ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 61
(Senators Bowman, White, Wooton, Snyder, Kimble and Anderson,
original sponsors)
____________
[Passed April 12, 1997; in effect ninety days from passage.]
____________
AN ACT to amend article twenty-one, chapter eleven of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
ten-a; to amend and reenact sections one, three, four, five,
six, seven, eight, nine, twelve and sixteen, article four,
chapter forty-eight of said code; to further amend said
article by adding thereto five new sections, designated
sections three-a, three-b, three-c, eight-a and eight-b; and
to amend and reenact section one, article three, chapter
forty-nine of said code, all relating generally to adoption
proceedings; creating a tax credit for nonfamily adoptions;
defining and redefining terms; establishing persons whose
consent or relinquishment is required; setting forth
requirements for the execution of consents or relinquishments;
establishing required contents of consents or relinquishments; establishing conduct constituting abandonment by birth parent;
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 adoption
petition; expanding and revising notice provisions; setting
forth persons entitled to notice; changing the information
required for notice; providing for notice to unknown fathers;
establishing hearing procedures; setting forth evaluation
requirements when discreet inquiries are conducted; setting
forth procedures and limitations on challenges to adoption
decrees; authorizing the payment of certain fees and expenses
of the birth mother subject to approval by the circuit court;
establishing criminal penalties; providing for agency
adoptions and relinquishment requirements; requiring
department to consider grandparents as adoptive parents; and
requiring the department to offer certain counseling services.
Be it enacted by the Legislature of West Virginia:
That article twenty-one, chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section ten-a;
that sections one, three, four, five, six, seven, eight, nine,
twelve and sixteen, article four, chapter forty-eight of said code
be amended and reenacted; 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; and that section one,
article three, chapter forty-nine of said code be amended and
reenacted, all to read as follows:
CHAPTER 11. TAXATION.
Part I. General.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-10a. Credit for nonfamily adoption.
A one time credit against the tax imposed by the provisions of
this article shall be allowed as follows:
Nonfamily adoptions. -- For nonfamily adoptions, the credit is
equal to two thousand dollars which may be taken in the year of the
adoption of each nonfamily child, whose age at adoption is under
eighteen years. This credit may, at the option of the taxpayer, be
taken over a period of three years.
For the purpose of this section and credit "nonfamily
adoptions" means adoptions of a child or children by a taxpayer or
taxpayers which child or children are not related to the taxpayer
or taxpayers by blood or marriage.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 4. ADOPTION.
§48-4-1. Definitions.
As used in this article, unless the context otherwise
requires:
(a) "Abandonment" means any conduct by the birth mother, legal father, determined father, outsider father, unknown father or
putative father that demonstrates a settled purpose to forego all
duties and relinquish all parental claims to the child;
(b) "Adoptive parents" or "adoptive mother" or "adoptive
father" means those persons who, after adoption, are the mother and
father of the child;
(c) "Agency" means a public or private entity, including the
department of health and human resources, that is authorized by law
to place children for adoption;
(d) "Birth father" means the biological father of the child;
(e) "Birth mother" means the biological mother of the child;
(f) "Birth parents" mean both the biological father and the
biological mother of the child;
(g) "Consent" means the voluntary surrender to an individual,
not an agency, by a minor child's parent or guardian, for purposes
of the child's adoption, of the rights of the parent or guardian
with respect to the child, including the legal and physical custody
of the child;
(h) "Determined father" means, before adoption, a person: (1)
In whom paternity has been established pursuant to the provisions
of article six, chapter forty-eight-a of this code, whether by
adjudication or acknowledgment as set forth therein; or (2) who has
been otherwise judicially determined to be the biological father of
the child entitled to parental rights; 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 of this code, that
is pending at the time of the filing of the adoption petition;
(i) "Legal father" means, 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;
(j) "Marital child" means a child born or conceived during
marriage;
(k) "Nonmarital child" means a child not born or conceived
during marriage;
(l) "Outsider father" means the biological father of a child
born to or conceived by the mother while she is married to another
man who is not the biological father of the child;
(m) "Putative father" means, before adoption, any man named by
the mother as a possible biological father of the child pursuant to
the provisions of section seven of this article, who is not a legal
or determined father;
(n) "Relinquishment" means the voluntary surrender to an
agency by a minor child's parent or guardian, for purposes of the
child's adoption, of the rights of the parent or guardian with
respect to the child, including the legal and physical custody of
the child;
(o) "Stepparent adoption" means an adoption in which the petitioner for adoption is married to one of the birth parents of
the child or to an adoptive parent of the child; and
(p) "Unknown father" means a biological father whose identity
the biological mother swears is unknown to her before adoption,
pursuant to the provisions of section seven of this article.
