COMMITTEE SUBSTITUTE
FOR
H. B. 2139
(By Delegates Fleischauer, Douglas, Jenkins and Thomas)
(Originating in the Committee on the Judiciary)
[March 26, 1997]
A BILL to amend and reenact sections one, three, four, five, six,
seven, eight, nine, twelve and sixteen, article four,
chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article by adding thereto five new sections,
designated sections three-a, three-b, three-c, eight-a and
eight-b, all relating to adoption proceedings; defining and
redefining terms; establishing persons whose consent is
required; setting forth requirements for the execution of
consents or relinquishments; establishing required contents
of consents or relinquishments; when abandonment by birth
parent presumed; providing for consent by parents under
eighteen years of age; providing for the revocation of
consent or relinquishment for adoption; requiring disclosure
of certain information upon delivery of child for adoption;
establishing when adoption petition may be filed; expanding
required contents of petitions; expanding and revising
notice provisions; setting forth persons entitled to notice; changing the contents required for notice; providing for
notice to unknown fathers; relating to proceedings,
requiring home study reports, except in kinship adoptions;
setting forth procedures and limitations on revocations or
challenges to adoption decrees; and authorizing the payment
of certain fees and expenses of the birth mother subject to
approval by the circuit court.
Be it enacted by the Legislature of West Virginia:
That sections one, three, four, five, six, seven, eight,
niune, twelve and sixteen, article four, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; and that said article be
further amended by adding thereto five new sections, designated
sections three-a, three-b, three-c, eight-a and eight-b, all to
read as follows:
ARTICLE 4. ADOPTION.
§48-4-1. Definitions.
As used in this article, unless the context otherwise
requires:
(a) A "legal father" is, before adoption, the male person
having the legal relationship of parent to a child: (1) Who is
married to its mother at the time of conception; or (2) who is
married to its mother at the time of birth of the child; or (3)
who is the biological father of the child and who marries the
mother before an adoption of the child;.
(b) A "determined father" is, before adoption, a person:
(1) adjudicated to be the father of a child under the provisions of article seven of this chapter In whom paternity has been
established pursuant to the provisions of article six of this
chapter, whether by adjudication or acknowledgment as set forth
therein; or (2) who makes an affidavit stating that he is the
father of a child and who is identified as the father by the
mother in a like affidavit; or (3) who has, at his instance, been
otherwise judicially determined to be the biological father of
the child entitled to parental rights; with respect to the child;
or (4) who claims to be the father of the child. or (3) who has
asserted his paternity of the child in an action commenced
pursuant to the provisions of article six, chapter forty-eight-A,
prior to the date of the final hearing on the adoption;.
(c) A "putative father" is, before adoption, the man or men
named by the mother as the possible biological father of the
child pursuant to the provisions of section seven of this
article, who are neither legal or determined fathers;.
(d) An "outsider father" is the biological father of a child
born to or conceived by the mother while married to a man who is
not the biological father of the child;
(c) (e) An "unknown father" is the biological father who,
before adoption, is neither the legal father nor determined
father of the child a biological father whose identity the
biological mother swears is unknown to the biological mother
before adoption, pursuant to the provisions of section seven of
this article
;
(d) (f) A "birth mother" is the biological mother of the
child;
(e) (g) A "birth father" is the biological father of the
child; and
(h) "Birth parents" are both the biological father and the
biological mother of the child;
(f) (iI) The "adoptive parents" or "adoptive mother" or
"adoptive father" shall mean those persons who, after adoption,
are the mother and father of the child.
(j) A "marital child" is a child born or conceived during
marriage;
(k) A "non-marital child" is a child not born or conceived
during marriage;
(l) A "step-parent adoption" is one in which the petitioner
for adoption is married to one of the birth parents of the child
or who is married to a parent of the child by adoption;
(m) "Relinquishment" means the voluntary surrender to an
agency by a minor's parent or guardian, for purposes of the
minor's adoption, of the rights of the parent or guardian with
respect to the minor, including legal and physical custody of the
minor;
(n) "Consent" means the voluntary surrender to an
individual, not an agency, by a minor's parent or guardian, for
purposes of the minor's adoption, of the rights of the parent or
guardian with respect to the minor, including legal and physical
custody of the minor;
(o) "Abandonment," as used in this article, refers to any
conduct by the birth mother, legal father, determined father,
outsider father, unknown father or putative father that evinces a settled purpose to forego all duties and relinquish all
parental claims to the child, including the failure of an unknown
father to make reasonable efforts to discover that a pregnancy
and birth have occurred as a result of his sexual intercourse
with the birth mother; and
(p) "Agency" means a public or private entity, including the
department of health and human resources, that is authorized by
the law of this state to place individuals for adoption.
