ENGROSSED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 61

(By Senators Bowman, White, Wooton, Snyder, Kimble and Anderson)

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[Originating in the Committee on the Judiciary;

reported March 12, 1997.]

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A BILL to amend article twenty-one, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section ten-a; to amend and reenact sections one, three, four, five, six, seven, eight, twelve and sixteen, article four, chapter forty-eight of said code; to further amend said article by adding thereto five new sections, designated sections three-a, three-b, three-c, eight-a and eight-b; and to amend and reenact section one, article three, chapter forty-nine of said code, all relating generally to adoption proceedings; creating a tax credit for nonfamily adoptions; defining and redefining terms; establishing persons whose consent or relinquishment is required; setting forth requirements for the execution of consents or relinquishments; establishing required contents of consents or relinquishments; establishing conduct constituting abandonment by birth parent; providing for consent by parents under eighteen years of age; providing for the revocation of consent or relinquishment for adoption; requiring disclosure of certain information upon delivery of child for adoption; establishing when adoption petition may be filed; expanding required contents of adoption petition; expanding and revising notice provisions; setting forth persons entitled to notice; changing the information required for notice; providing for notice to unknown fathers; setting forth procedures and limitations on challenges to adoption decrees; authorizing the payment of certain fees and expenses of the birth mother subject to approval by the circuit court; providing for agency adoptions and relinquishment requirements; requiring department to consider grandparents as adoptive parents; and requiring the department to offer certain counseling services.

Be it enacted by the Legislature of West Virginia:
That article twenty-one, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section ten-a; that sections one, three, four, five, six, seven, eight, twelve and sixteen, article four, chapter forty-eight of said code be amended and reenacted; that said article be further amended by adding thereto five new sections, designated sections three-a, three-b, three-c, eight-a and eight-b; and that section one, article three, chapter forty-nine of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 21. PERSONAL INCOME TAX.
§11-21-10a. Credit for nonfamily adoption.
A one time credit against the tax imposed by the provisions of this article shall be allowed as follows:
Nonfamily adoptions. -- For nonfamily adoptions, the credit is equal to two thousand dollars which may be taken in the year of the adoption of each nonfamily child, whose age at adoption is under eighteen years. This credit may, at the option of the taxpayer, be taken over a period of three years.
For the purpose of this section and credit "nonfamily adoptions" means adoptions of a child or children by a taxpayer or taxpayers which child or children are not related to the taxpayer or taxpayers by blood or marriage.
CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 4. ADOPTION.
§48-4-1. Definitions.

As used in this article, unless the context otherwise requires:
(a) "Abandonment" means any conduct by the birth mother, legal father, determined father, outsider father, unknown father or putative father that demonstrates a settled purpose to forego all duties and relinquish all parental claims to the child;
(f) (b) The "Adoptive parents" or "adoptive mother" or "adoptive father" shall mean means those persons who, after adoption, are the mother and father of the child;
 (c) "Agency" means a public or private entity, including the department of health and human resources, that is authorized by law to place children for adoption;
(e) (d) A "Birth father" is means the biological father of the child; and
 (d) (e) A "Birth mother" is means the biological mother of the child;
(f) "Birth parents" mean both the biological father and the biological mother of the child;
(g) "Consent" means the voluntary surrender to an individual, not an agency, by a minor child's parent or guardian, for purposes of the child's adoption, of the rights of the parent or guardian with respect to the child, including the legal and physical custody of the child;
(b) (h) A "Determined father" is means, before adoption, a person: (1) adjudicated to be the father of a child under the provisions of article seven of this chapter In whom paternity has been established pursuant to the provisions of article six, chapter forty-eight-a of this code, whether by adjudication or acknowledgment as set forth therein; or (2) who makes an affidavit stating that he is the father of a child and who is identified as the father by the mother in a like affidavit; or (3) who has, at his instance, been otherwise judicially determined to be the biological father of the child entitled to parental rights; with respect to the child; or (4) who claims to be the father of the child. or (3) who has asserted his paternity of the child in an action commenced pursuant to the provisions of article six, chapter forty-eight-a of this code, that is pending at the time of the filing of the adoption petition;
(a) (i) A "Legal father" is means, before adoption, the male person having the legal relationship of parent to a child: (1) Who is married to its mother at the time of conception; or (2) who is married to its mother at the time of birth of the child; or (3) who is the biological father of the child and who marries the mother before an adoption of the child;
(j) "Marital child" means a child born or conceived during marriage;
(k) "Nonmarital child" means a child not born or conceived during marriage;
 (l) "Outsider father" means the biological father of a child born to or conceived by the mother while she is married to another man who is not the biological father of the child;
(m) "Putative father" means, before adoption, any man named by the mother as a possible biological father of the child pursuant to the provisions of section seven of this article, who is not a legal or determined father;
(n) "Relinquishment" means the voluntary surrender to an agency by a minor child's parent or guardian, for purposes of the child's adoption, of the rights of the parent or guardian with respect to the child, including the legal and physical custody of the child;
(o) "Stepparent adoption" means an adoption in which the petitioner for adoption is married to one of the birth parents of the child or to an adoptive parent of the child; and
(c) (p) "Unknown father" is the biological father who, before adoption, is neither the legal father nor determined father of the child means a biological father whose identity the biological mother swears is unknown to her before adoption, pursuant to the provisions of section seven of this article.
