Revision as of 18:12, 16 April 2014

Adoption Laws

Consent to Adoption

Who Must Consent to an Adoption Citation: Rev. Stat. § 8-106(A), (C)

The court shall not grant an adoption of a child unless consent to adopt has been obtained and filed with the court from the following:

• The birth or adoptive mother
• The father if he:
  • Was married to the mother at the time of conception
  • Is the adoptive father
  • Has otherwise established paternity
• Any guardian of the child or agency that has been given the child to place for adoption
• The guardian of an adult parent if one has been appointed

Minority of the parent does not affect competency to consent.

Consent of Child Being Adopted Citation: Rev. Stat. § 8-106(A)

A child age 12 or older must consent to the adoption in open court.

When Parental Consent Is Not Needed Citation: Rev. Stat. § 8-106(B), (J)

It is not necessary for a person to obtain consent to adopt from the following:

• An adult parent for whom a guardian is currently appointed
• A parent whose parental rights have been terminated by court order
• A parent who has previously consented to an agency’s or the division’s placement of the child for adoption

A potential father who fails to file a paternity action and who does not comply with all applicable service requirements within 30 days after completion of service of notice waives his right to be notified of any judicial hearing regarding the child’s adoption or the termination of parental rights, and his consent to the adoption or termination is not required.

When Consent Can Be Executed Citation: Rev. Stat. § 8-107(B)

Any consent given sooner than 72 hours after the birth of the child is invalid.

How Consent Must Be Executed Citation: Rev. Stat. § 8-107(A), (D), (G)

All consents to adoption shall be in writing and signed by the person giving the consent and witnessed by two or more credible witnesses who are at least age 18 and who subscribe their names in the presence of the person giving the consent or shall be acknowledged by the person giving consent before a notary public.

The consent shall designate either of the following:

• An agency or the division as authorized by the party giving the consent to place the child for adoption
• The particular person or persons authorized to adopt the child by the person giving the consent

A consent other than to any agency or the division that does not designate a particular person or persons, or that purports to permit a third person to locate or nominate an adoptive parent, is invalid.

Revocation of Consent Citation: Rev. Stat. § 8-106(D)

Consent is irrevocable unless obtained by fraud, duress, or undue influence.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents ^[1]

The division shall not issue a license unless each foster parent and each other adult member of the household has a valid fingerprint clearance card issued pursuant to § 41-1758.07. The foster parent and each adult member of the household must certify on forms provided by the division and notarized whether the foster parent or other adult members of the household are awaiting trial or have ever been convicted of any of the criminal offenses listed in § 41-1758.07(B)-(C) in this State or similar offenses in another State or jurisdiction, including:

• Sexual abuse, exploitation, or molestation of a child or vulnerable adult
• Incest
• Homicide, including murder, manslaughter, and negligent homicide
• Sexual assault
• Child prostitution
• Child abuse or felony child neglect
• Sexual conduct with a minor
• Dangerous crimes against children
• Exploitation of minors involving drug offenses
• Taking a child for the purpose of prostitution
• Abuse or neglect of a vulnerable adult
• Production, publication, sale, possession, and presentation of obscene items
• Furnishing harmful items to minors
• Furnishing harmful items to minors by Internet activity
• Obscene or indecent telephone communications to minors for commercial purposes
• Pandering
• Transporting persons for the purpose of prostitution, polygamy, and concubinage
• Any felony offense involving contributing to the delinquency of a minor
• Unlawful sale or purchase of children
• Child bigamy
• Any felony offense involving domestic violence
• Felony drug- or alcohol-related offenses if committed within the past 5 years
• Felony indecent exposure
• Terrorism

Requirements for Adoptive Parents Rev. Stat. §§ 8-105(D) & (E); 8-112(B)(6) & (7)

A fingerprint-based Federal and State criminal records check is required for a prospective adoptive parent and any adult household members, except a birth or legal parent with custody of the child, as part of the investigation for preadoption certification.

The prospective adoptive parent must certify on forms that are provided by the division and notarized whether the prospective adoptive parent is awaiting trial on or has ever been convicted of any of the criminal offenses listed in § 41-1758.07(B)-(C) [see above] in this State or similar offenses in another State or jurisdiction.

A central registry records check, including any history of child welfare referrals, is required for a prospective adoptive parent and each adult who is living permanently with the prospective adoptive parent as part of the court’s social study.

