Revision as of 00:03, 9 February 2014

Adoption Laws

Consent to Adoption

Who Must Consent to an Adoption Citation: Ann. Code §§ 48-22-301; 49-3-1

Consent to or relinquishment for adoption of a minor child is required of:

• The parents or surviving parent, whether adult or infant, of a marital child
• 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 that is pending at the time of the filing of the petition for adoption
• The birth mother, whether adult or minor, of a nonmarital child
• The determined father

If all persons entitled to parental rights of the child 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 or 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.

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.

Consent of Child Being Adopted Citation: Ann. Code § 48-22-301

If the child to be adopted is age 12 or older, 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.

When Parental Consent Is Not Needed Citation: Ann. Code § 48-22-301

Consent or relinquishment shall not be required of a parent or of any other person having custody of the child:

• Whose parental rights have been terminated
• Whom the court finds has abandoned the child
• Who, in a stepparent adoption, is the birth parent or adoptive parent of the child and is married to the petitioning adoptive parent

If the mother, legal father, or determined father is under disability, the court may order the adoption if it finds:

• The parental rights of the person are terminated, abandoned, or permanently relinquished.
• The person is incurably insane.
• The disability arises solely because of age and an otherwise valid consent or relinquishment has been given.

When Consent Can Be Executed Citation: Ann. Code § 48-22-302

No consent or relinquishment may be executed before the expiration of 72 hours after the birth of the child to be adopted.

How Consent Must Be Executed Citation: Ann. Code §§ 48-22-302; 48-22-304

A consent or relinquishment executed by a parent or guardian must be signed and acknowledged in the presence of one of the following:

• A judge of a court of record
• A person whom a judge of a court of record designates to take consents or relinquishments
• A notary public
• A commissioned officer on active duty in the military of the United States if the person executing the consent or relinquishment is in military service
• 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

If a person who has executed a consent to or relinquishment for adoption is under age 18 at the time of the filing of the petition, and such minor 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 minor 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 minor 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.

Revocation of Consent Citation: Ann. Code §§ 48-22-303; 48-22-305

A consent or relinquishment may provide explicitly for its conditional revocation if:

• Another person whose consent or relinquishment is required does not execute the same within a specified period.
• A court determines not to terminate another person’s parental relationship to the child.
• 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.

Parental consent or relinquishment, whether given by an adult or minor, may be revoked only if:

• The person who executed the consent and the prospective adoptive parent named in the consent, or the agency in case of relinquishment, agree to its revocation prior to the entry of an adoption order.
• The person who executed the consent proves by clear and convincing evidence, in an action filed either within 6 months of the date of the execution of the consent 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.
• The person who executed the consent 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 has occurred.
• The person who executed the consent 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.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents Ann. Code § 49-2B-8; Code of State Rules § 78-2-13

The secretary shall prescribe forms and reasonable application procedures including, but not limited to, fingerprinting of applicants and other persons responsible for the care of children for submission to the State police and, if necessary, the FBI for criminal history record checks.

Before a home registration is granted, the secretary shall investigate all persons responsible for the care of children for compliance with standards including criminal and child abuse or neglect history of persons present in the home while children are in foster care.

In regulation:For licensure as a foster parent, the following are required prior to approval:

• All adult household members shall complete a Criminal Identification Bureau Record form that is fingerprint-based and a Statement of Criminal Record form.
• All adult household members shall complete a Statement of Child Abuse or Neglect History form and a signed release of information authorizing the department to verify the information.

An agency shall not approve a home for foster care in which a household member has any convictions other than minor traffic violations. Special circumstances may allow a waiver to be granted by the secretary.

Requirements for Adoptive Parents Ann. Code § 48-22-701; Code of State Rules § 78-2-13

A criminal background check may be required for a prospective adoptive parent to determine his or her suitability as an adoptive parent.

