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A. PROCEDURE FOR DISMISSAL OF PROCEEDING
B. CUSTODY OF CHILD WHEN PROCEEDING IS DISMISSED IN AGENCY PLACEMENT
C. CUSTODY OF CHILD WHEN PROCEEDING IS DISMISSED IN AN INDEPENDENT PLACEMENT
The adoption proceeding may be dismissed by the Court if at any time between the filing of the Petition and the issuing of the Decree of Adoption it is made known to the Court that circumstances are such that the child should not be adopted by the petitioners. Such information may be brought to the court's attention by the attorney, birth or adoptive parents, and/or the social agency.
If an adoption proceeding is not to be completed, it should be dismissed by a formal court order, which may be either drawn and typewritten to suit the individual case, or may be issued on the standard Dismissal form (DSS-1816) provided by the Division of Social Services.
The court, before entering an order to dismiss the proceeding, shall give at least 5 days notice of the motion to dismiss to the parties, to the agency that prepared the Report on Proposed Adoption and to the Department of Health and Human Services. The parties, agency and Department shall be entitled to a hearing on the issue of dismissing the proceeding. N.C.G.S.§48-2-604.
When the proceeding is dismissed by the clerk in an agency placement, custody of the child shall revert to the director of the county department of social services or executive director of the licensed child-placing agency having custody of the child through release and surrender at the time of placement and initiation of the adoption proceeding. (N.C.G.S.§48-2-604)
If the child was placed directly with the adoptive parents by the birth parents, the custody of the child reverts to the birth parents and the Court of Adoptions, upon dismissal of the proceeding, immediately notifies the director of social services of the county in which the Petition was filed to take appropriate action for the protection of the child. (N.C.G.S.§48-2-604). In addition, when the court dismisses the petition and no appeal is taken or is resolved, any consents used in that adoption are void. N.C.G.S.§48-3-609(a)
If any question or dispute arises as to custody of the child, the director should petition the appropriate court of juvenile jurisdiction for custody so that the agency can make a plan of care for the child.
If the adoption proceeding is dismissed for legal and/or technical reasons, and a new proceeding is initiated or filed, and the child is to remain with and be adopted by the same adoptive parents, the consents to the child's adoption will continue to be valid. It is recommended that the Order dismissing the proceeding show that the original consents are not to be affected. The original consent documents may be drawn from the file held by the Division of Social Services and returned to the Court to be made a part of a new proceeding upon receipt by the Division of Social Services of an Order from the Court authorizing such return.
The petitioner may request that the petition be dismissed under Rule 41 of the Rules of Civil Procedure either without prejudice to re-file within a year or with prejudice meaning the action cannot be refilled. A voluntary dismissal by the petitioner does not void the underlying consents, but a voluntary dismissal with prejudice does. N.C.G.S.§48-3-609(a).
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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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