§48-4-3. Persons whose consent or relinquishment is required; exceptions.

(a) The mother and legal father or determined father shall consent to the adoption by a writing acknowledged as in the case of deeds, unless the court orders, after hearing, that the parental rights of such person are terminated, abandoned or permanently relinquished, or that the person is under disability solely because of age. Subject to the limitations hereinafter set forth, consent to or relinquishment for adoption of a minor child is required of:
(1) The parents or surviving parent, whether adult or infant, of a marital child;
(2) The outsider father of a marital child who has been adjudicated to be the father of the child or who has filed a paternity action which is pending at the time of the filing of the petition for adoption;
(3) The birth mother, whether adult or infant, of a nonmarital child; and
(4) The determined father.
(b) Consent or relinquishment shall not be required of a parent or of any other person having custody of the adoptive child:
(1) Whose parental rights have been terminated pursuant to the provisions of article three, chapter forty-nine of this code;
(2) Whom the court finds has abandoned the child as set forth in section three-c of this article; or
(3) Who, in a stepparent adoption, is the birth parent or adoptive parent of the child and is married to the petitioning adoptive parent. In such stepparent adoption, the parent must assent to the adoption by joining as a party to the petition for adoption.
(c) If the person mother, legal father or determined father is under disability, the court may decree order the adoption if it orders finds:
(1) that the The parental rights of the persons person are terminated, abandoned or permanently relinquished,;
(2) that the The person is incurably insane,; or
(3) the The disability arises solely because of age and an otherwise valid consent or relinquishment has been given.
(c) (d) If all persons entitled to parental rights of the child sought to be adopted are deceased or have been deprived of the custody of the person of such child by law, then and in such case, the written consent, acknowledged as aforesaid, or relinquishment is required of the legal guardian of such child or those of any other person having at the time the legal custody of the child at the time. shall be obtained and so presented, and if If there be is no legal guardian nor any person having the who has legal custody of the child, then such consent must be obtained or relinquishment is required from some discreet and suitable person appointed by the court or judge thereof to act as the next friend of such the child in the adoption proceedings.
(d) (e) If one of the persons entitled to parental rights of the child sought to be adopted is deceased, only the consent or relinquishment of the surviving person entitled to parental rights shall be is required.
(f) If the child to be adopted is twelve years of age or over, the consent of the child is required to be given in the presence of the judge having jurisdiction of the adoption proceeding, unless for extraordinary cause, the requirement of such consent is waived by the court.
(b) (g) Any consent to adoption or relinquishment of parental rights shall have the effect of authorizing the prospective adoptive parents or the agency to consent to medical treatment for the child, whether or not such authorization is expressly stated in the consent or relinquishment.
(e) In addition to the consent required in subsections (a) through (d) of this section, in any case where the child sought to be adopted is twelve years of age or over, the written consent of such child to such adoption, given in the presence of the judge having jurisdiction thereof, must also be obtained and presented before the entry of any order of adoption, unless for extraordinary cause such is waived by court order.
§48-4-3a. Timing and execution of consent or relinquishment.
(a) No consent or relinquishment may be executed before the expiration of seventy-two hours after the birth of the child to be adopted.
(b) A consent or relinquishment executed by a parent or guardian as required by the provisions of section three of this article must be signed and acknowledged as in the case of deeds in the presence of one of the following:
(1) A judge of a court of record;
(2) A person whom a judge of a court of record designates to take consents or relinquishments;
(3) A notary public;
(4) A commissioned officer on active duty in the military service of the United States, if the person executing the consent or relinquishment is in military service; or
(5) An officer of the foreign service or a consular officer of the United States in another country, if the person executing the consent or relinquishment is in that country.
