MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary A

By: Representative Clark

AN ACT TO AMEND SECTIONS 93-17-5, 93-17-13, 93-17-25, 93-17-205, 93-17-207, 93-17-209, 93-17-215, 93-17-217 AND 93-17-219, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT AN ADOPTED CHILD SHALL HAVE THE RIGHT TO KNOW THE IDENTITY OF THE BIOLOGICAL PARENTS OF SUCH CHILD; TO REPEAL SECTION 93-17-223, MISSISSIPPI CODE OF 1972, WHICH PROHIBITS ONE PARENT FROM DIVULGING THE IDENTITY OF THE OTHER PARENT TO AN ADOPTEE; AND FOR RELATED PURPOSES.

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

SECTION 1. 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.

(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.

[Until June 30, 2001, this subsection (3) shall read as follows:]

(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.

[From and after July 1, 2001, this subsection (3) shall read as follows:]

(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. If an adopted child wishes to know the identity of the biological father of such child, such information shall be provided to the 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 2. Section 93-17-13, Mississippi Code of 1972, is amended as follows:

93-17-13. A final decree of adoption shall not be entered 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.

An adopted child shall have the right to be provided the identity of the biological parents of such child.

SECTION 3. Section 93-17-25, Mississippi Code of 1972, is amended as follows:

93-17-25. All proceedings under this chapter shall be confidential and shall be held in closed court without admittance of any person other than the interested parties, except upon order of the court. All pleadings, reports, files and records pertaining to adopting proceedings shall be confidential and shall not be public records and shall be withheld from inspection or examination by any person, except upon order of the court in which the proceeding was had on good cause shown.

Upon motion of any interested person, the files of adoption proceedings, heretofore had may be placed in the confidential files upon order of the court or chancellor and shall be subject to the provisions of this chapter.

Provided, however, that notwithstanding the confidential nature of said proceedings, said record shall be available for use in any court or administrative proceedings under a subpoena duces tecum addressed to the custodian of said records and portions of such record may be released pursuant to Sections 93-17-201 through 93-17-223.

An adopted child shall have the right to be provided the identity of the biological parents of such child.

SECTION 4. Section 93-17-205, Mississippi Code of 1972, is amended as follows:

93-17-205. (1) The bureau shall maintain a centralized adoption records file for all adoptions performed in this state after the effective date of this chapter which shall include the following information:

(a) The medical and social history of the birth parents, including information regarding genetically inheritable diseases or illnesses and any similar information furnished by the birth parents about the adoptee's grandparents, aunts, uncles, brothers and sisters;

(b) A report of any medical examination which either birth parent had within one (1) year before the date of the petition for adoption, if available;

(c) A report describing the adoptee's prenatal care and medical condition at birth, if available; and

(d) The medical and social history of the adoptee, including information regarding genetically inheritable diseases or illnesses, and any other relevant medical, social and genetic information.

(2) Any birth parent may file with the bureau at any time any relevant supplemental nonidentifying information about the adoptee or the adoptee's birth parents, and the bureau shall maintain this information in the centralized adoption records file.

(3) The bureau shall also maintain as part of the centralized adoption records file the following:

(a) The name, date of birth, social security number (both original and revised, where applicable) and birth certificate (both original and revised) of the adoptee;

(b) The names, current addresses and social security numbers of the adoptee's birth parents, guardian and legal custodian;

(c) Any other available information about the birth parent's identity and location.

(4) Any birth parent shall file with the bureau at any time an affidavit authorizing the bureau to provide the adoptee with his or her original birth certificate and with any other available information about the birth parent's identity * * *.

(5) Counsel for the adoptive parents in the adoption finalization proceeding shall provide the bureau with the information required in subsections (1) and (3) of this section, and he shall also make such information a part of the adoption records of the court in which the final decree of adoption is rendered. This information shall be provided on forms prepared by the bureau.

(6) (a) If an agency receives a report from a physician stating that a birth parent or another child of the birth parent has acquired or may have a genetically transferable disease or illness, the agency shall notify the bureau and the appropriate licensed adoption agency, and the latter agency shall notify the adoptee of the existence of the disease or illness, if he or she is twenty-one (21) years of age or over, or notify the adoptee's guardian, custodian or adoptive parent if the adoptee is under age twenty-one (21).

(b) If an agency receives a report from a physician that an adoptee has acquired or may have a genetically transferable disease or illness, the agency shall notify the bureau and the appropriate licensed agency, and the latter agency shall notify the adoptee's birth parent of the existence of the disease or illness.

(7) Compliance with the provisions of this section may be waived by the court, in its discretion, in any chancery court proceeding in which one or more of the petitioners for adoption is the natural mother or father of the adoptee.

SECTION 5. Section 93-17-207, Mississippi Code of 1972, is amended as follows:

93-17-207. (1) The bureau or the agency shall release the nonidentifying or identifying information maintained as provided in Section 93-17-205 for a reasonable fee, including the actual cost of reproduction, to any of the following persons upon request made with sufficient proof of identity:

(a) An adoptee eighteen (18) years of age or older;

(b) An adoptive parent;

(c) The guardian or legal custodian of an adoptee; or

(d) The offspring or blood sibling of an adoptee if the requester is eighteen (18) years of age or older.

