and state law and can also voluntarily make an adoption plan. We've had several male fathers who have participated in making an adoption plan because they believed it was in the best interest of their child. Even though the adoptive family was not native and did not live on the reservation, I'm a member of one tribal bar in South Dakota, and we are we don't take pride, I guess pride is the wrong word. But we draw satisfaction from interacting with the tribal officials with all the respect that they deserve. And since we've just had such a small effect, I can't think of any issue. I've never had to have an adversarial relationship with a tribe in South Dakota in all these years, and there have been quite a number of adoptions, and again, we emphasize tribal enrollment. And so with this child, we never, we always want the child to have a way back to find a way that's our core value as it relates to children. And why we support openness is because I don't ever want to have a child show up in their 20s or 30s -- we've already had some that have -- and be completely in the dark and have to make up a fictionalized account of what their family of origin is like. We just feel like they have to have the means that are age appropriate if they choose to be able to connect those dots and not be subject to the I don't know anything about my family of origin unless they choose not to. That's another issue.

Beth: And ultimately, that's better for the adoptive family, too. I mean, if children know the facts, even though sometimes some of the facts are hard, at least they know that, because if they don't, they're left to guess. And then they fantasize, and adoptive parents can't really compete with fantasies about Superman, you know. And all those facts are present; all the pieces of this child's life are present; there isn't a big hole. And so there's education about open adoption; how it went, John started doing open adoptions. 32 years ago, they were coming out of that paradigm of the closed model, where he had done some estate planning. He does; he had an elderly woman in with her daughter years ago, and she was preparing her will. And the daughter, who had gone to church with us, looked at John and said, I don't think you knew I placed her for adoption. When I was like 19, And we said no; we didn't know that. She said it was a closed adoption child that was whisked away. I didn't choose the family. She said my mother has prayed every day to know where that child is. And she died without knowing. So with open adoption, that doesn't have that inclusiveness. 

Amanda: Yeah, I love that so much. As an adoptive mom, that is obviously a big topic in our house as well. 

John: I should just mention one thing: in South Dakota, post-adoption content agreements are not enforceable. Not. So they're not Lee; it's a we use. We call it the "honor system" in court. And she needs to verbalize at the relinquishment hearing that she's okay with the fact that post-adoption contact and post-termination of parental rights contact are on the honor system. And yet, we've had such a remarkably small amount of drama, if you'd call it an issue, because the adoptive families that we've been privileged to work with and the birth mothers develop this dynamic that is self-limiting and really appropriate. You know, we believe in post-adoption contact with appropriate boundaries. And so, but it's remarkably rare for us to have to even get involved in any issue like that.

Independent Adoption and Matching Process in South Dakota

Amanda: So that's very refreshing to hear. So hearing the level of contact that's really happening between your expectant families and your hopeful adoptive families through the process How did they initially connect? Is specifically self-matching legal in the state? Is it an agency state only? Can you talk a little bit about the different types of matching that are allowed?

John: Great questions, Amanda, South Dakota is one of the vast majority of states that allow independent private adoption. And also, we have a number of agencies in South Dakota that do agency placements. In our practice, we provide what we call a limited scope of services to an adoptive family, which is really in the abstract. We meet with them, we explain the adoption process, and South Dakota explains the adoption laws and answers their questions. If they need it, we refer them to a list of homestay providers to have any arrangements made. We answer all their questions about our experience because, as you know, there's very little scientific data about adoption. But there are tons of anecdotal reports. And so we try to give them a sense of how a South Dakota adoption is different from an interstate adoption and explain that process to them. And then they go about beginning the process of engaging the necessary professionals to have their home study done, and they go to their physician to have their clean bill of health and get their background searches and all those things. And then we also offer to them some assistance by a really talented marketing person that handles our social media and a graphic designer to help them prepare a profile book, and we've developed guidelines over the years and And then all of us at the office are kind of involved in watching that process be put together; we comment, might advise using different photos and different places, comment on the text, or do those kinds of things. But, generally speaking, the two people that handle that process are so good at it that we don't have to do too much. But it's specifically about them. You know, it's a special thing, as you know; well, Amanda, from your experience, an adoption profile book is a very specific, very directed form of a sort of photo album in a way. 