§48-4-3. Persons whose consent is required.
(a) The mother and legal father or determined father shall
consent to the adoption by a writing acknowledged as in the case
of deeds, unless the court orders, after hearing, that the
parental rights of such person are terminated, abandoned or
permanently relinquished, or that the person is under disability
solely because of age. Subject to the limitations below, consent
to adoption shall be required as follows:
(1) Of the adoptive child, if over twelve years of age,
given in the presence of the judge having jurisdiction thereof,
unless for extraordinary cause such is waived by court order;
(2) Of the parents or surviving parent, whether adult or
infant, of a marital child;
(3) Of the outsider father of a marital child who has been
adjudicated the father of such child or who has brought a
paternity action which is pending at the time of the filing of an
adoption petition;
(4) Of the birth mother, whether adult or infant, of a
nonmarital child;
(5) Of the determined father; and
(6) Of the putative father.
(b) The consent shall not be required of a parent or of any
other person having custody of the adoptive child:
(1) Whose parental rights have been terminated pursuant to
the provisions of chapter forty-nine of this code;
(2) Whom the court finds to have abandoned the child as set
forth in this article;
(3) Whom the court find to have executed a proper
relinquishment of all parental rights and obligations; or
(4) Who, in a step-parent adoption, is the parent of the
child and is married to the petitioning adoptive parent. In such
step-parent adoption, the parent must assent to the adoption by
joining in support of the petition.
(c) If the person mother, legal father, determined father or
putative father is under disability, the court may decree the
adoption if it orders:
(1) that That the parental rights of the persons are
terminated, abandoned or permanently relinquished,;
(2) that That the person is incurably insane,; or
(3) the The disability arises solely because of age and an
otherwise valid consent has been given.
(b) (d) Any consent to adoption or relinquishment of
parental rights shall have the effect of authorizing the
prospective adoptive parents to consent to medical treatment for
the child, whether or not such authorization is expressly stated
in the consent or relinquishment.
(c) (e) If all persons entitled to parental rights of the
child sought to be adopted are deceased or have been deprived of
the custody of the person of such child by law, then and in such
case, the written consent, acknowledged as aforesaid, of the
legal guardian of such child or those having at the time the
legal custody of the child shall be obtained and so presented,
and if there be no legal guardian nor any person having the legal
custody of the child, then such consent must be obtained from
some discreet and suitable person appointed by the court or judge
thereof to act as the next friend of such child in the adoption
proceedings.
(d) (f) If one of the persons entitled to parental rights of
the child sought to be adopted is deceased, only the consent or
relinquishment of the surviving person entitled to parental
rights shall be required.
(e) In addition to the consent required in subsections (a)
through (d) of this section, in any case where the child sought
to be adopted is twelve years of age or over, the written consent
of such child to such adoption, given in the presence of the
judge having jurisdiction thereof, must also be obtained and
presented before the entry of any order of adoption, unless for
extraordinary cause such is waived by court order.
§48-4-3a. Timing and execution of informed consent or
relinquishment.
(a) No consent or relinquishment from the birth mother may
be executed before the expiration of seventy-two hours after the
birth of the child to be adopted.
(b) A consent or relinquishment executed by a parent or
guardian as required by the provisions of section three of this
article must be signed and notarized in the presence of one of
the following:
(1) A judge of a court of record;
(2) An individual whom a judge of a court of record
designates to take consents or relinquishments;
(3) A commissioned officer on active duty in the military
service of the United States, if the individual executing the
consent or relinquishment is in military service; or
(4) An officer of the foreign service or a consular officer
of the United States in another country, if the individual
executing the consent or relinquishment is in that country; or
(5) Two adult witnesses not related to the person executing
the consent or relinquishment.
