MISSISSIPPI LEGISLATURE
2006 Regular Session
To: Public Health and Human Services
By: Representative Holland
AN ACT TO CREATE THE PUTATIVE FATHER REGISTRY WITHIN THE DEPARTMENT OF HUMAN SERVICES; TO DEFINE CERTAIN TERMS; TO PROVIDE REGISTRATION REQUIREMENTS AND DUTIES; TO PROVIDE FOR THE DUTIES OF THE DEPARTMENT OF HUMAN SERVICES; TO PROVIDE NOTICE REQUIREMENTS; TO PROVIDE PENALTIES FOR FILING FALSE INFORMATION; TO PROVIDE FOR FEES; TO PROVIDE FORMS; TO AMEND SECTIONS 93-17-6, 93-15-103, 93-15-105 AND 93-15-107, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following words and phrases shall have the meanings ascribed herein, unless the context clearly indicates otherwise:
(a) "Child" includes an unborn child.
(b) "Department" means the Department of Human Services.
(c) "Putative father" means an individual who may be a child's father but who:
(i) Is not married to the child's mother on or before the date that the child is born; or
(ii) Has not established paternity of the child prior to the filing of a petition for termination of parental rights to the child for purposes of adoption; or
(iii) The term also includes an individual who is:
1. Less than eighteen (18) years of age; and
2. Not married to the child's mother even though the individual is a presumed father.
(d) "Registry" means the Putative Father Registry established by this act.
SECTION 2. The Putative Father Registry is established within the Department of Human Services, which shall administer the registry.
SECTION 3. The purpose of the Putative Father Registry is to protect the rights of putative fathers. Registration with the Putative Father Registry entitles the individual to notice of the hearing on termination of parental rights.
SECTION 4. (1) A person who engages in sexual relations with a member of the opposite sex is presumed to know that a pregnancy could result.
(2) A putative father is entitled to notice of termination of parental rights proceedings for the purposes of adoption if the putative father has complied with the requirements of the Putative Father Registry.
SECTION 5. (1) A putative father is entitled to notice of any proceedings to terminate parental rights involving a child whom he might have fathered if he timely files the following information with the department:
(a) His full name and any aliases;
(b) Address at which he may be served by certified mail, return receipt requested, with notice of a proceeding to terminate parental rights;
(c) His social security number;
(d) His date of birth;
(e) Tribal affiliation, if applicable;
(f) The mother's name, including all other names known to him that the mother uses, and her address, social security number and date of birth, if known;
(g) The child's name and place of birth, if known; and
(h) The approximate date and location of a possible conception and the approximate expected date of delivery.
(2) If a putative father does not have an address where he can receive notice of a termination of parental rights proceeding, he may designate another person as an agent for the purpose of receiving notice. The putative father shall provide the department with the agent's name and the address at which the agent may be served. Service of notice by certified mail, return receipt requested, constitutes service of notice upon the putative father.
(3) A putative father shall register under this section on a registration form prescribed by the department or with a legibly typed or handwritten statement that provides the required information and that is submitted to the department pursuant to this act. The registration must be signed by the putative father and notarized.
(4) A putative father who registers under this section is responsible for providing written updates to the department regarding any change of the putative father's name or address.
SECTION 6. (1) In order to be entitled, because of registration, to receive notice of a termination of parental rights proceeding, a putative father's registration form complying with the requirements of this act must be received by the department not later than ninety-six (96) hours after the child's birth.
(2) A putative father may file all information required by this section before a child's birth even though the putative father has no actual knowledge that a pregnancy has occurred or that a pregnancy has continued through gestation.
SECTION 7. A putative father shall submit a registration form:
(a) In person; or
(b) By facsimile transmission, mail, courier or delivery service.
SECTION 8. When a putative father receives notice that a child in whom he claims a parental interest is the subject of a termination of parental rights proceeding, the putative father shall appear at the hearing held on the petition to terminate parental rights and demonstrate, at a minimum, that the criteria set out in this act has been met.