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Rev. Stat. § 8-533

Grounds to terminate the parent-child relationship shall include any of the following, with due consideration for the best interests of the child:

• The parent has abandoned the child.
• The parent has neglected or willfully abused a child.
• The parent is unable to discharge parental responsibilities because of mental illness, mental deficiency, or a history of chronic abuse of dangerous drugs or alcohol, and there are reasonable grounds to believe that the condition will continue for a prolonged period.
• The parent has been convicted of a felony of such nature as to prove the unfitness of that parent, including murder or manslaughter of another child of the parent, or if the sentence of that parent is of such length that the child will be deprived of a normal home for a period of years.
• The potential father failed to file a paternity action within 30 days of completion of service of notice as prescribed in § 8-106(G).
• The putative father failed to file a notice of claim of paternity.
• The parents have relinquished their rights to a child to an agency or have consented to the adoption.
• The identity of the parent is unknown and continues to be unknown following 3 months of diligent efforts to identify and locate the parent.
• The parent has had parental rights to another child terminated within the preceding 2 years for the same cause and is currently unable to discharge parental responsibilities due to the same cause.

The following may also be grounds for termination of parental rights:

• The child is being cared for in an out-of-home placement, the agency responsible for the child’s care has made a diligent effort to provide appropriate reunification services, and one of the following circumstances exists:
  • The child has been in an out-of-home placement for a cumulative total period of 9 months or longer, and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement.
  • The child who is under age 3 has been in an out-of-home placement for a cumulative total period of 6 months or longer, and the parent has substantially neglected or willfully refused to remedy the circumstances that cause the child to be in an out-of-home placement, including refusal to participate in reunification services

offered by the department.

• • The child has been in an out-of-home placement for a cumulative total period of 15 months, the parent has been unable to remedy the circumstances that cause the child to be in an out-of-home placement, and there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care and

control in the near future.

• All of the following are true:
  • The child was cared for in an out-of-home placement pursuant to court order.
  • The agency responsible for the care of the child made diligent efforts to provide appropriate reunification services.
  • The child was returned to the legal custody of the parent from whom the child had been removed.
  • Within 18 months after the child was returned, the child was removed from that parent’s legal custody, the child is being cared for in an out-of-home placement, and the parent is currently unable to discharge parental responsibilities.

The failure of an alleged parent who is not the child’s legal parent to take a test requested by the department or ordered by the court to determine if the person is the child’s natural parent is prima facie evidence of abandonment unless good cause is shown by the alleged parent for that failure.

Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Rev. Stat. § 8-105

The prospective adoptive parents and any adult members of the adoptive parents’ household must be included in the study.

Agency or Person Conducting the Study Citation: Rev. Stat. § 8-105

The study and report are completed by the division or agency, or a person or agency designated by the court.

Qualifications for Adoptive Parents Citation: Admin. Code § R6-5-6603

Prior to accepting a certification application from a person contemplating adoption of a child, or an application for placement from a person who intends to seek a placement through the entity, an adoption entity shall provide the person with adoption orientation.

Elements of a Home Study Citation: Rev. Stat. §§ 8-105; 8-112

The application for certification shall include a financial statement and a physician’s statement of the applicant’s physical health. An investigation of the prospective adoptive parents shall be conducted to determine whether they are fit and proper persons to adopt children.

The prospective adoptive parent and each adult member of the household must certify whether that person is awaiting trial on or has ever been convicted of any of the criminal offenses listed in § 41-1758.07(B)-(C). An officer of the court may obtain a State and Federal criminal records check.

The investigation and report to the court shall consider all relevant and material facts dealing with the prospective adoptive parents’ fitness to adopt children and shall include:

• A complete social history
• The financial condition of the applicant
• The moral fitness of the applicant
• The religious background of the applicant
• Physical and mental health conditions of the applicant
• Any court action for or adjudication of child abuse, abandonment of children, dependency or termination of parent-child relationship
• All other facts bearing on the issue of the fitness of the prospective adoptive parents

A social study shall be submitted to the court 10 days before the hearing on the petition to adopt. The social study shall include the following:

• The child’s adjustment to the adoptive parent(s)’ home
• The prospective adoptive parent’s suitability to adopt
• The existing and proposed arrangements regarding the child’s custody
• State and Federal criminal records checks and a central registry records check, including any history of child welfare referrals, of the prospective adoptive parent and each adult who is living permanently with the prospective adoptive parent
• Any other information that is pertinent to the adoption proceedings

Grounds for Withholding Approval Citation: Admin. Code § R6-5-6606

In determining whether to recommend certification of an applicant, the adoption entity shall consider all factors bearing on fitness to adopt, including, but not limited to:

• The length and stability of the applicant’s marital relationship, if applicable
• The applicant’s age and health
• Past, significant disturbances or events in the applicant’s immediate family, such as involuntary job separation; divorce; or death of spouse, child, or parent; and history of child maltreatment
• The applicant’s ability to financially provide for an adopted child
• The applicant’s history of providing financial support to the applicant’s other children, including compliance with court-ordered child support obligations

The certification report shall specifically note any instances in which an applicant has:

• Been charged with, been convicted of, pled no contest to, or is awaiting trial on charges of an offense listed in Rev. Stat. § 46-141
• Lost care, custody, control, or parental rights to a child as a result of a dependency action or action to terminate parental rights

If the report recommends denial of certification, the adoption entity shall send the applicant written notice of the unfavorable recommendation and an explanation of the applicant’s right to petition the court for review.

When Studies Must Be Completed Citation: Rev. Stat. § 8-105

Before any prospective adoptive parent may petition to adopt a child, the person shall be certified by the court as acceptable to adopt children. A certificate shall be issued only after an investigation. The investigation and report to the court must be completed within 90 days after the application for certification has been accepted.

Within 60 days after receiving the investigation report, the court shall certify the applicant as acceptable or unacceptable to adopt children based on the investigation report and recommendations of the report. A certification remains in effect for 18 months from the date of its issuance and may be extended for additional 1-year periods if after review the court finds that there have been no material changes in circumstances that would adversely affect the acceptability of the applicant to adopt.

Postplacement Study Requirements Citation: Admin. Code § R6-5-6619

When a child is placed for adoption with a person who is not the child’s foster parent, a case manager from the adoption entity shall visit the home within 30 calendar days of placement to:

• Ensure that the adoptive parent received all available nonidentifying information on the child
• Address any questions or concerns the adoptive parent or child may have about the adoption process or placement
• Ensure that the family has addressed the educational needs of a school-age child
• Ensure that an adoptive parent who works has made appropriate child care arrangements

Following the initial placement visit, a case manager shall:

• Visit the adoptive family at least once every 3 months until the adoption is finalized, except when the adoptive child is a child with special needs the visits shall occur at least once a month
• Interview all members of the adoptive family’s household
• Discuss the following issues with the adoptive parent if appropriate in light of the child’s age and development:
  • How the presence of the child has changed familial relationships
  • How the child and the extended family view each other
  • The role each family member has assumed regarding child care and discipline
  • How the parent is coping with the needs and demands of the placed child
  • How the child challenges or tests the placement and how the family reacts to these episodes, including any feelings of insecurity about the propriety of the family members’ response
  • How the family perceives the child’s sense of identity and the need to fill in gaps in the child’s history
  • How the child has adjusted to the school environment
• If developmentally appropriate, privately interview the child about the child’s feelings about the adoption and the matters listed above

Exceptions for Stepparent or Relative Adoptions Citation: Rev. Stat. §§ 8-105; 8-112

The requirements for a certification study do not apply if:

• The prospective adoptive parent is the spouse of the birth or legal parent of the child to be adopted or is an uncle, aunt, adult sibling, grandparent, or great-grandparent of the child by whole or half-blood, or by marriage or adoption.
• The birth or legal parent is deceased, but at the time of death, the parent had legal and physical custody of the child to be adopted, and the child had resided primarily with the spouse of the birth or legal parent during the 24 months before the death of the parent.
• The grandparent, great-grandparent, aunt, adult sibling, or uncle is deceased, but at the time of death that person had legal and physical custody of the child to be adopted, and the child had resided primarily with the spouse of the grandparent, great-grandparent, aunt, adult sibling, or uncle during the 24 months before the death of the grandparent, great-grandparent, aunt, adult sibling, or uncle.

The social study may consist only of the results of the State and Federal criminal records check and the central registry records check if either of the following is true:

• The prospective adoptive parent is the child’s stepparent who has been legally married to the child’s birth or legal parent for at least 1 year, and the child has resided with the stepparent and parent for at least 1 year.
• The prospective adoptive parent is the child’s adult sibling, by whole or half blood, or the child’s aunt, uncle, grandparent, or great-grandparent, and the child has resided with the prospective adoptive parent for at least 1 year.

Requirements for Interjurisdictional Placements Citation: Rev. Stat. § 8-548

Placements of children for adoption in or from another State are subject to the provisions of the Interstate Compact on the Placement of Children.