(c) An individual before whom a consent or relinquishment is
signed or confirmed under subsection (b) of this section shall
certify in writing that he or she orally explained the contents
and consequences of the consent or relinquishment, and to the
best of his or her knowledge or belief, the individual executing
the consent or relinquishment:
(1) Read or was read the consent or relinquishment and
understood it;
(2) Signed the consent or relinquishment and received or was
offered a copy of it.;
§48-4-3b. Content of consent or relinquishment.
(a) A consent or relinquishment required under the provisions of section three of this article must be in writing
and contain, in plain English or, if the individual providing
consent or relinquishment does not understand English, in that
person's primary language:
(1) The date, place and time of the execution of the consent
or relinquishment;
(2) The name, date of birth and current mailing address of
the individual executing the consent or relinquishment;
(3) The date of birth and the name or pseudonym of the minor
adoptee;
(4) If a consent, the name, address, telephone and facsimile
numbers of the lawyer representing the prospective adoptive
parent;
(5) If a relinquishment, the name, address and telephone and
facsimile numbers of the agency to which the minor is being
relinquished;
(6) Specific instructions as to how to revoke the consent or
relinquishment pursuant to the provisions of section five of this
article;
(7) A statement that the person executing the consent has
the right to obtain legal counsel or other personal counseling
prior to executing the consent, and that by executing the
consent, the person who signs it acknowledges having had the
opportunity to seek legal or other counseling services; and
(8) A statement that a parent who misidentifies the other
parent under oath is committing a crime and further that
misidentification could potentially cause great disruption and tragedy later in the life of the child.
(b) A consent must state that the parent or guardian
executing the document is voluntarily and unequivocally
consenting to the transfer of legal and physical custody to, and
the adoption of the minor by, an adoptive parent or parents.
(c) A relinquishment must state that the individual
executing the relinquishment voluntarily consents to the
permanent transfer of legal and physical custody of the minor to
the agency for the purposes of adoption.
(d) A consent or relinquishment must state:
(1) That after the consent or relinquishment is signed or
confirmed in substantial compliance with the provisions of
section three-a of this article, it is final and, unless revoked
within the time provided pursuant to the provisions of section
five of this article, it may not be revoked or set aside for any
reason, including the failure of an adoptive parent to permit the
individual executing the consent or relinquishment to visit or
communicate with the minor adoptee;
(2) That the adoption will extinguish all parental rights
and obligations the individual executing the consent or
relinquishment has with respect to the minor adoptee;.
(3) That the individual executing the consent or
relinquishment has:
(A) Received a copy of the consent or relinquishment;
(B) Been provided the information and afforded the
opportunity to participate in the voluntary adoption registry,
pursuant to the provisions of article four-a; and
(C) Been advised of the obligation to provide the
information required by the provisions of section seven of this
article;.
(4) That the individual executing the consent or
relinquishment has not received or been promised any money or
anything of value for the consent or relinquishment, except for
payments authorized by the provisions of section sixteen of this
article;.
(5) That the minor is not an Indian child as defined in the
Indian Child Welfare Act, 25 U.S.C. Section 1901 et seq.;:
(6) That the individual believes the adoption of the minor
is in the minor's best interest; and
(7) That the individual who is consenting or relinquishing
waives notice of any proceeding for adoption unless the adoption
is contested, appealed or denied.
(e) A consent or relinquishment may provide explicitly for
its revocation if:
(1) Another's consent or relinquishment is not executed
within a specified period;
(2) A court decides not to terminate another individual's
parental relationship to the minor; or
(3) In a direct placement for adoption, a petition for
adoption by prospective adoptive parent, named or described in
the consent, is denied or withdrawn.
§48-4-3c. Conduct presumptively constituting abandonment.
(a) Abandonment of a child over the age of six months shall
be presumed when the birth parent:
(1) Fails to financially support the child within the means
of the birth parent; and
(2) Fails to visit or communicate with the child when
physically and financially able to do so and not prevented from
doing so by the person or authorized agency having the care or
custody of the child: Provided, That such failure to financially
support, visit or communicate with the child continues
uninterrupted for a period of six months immediately preceding
the filing of the adoption petition.