(c) Before executing a consent or relinquishment, a birth mother, legal father or determined father must have been informed of the meaning and consequences of adoption, the availability of counseling, the consequences of misidentifying the other parent, the procedure for releasing information about the health and other characteristics of the mother, legal father or determined father which may affect the physical or psychological well-being of the adopted child, and the procedure for the consensual release of the parent's identity to an adopted child pursuant to the provisions of article four-a of this chapter, including the address of the adoption registry.
§48-4-3b. Content of consent or relinquishment.
(a) A consent or relinquishment as required by the provisions of section three of this article must be written in plain English or, if the person executing the consent or relinquishment does not understand English, in the person's primary language. The form of the consent or relinquishment shall include the following:
(1) The date, place and time of the execution of the consent or relinquishment;
(2) The name, date of birth and current mailing address of the person executing the consent or relinquishment;
(3) The date, place of birth and the name or pseudonym ("Baby Boy _____ or Baby Girl _____") of the minor child;
(4) The fact that the document is being executed more than seventy-two hours after the birth of the child;
(5) If a consent, that the person executing the document is voluntarily and unequivocally consenting to the transfer of legal and physical custody to, and the adoption of the child by, an adoptive parent or parents whose name or names may, but need not be, specified;
(6) If a relinquishment, that the person executing the relinquishment voluntarily consents to the permanent transfer of legal and physical custody of the child to the agency for the purposes of adoption;
(7) If a consent, that it authorizes the prospective adoptive parents, or if a relinquishment, that it authorizes the agency, to consent to medical treatment of the child pending any adoption proceeding;
(8) That after the consent or relinquishment is signed and acknowledged, it is final and, unless revoked in accordance with the provisions of section five of this article, it may not be revoked or set aside for any other reason;
(9) That the adoption will forever terminate all parental rights, including any right to visit or communicate with the child and any right of inheritance;
(10) That the adoption will forever terminate all parental obligations of the person executing the consent or relinquishment, including any child support or child support arrearage, if the obligee and, in cases involving the receipt of cash assistance from the state, the child support enforcement division, agree to waive such arrearage: Provided, That such waiver is not disallowed by federal law;
(11) That the termination of parental rights and obligations is permanent whether or not any agreement for visitation or communication with the child is subsequently performed;
(12) That the person executing the consent or relinquishment does so of his or her own free will and the consent or relinquishment has not been obtained by fraud or duress;
(13) That the person executing the consent or relinquishment has:
(i) Received a copy of the consent or relinquishment;
(ii) Been provided the information and afforded the opportunity to participate in the voluntary adoption registry, pursuant to the provisions of article four-a of this chapter;
(iii) Been advised of the availability of counseling;
(iv) Been advised of the consequences of misidentifying the other birth parent; and
(v) If a birth mother, been advised of the obligation to provide the information required by the provisions of section seven of this article in the case of an unknown father;
(14) That the person executing the consent or relinquishment has not received or been promised any money or anything of value for the consent or relinquishment, other than payments authorized by the provisions of section sixteen of this article;
(15) That the child is not an "Indian child" as defined in the Indian Child Welfare Act, 25 U.S.C. §1903;
(16) That the person believes the adoption of the child is in the child's best interest; and
(17) That the person who is consenting or relinquishing expressly waives notice of any proceeding for adoption unless the adoption is contested, appealed or denied.
(b) A consent or relinquishment may provide explicitly for its conditional revocation if:
(1) Another person whose consent or relinquishment is required does not execute the same within a specified period;
(2) A court determines not to terminate another person's parental relationship to the child; or
(3) In a direct placement for adoption, a petition for adoption by a prospective adoptive parent, named or described in the consent, is denied or withdrawn.
(c) A consent or relinquishment shall also include:
(1) If a consent, the name, address, telephone and facsimile numbers of the lawyer representing the prospective adoptive parents; or
(2) If a relinquishment, the name, address, telephone and facsimile numbers of the agency to which the child is being relinquished; and
(3) Specific instructions on how to revoke the consent or relinquishment.
§48-4-3c. Conduct presumptively constituting abandonment.
(a) Abandonment of a child over the age of six months is presumed when the birth parent:
(1) Fails to financially support the child within the means of the birth parent; and
(2) Fails to visit or otherwise communicate with the child when he or she knows where the child resides, is physically and financially able to do so, and is not prevented from doing so by the person or authorized agency having the care or custody of the child: Provided, That such failure to act continues uninterrupted for a period of six months immediately preceding the filing of the adoption petition.
