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In agency placements, the agency having placement authority for the child has the responsibility for legally clearing the child and filing the documents with the Clerk of Superior Court directly. In all other placements, it is the adopting parents' attorney's responsibility to legally clear the child and file the documents with the Clerk of Superior Court.
General Statutes N.C.G.S.§7B-1100 through N.C.G.S.§7B-1113 provide the legal framework for termination of parental rights, which comes under the jurisdiction of the juvenile division of the district court. This action is initiated by the filing of a petition for termination of the parental rights of the parent or parents whose consents have not been obtained or the filing of a motion to terminate parental rights against parents who have previously been served in the juvenile case. As with other petitions for juvenile court action, termination actions are filed in the offices of the Clerks of Superior Court. Because of the complex legal nature of termination proceedings, agencies seeking to have parental rights terminated should obtain the services of an attorney for all parts of the action.
1. Consents and Relinquishments Defined
The adoption statute specifies when there must be a written consent to the child's adoption to protect the child fully and to make the adoption valid. When birth parents or guardians surrenders a child to an agency through a Relinquishment of Minor for Adoption by Parent or Guardian and the agency gives consent to the child's adoption, OR when the birth parents or guardians gives consent to the adoption of a child directly to the petitioner, then the person executing the consent or relinquishment is not a necessary party to the adoption proceeding and is not entitled to notice unless the petitioner has been informed that the person has moved to set aside the consent or relinquishment for fraud or duress. (N.C.G.S. § 48-2-401; 48-2-406)
a. Relinquishment
"Relinquishment" means the voluntary surrender of a minor to an agency for the purpose of adoption. This term replaces the former “Parent's Release, Surrender, and General Consent.” Upon execution of a relinquishment by a parent or guardian in accordance with N.C.G.S.§48-3-701, the agency obtains legal and physical custody of the child. (N.C.G.S.§48-3-705)
b. Consents
The term "consent to adoption" is used primarily in two instances. A consent means a voluntary surrender of a child for adoption by the parent or guardian in a direct or independent placement. The term "consent" is also used when an agency, which has received a relinquishment from a parent or guardian, consents to the placement of a child in an adoptive home. Further, a child 12 or more years of age must execute a consent for adoption, except that such consent may be waived by the court upon finding that it is not in the child's best interest to require consent (N.C.G.S.§48-3-601 and 48-3-603 [b]).
2. Persons Whose Consent to Adoption is Required (N.C.G.S.§48-3-601)
a. The minor to be adopted if 12 or more years of age unless waived by the court as not in the minor’s best interest to require consent. (N.C.G.S.§48-3 603 [b][2]).
b. In a direct placement, by:
(1) The mother of the minor;
(2) Any man who may or may not be the biological father of the minor but who:
(a) Is or was married to the mother of the child if the child was born during the marriage or within 280 days after the marriage is terminated or the parties have legally separated;
(b) Attempted to marry the mother of the child before the child's birth, and the child is born during the attempted marriage or within 280 days thereafter;
(c) Before the filing of the petition, has legitimated the minor under the law of any state;
(d) Before the filing of the petition, has acknowledged his paternity of the child and;
1) Is obligated to support the minor under written agreement or by court order;
2) Has provided in accordance with his ability, reasonable and consistent payments for the support of the mother before or after birth of the child, or the support of the child and has regularly visited or communicated or attempted to do so with the mother and/or child;
3) After the child's birth but before the child's placement for adoption or mother's relinquishment, has married or attempted to marry the mother of the child.
(e) Before the filing of the petition, has received the minor into his home and openly held out the minor as his biological child; or
(f) Is the adoptive father of the minor.
(3) A guardian of the child
c. In an agency placement by:
(1) The agency that placed the minor for adoption; and
(2) Each individual described in (b) (2) above who has not relinquished the minor pursuant to Part 7 of Article 3 of this Chapter.
3. Timing of Relinquishments and Consents (N.C.G.S.§48-3-604 and 48-3-701)
a. A man whose consent is required under N.C.G.S.§48-3-601 may execute a consent or relinquishment to adoption either before or after the child is born.
b. The mother of a child may execute a consent or relinquishment to adoption at any time after the child is born but not sooner.
c. A guardian of a minor to be adopted may execute a consent or relinquishment to adoption at any time.
d. An agency licensed by the Division or a county department of social services in this State that places a minor for adoption shall execute its consent no later than 30 days after being served with notice of the adoption.
e. A minor to be adopted who is 12 years of age or older may execute a consent at any time.
f. Adoption consents may not be given prior to or within 10 days after birth of an Indian child.