§48-4-3. Persons whose consent or relinquishment is required;
exceptions.
(a) Subject to the limitations hereinafter set forth, consent
to or relinquishment for adoption of a minor child is required of:
(1) The parents or surviving parent, whether adult or infant,
of a marital child;
(2) The outsider father of a marital child who has been
adjudicated to be the father of the child or who has filed a
paternity action which is pending at the time of the filing of the
petition for adoption;
(3) The birth mother, whether adult or infant, of a nonmarital
child; and
(4) The determined father.
(b) Consent or relinquishment 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 article three, chapter forty-nine of this code;
(2) Whom the court finds has abandoned the child as set forth
in section three-c of this article; or
(3) Who, in a stepparent adoption, is the birth parent or adoptive parent of the child and is married to the petitioning
adoptive parent. In such stepparent adoption, the parent must
assent to the adoption by joining as a party to the petition for
adoption.
(c) If the mother, legal father or determined father is under
disability, the court may order the adoption if it finds:
(1) The parental rights of the person are terminated,
abandoned or permanently relinquished;
(2) The person is incurably insane; or
(3) The disability arises solely because of age and an
otherwise valid consent or relinquishment has been given.
(d) 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 child by law, then consent or relinquishment is
required of the legal guardian or of any other person having legal
custody of the child at the time. If there is no legal guardian nor
any person who has legal custody of the child, then consent or
relinquishment is required from some discreet and suitable person
appointed by the court to act as the next friend of the child in
the adoption proceedings.
(e) 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
is required.
(f) If the child to be adopted is twelve years of age or over, the consent of the child is required to be given in the presence of
a judge of a court of competent jurisdiction, unless for
extraordinary cause, the requirement of such consent is waived by
the court.
(g) Any consent to adoption or relinquishment of parental
rights shall have the effect of authorizing the prospective
adoptive parents or the agency to consent to medical treatment for
the child, whether or not such authorization is expressly stated in
the consent or relinquishment.
§48-4-3a. Timing and execution of consent or relinquishment.
(a) No consent or relinquishment 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 acknowledged in the presence of one of
the following:
(1) A judge of a court of record;
(2) A person whom a judge of a court of record designates to
take consents or relinquishments;
(3) A notary public;
(4) A commissioned officer on active duty in the military
service of the United States, if the person executing the consent
or relinquishment is in military service; or
(5) An officer of the foreign service or a consular officer of the United States in another country, if the person executing the
consent or relinquishment is in that country.
§48-4-3b. Content of consent or relinquishment.