SECTION 9. A person filing a registration form is presumed to be the father of the child for purposes of adoption. The registration is admissible in a paternity proceeding and creates a rebuttable presumption as to the paternity of the child.
SECTION 10. (1) The Department of Human Services shall:
(a) Prescribe a registration form for the information that a putative father submits under this act; and
(b) Make the registration forms available through:
(i) Any licensed adoption agency;
(ii) Each chancery clerk;
(iii) Each local health department;
(iv) Hospitals with maternity departments;
(v) Town or city clerks; and
(vi) Such other methods as it deems appropriate.
(2) A notice provided by the department that informs the public about the purpose and operation of the registry shall:
(a) Be posted in a conspicuous place by each:
(i) Chancery court;
(ii) Driver's examination station of the Department of Public Safety;
(iii) Local health department;
(iv) Town or city clerk.
(b) The notice shall be made available in the major languages spoken in the state.
(c) The notice shall be made available through school guidance and health departments.
(3) The notice under subsection (2) shall include information regarding:
(a) Where to obtain a registration form;
(b) Where to register;
(c) The circumstances under which a putative father is required to register;
(d) The period under this act during which a putative father is required to register in order to entitle him to receive notice of an adoption;
(e) The information that must be provided to the registry and what other actions the putative father is required to take to preserve a right to notice;
(f) The consequences of not submitting a timely registration; and
(g) The penalties for filing a false claim with the Putative Father Registry.
SECTION 11. The department shall maintain the following information in the registry:
(a) The registration information provided by the putative father under this act;
(b) The date that the department receives a putative father's registration;
(c) The name and affiliation of any person who requests that the department search the registry to determine whether a putative father is registered in relation to a mother whose child is or may be the subject of a termination proceeding, and the date the request is submitted; and
(d) Any other information that the department determines is necessary to access the information in the registry.
SECTION 12. The department shall store the registry's data in a manner so that the data is accessible through:
(a) The putative father's name;
(b) The mother's name, including her maiden name and any aliases;
(c) The date of birth of the putative father, the mother and the child, if known;
(d) The child's name, if known; and
(e) The social security number for the putative father, the mother and the child, if known.
SECTION 13. (1) Only the following may request that the department search the registry to determine whether a putative father is registered in relation to a child who is or may be the subject of a proceeding to terminate parental rights:
(a) A representative of the department;
(b) A representative of an agency when the agency is or may be arranging an adoption;
(c) Any woman who is the subject of a registration or an attorney authorized to act on her behalf;
(d) A court that presides over a pending termination of parental rights or a pending adoption; or
(e) An attorney who is or may be involved in an adoption.
(2) A request for information about a registration from the department must be in writing.
SECTION 14. Failure of the department or other entity to post proper notice under this act does not relieve a putative father of the obligation to register with the department.
SECTION 15. A putative father may revoke a registration at any time by submitting to the department a signed, notarized statement revoking the registration.
SECTION 16. The department shall furnish a certified copy of the putative father's registration form upon written request by:
(a) A putative father whose name appears on the registration form being requested;
(b) A mother whose name appears on the registration form being requested;
(c) The department or a licensed child-placing agency;
(d) A court that presides over a pending termination of parental rights or a pending adoption;
(e) The child support enforcement division of the Department of Revenue;
(f) A representative of the department or designee involved in a care and protection proceeding.
SECTION 17. Except as otherwise provided in this act, information contained within the registry is confidential.
SECTION 18. A person who purposely or knowingly registers false information or requests under false pretenses information from the Putative Father Registry commits a misdemeanor punishable by a fine of not more than One Thousand Dollars ($1,000.00) or imprisonment for not more than six (6) months, or both, and may be civilly liable for damages.
SECTION 19. (1) The burden of establishing fraud against the putative father by clear and convincing evidence must be borne by the putative father.
(2) A person injured by fraudulent representations or actions in connection with an adoption is entitled to pursue civil or criminal penalties against the person who has made the fraudulent representation. A fraudulent representation is not a defense for failure to comply with the requirements of the Putative Father Registry and is not a basis for dismissal of a petition for adoption, the vacate of an adoption decree or an automatic grant of custody to the injured party.