(b) Abandonment of a child under the age of six months shall
be presumed when the birth father:
(1) Denounces the child's paternity anytime after
conception;
(2) Fails to contribute, commensurate with the father's
means, toward the expense of the pre-natal and post-natal care of
the mother and the post-natal care of the child;
(3) Fails to financially support the child within the
father's means; and
(4) Fails to visit or communicate with the child: Provided,
That such denunciations and failure to act continued
uninterrupted from the time that the birth father was told of the
conception of the child until the time that the petition for
adoption was filed.
(c) Notwithstanding any provision in this section to the
contrary, any birth parent shall have the opportunity to
demonstrate to the court the existence of compelling
circumstances preventing said parent from supporting or visiting the child: Provided, That in no event shall incarceration
provide such a compelling circumstance if the crime resulting in
such incarceration was one involving a rape in which the child
was conceived.
§48-4-4. Consent by infants.
If it appears that a person giving consent to adoption is
under eighteen years of age at the time of the filing of the
petition, and that such infant parent is a resident of the state,
the consent shall be specifically reviewed and approved by the
court and a guardian ad litem may be appointed to represent the
interests of the consenting infant parent. The guardian ad litem
shall conduct a discreet inquiry regarding the consent given, and
may inquire of any attorney, social worker, notary public or
other person having knowledge of the consent. If the guardian ad
litem finds reasonable cause to believe that the consent given
was obtained by fraud or duress, the court may request the
consenting infant parent to appear before the court or at a
deposition, so that inquiry may be made regarding the consent
given. Failure to appoint a guardian ad litem is not grounds for
setting aside a decree of adoption.
§48-4-5. Revocation of consent or relinquishment for adoption.
(a) Parental consent or relinquishment of legal custody for
adoption purposes, whether given by an adult or minor, is revoked
only if:
(1) The individual who executed the consent and the
prospective adoptive parent named or described in the consent or
the lawyer for said adoptive parent or the agency in case of relinquishment agree to its revocation; or
(2) The individual who executed the consent proves by clear
and convincing evidence that the consent was obtained by fraud or
duress in an action filed within six months of the execution of
the consent; or
(3) If the individual who executed the consent proves by a
preponderance of the evidence that a condition allowing
revocation expressly set forth in the consent has occurred.
(b) Any parental consent or relinquishment of legal custody
for adoption which does not conform to the requirements of this
article may be revoked at any time before the entry of the final
adoption decree.
(c) Upon the filing of a revocation petition alleging
grounds pursuant to the provisions of subdivision (3), subsection
(a) of this section, a presumption exists that the child should
be returned to the custody of the parent seeking to revoke his or
her consent during the pendency of the petition and any appeals,
if said parent had physical custody of the child prior to the
execution of such consent or relinquishment. The presumption may
be overcome by evidence that the child will suffer irreparable
harm by return to such parent.
(d) When a parent who did not have physical custody of the
child prior to his or her execution of the consent or
relinquishment files a revocation petition alleging the consent
was obtained by fraud or duress pursuant to the provisions of
subdivision (2), subsection (a) of this section, a presumption
exists that the child should be placed with such parent during the pendency of the adjudication of the petition and any appeals.
This presumption can be overcome by a showing that irreparable
harm would result to the child by such return: Provided, That if
the birth parent who had physical custody of the child prior to
the execution of the consent or relinquishment has also revoked
his or her consent, has signed a conditional consent or
relinquishment pursuant to the provisions of subsection (c),
section three-b of this article, then such other birth parent
must be immediately informed of the petition for revocation and
be afforded the opportunity to assert his or her rights to revoke
and receive custody of the child under such consent or
relinquishment.
(e) Upon the filing of a petition for revocation pursuant to
the provisions of subdivision (3), subsection (a) or subsection
(b) of this section, a presumption exists in favor of returning
the child immediately to the birth parent who had physical
custody of the child prior to the execution of the consent or
relinquishment during the pendency of the petition or its appeal.
This presumption may be overcome only by a showing of irreparable
harm to the child.
(f) If a hearing is required on any issue involving
revocation or custody pending the disposition of a revocation
petition, the court shall set the revocation hearing within
thirty days of service of notice upon the respondent and shall
set any hearings on custody pending the disposition on revocation
as soon as practically possible. When the decision of the
circuit court on revocation is appealed, the supreme court of appeals shall decide whether to accept the appeal within thirty
days of the filing of the request to accept the issue on appeal.