Foster to Adopt Placements Citation: Rev. Stat. § 8-112; Admin. Code § R6-5-6620

If the child being considered for adoption has resided with the prospective adoptive parent for at least 6 months, and the prospective adoptive parent is a foster parent who is licensed by this State, the social study may consist only of the following:

• The results of a central registry records check
• A review of any material changes in circumstances that have occurred since the previous license renewal that affect the prospective adoptive parent(s)’ ability to adopt the child

In regulation: When a foster parent plans to adopt a foster child who is age 5 or older, a case worker from the adoption entity shall privately interview the child and all members of the adoptive family household who are age 5 or older about their feelings toward the adoption before the adoption consent is signed.

When a child is placed for adoption with a person who has been a foster parent to the child, a case manager from the adoption entity shall conduct home visits at least every 2 months from the time legal consent for adoption has been signed until the finalization of adoption. If the adoptive child is a child with special needs, the case manager shall visit at least once a month.

Infant Safe Haven Laws

Infant’s Age Citation: Rev. Stat. § 13-3623.01

A newborn infant may be relinquished. The term ‘newborn infant’ means an infant who is 72 hours old or younger.

Who May Relinquish the Infant Citation: Rev. Stat. § 13-3623.01

The child may be relinquished by the parent or an agent of the parent.

Who May Receive the Infant Citation: Rev. Stat. § 13-3623.01

The child may be left with a designated safe haven provider. A safe haven provider includes any of the following:

• A firefighter who is on duty
• An emergency medical technician who is on duty
• A medical staff member at a general hospital or a rural general hospital
• A staff member or volunteer at any of the following organizations that posts a public notice that it is willing to accept a newborn infant:
  • A licensed private child welfare agency
  • A licensed adoption agency
  • A church

Responsibilities of the Safe Haven Provider Citation: Rev. Stat. §§ 13-3623.01; 8-528

If a parent or an agent of a parent voluntarily delivers the parent’s newborn infant to a safe haven provider, the safe haven provider shall take custody of the newborn infant if both of the following are true:

• The parent did not express an intent to return for the newborn infant.
• The safe haven provider reasonably believes that the child is a newborn infant.

The safe haven provider shall immediately transport the infant to a hospital for a physical examination.

If the infant is left with a private child welfare or adoption agency and the agency has the ability to place the infant for adoption, the agency shall inform child protective services that it will take custody of the infant within 24 hours. If the agency cannot place the infant for adoption, it shall inform child protective services that it will not take custody of the infant.

If an infant is left with a church and the church is affiliated with a private adoption agency, the provider must immediately inform child protective services that an infant has been left at the church, the location of the hospital where the church transported the infant, and whether a private adoption agency will take custody of the infant.

If the church is not affiliated with a private adoption agency or the agency cannot place the infant for adoption, child protective services shall contact the next private adoption agency on its rotating list of agencies until it contacts an agency that agrees to take custody of the infant. The adoption agency must take custody of the infant from the hospital within 24 hours.

If an infant is left with a firefighter, emergency medical technician, or a hospital staff member, the safe haven provider shall immediately contact child protective services to inform it that an infant has been left and of the location of the hospital where the safe haven provider transported the infant.

Immunity for the Provider Citation: Rev. Stat. § 13-3623.01

A safe haven provider who receives a newborn infant is not liable for any civil or other damages for any act or omission by the safe haven provider in maintaining custody of the newborn infant if the safe haven provider acts in good faith without gross negligence.

Protection for Relinquishing Parent Citation: Rev. Stat. § 13-3623.01

A person is not guilty of abuse of a child solely for leaving an unharmed newborn infant with a safe haven provider.

A parent or agent of a parent who leaves a newborn infant with a safe haven provider may remain anonymous, and the safe haven provider shall not require the parent or agent to answer any questions.

Effect on Parental Rights

This issue is not addressed in the statutes reviewed.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Rev. Stat. § 8-114(A)-(B)

The court may approve any monies paid to a parent of a child placed for adoption or another person for the benefit of the parent or adopted child for reasonable and necessary expenses incurred in connection with the adoption. These expenses may include costs for medical and hospital care and examinations for the mother and child, counseling fees, legal fees, agency fees, living expenses, and any other costs the court finds reasonable and necessary.

A person who wishes to pay the living expenses of a birth parent that exceed $1,000 shall file a motion with the court to permit that payment. A maximum of $1,000 may be advanced for birth parent living expenses without a motion.

In determining what living expenses are reasonable and necessary, the court shall consider, but not be limited to, the following factors:

• The current standard of living of the birth parent
• The standard of living necessary to preserve the health and welfare of the birth parent and the unborn child
• The existence of alternative financial resources for the birth parent

Birth Parent Expenses Not Allowed Citation: Rev. Stat. § 8-114(G)

Expenses that the court finds to be unauthorized or unreasonable are not allowed.