In regulation:For certification for an agency adoption, the following are required prior to approval:

• All adult household members shall complete a Criminal Identification Bureau Record form that is fingerprint-based and a Statement of Criminal Record form.
• All adult household members shall complete a Statement of Child Abuse or Neglect History form and a signed release of information authorizing the department to verify the information.

An agency shall not approve a home for adoption in which a household member has any convictions other than minor traffic violations. Special circumstances may allow a waiver to be granted by the secretary.

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Ann. Code § 49-6-5

The court shall terminate the parental rights of an abusing parent when:

• The parent has subjected any child in the household to aggravated circumstances that include, but are not limited to, abandonment, torture, chronic abuse, and sexual abuse.
• The parent has:
  • Committed murder or voluntary manslaughter of the child’s other parent, another child of the parent, or any other child residing in the same household
  • Attempted or conspired to commit such a murder or voluntary manslaughter
  • Committed a felonious assault that results in serious bodily injury to the child, the child’s other parent, or any other child residing in the same household
  • Committed sexual assault or sexual abuse of the child, the child’s other parent, guardian or custodian, another child of the parent or any other child residing in the same household
  • Has been required by State or Federal law to register with a sex offender registry
• The parental rights of the parent to another child have been terminated involuntarily.
• A parent has been required by State or Federal law to register with a sex offender registry, and the court has determined in consideration of the nature and circumstances surrounding the prior charges against that parent, that the child’s interests would not be promoted by a preservation of the family.
• The abusing parent has habitually abused or is addicted to alcohol, controlled substances, or drugs to the extent that proper parenting skills have been seriously impaired and such person or persons have not responded to or followed through the recommended and appropriate treatment.
• The abusing parent has willfully refused to cooperate in the development of a reasonable family case plan designed to lead to the child’s return to their care, custody, and control.
• The abusing parent has not responded to or followed through with a reasonable family case plan designed to reduce or prevent the abuse or neglect of the child.
• The parent has abandoned the child.
• The parent has repeatedly or seriously injured the child physically or emotionally or has sexually abused or sexually exploited the child.
• The parent suffers from emotional illness, mental illness, or mental deficiency of such duration or nature as to render the parent incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills.
• A battered parent’s parenting skills have been seriously impaired, and he or she has willfully refused or is presently unwilling or unable to cooperate in the development of a reasonable treatment plan or has not adequately responded to or followed through with the recommended and appropriate treatment plan.

Circumstances That Are Exceptions to Termination of Parental Rights Ann. Code § 49-6-5b

A petition shall be filed when the child has been in foster care for 15 of the most recent 22 months. The Department of Health and Human Resources may determine not to file a petition to terminate parental rights when:

• At the option of the department, the child has been placed with a relative.
• The department has documented in the case plan a compelling reason, including, but not limited to, the child’s age and preference for termination, or the child’s placement in custody of the department based on another proceeding, that filing the petition would not be in the best interests of the child.
• The department has not provided, when reasonable efforts to return a child to the family are required, the services to the child’s family that the department deems necessary for the safe return of the child to the home.

Circumstances Allowing Reinstatement of Parental Rights Ann. Code § 49-6-6

Upon motion of a child, a child’s parent or custodian, or the department alleging a change of circumstances requiring a different disposition, the court shall conduct a hearing and may modify a dispositional order if the court finds by clear and convincing evidence a material change of circumstances and that such modification is in the child’s best interests; except a dispositional order terminating parental rights shall not be modified after the child has been adopted, except as provided below.

If the child is removed or relinquished from an adoptive home or other permanent placement after the case has been dismissed, any party with notice thereof and the receiving agency shall promptly report the matter to the circuit court of origin, the department, and the child’s counsel, and the court shall schedule a permanency hearing within 60 days. The department shall convene a multidisciplinary treatment team meeting within 30 days of the receipt of notice of permanent placement disruption.