§48-4-6. Delivery of child for adoption; filing of petition.
(a) Whenever a person delivers a child for adoption the
person first receiving such child and the prospective adopting
parent or parents shall receive at the time the child is
delivered from such person a written recital of all known
circumstances surrounding the birth, medical and family medical
history of the child, and an itemization of any facts or
circumstances unknown concerning the child's parentage or
requiring that may require further development in the form of an
affidavit from the birth mother consistent with the provisions of
section seven of this article.
(b) The petition for adoption may be filed at any time after
the child who is the subject of the adoption is born, and the
adoptive placement determined, with or without all requisite
consents, but the and all consents or relinquishments that can,
at that time, be obtained have been obtained. The hearing on
said petition shall not be held until after the child shall have
lived in the house of the adopting parent or parents for a period
of six months, proper notice consistent with the provisions of
this article has been given, and either all consents or
relinquishments have been executed and submitted properly or the
rights of all nonconsenting birth parents have been terminated.
§48-4-7. Petition and appendix.
(a) The petition shall set forth the name, age and place of
residence of the petitioner or petitioners, and of the child, and the name by which the child shall be known; whether such child be
possessed of any property and a full description of the same, if
any; and whether the petitioner or petitioners know the identity
of the persons entitled to parental rights or, that the same are
unknown to the petitioner or petitioners; and whether and on what
basis the parental rights of any birth parents should be
terminated during the pendency of the adoption petition. An
effort shall be made to obtain medical and social information,
and that information, along with all nonidentifying information
about the birth, shall accompany the petition and be made a part
of the nonidentifying information to be sealed in the court file.
The petition shall be duly verified according to law.
(b) In the case of an unknown father, an affidavit signed by
the birth mother setting forth the following information must be
attached to the petition, which will be sealed in the court file:
(1) Whether the birth mother was married at the probable
time of conception of the child, or at a later time, and if so,
the identity and last known address of such husband;
(2) Whether the birth mother was cohabiting with a man at
the probable time of conception of the child, and if so, the
identity of such man, his last known address, and why the woman
contends that such man is not the biological father of the child;
(3) Whether the birth mother has received payments or
promise of support from any man with respect to the child or her
pregnancy, and if so, the identity of such man, his last known
address, and why the birth mother contends that such man is not
the biological father of the child;
(4) Whether the birth mother has named any individual as the
father on the birth certificate of the minor or in connection
with applying for or receiving public assistance, and if so, the
identity of such man, his last known address, and why the birth
mother contends such man is not the biological father of the
child;
(5) Whether the birth mother identified any man as the
father to any hospital personnel, and if so, the identity of such
man, his last known address, the name and address of the
hospital, and why the birth mother now contends such man is not
the biological father of the child;
(6) Whether the birth mother has informed any man that he
may be the biological father of the child, and if so, the
identity of such man, his last known address and why the birth
mother now contends such man is not the biological father of the
child;
(7) Whether any individual has formally or informally
acknowledged or claimed paternity of the minor in any
jurisdiction at the time of the inquiry, the name and last known
address of such individual, and why the birth mother contends
such man is not the biological father of the child;
(8) That the birth mother has been advised that the failure
to identify or the misidentification of the birth father can
result in delays and disruptions in the processing of the
adoption petition;
(9) That the birth mother has been informed that her
statement concerning the identity of the father will be used only for the limited purposes of adoption and that such identity once
the adoption is complete will be sealed; and
(10) That the birth mother has been advised of the remedies
available to her for protection against domestic violence
pursuant to the provisions of article two of this chapter.
(c) In the case where the birth mother is deceased or her
identity or whereabouts are unknown, no such affidavit shall be
required.
(d) The affidavit of the birth mother in the case of an
unknown father shall be executed before any individual authorized
pursuant to the provisions of section three-a of this article.
(b) (e) If the person petitioning for adoption is less than
fifteen years older than the child sought to be adopted, such
fact shall be set forth specifically in the petition. In such
case, the court shall grant the adoption only upon a specific
finding that notwithstanding the differences in age of the
petitioner and child, such adoption is in the best interest of
the child: Provided, That when the petitioner seeks to adopt a
child of his or her spouse in the case of a step-parent adoption,
such specific finding shall not be required and an adoption shall
not be denied on the sole basis of proximity in age.