(b) Abandonment of a child under the age of six months shall be presumed when the birth father:
(1) Denounces the child's paternity any time after conception;
(2) Fails to contribute within his means, toward the expense of the prenatal and postnatal care of the mother and the postnatal care of the child;
(3) Fails to financially support the child within father's means; and
(4) Fails to visit the child when he or she knows where the child resides: Provided, That such denunciations and failure to act continue uninterrupted from the time that the birth father was told of the conception of the child until the time the petition for adoption was filed.
(c) Notwithstanding any provision in this section to the contrary, any birth parent shall have the opportunity to demonstrate to the court the existence of compelling circumstances preventing said parent from supporting, visiting or otherwise communicating with the child: Provided, That in no event may incarceration provide such a compelling circumstance if the crime resulting in the incarceration involved a rape in which the child was conceived.
§48-4-4. Consent or relinquishment by infants.

If it appears that a person giving consent to adoption who has executed a consent to or relinquishment for adoption is under eighteen years of age at the time of the filing of the petition, and that such infant parent is a resident of the state, the consent or relinquishment shall be specifically reviewed and approved by the court and a guardian ad litem may be appointed to represent the interests of the consenting infant parent. The guardian ad litem shall conduct a discreet inquiry regarding the consent or relinquishment given, and may inquire of any attorney, social worker, notary public or other person having knowledge of the consent or relinquishment. If the guardian ad litem finds reasonable cause to believe that the consent given or relinquishment was obtained by fraud or duress, the court may request the consenting infant parent to appear before the court or at a deposition, so that inquiry may be made regarding the circumstances surrounding the execution of the consent given or relinquishment. Failure The failure of the court to appoint a guardian ad litem is not grounds for setting aside a decree of adoption.
§48-4-5. Revocation of consent or relinquishment for adoption.

(a) Parental consent or relinquishment, whether given by an adult or minor, may be revoked only if:
(1) The person who executed the consent or relinquishment and the prospective adoptive parent named or described in the consent or the lawyer for said adoptive parent, or the agency in case of relinquishment, agree to its revocation prior to the entry of an adoption order; or
(2) The person who executed the consent or relinquishment proves by clear and convincing evidence, prior to the entry of an adoption order, that the consent or relinquishment was obtained by fraud or duress; or
(3) The person who executed the consent or relinquishment proves by a preponderance of the evidence, prior to the entry of an adoption order, that a condition allowing revocation as expressly set forth in the consent or relinquishment has occurred; or
(4) The person who executed the consent or relinquishment proves by clear and convincing evidence, prior to the entry of an adoption order, that the consent or relinquishment does not comply with the requirements set forth in this article.
(b) Upon proper revocation of consent or relinquishment pursuant to the provisions of subdivision (1), subsection (a) of this section, the child shall be placed immediately with the parent or agency whom the revoking parent and prospective adoptive parent name in the revocation agreement: Provided, That if the other birth parent has signed a conditional consent or relinquishment pursuant to the provisions of subsection (b), section three-b of this article, then such other birth parent must immediately be informed of the revocation and afforded the opportunity to assert his or her rights to revoke and receive custody of the child pursuant to such conditional consent or relinquishment.
(c) Upon the filing of a revocation petition alleging grounds pursuant to the provisions of subdivision (2), subsection (a) of this section, a presumption exists that the child should be returned to the custody of the parent seeking to revoke his or her consent or relinquishment during the pendency of the petition and any appeals, if said parent had physical custody of the child prior to the execution of such consent or relinquishment. The presumption may be overcome by a showing of evidence that the child will suffer irreparable harm by return to such parent.
(d) When a parent who did not have physical custody of the child prior to his or her execution of the consent or relinquishment files a revocation petition alleging grounds pursuant to the provisions of subdivision (2), subsection (a) of this section, a presumption exists that the child should be placed with such parent during the pendency of the adjudication of the petition and any appeals. This presumption may be overcome by a showing of evidence that the child will suffer irreparable harm by return to such parent: Provided, That if the birth parent who had physical custody of the child prior to the execution of the consent or relinquishment has also revoked his or her consent or relinquishment, the child shall be returned immediately to such birth parent: Provided, however, That if the birth parent who had physical custody of the child prior to the execution of the consent or relinquishment has signed a conditional consent or relinquishment pursuant to the provisions of subsection (b), section three-b of this article, then such other birth parent must immediately be informed of the petition for revocation and afforded the opportunity to assert his or her rights to revoke and receive custody of the child pursuant to such conditional consent or relinquishment.