(a) A consent or relinquishment as required by the provisions
of section three of this article must be written in plain English
or, if the person executing the consent or relinquishment does not
understand English, in the person's primary language. The form of
the consent or relinquishment shall include the following, as
appropriate:
(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
person executing the consent or relinquishment;
(3) The date, place of birth and the name or pseudonym ("Baby
Boy _____ or Baby Girl _____") of the minor child;
(4) The fact that the document is being executed more than
seventy-two hours after the birth of the child;
(5) If a consent, that the person executing the document is
voluntarily and unequivocally consenting to the transfer of legal
and physical custody to, and the adoption of the child by, an
adoptive parent or parents whose name or names may, but need not
be, specified;
(6) If a relinquishment, that the person executing the
relinquishment voluntarily consents to the permanent transfer of
legal and physical custody of the child to the agency for the purposes of adoption;
(7) If a consent, that it authorizes the prospective adoptive
parents, or if a relinquishment, that it authorizes the agency, to
consent to medical treatment of the child pending any adoption
proceeding;
(8) That after the consent or relinquishment is signed and
acknowledged, it is final and, unless revoked in accordance with
the provisions of section five of this article, it may not be
revoked or set aside for any other reason;
(9) That the adoption will forever terminate all parental
rights, including any right to visit or communicate with the child
and any right of inheritance;
(10) That the adoption will forever terminate all parental
obligations of the person executing the consent or relinquishment; (11) That the termination of parental rights and obligations
is permanent whether or not any agreement for visitation or
communication with the child is subsequently performed;
(12) That the person executing the consent or relinquishment
does so of his or her own free will and the consent or
relinquishment has not been obtained by fraud or duress;
(13) That the person executing the consent or relinquishment
has:
(i) Received a copy of the consent or relinquishment;
(ii) Been provided the information and afforded the
opportunity to participate in the voluntary adoption registry, pursuant to the provisions of article four-a of this chapter;
(iii) Been advised of the availability of counseling;
(iv) Been advised of the consequences of misidentifying the
other birth parent; and
(v) If a birth mother, been advised of the obligation to
provide the information required by the provisions of section seven
of this article in the case of an unknown father;
(14) That the person executing the consent or relinquishment
has not received or been promised any money or anything of value
for the consent or relinquishment, other than payments authorized
by the provisions of section sixteen of this article;
(15) Whether the child is an "Indian child" as defined in the
Indian Child Welfare Act, 25 U.S.C. §1903;
(16) That the person believes the adoption of the child is in
the child's best interest; and
(17) That the person who is consenting or relinquishing
expressly waives notice of any proceeding for adoption unless the
adoption is contested, appealed or denied.
(b) A consent or relinquishment may provide explicitly for its
conditional revocation if:
(1) Another person whose consent or relinquishment is required
does not execute the same within a specified period;
(2) A court determines not to terminate another person's
parental relationship to the child; or
(3) In a direct placement for adoption, a petition for adoption by a prospective adoptive parent, named or described in
the consent, is denied or withdrawn.
(c) A consent or relinquishment shall also include:
(1) If a consent, the name, address, telephone and facsimile
numbers of the lawyer representing the prospective adoptive
parents; or
(2) If a relinquishment, the name, address, telephone and
facsimile numbers of the agency to which the child is being
relinquished; and
(3) Specific instructions on how to revoke the consent or
relinquishment.
§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 otherwise communicate with the child
when he or she knows where the child resides, is physically and
financially able to do so and is 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 any time after conception;
(2) Fails to contribute within his means toward the expense of
the prenatal and postnatal care of the mother and the postnatal
care of the child;
(3) Fails to financially support the child within father's
means; and
(4) Fails to visit the child when he or she knows where the
child resides: Provided, That such denunciations and failure to
act continue uninterrupted from the time that the birth father was
told of the conception of the child until the time the petition for
adoption was filed.
(c) Abandonment of a child shall be presumed when the unknown
father fails, prior to the entry of the final adoption order, to
make reasonable efforts to discover that a pregnancy and birth have
occurred as a result of his sexual intercourse with the birth
mother.
(d) 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, visiting or otherwise
communicating with the child: Provided, That in no event may
incarceration provide such a compelling circumstance if the crime
resulting in the incarceration involved a rape in which the child
was conceived.
§48-4-4. Consent or relinquishment by infants.