If a child has not been adopted, the child or department may move the court to place the child with a parent or custodian whose rights have been terminated and/or restore such parent’s or guardian’s rights. Under these circumstances, the court may order such placement and/or restoration of a parent’s or guardian’s rights if it finds by clear and convincing evidence a material change of circumstances and that such placement and/or restoration is in the child’s best interests.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Code of State Regs. § 78-2-13

All adult family members shall be included in the adoption home study.

Agency or Person Conducting the Study Citation: Code of State Regs. § 78-2-13

The study shall be conducted by the child-placing agency.

Qualifications for Adoptive Parents Citation: Code of State Regs. §§ 78-2-13; 78-2-20

Adoptive parents shall be nurturing, responsible, patient, stable, flexible, mature, healthy adults capable of meeting the individual and specific needs of children placed with them. Newly approved adoptive parents shall be no younger than age 21 and no older than age 65 unless a waiver is granted by the secretary.

Adoptive parents must provide documentation that:

• They are in good health, free of communicable diseases, and have had a tuberculin risk assessment or skin test.
• They have sufficient income and financial resources to meet their financial obligations.

As a condition of approval, an agency shall require that each adoptive parent participate in a specified training curriculum. An agency shall develop and implement a written plan for the training of adoptive parents, including preplacement training and child-specific training.

Elements of a Home Study Citation: Code of State Regs. §§ 78-2-13; 78-2-15; 78-2-16

Adoptive parents shall provide the agency with the names at least four references from persons who are not related to them. The agency must interview at least three of the references. Prior to approval, all adult household members shall undergo criminal background checks and checks of child abuse and neglect records.

The agency shall ensure that the physical facilities of an adoptive home present no health or safety hazards, and that they are sufficiently clean and comfortable to ensure the well-being and respect of the family in the community. The adoptive home must comply with the same standards used to approve foster family homes.

The home study must include a minimum of one individual in-person interview for each parent and two joint interviews. The study shall describe and evaluate aspects of the home and family and shall include:

• The composition of the household and intra-family relationships
• The family’s attitudes, values, and level of understanding of child development
• The manner in which the family handles conflict, stress, and frustration
• Individual and family hobbies, recreation, community activities, and social life
• Each parent’s personal history, attitudes, feelings, and values
• The parents’ financial situation and motivation to adopt
• An assessment of the adoptive parents’ ability and willingness to make a lifetime commitment to the adopted child and their understanding of the legal rights of the adopted child

Grounds for Withholding Approval Citation: Code of State Regs. § 78-2-13

An agency shall not approve an adoptive home:

• If the adoptive parents have health, behavior, or emotional or psychological problems that may endanger the well-being of a child
• Unless all references for the foster and adoptive parents are positive in nature
• If any household member has any convictions other than minor traffic violations

When Studies Must Be Completed Citation: Code of State Rules §§ 78-2-16; 78-2-19

A comprehensive written home study must be completed prior to placing a child in the home.

For adoptive parents who have not had a child placed with them, the agency shall evaluate them annually and complete a narrative summary that includes:

• An update of each of the parents’ biographies and any changes in their circumstances or attitudes about adoption
• A recommendation for any changes in the adoptive parents’ conditions of approval

Postplacement Study Requirements Citation: Code of State Rules § 78-2-23

Following placement of a child in an adoptive home, the agency shall provide support services, including:

• An initial telephone contact within 72 hours of placement and an initial visit within 1 week of placement
• A minimum of six visits during the placement, at least four of which are in the home of the adoptive parents

In a two-parent family, both parents must be involved in at least three visits. Additional visits may be made on a frequency determined by the needs of the child and the adoptive parents. Visits shall include all household members, and the child shall be observed during each visit. If the child is old enough to carry on a conversation, the caseworker must conduct an interview with him or her in private during each visit.

The agency shall continue to provide support services for a minimum of 6 months or longer until permanent placement of the child is achieved. If the child is in the adoptive home as a foster care placement, the period of support services can include the time spent in the adoptive home in foster care. The agency shall provide a final visit with the adoptive family to review the adoption process prior to finalizing the adoption.