(e) Upon the filing of a revocation petition alleging grounds pursuant to the provisions of subdivision (3) or (4), subsection (a) of this section, a presumption exists in favor of returning the child immediately to the birth parent who had physical custody of the child prior to the execution of the consent or relinquishment during the pendency of the petition or its appeal. This presumption may be overcome only by a showing of evidence that the child will suffer irreparable harm.
(f) If a hearing is required on any issue involving revocation or custody pending the disposition of a revocation petition, the court shall set the revocation hearing within thirty days of service of notice upon the respondent and shall set any hearings on custody pending the disposition on revocation as soon as practically possible, but in no case more than thirty days from the filing of the petition. When the decision of the circuit court on revocation is appealed, the supreme court of appeals shall decide whether to accept the appeal within thirty days of the filing of the petition for appeal.
§48-4-6. Delivery of child for adoption; filing of petition.

(a) Whenever a person delivers a child for adoption the person first receiving such child and the prospective adopting parent or parents shall be entitled to receive from such person a written recital of all known circumstances surrounding the birth, medical and family medical history of the child, and an itemization of any facts or circumstances unknown concerning the child's parentage or requiring that may require further development in the form of an affidavit from the birth mother consistent with the provisions of section seven of this article.
(b) The petition for adoption may be filed at any time after the child who is the subject of the adoption is born, and the adoptive placement determined with or without all requisite consents, but the and all consents or relinquishments that can be obtained have been executed. The hearing on said the petition shall not may be held until no sooner than forty-five days after the filing of the petition and only after the child shall have has lived in the house of with the adopting adoptive parent or parents for a period of six months, proper notice of the petition has been given, and all necessary consents or relinquishments have been executed and submitted or the rights of all nonconsenting birth parents have otherwise been terminated.
§48-4-7. Petition and appendix.

(a) The petition shall be verified and set forth:
(1) The name, age and place of residence of the petitioner or petitioners, and of the child, and the name by which the child shall be known;
(2) Whether such child be is possessed of any property and a full description of the same, if any; and
(3) Whether the petitioner or petitioners know the identity of the persons entitled to parental rights or, that the same are unknown to the petitioner or petitioners; and
(4) An effort shall be made to obtain medical and social information, and that information, along with all nonidentifying information about the birth, shall accompany the petition and be made a part of the nonidentifying information to be sealed in the court file. The petition shall be duly verified according to law. Whether and on what basis the parental rights of any birth parents should be terminated during the pendency of the adoption petition.
(b) In the case of an unknown father, an affidavit signed by the birth mother setting forth the following information must be attached to the petition:
(1) Whether the birth mother was married at the probable time of conception of the child, or at a later time, and if so, the identity and last known address of such man;
(2) Whether the birth mother was cohabiting with a man at the probable time of conception of the child, and if so, the identity of such man, his last known address and why the woman contends that such man is not the biological father of the child;
(3) Whether the birth mother has received payments or promise of support from any man with respect to the child or her pregnancy, and if so, the identity of such man, his last known address and why the birth mother contends that such man is not the biological father of the child;
(4) Whether the birth mother has named any man as the father on the birth certificate of the child or in connection with applying for or receiving public assistance, and if so, the identity of such man, his last known address and why the birth mother contends such man is not the biological father of the child;
(5) Whether the birth mother identified any man as the father to any hospital personnel, and if so, the identity of such man, his last known address, the name and address of the hospital and why the birth mother now contends such man is not the biological father of the child;
(6) Whether the birth mother has informed any man that he may be the biological father of the child, and if so, the identity of such man, his last known address and why the birth mother now contends such man is not the biological father of the child;
(7) Whether any man has formally or informally acknowledged or claimed paternity of the child in any jurisdiction at the time of the inquiry, and if so, the identity of such man, his last known address and why the birth mother contends such man is not the biological father of the child;
(8) That the birth mother has been advised that the failure to identify or the misidentification of the birth father can result in delays and disruptions in the processing of the adoption petition;
(9) That the birth mother has been informed that her statement concerning the identity of the father will be used only for the limited purposes of adoption and that once the adoption is complete, such identity will be sealed; and
(10) That the birth mother has been advised of the remedies available to her for protection against domestic violence pursuant to the provisions of article two-a of this chapter.
(c) In the event the birth mother is deceased or her identity or whereabouts are unknown, no such affidavit shall be required.
(d) The affidavit of the birth mother in the case of an unknown father shall be executed before any person authorized to witness a consent or relinquishment pursuant to the provisions of section three-a of this article. Any affidavit filed with the petition pursuant to the provisions of this section shall be sealed in the court file and may not be opened except by court order upon a showing of good cause.
