MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary A

By: Representative Bourdeaux

AN ACT TO REQUIRE A PREPLACEMENT EVALUATION AND INVESTIGATION IN ADOPTIONS TO DETERMINE THE SUITABILITY OF PROSPECTIVE PARENTS; TO PROVIDE THAT A PETITION FOR ADOPTION SHALL BE MADE ONLY AFTER A PREPLACEMENT EVALUATION; TO AUTHORIZE THE DEPARTMENT OF HUMAN SERVICES TO REVIEW AND INVESTIGATE CIRCUMSTANCES OF PLACEMENT; TO AMEND SECTION 93-17-3, MISSISSIPPI CODE OF 1972, TO REQUIRE A CERTIFICATE OF REVIEW FROM THE DEPARTMENT OF HUMAN SERVICES IN ADOPTION PROCEEDINGS; TO AMEND SECTION 93-17-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE DEPARTMENT OF HUMAN SERVICES SHALL BE A PARTY TO AN ADOPTION; TO AMEND SECTIONS 93-17-11 AND 93-17-13, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) An investigator shall assess the information required by Section 93-17-1 et seq. to determine whether it raises a specific concern that placement of any minor, or a particular minor, in the home of the individual would pose a significant risk of harm to the physical or psychological well-being of the minor.

(2) If an investigator determines that the information assessed does not raise a specific concern, the investigator shall find that the individual is suited to be an adoptive parent. The evaluator may comment about any factor that in the investigator's opinion makes the individual suited in general or for a particular minor.

(3) If an investigator determines that the information assessed raises a specific concern, the investigator, on the basis of the original or any further investigation, shall find that the individual is or is not suited to be an adoptive parent. The investigator shall support the finding with a written explanation.

SECTION 2. (1) If a preplacement evaluation contains a finding that an individual is suited to be an adoptive parent, the investigator shall give the individual a signed copy of the evaluation. At the individual's request, the investigator shall furnish a copy of the evaluation to a person authorized to place a minor for adoption and, unless the individual requests otherwise, edit the copy to exclude identifying information.

(2) If a preplacement evaluation contains a finding that an individual is not suited to be an adoptive parent of any minor, or a particular minor, the investigator shall immediately give a signed copy of the evaluation to the individual and to the Department of Human Services. The department shall retain for ten (10) years the copy and a copy of any court order concerning the evaluation issued pursuant to Section 3 or 4 of this act.

(3) An investigator shall retain for two (2) years the original of a completed or incomplete preplacement evaluation and a list of every source for each item of information in the evaluation.

(4) An investigator who conducted an evaluation in good faith is not subject to civil liability for anything contained in the evaluation.

SECTION 3. (1) Within ninety (90) days after an individual receives a preplacement evaluation with a finding that he or she is not suited to be an adoptive parent, the individual may petition a court for review of the evaluation.

(2) If the court determines that the petitioner has failed to prove suitability by a preponderance of the evidence, it shall order that the petitioner not be permitted to adopt a minor and shall send a copy of the order to the Department of Human Services to be retained with the copy of the original evaluation. If, at the time of the court's determination, the petitioner has custody of a minor for purposes of adoption, the court shall make an appropriate order for the care and custody of the minor.

(3) If the court determines that the petitioner has proved suitability, the court shall find the petitioner suitable to be an adoptive parent and the petitioner may commence or continue a proceeding for adoption of a minor. The court shall send a copy of its order to the department to be retained with the copy of the original evaluation.

SECTION 4. If, before a decree of adoption is issued, the Department of Human Services learns from an investigator or another person that a minor has been placed for adoption with an individual who is the subject of a preplacement evaluation on file with the department containing a finding of unsuitability, the department shall immediately review the evaluation and investigate the circumstances of the placement and may request that the individual return the minor to the custody of the person who placed the minor or to the department. If the individual refuses to return the minor, the department shall immediately commence an action or proceeding to remove the minor from the home of the individual pursuant to the appropriate state's child protection statute and, pending a hearing, the court shall make an appropriate order for the care and custody of the minor.

SECTION 5. Section 93-17-3, Mississippi Code of 1972, is amended as follows:

93-17-3. Any person may be adopted in accordance with the provisions of this chapter in term time or in vacation by an unmarried adult or by a married person whose spouse joins in the petition, provided that the petitioner or petitioners shall have resided in this state for ninety (90) days preceding the filing of the petition. However, if (a) the petitioner or petitioners, or one (1) of them, be related to the child within the third degree according to civil law, or if (b) the adoption is presented to the court by an adoption agency licensed by the State of Mississippi, said residence restriction shall not apply. Such adoption shall be by sworn petition filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when it was abandoned or deserted, or in which the home is located to which the child shall have been surrendered by a person authorized to so do. The petition shall be accompanied by a doctor's certificate showing the physical and mental condition of the child to be adopted, a certificate of review from the Department of Human Services that all legal requirements have been met for an adoption and a sworn statement of all property, if any owned by the child. Should the doctor's certificate indicate any abnormal mental or physical condition or defect, such condition or defect shall not in the discretion of the chancellor bar the adoption of the child if the adopting parent or parents shall file an affidavit stating full and complete knowledge of such condition or defect and stating a desire to adopt the child, notwithstanding such condition or defect. The court shall have the power to change the name of the child as a part of the adoption proceedings. The word "child" herein shall be construed to refer to the person to be adopted, though an adult.