Exceptions for Stepparent or Relative Adoptions

This issue is not addressed in the statutes and regulations reviewed.

Requirements for Interjurisdictional Placements Citation: Ann. Code § 49-2A-1

Any out-of-home placement of a child outside the State is subject to the provisions of the Interstate Compact on the Placement of Children.

The child shall not be sent into the receiving State until the appropriate public authorities in the receiving State notify the sending agency, in writing, that the proposed placement does not appear to be contrary to the interests of the child.

Foster to Adopt Placements

This issue is not addressed in the statutes and regulations reviewed.

Infant Safe Haven Laws

Infant’s Age Citation: Ann. Code § 49-6E-1

A child who is younger than 30 days old may be relinquished.

Who May Relinquish the Infant Citation: Ann. Code § 49-6E-1

The child may be relinquished by his or her parent.

Who May Receive the Infant Citation: Ann. Code § 49-6E-1

The child may be left at a hospital or health-care facility.

Responsibilities of the Safe Haven Provider Citation: Ann. Code §§ 49-6E-1; 49-6E-2

The hospital or health-care facility shall, without a court order, take possession of a child if the child is voluntarily delivered to the hospital or health-care facility by the child’s parent within 30 days of the child’s birth, and the parent did not express an intent to return for the child. A hospital or health-care facility that takes possession of a child shall perform any act necessary to protect the physical health or safety of the child.

No later than the close of the first business day after the hospital or health-care facility takes possession of a child, the hospital or health-care facility shall notify the Child Protective Services Division of the Department of Health and Human Resources that it has taken possession of the child and shall provide to the department any information provided by the parent delivering the child. The hospital or health-care facility shall refer any inquiries about the child to the Department of Health and Human Resources’ protective services division.

Immunity for the Provider

This issue is not addressed in the statutes reviewed.

Protection for Relinquishing Parent Citation: Ann. Code §§ 49-6E-1; 49-6E-4

In accepting possession of the child, the hospital or health-care facility may not require the person to identify him or herself and shall otherwise respect the person’s desire to remain anonymous.

It is an affirmative defense to prosecution [for child neglect resulting in injury or risk of injury] under § 61-8D-4(a) if a parent charged under that section delivered the child, for whom the parent is charged, within 30 days of the child’s birth.

Effect on Parental Rights Citation: Ann. Code §§ 49-6E-2; 49-6E-5

The Department of Health and Human Resources shall assume the care, control, and custody of the child at the time of delivery of the child to the hospital or health-care facility and may contract with a private child care agency for the care and placement of the child after the child leaves the hospital or health-care facility.

The child shall be eligible for adoption as an abandoned child §§ 48-4-1 et seq.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Ann. Code § 61-2-14h(e)

The following payments are permitted:

• Reasonable and customary legal, medical, hospital, or other expenses incurred in connection with the pregnancy, birth, and adoption proceedings
• Any other fees authorized by law or approved by the court

Birth Parent Expenses Not Allowed Citation: Ann. Code § 61-2-14h(a)

Any fees not authorized by law or approved by the court are prohibited.

Allowable Payments for Arranging Adoption Citation: Ann. Code § 61-2-14h(a)

It is unlawful for any person or agency to knowingly offer, give, or agree 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 that entails a transfer of the legal or physical custody of the child, including, but not limited to, adoption or placement.

Allowable Payments for Relinquishing Child Citation: Ann. Code § 61-2-14h(a), (c)

It is unlawful for any person to knowingly receive, accept, or offer to accept money, property, service, or other thing of value to locate, provide, or procure a minor child for any purpose that entails a transfer of the legal or physical custody of the child, including, but not limited to, adoption or placement.

A child whose parent, guardian, or custodian has sold or attempted to sell the child in violation of the provisions of this article may be deemed an abused child, as defined by § 49-1-3. 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.