(b) (e) If the person petitioning for adoption is less than fifteen years older than the child sought to be adopted, such fact shall be set forth specifically in the petition. In such case, the court shall grant the adoption only upon a specific finding that notwithstanding the differences in age of the petitioner and the child, such adoption is in the best interest of the child: Provided, That when the petitioner seeks to adopt a child of his or her spouse in the case of a stepparent adoption, such specific finding shall not be required and an adoption shall not be denied on the sole basis of proximity in age.
(f) In addition, the The petition shall set forth such of the any facts concerning the circumstances of the birth of the child as the known to the petitioner or petitioners are informed. An effort shall be made to obtain medical and social information, which information, along with all nonidentifying information about the birth, shall accompany the petition and be made a part of the nonidentifying information to be sealed in the court file.
(g) Either the petition, the various consents or relinquishments attached thereto or filed in the cause, the affidavit of the birth mother as set forth herein and/or an appendix signed by counsel or other credible persons shall fully disclose all that is known about the parentage of the child.
§48-4-8. Who shall receive notice.
(a) Unless notice has been waived, notice of a proceeding for adoption of a child must be served, within twenty days after a petition for adoption is filed, upon:
(1) Any person whose consent to the adoption is required pursuant to the provisions of section three of this article, but notice need not be served upon a person whose parental relationship to the child or whose status as a guardian has been terminated;
(2) Any person whom the petitioner knows is claiming to be the father of the child and whose paternity of the child has been established pursuant to the provisions of article six, chapter forty-eight-a of this code;
(3) Any person other than the petitioner who has legal or physical custody of the child or who has visitation rights with the child under an existing court order issued by a court in this or another state;
(4) The spouse of the petitioner if the spouse has not joined in the petition; and
(5) A grandparent of the child if the grandparent's child is a deceased parent of the child and, before death, the deceased parent had not executed a consent or relinquishment or the deceased parent's parental relationship to the child had not been otherwise terminated.
(b) The court shall require notice of a proceeding for adoption to be served upon any person the court finds, at any time during the proceeding, is:
(1) A person described in subsection (a) of this section who has not been given notice;
(2) A person who has revoked consent or relinquishment pursuant to the provisions of section five of this article; or
(3) A person who, on the basis of a previous relationship with the child, a parent, an alleged parent, or the petitioner, can provide relevant information that the court, in its discretion, wants to hear.
§48-4-8a. How notice is to be served.
(a) Notice shall be served on each person as required under the provisions of section eight of this article, in accordance with rule 5 of the West Virginia rules of civil procedure for trial courts of record and as otherwise provided in this section.
(b) The notice shall inform the person, in plain language, that his or her parental rights, if any, may be terminated in the proceeding and that such person may appear and defend any such rights within twenty days of such service. The notice shall also provide that if the person upon whom notice is properly served fails to respond within twenty days after its service, said person may not appear in or receive further notice of the adoption proceedings.
(c) In the case of any person who is a nonresident or whose whereabouts are unknown, service shall be achieved: (1) By personal service; (2) by registered or certified mail, return receipt requested, postage prepaid, to the person's last known address, with instructions to forward; or (3) by publication. If personal service is not achieved and the person giving notice has any knowledge of the whereabouts of the person to be served, including a last known address, service by mail shall be first attempted as provided herein. Any service achieved by mail shall be complete upon mailing and shall be sufficient service without the need for notice by publication. In the event that no return receipt is received giving adequate evidence of receipt of the notice by the addressee or of receipt of the notice at the address to which the notice was mailed or forwarded, or if the whereabouts of the person is unknown, then the person required to give notice shall cause service of notice by publication as a Class II publication in compliance with the provisions of article three, chapter fifty-nine of the code, and the publication area shall be the county where the proceedings are had, and in the county where the person to be served was last known to reside, except in cases of foreign adoptions where the child is admitted to this country for purposes of adoptive placement and the United States immigration and naturalization service has issued the foreign-born child a visa or unless good cause is shown for not publishing in the county where the person was last known to reside. The notice shall state the court and its address but not the names of the adopting parents or birth mother, unless the court so orders.
(d) In the case of a person under disability, service shall be made on the person and his or her personal representative, or if there be none, on a guardian ad litem.
(e) In the case of service by publication or mail or service on a personal representative or a guardian ad litem, the person shall be allowed thirty days from the date of the first publication or mailing or of such service on a personal representative or guardian ad litem in which to appear and defend his or her parental rights.