If a person who has executed a consent to or relinquishment
for adoption is under eighteen years of age at the time of the
filing of the petition, and such infant parent is a resident of the
state, the consent or relinquishment shall be specifically reviewed
and approved by the court and a guardian ad litem may be appointed
to represent the interests of the infant parent. The guardian ad
litem shall conduct a discreet inquiry regarding the consent or
relinquishment given, and may inquire of any person having
knowledge of the consent or relinquishment. If the guardian ad
litem finds reasonable cause to believe that the consent or
relinquishment was obtained by fraud or duress, the court may
request the infant parent to appear before the court or at a
deposition, so that inquiry may be made regarding the circumstances
surrounding the execution of the consent or relinquishment. The
failure of the court 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, whether given by an
adult or minor, may be revoked only if:
(1) The person who executed the consent or relinquishment 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 prior to the entry of an
adoption order; or
(2) The person who executed the consent or relinquishment proves by clear and convincing evidence, in an action filed either
within six months of the date of the execution of the consent or
relinquishment or prior to the date an adoption order is final,
whichever date is later, that the consent or relinquishment was
obtained by fraud or duress; or
(3) The person who executed the consent or relinquishment
proves by a preponderance of the evidence, prior to the entry of an
adoption order, that a condition allowing revocation as expressly
set forth in the consent or relinquishment has occurred; or
(4) The person who executed the consent or relinquishment
proves by clear and convincing evidence, prior to the entry of an
adoption order, that the consent or relinquishment does not comply
with the requirements set forth in this article.
(b) If the custody of a child during the pendency of a
petition to revoke a consent or relinquishment is in issue, the
court shall conduct a hearing, within thirty days of service of
notice upon the respondent, to determine the issue of temporary
custody. The court shall award such custody based upon the best
interests of the child.
§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
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, the adoptive
placement determined and all consents or relinquishments that can
be obtained have been executed. The hearing on the petition may be
held no sooner than forty-five days after the filing of the
petition and only after the child has lived with the adoptive
parent or parents for a period of six months, proper notice of the
petition has been given and all necessary consents or
relinquishments have been executed and submitted or the rights of
all nonconsenting birth parents have otherwise been terminated.
§48-4-7. Petition and appendix.
(a) The petition shall be verified and set forth:
(1) 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;
(2) Whether such child is possessed of any property and a full
description of the same, if any;
(3) 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
(4) Whether and on what basis the parental rights of any birth parents should be terminated during the pendency of the adoption
petition.
(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:
(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 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 man as the father
on the birth certificate of the child 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 man has formally or informally acknowledged or
claimed paternity of the child in any jurisdiction at the time of
the inquiry, 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;
(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 once the adoption is
complete, such identity 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-a of this chapter.
(c) In the event 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 person authorized to witness a consent or relinquishment pursuant to the provisions of
section three-a of this article. Any affidavit filed with the
petition pursuant to the provisions of this section shall be sealed
in the court file and may not be opened except by court order upon
a showing of good cause.
(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 the
child, such adoption is in the best interest of the child:
Provided, That in the case of a stepparent adoption, such specific
finding shall not be required and an adoption shall not be denied
on the sole basis of proximity in age.
(f) The petition shall set forth any facts concerning the
circumstances of the birth of the child known to the petitioner or
petitioners. An effort shall be made to obtain medical and social
information, which 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.
(g) Either the petition, the various consents or
relinquishments 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 child must be served, within twenty days after a
petition for adoption is filed, upon:
(1) Any person whose consent to the adoption is required
pursuant to the provisions of section three of this article, but
notice need not be served upon a person whose parental relationship
to the child or whose status as a guardian has been terminated;
(2) Any person whom the petitioner knows is claiming to be the
father of the child and whose paternity of the child has been
established pursuant to the provisions of article six, chapter
forty-eight-a of this code;
(3) Any person other than the petitioner who has legal or
physical custody of the child or who has visitation rights with the
child 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 the child if the grandparent's child is
a deceased parent of the child and, before death, the deceased
parent had not executed a consent or relinquishment or the deceased
parent's parental relationship to the child had not been otherwise
terminated.