4. Procedures (N.C.G.S. § 48-3-605 and 48-3-702)
a. A consent or relinquishment executed by a parent or guardian or a consent by a minor to be adopted who is 12 years of age or older must be signed and acknowledged under oath before an individual authorized to administer oaths or take acknowledgments.
b. A parent who has not reached the age of 18 years shall have legal capacity to give consent or relinquishment to adoption and to release that parent's rights in a child, and shall be as fully bound as if the parent had attained 18 years of age.
c. An individual before whom a consent or relinquishment is signed and acknowledged must now complete a written certification which is found on the back of standard consent and relinquishment forms.
d. A consent by an agency must be executed by the executive head or another authorized employee and must be signed and acknowledged under oath in the presence of an individual authorized to administer oaths or take acknowledgments.
e. Each parent or guardian who signs a relinquishment shall be furnished a letter or other writing indicating the agency’s willingness to accept that relinquishment if the agency’s director or designee is not immediately signing the acceptance page of the relinquishment if the agency’s director or designee is not immediately signing the acceptance page of the relinquishment.
f. Adoption surrenders of Indian children – whether to public or private agencies or in private adoptions - must be in writing and recorded before a family court judge who certifies in writing that the parent or Indian custodian understood the surrender.
g. Adoption surrenders of Indian children – whether to public or private agencies or in private adoptions - must be in writing and recorded before a family court judge who certifies in writing that the parent or Indian custodian understood the surrender
5. Mandatory and Optional Provisions
a. Mandatory provisions for consents and relinquishments, in accordance with N.C.G.S.§48-3-606 and N.C.G.S.§48-3-703 are incorporated in the standard forms.
b. The optional provision for relinquishments, set out in N.C.G.S.§48-3-704, is also incorporated in the standard form.
(1) When a designated relinquishment is executed, the parent may choose to receive notice by the agency if the adoption by the specific prospective adoptive parent, named or described in the relinquishment, will not be completed.
(2) If this option is chosen by the parent, the parent may then revoke the relinquishment within 10 days following receipt of the notice. If the parent’s whereabouts are unknown at that time, the notice may be sent to the address the parent used in the relinquishment, and the date of receipt is the date of delivery or last attempted delivery. If the parent does not revoke within 10 days, the child may be placed for adoption with adoptive parents selected by the agency.
6. Revocation (N.C.G.S.§48-3-608 and 48-3-703)
a. Revocation Period
(1) For consents and relinquishments, the revocation period is 7 days for any minor, inclusive of weekends and holidays. If the final day of the revocation period falls on a weekend or a North Carolina or a federal holiday, then the revocation period extends to the next business day.
(2) For an Indian child an adoption consent may be revoked at any time for any reason before the final decree is filed, and the child must be returned.
(3) A second consent to adoption to the same adoptive parents or a second general relinquishment to an agency or a second designated relinquishment to an agency for placement with the same adoptive parents is irrevocable.
(4) In a direct placement, if a pre-placement assessment is required, and placement occurs before the pre-placement assessment is given to the parent or guardian who is placing the minor, then the parent or guardian's time under N.C.G.S.§48-3-608 (a) to revoke any consent previously given shall be either five business days after the date the individual receives the pre-placement assessment or the remainder of 7 day revocation period, whichever is longer.
b. Procedures
An individual who executes a consent or relinquishment may revoke by giving written notice to the persons specified in the consents or to the agency to which the relinquishment was given. Notice may be given by personal delivery, overnight delivery, or registered or certified mail, return receipt requested. If notice is given by mail, notice is deemed complete when it is deposited in the United States mail, postage prepaid, addressed to the person to whom consent or relinquishment was given at the address specified in the consent, or to the agency at the agency's address as given in the relinquishment. If notice is given by overnight delivery, it is deemed complete on the date it is deposited with the service as shown on the service’s receipt, delivery charges paid and addressed to person to whom consent was given at address specified in consent. Therefore, the agency or adoptive parent will need to wait longer than 7 days to insure that no valid revocation is received by certified mail or overnight delivery service.
c. Consequences
(1) If a person who has physical custody relinquishes a child to an agency or consents to the adoption of the child by a prospective adoptive parent and thereafter revokes the relinquishment or consent, the agency or prospective adoptive parent shall upon request return the child to that person. The agency or prospective adoptive parent loses any right to legal or physical custody of the child and has no further responsibility for the care and support of the child.