§48-4-8b. Notice to an unknown father.
(a) In the case of an unknown father, the court shall inspect the affidavit submitted pursuant to the provisions of section seven of this article, consider any additional evidence that the court, in its discretion, determines should be produced, and determine whether said father can be identified. The inspection and consideration of any additional evidence by the court shall be accomplished as soon as practicable after the filing of the petition, but no later than sixty days before the final hearing on the adoption petition.
(b) If the court identifies a father pursuant to the provisions of subsection (a) of this section, then notice of the proceeding for adoption shall be served on the father so identified in accordance with the provisions of section eight-a of this article.
(c) If after consideration of the affidavit and/or the consideration of further evidence, the court finds that proper service cannot be made upon the father because his identity is unknown, the court shall order publication of the notice only if, on the basis of all information available, the court determines that publication is likely to lead to receipt of notice by the father. If the court determines that publication or posting is not likely to lead to receipt of notice, the court may dispense with the publication or posting of a notice.
§48-4-12. Finality of order; challenges to order of adoption.

(a) A mother, a legal or determined birth father, or a guardian of a child, who did not consent to the adoption of such child, or any person entitled to notice as provided in section eight of this article, or subsections (b) and (c), section one, article three, chapter forty-nine of this code, who was not served with notice as provided in said provisions, may, at any time within one year after learning of or having reasonable opportunity to learn of the adoption, apply by petition to the court in which the adoption was granted, praying that the adoption be vacated. The court to which such application is made shall fix a date and time for a hearing, shall cause notice thereof to be given to the person or persons or agency who were permitted to adopt such minor, and, at the time so fixed, shall hear the petitioner and all parties interested, and may vacate or affirm the adoption in its discretion. Any party interested may appeal to the supreme court of appeals from the decision of the court in the matter, as in other civil cases.
(a) An order or decree of adoption is a final order for purposes of appeal to the supreme court of appeals on the date when the order is entered. An order or decree of adoption for any other purpose is final upon the expiration of the time for filing an appeal when no appeal is filed or when an appeal is not timely filed, or upon the date of the denial or dismissal of any appeal which has been timely filed.
(b) An order or decree of adoption may not be vacated, if a petition to vacate the judgment is filed more than six months after the date the order is final, except:
(1) Any person entitled to notice pursuant to the provisions of subdivision (1) or (2), subsection (a), section eight of this article who was not served with notice may file a petition with the court in which the adoption was granted praying that the adoption be vacated. The petition shall be filed within six months from the date the person knew or should have known of the proceeding, which date shall be determined by the court upon a showing of clear and convincing evidence; or
(2) Any person who alleges the consent or relinquishment he or she executed was obtained by fraud or duress may file a petition with the court in which the adoption was granted praying that the adoption be vacated. The petition shall be filed within six months from the date the person knew or should have known of any fraud or duress, which date shall be determined by the court upon a showing of clear and convincing evidence.
(c) An order or decree of adoption may not be vacated:
(1) Upon application of a person who waived notice or who was served with notice but who failed to respond or appear, to file an answer or to timely file a claim of paternity; or
(2) Upon application of a person alleging there is a failure to comply with an agreement for visitation or communication with the adopted child: Provided, That the court may hear a petition to enforce the agreement, in which case the court shall determine whether enforcement of the agreement would serve the best interests of the child. The court may, in its sole discretion, consider the position of a child of the age and maturity to express such position to the court.
(d) The supreme court of appeals shall consider and issue rulings on any petition for appeal from an order or decree of adoption and petitions for appeal from any other order entered pursuant to the provisions of this article as expeditiously as possible. The circuit court shall consider and issue rulings on any petition filed to vacate an order or decree of adoption and any other pleadings or petitions filed in connection with any adoption proceeding as expeditiously as possible.
(b) (e) When any minor has been adopted, he or she may, within one year after becoming of age, sign, seal and acknowledge before proper authority, in the county in which the order of adoption was made, a dissent from such adoption, and file such instrument of dissent in the office of the clerk of the circuit court which granted said adoption. and The clerk of the county commission of such county and such clerks the circuit clerk shall record and index the same. Upon the filing of such instrument of dissent The adoption shall be vacated upon the filing of such instrument of dissent.
§48-4-16. Prohibition of purchase or sale of child; penalty; definitions; exceptions.

(a) Any person or agency who knowingly offers, gives or agrees to give to another person money, property, service or other thing of value in consideration for the recipient's locating, providing or procuring a minor child for any purpose which entails a transfer of the legal or physical custody of said child, including, but not limited to, adoption or placement, shall be is guilty of a felony and subject to fine and imprisonment as provided herein.