Allowable Payments for Arranging Adoption Citation: Rev. Stat. § 8-114(D)

An attorney may be paid for services in connection with an adoption but only in amounts that the court approves as reasonable and necessary.

Allowable Payments for Relinquishing Child Citation: Rev. Stat. § 8-114(C)

Except as provided, a person shall not be directly or indirectly compensated for giving or obtaining consent to place a child for adoption.

Allowable Fees Charged by Department/Agency Citation: Rev. Stat. § 8-133

The Department of Economic Security may charge fees for studying and certifying adoption applicants and for providing placement supervision services to cover the costs of providing these services.

If an investigation is conducted by an officer of the court, the court may charge a reasonable fee. The court may waive, reduce, or defer this fee if the fee would cause a hardship.

Accounting of Expenses Required by Court Citation: Rev. Stat. § 8-114(E), (F), (H)

No fewer than 10 days before an adoption petition is heard, the prospective adoptive parent shall file with the court a verified accounting of all fees, payments, disbursements, or commitments of anything of value made or agreed to be made by the prospective adoptive parent in connection with the adoption. The accounting shall include all living expenses and be accompanied by an affidavit that is signed by the birth mother, either before or after the birth of the child, that verifies that she has been given written notice, she understands that the payment of these expenses does not obligate her to place her child for adoption, and she may give a valid consent to the adoption only after the child’s birth without regard to any cost or expense paid by any person in connection with the adoption. This subsection does apply to an agency placement adoption or to a direct placement adoption made through an agency.

The court shall allow, disallow, or allow in part fees, payments, disbursements, and commitments as shown in the accounting. All adoption cases shall be reviewed by the juvenile court for reasonableness and necessity of expenses.

The Rights of Unmarried Fathers

Legal Definition of Father

This issue is not addressed in the statutes reviewed.

Paternity Registry Rev. Stat. § 8-106.01(A)-(B)

A person who is seeking paternity, who wants to receive notice of adoption proceedings, and who is the father or claims to be the father of a child shall file notice of a claim of paternity and of his willingness and intent to support the child to the best of his ability with the State Registrar of Vital Statistics in the Department of Health Services. The Department of Health Services shall provide forms for the purpose of filing the notice of a claim of paternity. Forms shall be made available in the Department of Health Services, the office of the clerk of the Board of Supervisors in each county, every hospital, every licensed child-placing agency, the Department of Economic Security, sheriff’s offices, jails, prisons, State Department of Corrections facilities, and Department of Juvenile Corrections Facilities.

The Department of Health Services shall maintain a confidential registry for this purpose.

Alternate Means to Establish Paternity Rev. Stat. § 25-812

This State or the parent of a child born out of wedlock may establish the paternity of a child by filing one of the following with the clerk of the superior court, the Department of Economic Security, or the Department of Health Services:

• A notarized or witnessed statement that contains the Social Security numbers of both parents and that is signed by both parents acknowledging paternity or two separate substantially similar notarized or witnessed statements acknowledging paternity
• An agreement by the parents to be bound by the results of genetic testing including any genetic test previously accepted by a court of competent jurisdiction, or any combination of genetic testing agreed to by the parties, and an affidavit from a certified laboratory that the tested father has not been excluded

On filing a document required above, the court shall issue an order establishing paternity, which may amend the name of the child or children, if requested by the parents. The clerk shall transmit a copy of the order to the Department of Health Services and the Department of Economic Security.

A voluntary acknowledgment of paternity may be filed with the Department of Economic Security, which shall provide a copy to the Department of Health Services. A voluntary acknowledgment of paternity made pursuant to this section is a determination of paternity and has the same force and effect as a superior court judgment.

Required Information Rev. Stat. § 8-106.01(B)

The notice of a claim of paternity may be filed before the birth of the child but shall be filed within 30 days after the birth of the child. The notice of a claim of paternity shall be signed by the putative father and shall include his name and address, the name and last known address of the birth mother, and either the birth date of the child or the probable month and year of the expected birth of the child. The putative father who files a notice of a claim of paternity under this section shall notify the Registrar of Vital Statistics of any change of his address.

Revocation of Claim to Paternity Rev. Stat. § 25-812

The mother or the father may rescind the acknowledgment of paternity within the earlier of:

• 60 days after the last signature is affixed to the notarized acknowledgment of paternity that is filed with the Department of Economic Security, the Department of Health Services, or the court
• The date of a proceeding relating to the child, including a child support proceeding in which the mother or father is a party

A rescission must be in writing, and a copy of each rescission of paternity shall be filed with the Department of Economic Security. The Department of Economic Security shall mail a copy of the rescission of paternity to the other parent and to the Department of Health Services.