Allowable Fees Charged by Department/Agency Citation: Ann. Code § 61-2-14h(e)(1)

Fees may be 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.

Accounting of Expenses Required by Court Citation: Ann. Code § 61-2-14h(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.

The Rights of Unmarried Fathers

Legal Definition of Father Ann. Code §§ 48-22-105; 109; 110; 113; 114

The term ‘birth father’ means the biological father of the child.

The term ‘determined father’ means, before adoption, a person:

• In whom paternity has been established pursuant to the provisions of article 24-101 et seq., whether by adjudication or acknowledgment
• Who has been otherwise judicially determined to be the biological father of the child entitled to parental rights
• Who has asserted his paternity of the child in an action commenced pursuant to the provisions of article 24-101, et seq., that is pending at the time of the filing of the adoption petition

The term ‘legal father’ means, before adoption, the male person having the legal relationship of parent to a child:

• Who is married to the child’s mother at the time of conception
• Who is married to the child’s mother at the time of the birth of the child
• Who is the biological father of the child and who marries the mother before an adoption of the child

The term ‘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.

The term ‘putative father’ means, before adoption, any man named by the mother as a possible biological father of the child, pursuant to the provisions of § 48-22-502, who is not a legal or determined father.

Paternity Registry

No

Alternate Means to Establish Paternity Ann. Code §§ 48-24-101; 48-24-106

A civil action to establish the paternity of a child may be instituted, by verified complaint, in the family court of the county where the child resides.

A ‘paternity proceeding’ is a summary proceeding wherein a family court upon the petition of the State or another proper party may intervene to determine and protect the respective personal rights of a child for whom paternity has not been lawfully established.

A decree or order made and entered by a court in a paternity proceeding shall include a determination of the filial relationship, if any, that exists between a child and his or her putative father.

A paternity proceeding may be brought by any of the following persons or entities:

• An unmarried mother of a child
• A married mother of a child if she alleges that:
  • She lived separate and apart from her husband preceding the birth of the child
  • She did not cohabit with her husband at any time during such separation
  • The respondent, rather than her husband, is the father of the child
• The State of West Virginia
• Any person who is not the mother of the child but who has physical or legal custody of the child
• The guardian of the child
• The next friend of the child when the child is a minor
• The child in his or her own right at any time after the child’s 18th birthday but prior to the child’s 21st birthday
• A man who believes he is the father of a child born out of wedlock when there has been no prior judicial determination of paternity

Blood or tissue samples may be ordered to be taken in such locations as may be convenient for the parties as long as the integrity of the chain of custody of the samples can be preserved.

A written, notarized acknowledgment executed pursuant to law legally establishes the man as the father of the child for all purposes.

Required Information

This issue is not addressed in the statutes reviewed.

Revocation of Claim to Paternity

This issue is not addressed in the statutes reviewed.

Access to Information

This issue is not addressed in the statutes reviewed.

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: Ann. Code § 48-22-803

Any person or agency that knowingly offers, gives, or agrees to give to another person, and any person who receives, accepts, or offers to accept money, property, service or other thing of value in consideration for the recipient locating, providing, or procuring a minor child for any purpose that 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.

A child whose parent, guardian, or custodian has sold or attempted to sell said child in violation of this article may be deemed an abused child. 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.

This section does not prohibit the payment or receipt of the following:

• Fees paid for reasonable and customary services provided by the department or any licensed or duly authorized adoption or child-placing agency
• Reasonable and customary legal, medical, hospital, or other expenses incurred in connection with the pregnancy, birth, and adoption proceedings
• Fees and expenses included in any agreement in which a woman agrees to become a surrogate mother
• 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

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

Who May Adopt Citation: Ann. Code § 48-22-201

The following persons may adopt:

• Any person who is not married
• Any person with the consent of his or her spouse
• A husband and wife jointly

Who May Be Adopted Citation: Ann. Code §§ 48-22-201; 48-22-801

The following persons may be adopted:

• Any minor child
• Any person age 18 or older, if the adopting parent is a West Virginia resident

Who May Place a Child for Adoption Citation: Ann. Code §§ 49-3-1; 48-22-104

Relinquishment for an adoption to an agency or to the Department of Health and Human Resources is required of the birth parent or any other person whose consent is required by § 48-22-301. Only a public or private agency or the department is authorized to place children for adoption.