(3) A putative father who resides in another state may contest an adoption prior to the issuance of a decree terminating his parental rights and may assert his interest in the child. If the termination of parental rights proceeding is contested, the court shall hold an evidentiary hearing to determine if:
(a) The putative father resides and has resided in another state where the unmarried mother lived or resided either at the time of conception or through a portion of the pregnancy;
(b) The mother left that state, concealing the location from the putative father regarding where she could be contacted or located;
(c) The putative father has, through every reasonable means, attempted to locate the mother but has been unable to do so; and
(d) The putative father has complied with the requirements of the state where the mother previously resided or was located in order to protect and preserve his parental interest and rights concerning the child.
SECTION 20. The department shall provide a person who files a document under this act with evidence of the filing within twenty-four (24) hours and shall at the same time, send notice of the filing to such mother by registered mail at her address as stated on the paternal responsibility claim or to such other address as the department determines to be correct after making every reasonable effort to locate such mother. Such filing shall constitute an acknowledgment and admission of paternity.
SECTION 21. (1) Upon request of any person or agency receiving a child for the purpose of adoption, the department shall search its records of putative father registrations.
(2) The department may charge a reasonable fee not to exceed Twenty-five Dollars ($25.00) for responding to a request under this section.
(3) No later than twenty-four (24) hours after receiving a request for a registry search, the department shall submit an affidavit to the requestor verifying whether a putative father has registered within the period allowed under this act by fax, e-mail, prepaid courier service or regular mail.
(4) Whenever the department finds that one or more putative fathers are registered, the department shall submit to the requestor a copy of each registration form with an affidavit.
SECTION 22. A putative father who is not married to the mother of the child is presumed to know that the child may be adopted without his consent unless he complies with the requirements of this act.
SECTION 23. (1) Execution of a notarized denial of paternity of a child is a voluntary act that constitutes a waiver of all parental rights to the child, except for the duty to pay support if paternity is established or presumed.
(2) A notarized denial of paternity is irrevocable when executed. An individual who has executed a denial of paternity toward a child who is the subject of adoption proceedings shall not be entitled to notice of either the hearing to terminate parental rights or the hearing on an adoption petition.
(3) A notarized denial of paternity shall use the following form:
DENIAL OF PATERNITY
I, ____________ voluntarily and unconditionally deny that I am the father of ____________, ____________ age, of the ____________ sex, born in ____________ (place of birth), on ____________ (date of birth) and I waive notice of any legal proceeding affecting the custody, guardianship, adoption or other disposition of (child).
I UNDERSTAND THAT THIS DENIAL OF PATERNITY IS FINAL AND CANNOT BE REVOKED.
__________________________/s/
(person denying paternity)
On this day of ____________ (insert year), before me personally came and appeared ____________ and in my presence duly executed the foregoing instrument, and (he) acknowledged to me that (he) executed the same as (his) free act and deed, fully cognizant of its irrevocability.
Date _____________________ State of _____________
Notary Public ____________ County of ____________
Signed by ________________ (name of person denying paternity) as (his) freely executed consent in the presence of each of us, and of each other, who thereafter have hereunto signed our names as witnesses.
Witness Witness
___________________________ ____________________________
Address Address
___________________________ ____________________________
(4) Execution of a notarized denial of paternity may occur prior to the birth of the child. A prebirth notarized denial of paternity shall use the following form:
DENIAL OF PATERNITY
I, ____________ voluntarily and unconditionally deny that I am the father of a child expected to be born to ____________, on or about ____________ (expected date of birth) and I waive notice of any legal proceeding affecting the custody, guardianship, adoption or other disposition of (child).
I UNDERSTAND THAT THIS DENIAL OF PATERNITY IS FINAL AND CANNOT BE REVOKED.
__________________________/s/
(person denying paternity)
On this day of ____________ (insert year), before me personally came and appeared ____________ and in my presence duly executed the foregoing instrument, and (he) acknowledged to me that (he) executed the same as (his) free act and deed, fully cognizant of its irrevocability.