(b) The court shall require notice of a proceeding for adoption 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) A person who has revoked consent or relinquishment
pursuant to the provisions of section five of this article; or
(3) A person who, on the basis of a previous relationship with
the child, a parent, an alleged parent or the petitioner, can
provide relevant information that the court, in its discretion,
wants to hear.
§48-4-8a. How notice is to be served.
(a) Notice shall be served on each person as required under
the provisions of section eight of this article, in accordance with
rule 4 of the West Virginia rules of civil procedure for trial
courts of record, except as otherwise provided in this article.
(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 the required time after such service. The notice
shall also provide that if the person upon whom notice is properly
served fails to respond within the required time after its service,
said person may not appear in or receive further notice of the
adoption proceedings.
(c) In the case of any 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 achieved and the person giving notice has
any knowledge of the whereabouts of the person to be served,
including a last known address, service by mail shall be first
attempted as provided herein. Any 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 is unknown, then the person required to give notice
shall cause service of 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 the 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 or her 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 of such service on a personal representative or
guardian ad litem in which to appear and defend his or her 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,
in its discretion, determines should be produced, and determine
whether said father can be identified. The inspection and
consideration of any additional evidence by the court shall be
accomplished as soon as practicable after the filing of the
petition, but no later than sixty days before the final hearing on
the adoption petition.
(b) If the court identifies a father pursuant to the
provisions of subsection (a) of this section, then notice of the
proceeding for adoption shall be served on the father so identified
in accordance with the provisions of 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, and 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;
(3) A description of the adjustment of the child and family;
(4) Personal references; and
(5) Other information deemed necessary by the court, which may
include a criminal background investigation.
(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. Finality of order; challenges to order of adoption.
(a) An order or decree of adoption is a final order for
purposes of appeal to the supreme court of appeals on the date when
the order is entered. An order or decree of adoption for any other
purpose is final upon the expiration of the time for filing an
appeal when no appeal is filed or when an appeal is not timely
filed, or upon the date of the denial or dismissal of any appeal
which has been timely filed.
(b) An order or decree of adoption may not be vacated, on any
ground, if a petition to vacate the judgment is filed more than six
months after the date the order is final.
(c) If a challenge is brought within the six-month period by
an individual who did not receive proper notice of the proceedings
pursuant to the provisions of this chapter, the court shall deny
the challenge, unless the individual proves by clear and convincing
evidence that the decree or order is not in the best interest of the child.
(d) A decree or order entered under this chapter may not be
vacated or set aside 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.
(e) A decree or order entered under this chapter may not be
vacated or set aside upon application of a person alleging there is
a failure to comply with an agreement for visitation or
communication with the adopted child: Provided, That the court may
hear a petition to enforce the agreement, in which case the court
shall determine whether enforcement of the agreement would serve
the best interests of the child. The court may, in its sole
discretion, consider the position of a child of the age and
maturity to express such position to the court.
(f) The supreme court of appeals shall consider and issue
rulings on any petition for appeal from an order or decree of
adoption and petitions for appeal from any other order entered
pursuant to the provisions of this article as expeditiously as
possible. The circuit court shall consider and issue rulings on
any petition filed to vacate an order or decree of adoption and any
other pleadings or petitions filed in connection with any adoption
proceeding as expeditiously as possible.
(g) When any minor has been adopted, he or she 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 circuit court which
granted said adoption. The clerk of the county commission of such
county and the circuit clerk shall record and index the same. The
adoption shall be vacated upon the filing of such instrument of
dissent.
§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, is 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, is guilty of a felony
and subject to fine and imprisonment as provided herein.
(c) Any person who violates the provisions of this section is
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 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 the pregnancy, birth and
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.
CHAPTER 49. CHILD WELFARE.
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 four, 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,
article four, 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-b of said article
and all other provisions of said 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 to adopt
the child. Once any such grandparents 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 would be suitable adoptive parents, it shall assure
that the grandparents are offered the placement of the child prior
to the consideration of any other prospective adoptive parents.
(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 of article
four, 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 section one, article four, 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-a, article four, 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
child to the petitioner.