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Ann. Code §§ 48-23-601; 48-23-402

Nonidentifying information may be provided to:

• The adoptive parents or, in the event of death of the adoptive parents, the child’s guardian
• The adopted person who is age 18 or older
• The birth parent

If the adopted person is deceased, nonidentifying information may be provided to:

• 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
• Any progeny of the adopted person who is age 18 or older

Identifying information may be obtained through the mutual consent voluntary adoption registry by:

• The birth parent when the child is age 18 or older
• The adult adopted person except when there is a sibling in his or her adoptive family who is under age 18

Access to Nonidentifying Information Citation: Ann. Code § 48-23-601

Prior to placement for adoption, the agency shall compile and provide to the prospective adoptive parents a detailed written health history and genetic and social history of the child. These histories must exclude information that would identify birth parents or members of a birth parent’s family.

Records containing such nonidentifying information shall be retained by the clerk of the court for 99 years, and shall be available upon request, together with any additional nonidentifying information that may have been added on health or genetic and social history, to any person listed above.

Mutual Access to Identifying Information Citation: Ann. Code §§ 48-23-501 through 48-23-504; 48-22-702

The adult adopted person and each birth parent may register by submitting an affidavit to the registry. The failure of any person to file with the registry for any reason, including death or disability, precludes the disclosure of identifying information to those persons who do register.

Upon registering, the registrant must participate in no less than 1 hour of counseling with a social worker.

In any case where the identity of the birth father was unknown to the birth mother, or one or both of the birth parents are deceased, this information shall be shared with the adult adopted person. In these cases, the adopted person will not be able to obtain identifying information through the registry.

The affidavit must include, if known:

• The current name and address and any previous name by which the person was known
• The child’s original and adopted names
• The place and date of the child’s birth
• The name and address of the agency that placed the child

The administrator of the registry shall process each affidavit in an attempt to match the adopted person and the birth parents. There is a match when the adult adopted person and the birth parent have each registered and received the required counseling. When a match has taken place, the department shall directly notify all parties through a direct and confidential contact.

If an adopted person or parent of a minor adopted person cannot obtain identifying information by use of the registry, identifying information may be sought by petitioning the court. If the court is unable to obtain consent from either of the birth parents, the court may release identifying information to the adopted person if at a hearing the court finds there is evidence of compelling medical or other good cause for release of such identifying information.

Access to Original Birth Certificate Citation: Ann. Code § 16-5-18

The State Registrar shall establish a new certificate of birth for a person born in West Virginia when he or she receives a certificate of adoption or a certified copy of the order of adoption, together with the information necessary to identify the original certificate of birth and to establish a new certificate of birth.

A new certificate of birth shall show the actual city, county and date of birth, if known, and shall be substituted for the original certificate of birth on file. The original certificate of birth and the evidence of adoption may be inspected only upon order of a court of competent jurisdiction, except as provided by legislative rule or as otherwise provided by State law.

Where the Information Can Be Located

West Virginia Mutual Consent Voluntary Adoption Registry, Department of Health and Human Resources

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Ann. Code § 48-22-703

Upon the entry of the final adoption decree, the birth parents shall be divested of all legal rights, including the right of inheritance from or through the adopted child.

Such child shall not inherit from any person entitled to parental rights prior to the adoption or their kindred, except that a child legally adopted by a husband or wife of a person entitled to parental rights prior to the adoption shall inherit from such person as well as from the adopting parent.