The mother, father, or child may challenge a voluntary acknowledgment of paternity established in this State at any time after the 60-day period only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the challenger and under which the legal responsibilities, including child support obligations of any signatory arising from the acknowledgment shall not be suspended during the challenge except for good cause shown. The court shall order the mother, her child or children, and the alleged father to submit to genetic testing. If the court finds by clear and convincing evidence that the genetic tests demonstrate that the established father is not the biological father of the child, the court shall vacate the determination of paternity and terminate the obligation of that party to pay ongoing child support.

Access to Information Rev. Stat. § 8-106.01(B)

The department shall only respond to written inquiries of the confidential registry that are received from the court, the division, a licensed adoption agency, or a licensed attorney participating or assisting in a direct placement adoption.

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement

This issue is not addressed in the statutes reviewed.

Use of Intermediaries/Facilitators Citation: Rev. Stat. §§ 8-130; 8-114; 8-134

Except as provided below, a person shall not do any of the following unless the person is employed or engaged by and acting on behalf of a licensed adoption agency:

• Solicit or accept employment or engagement, for compensation, by or on behalf of a parent or guardian for assistance in the placement of a child for adoption
• Solicit or accept employment or engagement, for compensation, by or on behalf of any person to locate or obtain a child for adoption

n attorney licensed to practice law in this State may assist and participate in direct placement adoptions and may receive compensation to the extent the court finds reasonable if the person granting consent to the adoption has chosen a specific adopting parent without prior involvement of the attorney or if the choice is made only from among persons currently certified by the court as acceptable to adopt children.

Before a petition to adopt is granted, an attorney participating or assisting in the direct placement or adoption shall file an affidavit stating that there has been compliance with the above requirements.

An attorney may be paid for the attorney’s services in connection with the adoption only the amount the court approves as being reasonable and necessary.

Who May Adopt, Be Adopted, or Place a Child for Adoption?

Who May Adopt Citation: Rev. Stat. § 8-103

Any adult resident of the State, whether married, unmarried, or legally separated, is eligible to adopt. A husband and wife may jointly adopt.

The division or adoption agency shall place a child in an adoptive home that best meets the safety, social, emotional, physical and mental health needs of the child. Other relevant factors for consideration, in no order of preference, shall include:

• The marital status, and length and stability of the marital relationship of the prospective adoptive parents
• Placement with the child’s siblings
• Established relationships between the child and the prospective adoptive family, including placement with a grandparent or another member of the child’s extended family including a person or foster parent who has a significant relationship with the child
• The prospective adoptive family’s ability to meet the child’s safety, social, emotional, physical and mental health needs and the ability to financially provide for the child
• The wishes of the child who is age 12 or older
• The wishes of the child’s birth parents unless the rights of the parent have been terminated or the court has established a case plan of severance and adoption
• The availability of relatives, the child’s current or former foster parents, or other significant persons to provide support to the prospective adoptive family and child

If all relevant factors are equal and the choice is between a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.

Who May Be Adopted Citation: Rev. Stat. § 8-102

The following persons may be adopted:

• A child
• A foreign-born person age 21 or less who is not an illegal alien

A person to be adopted must be present within the State at the time the petition is filed.

Who May Place a Child for Adoption Citation: Rev. Stat. §§ 8-106; 8-130; 8-101

A child may be placed as follows:

• The child’s birth or adoptive parent may consent to a direct placement or an agency placement.
• A licensed child-placing agency or the Department of Economic Security may handle a direct placement or an agency placement.
• A State-licensed attorney may handle direct placements.

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Rev. Stat. § 8-129

The following persons may have access to family information:

• The adoptive parents or a guardian of the adopted person
• The adopted person who is age 18 or older
• If the adopted person has died, the adopted person’s spouse if he or she is the legal parent of the adopted person’s child or the guardian of any child of the adopted person
• If the adopted person has died, any child of the adopted person who is age 18 or older
• The birth parents or other birth children of the birth parents

Access to Nonidentifying Information Citation: Rev. Stat. §§ 8-121; 8-129

Nonidentifying information may be released upon request to any of the persons listed above. Nonidentifying information may include the health and genetic history of the birth parents and members of the birth parents’ families.

