Senate Bill No. 61

(By Senators Bowman, White,Wooton, Snyder, Kimble and Anderson)

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[Introduced February 18, 1997;

referred to the Committee on the Judiciary.]

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A BILL to amend and reenact sections one, three, four, five, six, seven, eight, 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; setting forth procedures and limitations on 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, 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 of this chapter, that is pending at the time of the filing of the adoption petition.
(c) A "putative father" is, before adoption, the man or men named by the mother as the possible biological father or fathers 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) (I) 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 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; 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 hereinafter set forth, 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 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 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) An employee whom an agency designates to take consents or relinquishments, but not an employee of the agency to which the minor is relinquished;
(4) A lawyer other than a lawyer who is representing an adoptive parent or the agency to which the minor relinquished;
(5) 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
(6) 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.
(c) Before executing a consent or relinquishment, a birth mother, legal father, determined father or putative father must have been informed of the meaning and consequences of adoption, the availability of personal and legal counseling, the consequences of misidentifying the other parent, the procedure for releasing information about the health and other characteristics of the mother, legal father, determined father or putative father which may affect the physical or psychological well-being of the adoptee, and the procedure for the consensual release of the parent's identity to an adoptee pursuant to the provisions of article four-a, including the address of the adoption registry.
(d) 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;
(3) Was furnished the information described in subsection (c); and
(4) Received or was offered counseling services and information about adoption.
§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; and
(6) Specific instructions as to how to revoke the consent or relinquishment pursuant to the provisions of section five of this article.
(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, a specific adoptive parent or parents.
(c) A relinquishment must state that the individual executing the relinquishment voluntarily consents to the permanent transfer of legal physical custody of the minor to the agency for the purposes of adoption.
(d) A consent or relinquishment must state:
(1) An understanding 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 minor adoptee;
(2) An understanding that the adoption will extinguish all parental rights and obligations the individual executing the consent or relinquishment has with respect to the minor adoptee, which may include child support arrearage if the obligee and the office of child support enforcement agree to waive such arrearage unless such waiver is otherwise disallowed by federal law, and will remain valid whether or not any agreement for visitation or communication with the minor adoptee is later performed;
(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 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 act 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 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) Within one hundred ninety-two hours after the execution of the consent or relinquishment, a parent who executed the consent notifies in writing the prospective adoptive parent, or the adoptive parent's lawyer, or the agency in the case of relinquishment, that the parent revokes the consent, or the adoptive parent complies with any other instructions for revocation specified in the consent; or
(2) 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
(3) The individual who executed the consent proves by clear and convincing evidence, before a decree of adoption is issued, that the consent was obtained by fraud or duress; or
(4) 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 proper revocation of a consent or relinquishment pursuant to the provisions of subdivision (1), subsection (a) of this section by a birth parent who had physical custody of the child prior to the execution of the consent, the child shall be returned immediately to the parent who had physical custody of the child prior to the execution of the consent.
(d) When a birth parent who did not have physical custody of the child prior to his or her consent or relinquishment properly revokes his or her consent pursuant to the provisions of subdivision (1), subsection (a) of this section, the birth parent who revokes pursuant to such subdivision shall immediately take custody of the child: Provided, That if the birth parent who had physical custody of the child has also revoked his or her consent, the provisions of subsection (c) of this section govern: Provided further, That if the other birth parent has signed a conditional consent or relinquishment pursuant to the provisions of subsection (e), section three-b of this article, then such other birth parent must be immediately informed of the 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 proper revocation of consent or relinquishment pursuant to the provisions of subdivision (2), subsection (a) of this section, the child shall be placed immediately with the parent or agency whom the revoking parent and prospective adoptive parent name in the revocation agreement: Provided, That if the other birth parent has signed a conditional consent or relinquishment pursuant to the provisions of subsection (e), section three-b of this article, then such other birth parent must be immediately informed of the 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.
(f) 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.
(g) 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 grounds pursuant to the provisions of subdivision (3), subsection (a) of this article, 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, the provisions of subsection (c) of this section govern: Provided however, 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.
(h) Upon the filing of a petition for revocation pursuant to the provisions of subdivision (4), 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.
(i) 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, but in no case more than thirty days from the filing of the petition. 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 be entitled to receive 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 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 probably time of conception of the child, or at a later time, and if so, the identity and last known address of such man;
(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) An 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) An 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) An 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 5 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 any such person who is a nonresident or whose whereabouts are unknown, service shall be achieved: (1) By personal service; (2) by registered or certified mail, return receipt requested, postage prepaid, to the person's last-known address, with instructions to forward; or (3) by publication. If personal service is not acquired, then if the person giving notice shall have any knowledge of the whereabouts of the person to be served, including a last-known address, service by mail shall be first attempted as herein provided. Any such service achieved by mail shall be complete upon mailing and shall be sufficient service without the need for notice by publication. In the event that no return receipt is received giving adequate evidence of receipt of the notice by the addressee or of receipt of the notice at the address to which the notice was mailed or forwarded, or if the whereabouts of the person are unknown, then the person required to give notice shall cause service of such notice by publication as a Class II publication in compliance with the provisions of article three, chapter fifty-nine of the code, and the publication area shall be the county where such proceedings are had, and in the county where the person to be served was last known to reside except in cases of foreign adoptions where the child is admitted to this country for purposes of adoptive placement and the United States Immigration and Naturalization Service has issued the foreign-born child a visa or unless good cause is shown for not publishing in the county where the person was last known to reside. The notice shall state the court and its address but not the names of the adopting parents or birth mother, unless the court so orders.
(d) 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.
(e) 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.
§48-4-12. 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, and becomes final for other purposes upon the expiration of the time for filing an appeal, if no appeal is filed, or upon the date of the denial or dismissal of any appeal filed within the requisite time.
(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. 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 before they are expended 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.