(2) A court in a direct placement shall award reasonable attorney's fees to the person who revoked the consent if the prospective adoptive parent fails upon request to return the child.
(3) A court in an agency placement may award the person who revoked the relinquishment reasonable attorney's fees from a prospective adoptive parent with whom the minor was placed who refuses to return the minor and from the agency if the agency fails to cooperate in securing the minor's return.
(4) If a person who did not have physical custody of the child revokes a relinquishment or consent and this person's relinquishment or consent is required, the adoption cannot proceed until another consent or relinquishment is obtained or parental rights are terminated. The person who revoked the relinquishment or consent is not thereby entitled to physical custody of the child. If the child whose consent is required revokes consent, the county department of social services should be notified for appropriate action.
7. Challenges to Validity of Consents and Relinquishments (N.C.G.S.§48-3-609 and 48-3-707)
a. A consent shall be void if:
(1) Before the entry of the adoption decree, the individual who executed the consent establishes by clear and convincing evidence that it was obtained by fraud or duress;
(2) The prospective adoptive parent and the individual who executed the consent mutually agree in writing to set it aside;
(3) The petition to adopt is voluntarily dismissed with prejudice by the petitioner(s); or
(4) The court dismisses the petition to adopt and no appeal has been taken, or the dismissal has been affirmed on appeal and all appeals have been exhausted.
b. A relinquishment shall become void if:
1. Before the entry of the adoption decree, the individual who executed the relinquishment establishes by clear and convincing evidence that it was obtained by fraud or duress; or
2. Before placement with a prospective adoptive parent occurs, the agency and person relinquishing the minor agrees to rescind the relinquishment.
c. If a consent or relinquishment of a person who previously had legal and physical custody of a minor becomes void and no grounds exist for dispensing with this consent or relinquishment, the court shall order the return of the child to the custody of that person and shall dismiss any adoption proceeding. If the court has reasonable cause to believe that such return will be detrimental to the child, the court shall not order the return of the child but shall notify the county department of social services for appropriate action.
d. If a consent or relinquishment of an individual who did not previously have physical custody of a minor is set aside and no grounds exist for dispensing with this consent or relinquishment, the court shall dismiss any pending proceeding for adoption. If return of the minor is not ordered to a person with prior legal and physical custody under (c) above, the court shall notify the department of social services for appropriate action.
8. Prebirth Determination of Father’s Right to Consent (N.C.G.S.§48-2-206)
a. Anytime after six months from date of conception as reasonably determined by a physician, the biological mother, agency or adoptive parents chosen by the biological mother may file a special proceeding with the clerk requesting a determination whether the consent of the biological father is required.
b. The biological father must be served with notice of the intent of the biological mother to place the child for adoption. This notice states that he has been named as the father of a child to be placed for adoption and that if he believes his consent to adoption is required under N.C.G.S.§48-3-601, he must notify the court no later than 15 days after receiving the notice that he believes his consent is required. This response must also be sent to the person or agency that sent him the notice.
c. If the father fails to respond within the 15 days, the court shall enter an order that his consent is not required for the adoption. He is then not entitled to notice under N.C.G.S.§48-2-401(c) of an adoption petition filed within 3 months of the birth of the child. After that time the determination under this new section is no longer valid and he would be entitled to notice, need to give consent, deny paternity, etc.
d. If the father notifies the court within the 15 days that he believes his consent is required, a hearing shall be held no earlier than 60 days nor later than 70 days after the father received his notice.
e. The notice of that hearing must inform the father of the date, time and place of the hearing and inform him that before the date of the hearing, he must have taken steps under N.C.G.S.§48-3-601 to establish that his consent is necessary. These steps include marrying the mother, legitimating the child (after the child’s birth), acknowledging paternity of the child and supporting the child or mother and regularly visiting or communicating with the mother and/or child.
f. The court may take evidence as necessary during the hearing and enter an order determining whether the father’s consent is necessary. If the court determines his consent is not necessary; he is not entitled to notice of an adoption petition filed within 3 months of the child’s birth.
g. Manner of service shall be pursuant to Rule 4 of the Rules of Civil Procedure, just as in TPR actions. For notice given by publication, a prior diligent search must have been made to find the father and the publication notice must include information by which he could identify himself.