Mutual Access to Identifying Information Citation: Rev. Stat. § 8-121

Court personnel, the division, an attorney assisting in a direct placement adoption, or an agency may provide partial or complete identifying information between a birth parent and adoptive parent when the parties mutually agree to share specific identifying information and make a written request to the court, the division, or the agency.

A person may petition the court to obtain information relating to an adoption in the possession of the court, the division, or any agency or attorney involved in the adoption. The court shall not release identifying information unless the person requesting the information has established a compelling need for disclosure or consent has been obtained.

An adopted person age 18 or older or a birth parent may file at any time with the court and the agency, division, or attorney who participated in the adoption a notarized statement granting consent, withholding consent, or withdrawing a consent previously given for the release of confidential information. If an adopted person who is 18 or older and the birth mother or birth father have filed consent to the release of confidential information, the court may disclose the information, except identifying information relating to a birth parent who did not grant written consent.

Access to Original Birth Certificate Citation: Rev. Stat. § 36-337

The original birth certificate can be made available only upon a court order or as prescribed by rule.

Where the Information Can Be Located

Arizona Confidential Intermediary Program, Arizona Supreme Court

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Rev. Stat. §§ 8-117; 14-2114

The relationship of birth parent and adopted person is completely severed upon entry of the adoption decree, and all legal consequences of the relationship cease to exist, including the right of inheritance.

Adoption of a child by the spouse of either birth parent has no effect on the relationship between the child and that birth parent or on the right of the child or a descendant of the child to inherit from or through the other birth parent.

Adoptive Parents in Relation to Adopted Person Citation: Rev. Stat. § 8-117

The adopted person is entitled to inherit from and through the adoptive parent, and the adoptive parent is entitled to the same from the adopted person, as though the child were born to the adoptive parents in lawful wedlock.

Adopted Persons Who Are Not Included in a Will Citation: Rev. Stat. §§ 14-2705; 14-2302

A person who is adopted and that person’s descendants, if appropriate to the class, are included in class gifts and other terms of relationship in accordance with intestate succession.

If a testator fails to provide by will for a child who is adopted after the testator executes the will, the omitted child receives a share in the estate as follows:

• If the testator had no child living when the testator executed the will, an omitted child receives a share in the estate equal in value to what the child would have received if the testator had died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to inherit under the will.
• If the testator had one or more children living when the testator executed the will and the will devised property or an interest in property to one or more of the then-living children, an omitted child is entitled to share in the testator’s estate as follows:
  • The portion of the testator’s estate in which the omitted child is entitled to share is limited to bequests made to the testator’s then-living children under the will.
  • The share of the testator’s estate that the child would have received if the testator had included all omitted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.

However, if it appears from the will that the omission was intentional or that the testator provided for the omitted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or can be reasonably inferred from the amount of the transfer or other evidence, no share in the estate will be received.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements? Rev. Stat. Ann. § 8-116.01

The parties to a proceeding under this chapter may enter into an agreement regarding communication with an adopted child, the adoptive parents, and a birth parent.

The agreement shall state that the adoptive parent may terminate contact between the birth parent and the adopted child at any time if the adoptive parent believes that this contact is not in the child’s best interests.

The agreement shall contain a clause stating that the parties agree to the continuing jurisdiction of the court to enforce and modify the agreement and that they nderstand that failure to comply with the agreement is not grounds for setting aside an adoption decree or for revocation of a written consent to an adoption or relinquishment of parental rights.

Who may be a party to a postadoption contact agreement? Rev. Stat. Ann. § 8-116.01

The court shall not approve an agreement unless the agreement is approved by the prospective adoptive parents, any birth parent with whom the agreement is being made, and if the child is in the custody of the division or an agency, a representative of the division or agency.

What is the role of the court in postadoption contact agreements? Rev. Stat. Ann. § 8-116.01

The court shall not approve the agreement unless the court finds that the communication between the adopted child, the adoptive parents, and a birth parent is in the child’s best interests. The court may consider the wishes of a child who is at least 12 years old.

The court retains jurisdiction after the decree of adoption is entered to hear motions brought to enforce or modify an order entered pursuant to this section. Before filing a motion, the party seeking to enforce or modify an order shall make a good faith attempt to mediate the dispute. The court shall not enforce or modify an order unless the party filing the motion has made a good faith attempt to mediate the dispute.

Are agreements legally enforceable? Rev. Stat. Ann. § 8-116.01

An agreement is not enforceable unless the agreement is in writing and is approved by the court.

An agreement entered into pursuant to this section is enforceable even if it does not disclose the identity of the parties to the agreement.