(f) In addition, the The petition shall set forth such of
the facts concerning the circumstances of the birth of the child
as the petitioner or petitioners are informed. Either the
petition, the various consents attached thereto or filed in the
cause, the affidavit of the birth mother as set forth herein and/
or an appendix signed by counsel or other credible persons shall fully disclose all that is known about the parentage of the
child.
§48-4-8. Who shall receive notice.
(a) Unless notice has been waived, notice of a proceeding
for adoption of a minor must be served, within twenty days after
a petition for adoption is filed, upon:
(1) Each individual whose consent to the adoption is
required pursuant to the provisions of section three of this
article, but notice need not be served upon an individual whose
parental relationship to the minor or whose status as a guardian
has been terminated;
(2) Each individual whom the petitioner knows is claiming to
be the father of the minor adoptee and whose paternity of the
minor has been established pursuant to the provisions of article
six of this chapter, but notice need not be served upon a man who
has executed a verified statement, as provided in section three-c
of this article;
(3) Each individual other than the petitioner who has legal
or physical custody of the minor adoptee or who has right of
visitation with the minor under an existing court order issued
by a court in this or another state;
(4) The spouse of the petitioner if the spouse has not
joined in the petition; and
(5) A grandparent of a minor adoptee if the grandparent's
child is a deceased parent of the minor and, before death, the
deceased parent had not executed a consent or relinquishment or
the deceased parent's parental relationship to the minor had not been terminated.
(b) The court shall require notice of a proceeding for
adoption of a minor child to be served upon any person the court
finds, at any time during the proceeding, is:
(1) A person described in subsection (a) of this section who
has not been given notice;
(2) An individual who has revoked consent pursuant to the
provisions of section five of this article; or
(3) A person who, on the basis of a previous relationship
with minor adoptee, a parent, an alleged parent, or the
petitioner, can provide information that is relevant to the
proposed adoption and that the court in its discretion wants to
hear.
§48-4-8. Service. §48-4-8a. How notice is to be served.
(a) Unless waived by a writing acknowledged as in the case
of deeds or by other proper means, notice of the adoption
proceeding shall be served on any known person entitled to
parental rights of a child prior to its adoption who has not
signed either a consent for the adoption of the child or a
relinquishment of custody of such child, or whose parental rights
have not otherwise been terminated.
(b) Such notice (a) Notice, as required pursuant to the
provisions of section eight of this article,
shall be served on
each such person at least twenty days before the date of the
final hearing in the adoption proceeding and in accordance with
Rule 4 of the West Virginia Rules of Civil Procedure for Trial
Courts of Record and any relevant statutes.
(b) The notice shall inform the person, in plain language,
that his or her parental rights, if any, may be terminated in the
proceeding and that such person may appear and defend any such
rights within twenty days of such service. The notice shall also
provide that if the person upon whom notice is properly served
fails to respond within twenty days after its service, said
person may not appear in or receive further notice of the
adoption proceedings.
(c) In the case of a person under disability, service shall
be made on the person and his personal representative, or if
there be none, on a guardian ad litem.
(d) In the case of service by publication or mail or service
on a personal representative or a guardian ad litem, the person
shall be allowed thirty days from the date of the first
publication or mailing or such service on a personal
representative or guardian ad litem in which to appear and defend
such parental rights.
§48-4-8b. Notice to an unknown father.
(a) In the case of an unknown father, the court shall
inspect the affidavit submitted pursuant to the provisions of
section seven of this article, consider any additional evidence
that the court orders be produced, and determine whether said
father can be identified. Such inspection and consideration of
additional evidence shall be accomplished as soon as practicable
after the filing of the petition, but not later than sixty days
before the final hearing on the adoption petition.
(b) If the court identifies a father through the inspection required by the provisions of subsection (a) of this section,
then notice shall be given as provided in section eight-a of this
article.
(c) If after consideration of the affidavit and/or the
consideration of further evidence, the court finds that proper
service cannot be made upon the father because his identity is
unknown, the court shall order publication of the notice only if,
on the basis of all information available, the court determines
that publication is likely to lead to receipt of notice by the
father. If the court determines that publication or posting is
not likely to lead to receipt of notice, the court may dispense
with the publication or posting of a notice.