9. Persons Whose Consent Is Not Required (N.C.G.S.§48-3-603)
a. A person whose parental rights have been terminated;
b. A man, described in N.C.G.S.§48-3-601(2) other than an adoptive father, who has been judicially determined not to be the father of the child to be adopted, OR where another man has been judicially determined to be the father of the child to be adopted;
c. An individual who has given relinquishment for adoption to an agency;
d. A man who is not married to the child's birth mother and who, after the conception of the child, has executed a notarized denial of paternity;
e. A deceased parent, or the personal representative of a deceased parent's estate;
f. An individual listed in N.C.G.S.§48-3-601 who has not executed a consent or a relinquishment and who fails to respond to a notice of the adoption proceeding within 30 days after the service of the notice;
g. An individual notified under N.C.G.S.§48-2-206 (described in 8 above) who does not respond within the 15 days to a notice of hearing or whose consent is not required as determined by the court;
h. The court may issue an order dispensing with the consent of:
1. A guardian or an agency that placed the minor upon a finding that the consent is being withheld contrary to the best interest of the minor; or
2. A minor 12 or more years of age upon a finding that it is not in the best interest of the minor to require the consent.
10. Affidavit of Parentage
N.C.G.S.§48-3-206 requires an affidavit of parentage (DSS-1809) to be filed in both independent and agency placements in order to assist the court in determining that all necessary consents have been obtained. In an independent placement, the parent or guardian who placed the minor shall execute the affidavit. setting out the names, last known addresses, and marital status of the minor's parents or possible parents. In an agency placement, the agency shall obtain from at least one individual who relinquishes a minor to the agency an affidavit setting out this same information.
A knowledgeable individual can execute this affidavit if the placing parent or guardian is unavailable. That person indicates the source of his knowledge on the form. This affidavit is not necessary when the agency has cleared both parents through a termination of parental rights order.
11. Consent to Adoption by Child
When a child is 12 years of age or older or will become 12 years of age before the Decree of Adoption is issued, the child's consent to the adoption is necessary (N.C.G.S.§48-3-601), unless dispensed with by the court. (See 9h above). The child’s written consent to the adoption is given on form DSS-1803, Consent of Child for Adoption, and is required in addition to the Consent to Adoption given by the parents or guardians. The child's consent is filed with the Petition for Adoption or before the Decree of Adoption is issued. If the Clerk does not require the consent of the child, the child must be given notice of the filing of the adoption petition. N.C.G.S.§48-2-401(c)(1).
12. Consent to Adoption by Guardian of the Person
The consent for a child's adoption may be given by a guardian of the person of the child. The guardian of the person of the child is appointed to serve by the Clerk of Court pursuant to the provisions of N.C.G.S.§35A-1220, et. seq. A petition for appointment of guardian of the person is submitted to the Clerk of Court. Upon appointment, the guardian of the person has full legal authority to give or withhold consent to a child's adoption at a later date, and must be made a party to any proceeding for adoption (N.C.G.S.§48-3-601 and 48-2-401). Written consent is given by the guardian of the person of the child on form DSS-1802, Consent to Adoption by Parent, Guardian Ad Litem, or Guardian of the Person of the Child.
a. Reasons for Appointment of Guardian of the Person of the Child
(1) Biological Parents Deceased
When the birth parents are deceased, the Clerk may appoint a guardian of the person in accordance with the provisions of N.C.G.S.§35A. Such guardian shall have authority to give or withhold consent to adoption.
(2) Adjudication of Mental Incompetency
Where one or both birth parents of the child have been adjudged mentally incompetent, the Clerk may appoint a guardian of the person in accordance with the provisions of N.C.G.S.§35A, and such guardian's consent would be required in any subsequent proceeding for the child's adoption. (See 13 below regarding consents for mentally incompetent parents if the child is adopted).
b. Legal Documents Re: Appointment of Guardian of Person of the Child
When consent to the adoption is given by the guardian of the person of the child, a certified copy of the appointment of the guardian of the person of the child and the consent by the guardian (Form DSS-1802) are attached to the Petition for Adoption and filed for the Court's review. The Clerk of Court forwards these documents with the Petition to the Division of Social Services for filing and retention.
c. Guardians appointed in another jurisdiction
A guardian appointed in another jurisdiction must have the power to consent to the child’s adoption under the law of that jurisdiction. N.C.G.S.§48-1-101 (8).