Date _____________________ State of _____________
Notary Public ____________ County of ____________
Signed by ________________ (name of person denying paternity) as (his) freely executed consent in the presence of each of us, and of each other, who thereafter have hereunto signed our names as witnesses.
Witness Witness
_________________________ _________________________
Address Address
_________________________ _________________________
SECTION 24. (1) Notice of the mother's plan for adoption shall be served upon the registered putative father of the child or expected child.
(2) Written notice shall be sent by the agency via certified and regular mail to the address as listed in the Putative Father Registry.
(3) The written notice shall include at minimum the plan for adoption, the name, address and telephone number of the agency responsible for permanency planning and the putative father's rights and responsibilities for permanency planning.
SECTION 25. Section 93-17-6, Mississippi Code of 1972, is amended as follows:
93-17-6. (1) Any person who would be a necessary party to an adoption proceeding under this chapter and any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption or who has been determined to be such by any administrative or judicial procedure (the "alleged father") may file a petition for determination of rights as a preliminary pleading to a petition for adoption in any court which would have jurisdiction and venue of an adoption proceeding. A petition for determination of rights may be filed at any time after the period ending thirty (30) days after the birth of the child. Should competing petitions be filed in two (2) or more courts having jurisdiction and venue, the court in which the first such petition was properly filed shall have jurisdiction over the whole proceeding until its disposition. The prospective adopting parents need not be a party to such petition. Where the child's biological mother has surrendered the child to a home for adoption, the home may represent the biological mother and her interests in this proceeding.
(2) The court shall set this petition for hearing as expeditiously as possible allowing not less than ten (10) days' notice from the service or completion of process on the parties to be served.
(3) The sole matter for determination under a petition for determination of rights is whether the alleged father has a right to object to an adoption as set out in Section 93-17-5(3).
(4) Proof of an alleged father's full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:
(a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child; or
(b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
(5) If the court determines that the alleged father has not met his full responsibilities of parenthood, it shall enter an order terminating his parental rights and he shall have no right to object to an adoption under Section 93-17-7.
(6) If the court determines that the alleged father has met his full responsibilities of parenthood and that he objects to the child's adoption, the court shall set the matter as a contested adoption in accord with Section 93-17-8.
(7) A petition for determination of rights may be used to determine the rights of alleged fathers whose identity is unknown or uncertain. In such cases the court shall determine what, if any, notice can be and is to be given such persons. The court shall review the Putative Father Registry for assistance in such determination. Determinations of rights under the procedure of this section may also be made under a petition for adoption.
(8) Petitions for determination of rights shall be considered adoption cases and all subsequent proceedings such as a contested adoption under Section 93-17-8 and the adoption proceeding itself shall be portions of the same file.
(9) Service of process in the adoption of a foreign born child shall be governed by Section 93-15-105(5).
SECTION 26. Section 93-15-103, Mississippi Code of 1972, is amended as follows:
93-15-103. (1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child's bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
(2) The rights of a parent with reference to a child, including parental rights to control or withhold consent to an adoption, and the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of the parent and child terminated by the execution of a written voluntary release, signed by the parent, regardless of the age of the parent.