§48-4-9. Proceedings.
(a) When the cause has matured for hearing but not sooner
than six months after the child has resided continuously in the
home of the petitioner or petitioners, the court shall decree the
adoption if:
(1) It determines that no person retains parental rights in
such child except the petitioner and the petitioner's spouse, or
the joint petitioners;
(2) That all applicable provisions of this article have been
complied with;
(3) That the petitioner is, or the petitioners are, fit
persons to adopt the child; and
(4) That it is in the best interests of the child to order
such adoption.
(b) The court or judge thereof may adjourn the hearing of such petition or the examination of the parties in interest from
time to time, as the nature of the case may require. Between the
time of the filing of the petition for adoption and the hearing
thereon, the court or judge thereof shall, unless the court or
judge otherwise directs, cause a discreet inquiry to be made to
determine whether such child is a proper subject for adoption and
whether the home of the petitioner or petitioners is a suitable
home for such child. Any such inquiry, if directed, shall be made
by any suitable and discreet person not related to either the
persons previously entitled to parental rights or the adoptive
parents, or by an agency designated by the court, or judge
thereof, require an evaluation of all prospective adoptive
parents by a home study approved by the court, Provided, That a
home study may be waived in cases of kinship adoptions if the
court finds such waiver is appropriate. The results thereof
shall be submitted to the court or judge thereof prior to or upon
the hearing on the petition and shall be filed with the records
of the proceeding and become a part thereof. The report shall
include, but not be limited to, the following:
(1) A description of the family members, including medical
and employment histories;
(2) A physical description of the home and surroundings; and
(3) A description of the adjustment of the child and
family.;
(4) Child abuse clearances;
(5) A police background check;
(6) Personal references; and
(7) Other information deemed necessary by the court.
(c) If it shall be necessary, under the provisions of this
article, that a discreet and suitable person shall be appointed
to act as the next friend of the child sought to be adopted, then
and in that case the court or judge thereof shall order a notice
of the petition and of the time and place when and where the
appointment of next friend will be made, to be published as a
Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code, and the
publication area for such publication shall be the county where
such court is located. At the time and place so named and upon
due proof of the publication of such notice, the court or judge
thereof shall make such appointment, and shall thereupon assign
a day for the hearing of such petition and the examination of the
parties interested.
(d) Upon the day so assigned, the court or judge thereof
shall proceed to a final hearing of the petition and examination
of the parties in interest, under oath, and of such other
witnesses as the court or judge thereof may deem necessary to
develop fully the standing of the petitioners and their
responsibility, and the status of the child sought to be adopted;
and if the court or judge thereof shall be of the opinion from
the testimony that the facts stated in the petition are true, and
if upon examination the court or judge thereof is satisfied that
the petitioner is, or the petitioners are, of good moral
character, and of respectable standing in the community, and are
able properly to maintain and educate the child sought to be adopted, and that the best interests of the child would be
promoted by such adoption, then and in such case the court or
judge thereof shall make an order reciting the facts proved and
the name by which the child shall thereafter be known, and
declaring and adjudging that from the date of such order, the
rights, duties, privileges and relations, theretofore existing
between the child and those persons previously entitled to
parental rights, shall be in all respects at an end, and that the
rights, duties, privileges and relations between the child and
his or her parent or parents by adoption shall thenceforth in all
respects be the same, including the rights of inheritance, as if
the child had been born to such adopting parent or parents in
lawful wedlock, except only as otherwise provided in this
article: Provided, That no such order shall disclose the names
or addresses of those persons previously entitled to parental
rights.
§48-4-12. Revocation of adoption.
(a) A mother, a legal or determined birth father, or a
guardian of a child, who did not consent to the adoption of such
child, or any person entitled to notice as provided in section
eight of this article, or subsections (b) and (c), section one,
article three, chapter forty-nine of this code, who was not
served with notice as provided in said provisions, may, at any
time within one year after learning of or having reasonable
opportunity to learn of the adoption, apply by petition to the
court in which the adoption was granted, praying that the
adoption be vacated. The court to which such application is made shall fix a date and time for a hearing, shall cause notice
thereof to be given to the person or persons or agency who were
permitted to adopt such minor, and, at the time so fixed, shall
hear the petitioner and all parties interested, and may vacate or
affirm the adoption in its discretion. Any party interested may
appeal to the supreme court of appeals from the decision of the
court in the matter, as in other civil cases.