13. Consents Where Parents are Mentally Incompetent (N.C.G.S.§48-3-602)
If a parent whose consent to adoption is required has been adjudicated incompetent, then the court shall appoint a guardian ad litem for that parent and a guardian ad litem for the child, unless the child already has a guardian, to make a full investigation as to whether the adoption should proceed. If the court determines after a hearing on the matter that it will be in the best interest of the child for the adoption to precede, the court shall order the guardian ad litem of the parent to execute a consent for that parent.
A diagnosis of mental illness or commitment to a psychiatric facility does not alone determine that a parent is incompetent. An adjudication of mental incompetency can only be made by a court of competent jurisdiction after reviewing evidence in the case, pursuant to N.C.G.S.§35A-1101, et. seq.
Agencies should proceed with caution before accepting relinquishments from parents who have been diagnosed as mentally ill, but not adjudicated incompetent, and work with mental health professionals to determine if the parent fully understands the adoption decision. In the alternative, termination of parental rights on the grounds of mental illness or mental retardation should be accomplished, pursuant to N.C.G.S.§7B-1111(a)(6).
14. Special Situations Affecting Status of Consents/Relinquishments
a. When Biological Mother Marries After the Birth of the Child
If the birth mother marries after the child's birth, her consent to the child's adoption should be signed under her married name. For example, if the mother's name is Mary Jane Doe and she marries a Smith, her signature would be Mary Jane Doe Smith.
b. When Mother is Married and Legal Father is Not Biological Father
It is necessary that the legal father as well as the birth father and mother consent to the adoption of a child born in wedlock although the legal father (mother's husband) is not the birth father. North Carolina common law presumes that the birth mother's husband is the father of the child regardless of the circumstances around the child's conception and birth. Notice must be provided to the birth father and legal father, except as provided in (c) below and/or their consents or relinquishments must be obtained.
c. Consent of Legal Father is Not Necessary in Certain Instances
The consent of the husband of a birth mother of a child to be adopted is not required if the child was born more than 280 days after the marriage was terminated or the parties have separated pursuant to a written separation agreement or an order of separation entered under Chapter 50 or 50B of the General Statutes or a similar order of separation entered by the court in another jurisdiction.
The consent of the legal father is also not required if there has been a judicial determination that he is not the father of the child or a judicial determination that another man is the father of the child to be adopted. N.C.G.S.§48-3-603(a)(2).
d. Denial of Paternity
Occasionally the person named by the mother as the birth father of the child may deny paternity. In such a case, the person named as the father should execute his denial and waive any rights, including right to notice of the adoption, on the Denial of Paternity, Form DSS-5118. Only an original of this form is needed, and it should be filed with the Petition for Adoption and any other legal documents. The Denial of Paternity is sufficient to allow the clerk to enter an order with findings of fact that his consent is not required. A denial of paternity may be executed at any time after conception of the child by a man who was not married to the mother (N.C.G.S.§48-3-603).
However, to be certain that no adoptive placements can be successfully challenged in such cases, it is recommended that the agency having placement authority for the child petition for termination of parental rights against an unknown father, since the denial of paternity by one man leaves open the question of paternity.
e. Voidable or Bigamous Marriage
If a child is born of a voidable or a bigamous marriage, the child is considered legitimate notwithstanding the annulment of the marriage (N.C.G.S.§50-11.1). Therefore, it is necessary that the birth father, as well as the mother, give consent to the adoption of the child. If a child is born of a bigamous marriage, consents to the child's adoption should be secured from the birth mother, the mother's legal husband (legal father of child), and the husband of the bigamous marriage (birth father of child).
If the consents to the child's adoption cannot be secured from the legal father (mother's legal husband) as well as from the birth father (husband of bigamous marriage) because the whereabouts of one or both are unknown, then necessary action should be taken to rule out one or both, as the case may be, through a termination of parental rights action.
f. Divorced Parents
Consent of both parents in cases of divorce is necessary to adoption of their child unless one or both parents have been eliminated through termination of parental rights or unless the legal father's consent is not required as discussed in (c) above.
The awarding of custody of a child to one parent in a divorce decree does not terminate the parental rights of the other parent for purposes of adoption, and does not therefore eliminate the other parent as a necessary party to a subsequent adoption proceeding.
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For questions or clarification on any of the policy contained in these manuals, please contact your local county office. |
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