But it's really designed to give an accurate perspective of what this child, growing up in this home, would experience. Now, on the flip side, we work with young women and provide information, helping them tap into resources, some private and some public. We are willing to assist with the approval of living expenses, but only after a match has taken place. And then what we do is she has a limited scope of services from us; she retains us to find a family, and the family retains us to find an expectant mother. And so to avoid conflict issues, we do not duel represent once there is a match that takes place; we either withdraw, or in almost every case, the family retains their own lawyer, and they jointly prepare a budget with input from their separate counsel. And then in every case I can think of, we've continued on with the birth mother through the placement. 

That's fairly simple to do in South Dakota because we're a gavel state. And so everybody acknowledges that, should she have a change of heart, she can do it at any time, and living expenses are never reimbursed. They're fully at risk. As you know, and I'm sure from your years of experience, Amanda, we do disclose everything to the court; everything has to be court-approved. South Dakota has no limitations on the assistance that can be provided. But it's potentially a felony if it's not court-approved. So we take all those obligations very seriously. But that's kind of how this works. In practice, we feel like we've found a comfortable, workable relationship. And like we always tell you, a woman, this adoption plan will succeed because you want it to and you believe it's best for your child. And so, I guess, that's our core value and philosophy: that she is the driver of the process. And it's our privilege to work with any woman that we have an opportunity to help essentially resolve what for her is a crisis.

Beth: And then normally, we have birth mothers contact us from multiple sources: hospitals, nonprofits, and a lot of birth mothers have referred friends who have ended up with unplanned pregnancies. And those are our highest compliments, because we know they felt respected during the process. And so we ended up with a birth mother who chose a family. And you are familiar with profile books and how important that is. We've seen it; we just presented profile books to a birth mother. There were a good number of them; she went through a lot of them; she picked her top four over a long period of time, and then, you know, one, two, and three. So those books are so important that they're done well, and we've had graphic artists who have come to us and said, “Well, we'd like to do our own book.” And their books are visually beautiful, but not what the birth mother is looking for. You have to touch her heart and answer her questions about what she wants to know about the couple. So those books are very important.

John: We had a young woman who was looking at profiles, and this one family in particular had all their trips. Every trip they'd been on was a number of years ago. And she's like, “Their trip days are over.” You know, that's not what she wants to see. She doesn't care about that. 

Beth: What she said was: “Will they be home?” Well, they want to stay home and take care of the baby, or they will just be gone on their last trip. Right. Oh, that's just a great example.

John: I should mention to Amanda that largely through our work with the Academy of Adoption Attorneys, we've been able to assist with adoptions in all but four states over the last 32 years. And so, the birth mother is always separately represented in the originating state. We provide assistance and assist the family to Well, number one, generally, the young woman reaches out to us, which is sort of like a tribute to Bath, and then she'll spend, you know, a lot of time talking to a young woman and building a relationship. Of course, we've been scanned a couple times, and we always have to be careful to vet the proofs of pregnancy and photo IDs and legitimize what she is reaching out to do by having her contact a lawyer that we either know or have confidence in a social worker in another state. And so we have, I guess you can say, a long reach, but we certainly don't do the work in that state. We rely on the adoption professionals there, but we also help establish boundaries.

Insights and tips for adoptive families and birth mothers

Amanda: This has been really helpful, and I think it has been a great overview for the audience and really pointed out several different times when not only your knowledge and expertise in adoption, specifically in South Dakota, but the reason why working with an adoption attorney is so important. I would love it if you would take just a minute or two to kind of give any parting words to the audience. If they're just starting out, or maybe even a little further along in their journey, what would you want them to really keep in mind as they go throughout their journey?