SECTION 6. Section 93-17-5, Mississippi Code of 1972, is amended as follows:

93-17-5. (1) There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before seventy-two (72) hours after the birth of said child: (a) the parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years; or, (b) in the event both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law, provided that, if one of such kin is in possession of the child, he or she shall join in the petition or be made a party to the suit; or, (c) the guardian ad litem of an abandoned child, upon petition showing that the names of the parents of such child are unknown after diligent search and inquiry by the petitioners. In addition to the above, there shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:

(i) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the Department of Human Services of the State of Mississippi.

(ii) Any person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.

(iii) The agent of the county Department of Human Services of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.

(iv) The Department of Human Services.

(2) Such consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by its next friend.

(3) In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a Petition for Determination of Rights as provided in Section 93-17-6.

(3) In the case of a child born out of wedlock, the father shall not be deemed to be a parent for the purpose of this chapter, and no reference shall be made to the illegitimacy of such child.

(4) If such consent be not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if it were an adult.

SECTION 7. Section 93-17-11, Mississippi Code of 1972, is amended as follows:

93-17-11. At any time after the filing of the petition for adoption and completion of process thereon, and prior to the entering of a final decree, the court shall * * * require a preplacement evaluation, investigation and report to the court be made by an investigator the court shall designate and direct concerning the child, giving the material facts upon which the court may determine whether the child is a proper subject for adoption, whether the petitioners or petitioner are suitable parents for the child, whether the adoption is to its best interest, and any other facts or circumstances which may be material to the proposed adoption. The court * * * shall stay the proceedings in said cause for such reasonable time which shall be no less than thirty (30) days for the completion of such investigation and report by the person, officer, or home designated and authorized to make the same.

Upon the filing of such consent or the completion of such process and the filing of such investigation and report, * * * and the presentation of such other evidence as may be desired by the court, if the court determines that it is to the best interests of the child that an interlocutory decree of adoption be entered, the court may thereupon enter an interlocutory decree upon such terms and conditions as may be determined by the court, in its discretion, but including therein that the complete care, custody and control of the child shall be vested in the petitioner or petitioners until further orders of the court and that during such time the child shall be and remain a ward of the court. If the court determines by decree at any time during the pendency of the proceeding that it is not to the best interests of the child that the adoption proceed, the petitioners shall be entitled to at least five (5) days' notice upon their attorneys of record and a hearing with the right of appeal as provided by law from a dismissal of the petition; provided, that the bond perfecting the appeal shall be filed within ten (10) days from the entry of the decree of dismissal and the bond shall be in such amount as the chancellor may determine and supersedeas may be granted by the chancellor or as otherwise provided by law for appeal from final decrees.

After the entry of the interlocutory decree and before entry of the final decree, the court may require such further and additional investigation and reports as it may deem proper. The rights of the parties filing the consent or served with process shall be subject to such decree but shall not be divested until entry of the final decree.

SECTION 8. Section 93-17-13, Mississippi Code of 1972, is amended as follows:

93-17-13. A final decree of adoption shall not be entered unless the provisions of this chapter have been followed and before the expiration of six (6) months from the entry of the interlocutory decree except (a) when a child is a stepchild of a petitioner or is related by blood to the petitioner within the third degree according to the rules of the civil law or in any case in which the chancellor in the exercise of his discretion shall determine from all the proceedings and evidence in said cause that the six-month waiting period is not necessary or required for the benefit of the court, the petitioners or the child to be adopted, and shall so adjudicate in the decree entered in said cause, in either of which cases the final decree may be entered immediately without any delay and without an interlocutory decree, or (b) when the child has resided in the home of any petitioner prior to the granting of the interlocutory decree, in which case the court may, in its discretion, shorten the waiting period by the length of time the child has thus resided.

The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child; and its effect, unless otherwise specifically provided, shall be that (a) the child shall inherit from and through the adopting parents and shall likewise inherit from the other children of the adopting parents to the same extent and under the same conditions as provided for the inheritance between brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi, and that the adopting parents and their other children shall inherit from the child, just as if such child had been born to the adopting parents in lawful wedlock; (b) the child and the adopting parents and adoptive kindred are vested with all of the rights, powers, duties and obligations, respectively, as if such child had been born to the adopting parents in lawful wedlock, including all rights existing by virtue of Section 11-7-13, Mississippi Code of 1972; provided, however, that inheritance by or from the adopted child shall be governed by subsection (a) above; (c) that the name of the child shall be changed if desired; and (d) that the natural parents and natural kindred of the child shall not inherit by or through the child except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent. Nothing in this chapter shall restrict the right of any person to dispose of property under a last will and testament.

SECTION 9. Sections 1, 2, 3 and 4 of this act shall be codified in Chapter 17 of Title 93, Mississippi Code of 1972.

SECTION 10. This act shall take effect and be in force from and after July 1, 1999.