Senate Bill No. 21
(By Senator Minear)
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[Introduced January 9, 2002; referred to the Committee
on Health and Human Resources.]
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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
immediate family members be given primary consideration for
purposes of adoption of minor children by the department of
human services.
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 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 immediate family
members grandparent or grandparents to adopt the child. The department, if there be no known immediate family members of 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 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 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 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 human services.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.