John: Persevere, we have never had a couple that went through a heartbreak or two, or sometimes three; we've actually had a couple of those. And we never understand what's behind that. But persevere, don't give up if your passion and you truly feel called to parent a child through adoption, don't give up. Unless you just absolutely feel like you're that person, that call is no longer in place in your life. We see what happens when families hang in there and persevere. They will succeed, and there's a child out there. Usually, there's almost some explanation that you can kind of understand as to why things went the way they did, based on how they end up.

Beth: And to apply a lot of grace, we have found that in the families, sometimes it's smooth sailing, sometimes it gets really rough. And we had a birth mother a few months ago; she had placed the baby with the adoptive couple. And she disrupted them and said she wanted them to bring the baby back. So out in our office, that happened, and the adoptive father looked at her and said, “We're always here.” No, no, we're here. And a couple months later, she resumed the adoption plan with him. The child is doing beautifully, and she's doing well and it's just that it takes a lot of grace. And that means being careful with the families that we work with. We get contacted by families every day from all across the country. And we have to keep our waiting family list, you know, manageable. But it's important that we know them, that they know us, and that they trust us, just as we trust them. So when times get bumpy, everybody does it together, and no one turns on each other. Yeah.

John: And everybody needs their dignity. Even a young woman, you know, has fallen by the wayside in some ways and made some life choices that are difficult for some of us who didn't come from a background that was that challenging. Sometimes it's hard to understand, but I think judging is a real negative that should be avoided at all costs. And I'm going to say one thing to the guys out there. If demand is driving the adoption process, then look in the mirror and remind yourself that this isn't linear. This is not a transaction. This is not a linear process. And, grace and respect will just really carry the day in the process, and I'm sure we could have a lot of private conversations about Mandas experiences in ours, but I would say it's a nonlinear adaptation that is such a nonlinear process. And it's such a profound, profound process involving giving and receiving.

Beth: Life is about relationships, and people with high relationship IQs do well. 

Amanda: I love that. Thank you both. This has just been amazing. Where can our audience go to get in touch with you to work with you and learn more about the South Dakota law?

John: Our offices are located in Sioux Falls, South Dakota, and we have a website called Heart2Heartadoptions.com, which is H E A R T the number two, artadoptions.com. We also have a website for Hugh's lawyers, www.hughslawyers.com. And my email is just John@uslawyers.com. Beth's email address is beth@lawyers.com. And we have a staff of at least three really, really valuable people who have helped us in our practice, but we are high touch, and we always want to be personally involved in every aspect of this.

Beth: I would like to add that we have a mentor mom program, which is made up of women who come alongside birth mothers after the adoptions are over to help them because some of these women have no support systems. So we're really pleased about that. And Cindy in our office helps with that. So that's a great thing that's been started in the last year or so.

John: Yeah. This is a lifelong Amanda. Our connections with the young women we work with and their families are lifelong. And I believe that's only right. It's a big deal.

Amanda: It is. Well, thank you. And I'll definitely have Beth want to talk to you a little bit more about that, because I think that could be a great resource for our community in general. And we'd love to have you back on the show to share more about that with our audience. But we really appreciate all the work done to share it today with our audience. Thank you, man. Thank you for enjoying it. 

John: Thank you for what you do, Amanda. 

Amanda: Wow, I hope you can really understand the adoption process in South Dakota and the empathy and caring concern that John and Beth have for the birth families and the adoptive families that they work with. Being an adoptive family and an adoption lawyer, I believe it gives them a really different perspective on the entire process. And I do encourage you to reach out to them if you want to learn more about adopting in South Dakota. If you need to learn more about the total adoption process, be sure to check out the private adoption program. The private adoption program is specifically designed to teach you how to adopt step by step, no matter which type of adoption you're pursuing. 

Whether you're adopting privately through an independent or self-matched adoption If you're matching with an adoption agency or working with an adoption attorney, I have constructed the program to help save you time, money, and energy all the way through the process. Remember, my friend, you are worthy of support, and I'm here to coach you every step of the way. I'll see you soon friends

Disclaimer: The information contained herein is not to be considered legal advice. We are not attorneys. Should you wish to hire the attorney mentioned in this post, please contact them directly.