Senate Bill No. 454
(By Senator Minear)
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[Introduced March 9, 2001; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section one, article three, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to providing that
immediate family members be given primary consideration for
purposes of adoption of minor children by the department of
health and human resources.
Be it enacted by the Legislature of West Virginia:
That section one, article three, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, 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 four, chapter
forty-eight of this code.
(2) Relinquishment for an adoption to an agency or to the
department is required of the same persons whose consent or
relinquishment is required under the provisions of section three,
article four, chapter forty-eight of this code. The form of any
relinquishment so required shall conform as nearly as practicable
to the requirements established in section three-b of said the
article and all other provisions of said the 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 immediate family members grandparent
or grandparents to adopt the child. The department, if there be no
known immediate family members who are suitable and willing to
adopt the child, shall next consider the suitability and
willingness of any grandparent or grandparents to adopt the child.
Once any such grandparents who are interested in adopting the child
have been identified, the department shall conduct a home study
evaluation, including home visits and individual interviews by a
licensed social worker. If the department determines, based on the
home study evaluation, that the grandparents would be suitable
adoptive parents, it shall assure that the grandparents are offered
the placement of the child prior to the consideration of any other
prospective adoptive parents.
(4) The department shall make available, upon request, for
purposes of any private or agency adoption proceeding, preplacement
and postplacement counseling services by persons experienced in
adoption counseling, at no cost, to any person whose consent or
relinquishment is required pursuant to the provision of article
four, chapter forty-eight of this code.
(b) (1) Whenever the mother has executed a relinquishment
pursuant to this section, and the legal, determined, putative, outsider or unknown father, as those terms are defined pursuant to
the provisions of section one, article four, chapter forty-eight of
this code, has not executed a relinquishment, the child welfare
agency or the department may, by verified petition, seek to have
the father's rights terminated based upon the grounds of
abandonment or neglect of said the child. Abandonment may be
established in accordance with the provisions of section three-a,
article four, chapter forty-eight of this code.
(2) Unless waived by a writing acknowledged as in the case of
deeds or by other proper means, notice of the petition shall be
served on any person entitled to parental rights of a child prior
to its adoption who has not signed a relinquishment of custody of
the child.
(3) In addition, notice shall be given to any putative,
outsider or unknown father who has asserted or exercised parental
rights and duties to and with the child and who has not
relinquished any parental rights and such rights have not otherwise
been terminated, or who has not had reasonable opportunity before
or after the birth of the child to assert or exercise such the
rights: Provided, That if such the child is more than six months
old at the time such the notice would be required and such the father has not asserted or exercised his parental rights and he
knew the whereabouts of the child, then such the father shall be
presumed to have had reasonable opportunity to assert or exercise
such his 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 The notice shall inform the person that his parental
rights, if any, may be terminated in the proceeding and that such
the person may appear and defend any such rights within twenty days
of such the 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 the person's whereabouts, then the court shall order service
of such the 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 the service on a personal representative or
guardian ad litem in which to appear and defend such their 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 their 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
provide immediate family
members be given primary consideration for purposes of adoption of
minor children by the department of health and human resources.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.