Adoptive Parents in Relation to Adopted Person Citation: Ann. Code § 48-22-703

From and after the entry of the order of adoption, a legally adopted child shall inherit from and through the parent(s) by adoption and their kindred.

If the adopted person dies intestate, all property, including real and personal, of such adopted person shall pass to the adopting parent(s).

Adopted Persons Who Are Not Included in a Will Citation: Ann. Code § 41-4-1

If any person dies leaving a child, and his or her will was made when he or she had no child living, and any child he or she might have is not provided for or mentioned, such child, or any descendant of the child, shall inherit such portion of the testator’s estate as he or she would have been entitled to if the testator had died intestate.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements?

This issue is not addressed in the statutes reviewed.

Who may be a party to a postadoption contact agreement?

This issue is not addressed in the statutes reviewed.

What is the role of the court in postadoption contact agreements? Ann. Code § 48-22-704

A decree or order entered under this article 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.

Are agreements legally enforceable? Ann. Code § 48-22-704

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.

How may an agreement be terminated or modified?

This issue is not addressed in the statutes reviewed.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

Ann. Code § 48-22-901

When an adoption occurs in a foreign country and the adopted child has immigrated to the United States with the permission of the United States, this State shall recognize the adoption. The rights and obligations of the parties as to matters within the jurisdiction of this State shall be determined as though the adoption decree was issued by a court of this State.

Readoption After an Intercountry Adoption

Ann. Code §§ 48-22-902; 48-22-903

Any time after the child has immigrated to the United States, the adoptive parents may petition the court to recognize the foreign adoption decree that was issued abroad. The petition will set forth:

• The name and address of the petitioner(s)
• The name of the child adopted abroad
• The name by which the child will now be known
• The child’s country of origin and date of birth, if known
• That the child has a visa or other document authorizing entry into the United States and the date of entry
• That a home study of the petitioner(s) was prepared
• The date on which the adoption was decreed in the foreign country

A copy of the visa or other documentation, the home study, and the foreign adoption decree or other document(s) that evidence finalization of the adoption in the foreign country, along with an English translation, will be attached to the petition.

The petition may include requests for specific relief or findings to meet the best interests of the child that may be granted at the court’s discretion, such as a revised birth date if a physician has recommended a revision of the child’s birth date.

The court shall review the petition and accompanying documentation and, if the court finds the petition and documentation to be satisfactory, it shall enter an order of adoption stating that the documentation required has been submitted and is satisfactory and that the adoption must be recognized in West Virginia and shall have the same force and effect as if the decree of adoption was granted in accordance with the provisions of the West Virginia adoption act. The order must set forth the name by which the child shall be known and other pertinent findings of the court. The court shall enter the order without the necessity of a hearing unless deemed necessary or a hearing is requested. The provisions of § 48-22-702(a),(d),(e) shall apply to all orders issued hereunder and a new birth certificate shall be issued.

Application for a U.S. Birth Certificate

Ann. Code §§ 16-5-16(a); 16-5-18(h)

When a court has entered an adoption order, it shall require the preparation of a certificate of adoption. The certificate of adoption shall be certified by the clerk of the court and shall provide:

• In the case of a person who was born in a foreign country, evidence from sources determined to be reliable by the court as to the date and place of birth
• Information necessary to establish a new certificate of birth of the adoptee
• Information sufficient to identify the order of adoption

Upon receipt of the required documentation, the State Registrar shall prepare and register a certificate in this State for a person born in a foreign country who is not a citizen of the United States and who was adopted through a court of competent jurisdiction in this State. The State Registrar shall establish the certificate upon receipt of:

• A certificate of adoption from the court ordering the adoption
• Proof of the date and place of the child's birth
• A request that the certificate be prepared, from the court, the adopting parents, or the adoptee who is at least age 18

The certificate shall be labeled ‘Certificate of Foreign Birth’ and shall show the actual country of birth. The certificate shall include a statement that it 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