(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(a) A parent has deserted without means of identification or abandoned a child as defined in Section 97-5-1; or
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
(c) A parent has been responsible for a series of abusive incidents concerning one or more children; or
(d) When the child has been in the care and custody of a licensed child caring agency or the Department of Human Services for at least one (1) year, that agency or the department has made diligent efforts to develop and implement a plan for return of the child to its parents, and:
(i) The parent has failed to exercise reasonable available visitation with the child; or
(ii) The parent, having agreed to a plan to effect placement of the child with the parent, fails to implement the plan so that the child caring agency is unable to return the child to said parent; or
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent's care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child; or
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent; or
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent's serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment; or
(g) When a parent has been convicted of any of the following offenses against any child: (i) rape of a child under the provisions of Section 97-3-65, (ii) sexual battery of a child under the provisions of Section 97-3-95(c), (iii) touching a child for lustful purposes under the provisions of Section 97-5-23, (iv) exploitation of a child under the provisions of Section 97-5-31, (v) felonious abuse or battery of a child under the provisions of Section 97-5-39(2), (vi) carnal knowledge of a step or adopted child or a child of a cohabitating partner under the provisions of Section 97-5-41, or (vii) murder of another child of such parent, voluntary manslaughter of another child of such parent, aided or abetted, attempted, conspired or solicited to commit such murder or voluntary manslaughter, or a felony assault that results in the serious bodily injury to the surviving child or another child of such parent; or
(h) The child has been adjudicated to have been abused or neglected and custody has been transferred from the child's parent(s) for placement pursuant to Section 43-15-13, and a court of competent jurisdiction has determined that reunification shall not be in the child's best interest; or
(i) The parent has not registered with the Putative Father Registry.
(4) Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.
(5) When a parent has been convicted of rape of a child under the provisions of Section 97-3-65, sexual battery of a child under the provisions of Section 97-3-95(c), touching a child for lustful purposes under the provisions of Section 97-5-23, exploitation of a child under the provisions of Section 97-5-31, felonious abuse or battery of a child under the provisions of Section 97-5-39(2), or carnal knowledge of a step or adopted child or a child of a cohabitating partner under the provisions of Section 97-5-41, notice of the conviction shall be forwarded by the circuit clerk of the county in which the conviction occurred to the Mississippi Department of Human Services, Division of Social Services.
(6) In any case where a child has been removed from the parent's home due to sexual abuse or serious bodily injury to the child, the court shall treat such case for termination of parental rights as a preference case to be determined with all reasonable expedition.
SECTION 27. Section 93-15-105, Mississippi Code of 1972, is amended as follows:
93-15-105. (1) Any person, agency or institution may file for termination of parental rights in the chancery court or the family or county court sitting as the youth court of the county in which a defendant or the child resides, or in the county where an agency or institution holding custody of the child is located. The chancery court, or the chancellor in vacation, or the family court, or the family court judge in vacation, or the county court when sitting as the youth court, or such county court judge in vacation, may set the cause for hearing in termtime or in vacation. The petition shall be triable either in termtime or in vacation, thirty (30) days after personal service of process, and in case of nonresident defendants, or defendants whose addresses are unknown after diligent search, thirty (30) days after completion of publication; such publicationto be otherwise as provided in the Mississippi Rules of Civil Procedure.
(2) In all cases involving termination of parental rights, minor parents may be served with process as an adult.
(3) In the event that one (1) parent voluntarily releases his child for adoption, a copy of the summons served on the child shall not be required to be served on the releasing parent.
(4) In an appropriate case, 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 and upon compliance with Sections 1 through 24 of House Bill No. ___, 2006 Regular Session.
(5) In the event that an adoptive child was born in a foreign country, the child was put up for adoption in the birth country, and the child has been legally admitted into this country, the thirty (30) days' service of process required by subsection (1) of this section, whether by personal service or publication, may be waived by the controlling court.
SECTION 28. Section 93-15-107, Mississippi Code of 1972, is amended as follows:
93-15-107. (1) In an action to terminate parental rights, the mother of the child, the legal father of the child, and the putative father of the child, when known, after searching the Putative Father Registry, shall be parties defendant. A guardian ad litem shall be appointed to protect the interest of the child in the termination of parental rights. A child may be made party plaintiff, and any agency holding custody of a minor shall act as party plaintiff.
(2) The Department of Human Services shall initiate proceedings to terminate parental rights in accordance with Section 93-15-101 et seq. in cases where a child has been placed in the physical custody of a relative and the department has been given legal custody of the child. The department may provide necessary funds to defray the costs and attorney fees for any adoption proceedings brought by the relative of such child in cases where the relative is unable to pay such costs and fees based on criteria established by the department in compliance with federal law and the availability of funds to the department to pay such costs and fees.
SECTION 29. This act shall take effect and be in force from and after July 1, 2006.