Failure to comply with an agreement is not grounds for setting aside an adoption decree or for revocation of a written consent to an adoption or relinquishment of parental rights.

How may an agreement be terminated or modified? Rev. Stat. Ann. § 8-116.01

The court may order a modification of an agreement if it finds that the modification is necessary to serve the best interests of the adopted child and one of the following is true:

• The modification is agreed to by the adoptive parents.
• Exceptional circumstances have arisen since the agreement was approved that justify modification of the agreement.

The court may consider the wishes of a child who is at least age 12 in determining whether to order a modification.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

This issue is not addressed in the statutes reviewed.

Readoption After an Intercountry Adoption

Rev. Stat. § 36-338(C)

Before the State Registrar creates and registers a certificate of foreign birth for a parent of an adopted child who has been issued an IR-3 visa and who has completed a readoption process in a court in this State, the parent must provide either of the following:

• An original State of Arizona certificate of adoption
• A certified court order of adoption issued by a court in this State and either a birth certificate from the country of the adoptee’s birth or any other written documentation that establishes the date and place of the adoptee’s birth that has been translated into English

Application for a U.S. Birth Certificate

Rev. Stat. § 36-338(A),(B),(D)-(F) The State Registrar shall create a certificate of foreign birth for an adoptee who shows that he or she:

• Was born in a foreign country
• Is not a U.S. citizen
• Has gone through a completed adoption process in a foreign country before coming to the United States
• Has an IR-3 stamped passport

Before the State Registrar creates a certificate of foreign birth, a State court, an adoptive parent, or an adult adoptee must submit the following:

• An adoption decree or other official document finalizing the adoption from the country of the adoptee’s birth that has been translated into English
• A copy of the passport page showing the IR-3 stamp

If the adoptee does not have an IR-3 stamped passport, before the State Registrar creates a certificate, an adoptive parent or an adult adoptee must submit either:

• An original State of Arizona certificate of adoption
• A certified court order of adoption issued by a court in this State and either a birth certificate from the country of the adoptee's birth or any other written documentation that establishes the date and place of the adoptee's birth that has been translated into English
• If the person was not adopted in this State, a court order issued in this State that recognizes the adoption pursuant to § 36-336

The State Registrar shall not create a State of Arizona certificate of foreign birth for an adoptee who was born in a foreign country and who was a U.S. citizen at the time of birth. The State Registrar shall inform the adoptive parents or the adult adoptee that a birth certificate may be obtained through the U.S. Department of State.

A State of Arizona certificate of foreign birth for an adoptee must show the country of birth and state that the certificate is not evidence of U.S. citizenship for the person for whom it is issued.

References

Template:Reflist

Sources

Child Welfare Information Gateway. "State Recognition of Intercountry Adoptions Finalized Abroad." State Statute Series. [1] Published 2011.

Child Welfare Information Gateway. "Collection of Family Information About Adopted Persons and Their Birth Families." [2] Published 2012

Child Welfare Information Gateway. "Consent to Adoption." [3] Published 2013

Child Welfare Information Gateway. "Criminal Background Checks for Prospective Foster and Adoptive Parents." [4] Published 2011j

Child Welfare Information Gateway. "Grounds for Involuntary Termination of Parental Rights." [5] Published 2013

Child Welfare Information Gateway. "Home Study Requirements for Prospective Parents in Domestic Adoption." [6] Washington, DC: US Department of Health and Human Services, Children's Bureau. Published 2012

Child Welfare Information Gateway. "Infant Safe Haven Laws." [7] Washington, DC: US Department of Health and Human Services, Children's Bureau. Published 2013

Child Welfare Information Gateway. "Regulation of Private Domestic Adoption Expenses." [8] Washington, DC: US Department of Health and Human Services, Children's Bureau. Published 2013

Child Welfare Information Gateway. "The Rights of Unmarried Fathers." Washington, DC: US Department of Health and Human Services, Children's Bureau. [9] Published 2010

Child Welfare Information Gateway. "Use of Advertising and Facilitators in Adoptive Placements." Washington, DC: US Department of Health and Human Services, Children's Bureau. [10] Published 2012

Child Welfare Information Gateway. "Who May Adopt, Be Adopted, or Place a Child for Adoption?." Washington, DC: US Department of Health and Human Services, Children's Bureau. [11] Published 2012

Source

Child Welfare Information Gateway. U.S. Department of Health and Human Services Administration for Children and Families. [[https://www.childwelfare.gov/adoption/laws/domestic.cfm#sss

References

1. ↑ Ala. Code §§ 38-13-3(2) & (5); 38-13-2(30)