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Introduced Version Senate Bill 70 History

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sb70 intr
Senate Bill No. 70

(By Senator Boley)

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[Introduced February 9, 2005; referred to the Committee

on the Judiciary.]

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A BILL to amend and reenact §49-3-1 of the Code of West Virginia, 1931, as amended, relating to adoption generally; including other relatives for consideration as adoptive placement; and providing limitations on adoption or guardianship by grandparents or other relatives.

Be it enacted by the Legislature of West Virginia:
That §49-3-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. CHILD WELFARE AGENCIES.

§49-3-1. Consent by Agency or Department to adoption of child; statement of relinquishment by parent; petition to terminate parental rights.

(a) (1) Whenever a Child Welfare Agency licensed to place children for adoption or the Department of Health and Human Resources has been given the permanent legal and physical custody of any child and the rights of the mother and the rights of the legal, determined, putative, outside or unknown father of the child have been terminated by order of a court of competent jurisdiction or by a legally executed relinquishment of parental rights, the Child Welfare Agency or the Department may consent to the adoption of the child pursuant to the provisions of article twenty-two, chapter forty-eight of this code.
(2) Relinquishment for an adoption to an Agency or to the Department is required of the same persons whose consent or relinquishment is required under the provisions of section three hundred one, article twenty-two, chapter forty-eight of this code. The form of any relinquishment so required shall conform as nearly as practicable to the requirements established in section three hundred three, article twenty-two, chapter forty-eight, and all other provisions of that article providing for relinquishment for adoption shall govern the proceedings herein.
(3) For purposes of any placement of a child for adoption by the Department, the Department shall first consider the suitability and willingness of any known grandparent or grandparents or other relatives to adopt the child. Once any such grandparents or other relatives who are interested in adopting the child have been identified, the Department shall conduct a home study evaluation, including home visits and individual interviews by a licensed social worker. If the Department determines, based on the home study evaluation, that the grandparents or other relatives would be suitable adoptive parents, it shall assure that the grandparents or other relatives are offered the placement of the child prior to the consideration of any other prospective adoptive parents.
(A) The Department may not deny grandparents or other relatives adoption or guardianship of the child except when the criminal records check reveals that a court of competent jurisdiction has convicted the prospective foster or adoptive parent of a felony involving the following: (i) Child abuse or neglect; (ii) spousal abuse; (iii) a crime against a child or children, including, but not limited to, child pornography; and (iv) a crime involving violence, including, but not limited to, rape, sexual assault or homicide, but not other physical assault or battery, pursuant to 45 C.F.R. 1356.30(b). Additionally, a home may not be approved if a court of competent jurisdiction convicted the prospective foster or adoptive parent in the last five years of a felony involving physical assault, battery or a drug-related offense pursuant to 45 C.F.R. 1356.30(e).
(B) The criminal records check provision does not apply to relatives homes that are not licensed or approved in accordance with state standards because the children in the homes are not eligible for Title IV-E funding.
(C) The Department shall assist grandparents or other related prospective foster or adoptive parents with any improvements to their home or other assistance necessary to obtain custody of the child.

(4) The Department shall make available, upon request, for purposes of any private or Agency adoption proceeding, preplacement and post-placement counseling services by persons experienced in adoption counseling, at no cost, to any person whose consent or relinquishment is required pursuant to the provision provisions of article twenty-two, chapter forty-eight of this code.
(b) (1) Whenever the mother has executed a relinquishment pursuant to this section, and the legal, determined, putative, outsider or unknown father, as those terms are defined pursuant to the provisions of, part one, article twenty-two, chapter forty-eight of this code, has not executed a relinquishment, the Child Welfare Agency or the Department may, by verified petition, seek to have the father's rights terminated based upon the grounds of abandonment or neglect of said child. Abandonment may be established in accordance with the provisions of section three hundred six, article twenty- two, chapter forty-eight of this code.
(2) Unless waived by a writing acknowledged as in the case of deeds or by other proper means, notice of the petition shall be served on any person entitled to parental rights of a child prior to its adoption who has not signed a relinquishment of custody of the child.
(3) In addition, notice shall be given to any putative, outsider or unknown father who has asserted or exercised parental rights and duties to and with the child and who has not relinquished any parental rights and such rights have not otherwise been terminated, or who has not had reasonable opportunity before or after the birth of the child to assert or exercise such rights: Provided, That if such child is more than six months old at the time such notice would be required and such father has not asserted or exercised his parental rights and he knew the whereabouts of the child, then such father shall be presumed to have had reasonable opportunity to assert or exercise such rights.
(c) (1) Upon the filing of the verified petition seeking to have the parental rights terminated, the court shall set a hearing on the petition. A copy of the petition and notice of the date, time and place of the hearing on said petition shall be personally served on any respondent at least twenty days prior to the date set for the hearing.
(2) Such notice shall inform the person that his parental rights, if any, may be terminated in the proceeding and that such person may appear and defend any such rights within twenty days of such service. In the case of any such person who is a nonresident or whose whereabouts are unknown, service shall be achieved: (1) By personal service; (2) by registered or certified mail, return receipt requested, postage prepaid, to the person's last known address, with instructions to forward; or (3) by publication. If personal service is not acquired, then, if the person giving notice shall have any knowledge of the whereabouts of the person to be served, including a last known address, service by mail shall be first attempted as herein provided. Any such service achieved by mail shall be complete upon mailing and shall be sufficient service without the need for notice by publication. In the event that no return receipt is received giving adequate evidence of receipt of the notice by the addressee or of receipt of the notice at the address to which the notice was mailed or forwarded, or if the whereabouts of the person are unknown, then the person required to give notice shall file with the court an affidavit setting forth the circumstances of any attempt to serve the notice by mail, and the diligent efforts to ascertain the whereabouts of the person to be served. If the court determines that the whereabouts of the person to be served cannot be ascertained and that due diligence has been exercised to ascertain such person's whereabouts, then the court shall order service of such notice by publication as a Class II publication in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area shall be the county where such proceedings are had, and in the county where the person to be served was last known to reside. In the case of a person under disability, service shall be made on the person and his personal representative, or if there be none, on a guardian ad litem.
(3) In the case of service by publication or mail or service on a personal representative or a guardian ad litem, the person shall be allowed thirty days from the date of the first publication or mailing of such service on a personal representative or guardian ad litem in which to appear and defend such parental rights.
(d) A petition under this section may be instituted in the county where the child resides or where the child is living.
(e) If the court finds that the person certified to parental rights is guilty of the allegations set forth in the petition, the court shall enter an order terminating his parental rights and shall award the legal and physical custody and control of said the child to the petitioner.


NOTE: The purpose of this bill is to include other relatives for consideration as adoptive placement; and to provide limitations on adoption or guardianship by grandparents or other relatives to be consistent with existing case law.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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