(2) Information released pursuant to subsection (1) of this section shall not include the name and address of the birth parent, the identity of any provider of health care to the adoptee or to the birth parent and any other information which might reasonably lead to the discovery of the identity of either birth parent, unless such information is sought by the child.

SECTION 6. Section 93-17-209, Mississippi Code of 1972, is amended as follows:

93-17-209. (1) Whenever any person specified under Section 93-17-207 wishes to obtain medical, social or genetic background information about an adoptee or nonidentifying information about the birth parents of such adoptee or the adoptee wishes to obtain identifying, medical, social or background information, and the information is not on file with the bureau and the birth parents have not filed affidavits prohibiting a search to be conducted for them under the provisions of §§ 93-17-201 through 93-17-223, the person may request a licensed adoption agency to locate the birth parents to obtain the information.

(2) Employees of any agency conducting a search under this section may not inform any person other than the birth parents of the purpose of the search.

(3) The agency may charge the requester a reasonable fee for the cost of the search. When the agency determines that the fee will exceed One Hundred Dollars ($100.00) for either birth parent, it shall notify the requester. No fee in excess of One Hundred Dollars ($100.00) per birth parent may be charged unless the requester, after receiving notification under this paragraph, has given consent to proceed with the search.

(4) The agency conducting the search shall, upon locating a birth parent, notify him or her of the request and of the need for medical, social, genetic or identifying information.

(5) The agency shall release to the requester any medical or genetic information provided by a birth parent under this section without disclosing the birth parent's identity or location, unless the requester is the child and in that case identifying information shall be provided.

(6) If a birth parent is located but refuses to provide the information requested, the agency shall notify the requester, without disclosing the birth parent's identity or location, and the requester may petition the chancery court to order the birth parent to disclose the nonidentifying information or identifying information if the requestor is the child. The court shall grant the motion for good cause shown and if the requester is the child good cause shall be presumed.

(7) The Mississippi Department of Human Services shall provide the bureau each year with a list of licensed adoption agencies in this state capable of performing the types of searches described in this section.

SECTION 7. Section 93-17-215, Mississippi Code of 1972, is amended as follows:

93-17-215. Any person * * * who has been adopted in this state may request the bureau through a licensed adoption agency providing post-adoption services to obtain and provide the identifying information regarding either or both of his or her birth parents maintained as provided in Section 93-17-205 * * *.

SECTION 8. Section 93-17-217, Mississippi Code of 1972, is amended as follows:

93-17-217. * * * Before acting on a request made pursuant to Section 93-17-209 or Section 93-17-215, the agency shall require the adoptee to provide adequate identification and to submit to counseling by such agency in connection with the release and use of this information. The bureau shall release the requested information to the designated agency upon request by such agency.

SECTION 9. Section 93-17-219, Mississippi Code of 1972, is amended as follows:

93-17-219. (1) If the bureau does not have on file (a) an affidavit * * * authorizing release of identifying information * * * and any further contact from each known birth parent for whom information is sought, or (b) a notice that such birth parent has been contacted once and has refused to authorize the release of confidential information, then the adoptee may request the agency to undertake a search for the birth parent who has not filed an affidavit or who has not been contacted. The licensed agency shall not inform any person other than the birth parents of the purpose of the search.

(2) The licensed agency may charge the adoptee a reasonable fee for the cost of the search. When the agency determines that the fee will exceed One Hundred Dollars ($100.00) for either birth parent, it shall notify the adoptee. No fee in excess of One Hundred Dollars ($100.00) per birth parent may be charged unless the adoptee, after receiving notification under this paragraph, has given consent to proceed with the search.

(3) Upon locating a birth parent the licensed agency conducting the search shall make at least one (1) verbal contact and notify him or her of the following:

(a) The nature of the information requested;

(b) The date of the request; and

(c) The fact that the birth parent shall consent to * * * the release of this information * * *.

(4) Within three (3) working days after contacting a birth parent, the licensed agency shall provide the birth parent with a written statement of the information requested and an affidavit form authorizing * * * the release of the requested information. * * * The licensed agency shall disclose the requested information about that birth parent to the child only.

(5) If a licensed agency has contacted a birth parent as provided by this section, and the birth parent does not file the affidavit, the agency shall not disclose the requested information to any person other than the child.

(6) If, after a search under this section, a known birth parent cannot be located, the agency shall not disclose the requested identifying information about that birth parent to any person except the child, although it may disclose any available nonidentifying information regarding that birth parent, and it may disclose identifying information about the other birth parent if such other birth parent has signed an unrevoked affidavit authorizing such release. If a birth parent is located and refuses to authorize the release of identifying information, the agency locating this birth parent shall notify the bureau. The bureau shall note such contact and refusal in its records.

SECTION 10. Section 93-17-223, Mississippi Code of 1972, which prohibits one parent from divulging the identity of the other parent to an adoptee, is repealed.

SECTION 11. This act shall take effect and be in force from and after July 1, 2001.