A decree of adoption is a final order for purposes of appeal
on the date when it is issued, or upon the date of the denial or
dismissal of any appeal filed within the requisite time. If no
appeal is filed,
the decree becomes final upon the expiration of
the time for filing an appeal.
(b) An appeal from a decree of adoption or other appealable
order issued herein must be heard and decided expeditiously.
(c) A decree or order issued under this chapter may not be
vacated or annulled upon application of a person who waived
notice, or who was properly served with notice pursuant to this
chapter and failed to respond or appear, file an answer, or file
a claim of paternity within the time allowed.
(d) The validity of a decree of adoption issued pursuant to
the provisions of this chapter is not subject to challenge, on
any ground, if that challenge is brought more than six months
after the decree or order is issued.
(e) If a challenge is brought within the six month period by
an individual who was not properly noticed of the proceedings
pursuant to the provisions of this chapter, the court shall deny
the challenge, unless the court finds by clear and convincing evidence that the decree or order is not in the best interest of
the adoptee.
(f) All challenges to an adoption decree or order must be
heard expeditiously.
(b) (g) When any minor has been adopted, he may, within one
year after becoming of age, sign, seal and acknowledge before
proper authority, in the county in which the order of adoption
was made, a dissent from such adoption, and file such instrument
of dissent in the office of the clerk of the court which granted
said adoption and the clerk of the county commission of such
county, and such clerks shall record and index the same. Upon
the filing of such instrument of dissent the adoption shall be
vacated.
§48-4-16. Prohibition of purchase or sale of child; penalty; `````
definitions; exceptions.
(a) Any person or agency who knowingly offers, gives or
agrees to give to another person money, property, service or
other thing of value in consideration for the recipient's
locating, providing or procuring a minor child for any purpose
which entails a transfer of the legal or physical custody of said
child, including, but not limited to, adoption or placement,
shall be guilty of a felony and subject to fine and imprisonment
as provided herein.
(b) Any person who knowingly receives, accepts or offers to
accept money, property, service or other thing of value to
locate, provide or procure a minor child for any purpose which
entails a transfer of the legal or physical custody of said child, including, but not limited to, adoption or placement,
shall be guilty of a felony and subject to fine and imprisonment
as provided herein.
(c) Any person who violates the provisions of this section
shall be guilty of a felony, and, upon conviction thereof, may be
imprisoned in the penitentiary for not less than one year nor
more than five years or, in the discretion of the court, be
confined in jail not more than one year and shall be fined not
less than one hundred dollars nor more than two thousand dollars.
(d) A child whose parent, guardian or custodian has sold or
attempted to sell said child in violation of the provisions of
this article may be deemed an abused child as defined by section
three, article one, chapter forty-nine of this code. The court
may place such a child in the custody of the department of health
and human resources or with such other responsible person as the
best interests of the child dictate.
(e) This section does not prohibit the payment or receipt of
the following:
(1) Fees paid for reasonable and customary services provided
by the department of health and human resources or any licensed
or duly authorized adoption or child-placing agency.
(2) Reasonable and customary legal, medical, hospital or
other expenses incurred in connection with legal adoption
proceedings.
(3) Fees and expenses included in any agreement in which a
woman agrees to become a surrogate mother.
(4) Any fees or charges authorized by law or approved by a court in a proceeding relating to the placement plan, prospective
placement or placement of a minor child for adoption.
(f) At the final hearing on the adoption, an affidavit of
any fees and expenses paid or promised by the adoptive parents
shall be submitted to the court. Any payments of pregnancy and
living expenses of a birth mother shall be itemized and
specifically approved by the court upon a finding by the court
that the same are permissible in the particular adoption.
Note: This bill is recommended by the Joint Standing
Committee on the Judiciary for introduction and passage this
session.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language.
Sections three-a, three-b, three-c, eight-a and eight-b are
new; therefore, underscoring has been omitted.