House Bill 1036

(As Passed the House)

AN ACT TO AMEND SECTIONS 43-15-107 AND 43-15-117, MISSISSIPPI CODE OF 1972, TO REQUIRE OUT-OF-STATE CHILD-PLACING AGENCIES THAT PROVIDE A FULL RANGE OF SERVICES IN MISSISSIPPI TO BE LICENSED IN THIS STATE; TO AMEND SECTION 93-17-3, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT ADOPTION PETITIONS SHALL BE ACCOMPANIED BY AFFIDAVITS OF THE PETITIONERS STATING THE AMOUNT OF THE SERVICE FEES CHARGED BY ANY ADOPTION AGENCIES OR ADOPTION FACILITATORS USED BY THE PETITIONERS AND ANY OTHER EXPENSES PAID BY THE PETITIONERS IN THE ADOPTION PROCESS AS OF THE TIME OF FILING THE PETITION; TO AMEND SECTION 93-17-11, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT IN ALL ADOPTIONS OTHER THAN FAMILY ADOPTIONS, THE COURT MAY, IN ITS DISCRETION, REQUIRE THAT A HOME STUDY BE PERFORMED BEFORE A FINAL DECREE IS ENTERED IN THE PROCEEDING, AT THE PETITIONERS' SOLE EXPENSE, TO DETERMINE WHETHER THE PETITIONERS ARE SUITABLE PARENTS FOR THE CHILD; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 43-15-107, Mississippi Code of 1972, is amended as follows:

43-15-107. (1) Except as provided in Section 43-15-111, no person, agency, firm, corporation, association or other entity, acting individually or jointly with any other person or entity, may establish, conduct or maintain foster homes, residential child-caring agencies and child-placing agencies or facility and/or engage in child placing in this state without a valid and current license issued by and under the authority of the division as provided by this article and the rules of the division. Any out-of-state child-placing agency that provides a full range of services, including, but not limited to, adoptions, foster family homes, adoption counseling services or financial aid, in this state must be licensed by division under this article.

(2) No license issued under this article is assignable or transferable.

(3) A current license shall at all times be posted in each licensee's facility, in a place that is visible and readily accessible to the public.

(4) (a) Each license issued under this article expires at midnight (Central Standard Time) twelve (12) months from the date of issuance unless it has been:

(i) Previously revoked by the office; or

(ii) Voluntarily returned to the office by the licensee.

(b) A license may be renewed upon application and payment of the applicable fee, provided that the licensee meets the license requirements established by this article and the rules and regulations of the division.

(5) Any licensee or facility which is in operation at the time rules are made in accordance with this article shall be given a reasonable time for compliance as determined by the rules of the division.

SECTION 2. Section 43-15-117, Mississippi Code of 1972, is amended as follows:

43-15-117. (1) Except as provided in this article, no person, agency, firm, corporation, association or group children's home may engage in child placing, or solicit money or other assistance for child placing, without a valid license issued by the division. No out-of-state child-placing agency that provides a full range of services, including, but not limited to, adoptions, foster family homes, adoption counseling services or financial aid, may operate in this state without a valid license issued by the division. No child-placing agency shall advertise in the media markets in Mississippi seeking birth mothers or their children for adoption purposes unless the agency holds a valid and current license issued either by the division or the authorized governmental licensing agency of another state that regulates child-placing agencies.

(2) An attorney, physician or other person may assist a parent in identifying or locating a person interested in adopting the parent's child, or in identifying or locating a child to be adopted. However, no payment, charge, fee, reimbursement of expense, or exchange of value of any kind, or promise or agreement to make the same, may be made for that assistance.

(3) Nothing in this section precludes payment of reasonable fees for medical, legal or other lawful services rendered in connection with the care of a mother, delivery and care of a child including, but not limited to, the mother's living expenses, or counseling for the parents and/or the child, and for the legal proceedings related to lawful adoption proceedings; and no provision of this section abrogates the right of procedures for independent adoption as provided by law.

(4) The division is specifically authorized to promulgate rules under the Administrative Procedures Law, Title 25, Chapter 43, Mississippi Code of 1972, to regulate fees charged by licensed child-placing agencies, if it determines that the practices of those licensed child-placing agencies demonstrates that the fees charged are excessive or that any of the agency's practices are deceptive or misleading; however, those rules regarding fees shall take into account the use of any sliding fee by an agency that uses a sliding fee procedure to permit prospective adoptive parents of varying income levels to utilize the services of those agencies or persons.

(5) The division shall promulgate rules under the Administrative Procedures Law, Title 25, Chapter 43, Mississippi Code of 1972, to require that all licensed child-placing agencies provide written disclosures to all prospective adoptive parents of any fees or other charges for each service performed by the agency or person, and file an annual report with the division that states the fees and charges for those services, and to require them to inform the division in writing thirty (30) days in advance of any proposed changes to the fees or charges for those services.

(6) The division is specifically authorized to disclose to prospective adoptive parents or other interested persons any fees charged by any licensed child-placing agency, attorney or counseling service or counselor for all legal and counseling services provided by that licensed child-placing agency, attorney or counseling service or counselor.

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

93-17-3. (1) 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 have resided in this state for ninety (90) days preceding the filing of the petition. However, if the petitioner or petitioners, or one (1) of them, are related to the child within the third degree according to civil law, or if the adoption is presented to the court by an adoption agency licensed by the State of Mississippi, the residence restriction shall not apply. The 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 has been surrendered by a person authorized to so do. The petition shall be accompanied by a doctor's or nurse practitioner's certificate showing the physical and mental condition of the child to be adopted and a sworn statement of all property, if any, owned by the child. In addition, the petition shall be accompanied by affidavits of the petitioner or petitioners stating the amount of the service fees charged by any adoption agencies or adoption facilitators used by the petitioner or petitioners and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition. If the doctor's or nurse practitioner's certificate indicates any abnormal mental or physical condition or defect, the condition or defect shall not in the discretion of the chancellor bar the adoption of the child if the adopting parent or parents file an affidavit stating full and complete knowledge of the condition or defect and stating a desire to adopt the child, notwithstanding the 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" in this section shall be construed to refer to the person to be adopted, though an adult.

(2) Adoption by couples of the same gender is prohibited.

SECTION 4. 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 before the entering of a final decree, the court may, in its discretion, of its own motion or on motion of any party to the proceeding, require an investigation * * * and report to the court to be made by any person, officer or home as the court may designate and direct concerning the child, and may, in its discretion, require in all adoptions, other than those in which the petitioner or petitioners are a relative or stepparent of the child, that a home study be performed of the petitioner or petitioners by an adoption agency licensed in this state, at the petitioner's or petitioners' sole expense and at no cost to the state or county. The investigation and report shall give the material facts upon which the court may determine whether the child is a proper subject for adoption, whether the petitioner or petitioners are suitable parents for the child, whether the adoption is to its best interest, and any other facts or circumstances that may be material to the proposed adoption. The home study shall determine whether the petitioner or petitioners are suitable parents for the child. The court, when an investigation and report are required by the court or by this section, shall stay the proceedings in the cause for such reasonable time as may be necessary or required in the opinion of the court for the completion of the investigation and report by the person, officer or home designated and authorized to make the same.

Upon the filing of that consent or the completion of the process and the filing of the investigation and report, if required by the court or by this section, 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; however, 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 the decree but shall not be divested until entry of the final decree.

SECTION 5. This act shall take effect and be in force from and after July 1, 2005.