(b) Any person who knowingly receives, accepts or offers to accept money, property, service or other thing of value to locate, provide or procure a minor child for any purpose which entails a transfer of the legal or physical custody of said child, including, but not limited to, adoption or placement, shall be is guilty of a felony and subject to fine and imprisonment as provided herein.
(c) Any person who violates the provisions of this section shall be is guilty of a felony and, upon conviction thereof, may be imprisoned in the penitentiary for not less than one year nor more than five years or, in the discretion of the court, be confined in jail not more than one year and shall be fined not less than one hundred dollars nor more than two thousand dollars.
(d) A child whose parent, guardian or custodian has sold or attempted to sell said child in violation of the provisions of this article may be deemed an abused child as defined by section three, article one, chapter forty-nine of this code. The court may place such a child in the custody of the department of health and human resources or with such other responsible person as the best interests of the child dictate.
(e) This section does not prohibit the payment or receipt of the following:
(1) Fees paid for reasonable and customary services provided by the department of health and human resources or any licensed or duly authorized adoption or child-placing agency.
(2) Reasonable and customary legal, medical, hospital or other expenses incurred in connection with legal adoption proceedings.
(3) Fees and expenses included in any agreement in which a woman agrees to become a surrogate mother.
(4) Any fees or charges authorized by law or approved by a court in a proceeding relating to the placement plan, prospective placement or placement of a minor child for adoption.
(f) At the final hearing on the adoption, an affidavit of any fees and expenses paid or promised by the adoptive parents shall be submitted to the court.
CHAPTER 49. CHILD WELFARE.
ARTICLE 3. CHILD WELFARE AGENCIES.
§49-3-1. Consent by agency or department to adoption of child; statement of relinquishment by parent; petition to terminate parental rights.

(a) (1) Whenever a child welfare agency licensed to place children for adoption or the state department of human services shall have department of health and human resources has been given the permanent care, custody and guardianship 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 such the child shall 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 of human services may consent to the adoption of such the child pursuant to the provisions of article four, chapter forty-eight of this code., regulating adoption proceedings. The mother and the legal or determined father of a child, or the mother if the father is putative or unknown, may relinquish the child to a child welfare agency licensed to place children for adoption, or to the department of human services, by a written statement acknowledged as deeds are required to be acknowledged by law: Provided, That if either of the parents of such child is under eighteen years of age, such relinquishment shall not be valid unless and until the same shall have been approved in writing by a judge of a court having jurisdiction of adoption proceedings in the county in which such parent may reside or in which such relinquishment is made.
(2) Relinquishment for an adoption to an agency or to the department is required of the same persons whose consent or relinquishment is required under the provisions of section three, article four, chapter forty-eight of this code. The form of any relinquishment so required shall conform as nearly as practicable to the requirements established in section three-b of said article and all other provisions of said article providing for relinquishment for adoption shall govern the proceedings herein.
(3) For purposes of any placement of a child for adoption by the department, the department shall first consider the suitability and willingness of any known grandparent or grandparents to adopt the child. Once any such grandparents have been identified, the department shall conduct a home study evaluation, including home visits and individual interviews by a licensed social worker. If the department determines, based on the home study evaluation, that the grandparents would be suitable adoptive parents, it shall assure that the grandparents are offered the placement of the child prior to the consideration of any other prospective adoptive parents.
(4) The department shall provide, for purposes of any private or agency adoption proceeding, preplacement and post-placement counseling services by persons experienced in adoption counseling, at no cost, to any person whose consent or relinquishment is required pursuant to the provision of article four, chapter forty-eight of this code.
(b) (1) Whenever the mother has executed a relinquishment pursuant to this section, and the legal, determined, putative, outsider or unknown father, as those terms are defined pursuant to the provisions of section one, article four, chapter forty-eight of this code, has not executed a relinquishment, the child welfare agency or state department of human services the department may, by verified petition, seek to have said the father's rights terminated based upon the grounds of abandonment or neglect of said child. Abandonment may be established in accordance with the provisions of section three-a, article four, chapter forty-eight of this code.
(2) Unless waived by a writing acknowledged as in the case of deeds or by other proper means, notice of the petition shall be served on any person entitled to parental rights of a child prior to its adoption who has not signed a relinquishment of custody of such 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 such the child and who has not consented or 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 father's parental rights terminated, the court shall set a hearing on said 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 him 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 in 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 full care, legal and physical custody and control of said child to the petitioner.