Senate Bill No. 70
(By Senator Boley)
____________
[Introduced February 9, 2005; referred to the Committee
on the Judiciary.]
____________
A BILL to amend and reenact §49-3-1 of the Code of West Virginia,
1931, as amended, relating to adoption generally; including
other relatives for consideration as adoptive placement; and
providing limitations on adoption or guardianship by
grandparents or other relatives.
Be it enacted by the Legislature of West Virginia:
That §49-3-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. CHILD WELFARE AGENCIES.
§49-3-1. Consent by Agency or Department to adoption of child;
statement of relinquishment by parent; petition to
terminate parental rights.
(a) (1) Whenever a Child Welfare Agency licensed to place
children for adoption or the Department of Health and Human
Resources has been given the permanent legal and physical custody of any child and the rights of the mother and the rights of the
legal, determined, putative, outside or unknown father of the child
have been terminated by order of a court of competent jurisdiction
or by a legally executed relinquishment of parental rights, the
Child Welfare Agency or the Department may consent to the adoption
of the child pursuant to the provisions of article twenty-two,
chapter forty-eight of this code.
(2) Relinquishment for an adoption to an Agency or to the
Department is required of the same persons whose consent or
relinquishment is required under the provisions of section three
hundred one, article twenty-two, chapter forty-eight of this code.
The form of any relinquishment so required shall conform as nearly
as practicable to the requirements established in section three
hundred three, article twenty-two, chapter forty-eight, and all
other provisions of that article providing for relinquishment for
adoption shall govern the proceedings herein.
(3) For purposes of any placement of a child for adoption by
the Department, the Department shall first consider the suitability
and willingness of any known grandparent or grandparents or other
relatives to adopt the child. Once any such grandparents or other
relatives who are interested in adopting the child have been
identified, the Department shall conduct a home study evaluation,
including home visits and individual interviews by a licensed social
worker. If the Department determines, based on the home study evaluation, that the grandparents or other relatives would be
suitable adoptive parents, it shall assure that the grandparents or
other relatives are offered the placement of the child prior to the
consideration of any other prospective adoptive parents.
(A) The Department may not deny grandparents or other relatives
adoption or guardianship of the child except when the criminal
records check reveals that a court of competent jurisdiction has
convicted the prospective foster or adoptive parent of a felony
involving the following: (i) Child abuse or neglect; (ii) spousal
abuse; (iii) a crime against a child or children, including, but not
limited to, child pornography; and (iv) a crime involving violence,
including, but not limited to, rape, sexual assault or homicide, but
not other physical assault or battery, pursuant to 45 C.F.R.
1356.30(b). Additionally, a home may not be approved if a court of
competent jurisdiction convicted the prospective foster or adoptive
parent in the last five years of a felony involving physical
assault, battery or a drug-related offense pursuant to 45 C.F.R.
1356.30(e).
(B) The criminal records check provision does not apply to
relatives homes that are not licensed or approved in accordance with
state standards because the children in the homes are not eligible
for Title IV-E funding.
(C) The Department shall assist grandparents or other related
prospective foster or adoptive parents with any improvements to their home or other assistance necessary to obtain custody of the
child.
(4) The Department shall make available, upon request, for
purposes of any private or Agency adoption proceeding, preplacement
and post-placement counseling services by persons experienced in
adoption counseling, at no cost, to any person whose consent or
relinquishment is required pursuant to the provision provisions of
article twenty-two, chapter forty-eight of this code.
(b) (1) Whenever the mother has executed a relinquishment
pursuant to this section, and the legal, determined, putative,
outsider or unknown father, as those terms are defined pursuant to
the provisions of, part one, article twenty-two, chapter forty-eight
of this code, has not executed a relinquishment, the Child Welfare
Agency or the Department may, by verified petition, seek to have the
father's rights terminated based upon the grounds of abandonment or
neglect of said child. Abandonment may be established in accordance
with the provisions of section three hundred six, article twenty-
two, chapter forty-eight of this code.
(2) Unless waived by a writing acknowledged as in the case of
deeds or by other proper means, notice of the petition shall be
served on any person entitled to parental rights of a child prior
to its adoption who has not signed a relinquishment of custody of
the child.
(3) In addition, notice shall be given to any putative, outsider or unknown father who has asserted or exercised parental
rights and duties to and with the child and who has not relinquished
any parental rights and such rights have not otherwise been
terminated, or who has not had reasonable opportunity before or
after the birth of the child to assert or exercise such rights:
Provided, That if such child is more than six months old at the time
such notice would be required and such father has not asserted or
exercised his parental rights and he knew the whereabouts of the
child, then such father shall be presumed to have had reasonable
opportunity to assert or exercise such rights.
(c) (1) Upon the filing of the verified petition seeking to
have the parental rights terminated, the court shall set a hearing
on the petition. A copy of the petition and notice of the date,
time and place of the hearing on said petition shall be personally
served on any respondent at least twenty days prior to the date set
for the hearing.
(2) Such notice shall inform the person that his 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. 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 file with the court an affidavit setting forth the
circumstances of any attempt to serve the notice by mail, and the
diligent efforts to ascertain the whereabouts of the person to be
served. If the court determines that the whereabouts of the person
to be served cannot be ascertained and that due diligence has been
exercised to ascertain such person's whereabouts, then the court
shall order service of such notice by publication as a Class II
publication in compliance with the provisions of article three,
chapter fifty-nine of this 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. 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.
(3) 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 of such service on a personal representative or guardian
ad litem in which to appear and defend such parental rights.
(d) A petition under this section may be instituted in the
county where the child resides or where the child is living.
(e) If the court finds that the person certified to parental
rights is guilty of the allegations set forth in the petition, the
court shall enter an order terminating his parental rights and shall
award the legal and physical custody and control of said the child
to the petitioner.
NOTE: The purpose of this bill is to include other relatives
for consideration as adoptive placement; and to provide limitations
on adoption or guardianship by grandparents or other relatives to
be consistent with existing case law.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.