H. B. 3130
(By Delegate Fleischauer)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary.]
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 adoption
generally; and providing an additional requirement that
adoptive placement with grandparents be determined to be in
the best interest of the child.
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 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 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 and that adoption
by the grandparents would be in the best interest of the child, 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 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
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
child to the petitioner.
NOTE: The purpose of this bill is to provide an additional
requirement that an adoptive placement with grandparents be
determined to be in the best interest of the child.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.