MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Judiciary A
By: Representatives Aldridge, Holland
AN ACT TO AMEND SECTION 93-17-3, MISSISSIPPI CODE OF 1972, TO REQUIRE A HOME STUDY BEFORE A PERSON MAY BE PLACED IN THE HOME OF PROSPECTIVE ADOPTING PARTIES; TO REQUIRE COMPLIANCE WITH THE INTERSTATE COMPACT FOR PLACEMENT OF CHILDREN AND THE INDIAN CHILD WELFARE ACT; TO AMEND SECTION 93-17-6, MISSISSIPPI CODE OF 1972, TO CLARIFY PETITION REQUIREMENTS; TO CREATE SECTION 93-17-18, MISSISSIPPI CODE OF 1972, TO REQUIRE TRAINING FOR ATTORNEYS INVOLVED IN ADOPTIONS; TO AMEND SECTION 93-17-19, MISSISSIPPI CODE OF 1972, TO REQUIRE DISCLOSURE OF PAYMENT OF COSTS; TO AMEND SECTION 93-17-205, MISSISSIPPI CODE OF 1972, TO REVISE ADOPTION RECORDS REQUIREMENTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-17-3, Mississippi Code of 1972, is amended as follows:
93-17-3. (1) Except as otherwise provided in subsections (2) and (3), a court of this state has jurisdiction over a proceeding for the adoption of a minor commenced under this chapter if:
(a) Immediately before commencement of the proceeding, the minor lived in this state with a parent, a guardian, a prospective adoptive parent or another person acting as parent, for at least six (6) consecutive months, excluding periods of temporary absence, or, in the case of a minor under six (6) months of age, lived in this state from soon after birth with any of those individuals and there is available in this state substantial evidence concerning the minor's present or future care;
(b) Immediately before commencement of the proceeding, the prospective adoptive parent lived in this state for at least six (6) consecutive months, excluding periods of temporary absence, and there is available in this state substantial evidence concerning the minor's present or future care;
(c) The agency that placed the minor for adoption is licensed in this state and it is in the best interest of the minor that a court of this state assume jurisdiction because:
(i) The minor and the minor's parents, or the minor and the prospective adoptive parent, have a significant connection with this state; and
(ii) There is available in this state substantial evidence concerning the minor's present or future care;
(d) The minor and the prospective adoptive parent are physically present in this state and the minor has been abandoned or it is necessary in an emergency to protect the minor because the minor has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
(e) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a) through (d), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to hear a petition for adoption of the minor, and it is in the best interest of the minor that a court of this state assume jurisdiction.
(2) A court of this state may not exercise jurisdiction over a proceeding for adoption of a minor if, at the time the petition for adoption is filed, a proceeding concerning the custody or adoption of the minor is pending in a court of another state exercising jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction Act or this section unless the proceeding is stayed by the court of the other state.
(3) If a court of another state has issued a decree or order concerning the custody of a minor who may be the subject of a proceeding for adoption in this state, a court of this state may not exercise jurisdiction over a proceeding for adoption of the minor unless:
(a) The court of this state finds that the court of the state which issued the decree or order:
(i) Does not have continuing jurisdiction to modify the decree or order under jurisdictional prerequisites substantially in accordance with the Uniform Child Custody Jurisdiction Act or has declined to assume jurisdiction to modify the decree or order; or
(ii) Does not have jurisdiction over a proceeding for adoption substantially in conformity with subsection (1)(a) through (d) or has declined to assume jurisdiction over a proceeding for adoption; and
(b) The court of this state has jurisdiction over the proceeding.
(4) Any person may be adopted in accordance with the provisions of this chapter in termtime or in vacation by an unmarried adult or by a married person whose spouse joins in the petition. 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.
(5) Adoption by couples of the same gender is prohibited.
(6) No person may be placed in the home of or adopted by the prospective adopting parties before a court ordered or voluntary home study is satisfactorily completed by a licensed adoption agency or by the Department of Human Services on the prospective adoptive parties if required by Section 93-17-11.
(7) No person may be adopted by a person or persons who reside outside the State of Mississippi unless the provisions of the Interstate Compact for Placement of Children (Section 43-18-1 et seq.) have been complied with. In such cases Forms 100A, 100B (if applicable) and evidence of Interstate Compact for Placement of Children approval shall be added to the permanent adoption record file within one (1) month of the placement, and a minimum of three (3) post-placement reports conducted by a licensed child placing agency shall be provided to the Mississippi Department of Human Services Interstate Compact for Placement of Children office.
(8) No person may be adopted unless the provisions of the Indian Child Welfare Act (ICWA) have been complied with, if applicable. When applicable, proof of compliance shall be included in the court adoption file prior to finalization of the adoption. If not applicable, a written statement shall be included in the adoption file stating that the provisions of ICWA do not apply prior to finalization.
SECTION 2. 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, prior to the signing of a surrender of parental rights by the child’s natural mother, he filed a paternity action pursuant to the Mississippi Uniform Law on Paternity, and 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. 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 3. The following shall be codified as Section 93-17-18, Mississippi Code of 1972:
93-17-18. From and after January 1, 2012, in order to represent potential adoptive parents or an adoption agency in an adoption proceeding, attorneys must first have received adoption training provided by or approved by the Mississippi Judicial College within two (2) years immediately preceding the beginning of such representation. The Mississippi Judicial College shall determine the amount of training which shall be satisfactory to fulfill the requirements of this section. The Administrative Office of Courts shall maintain a roll of all attorneys eligible to provide such representation in adoption cases and shall enforce the provisions of this section. The training shall include, but shall not be limited to, the Indian Child Welfare Act and the Interstate Compact for the Placement of Children.
SECTION 4. Section 93-17-19, Mississippi Code of 1972, is amended as follows:
93-17-19. All costs of the proceeding shall be taxed in the manner that the court may direct, including a reasonable fee as determined, approved, and allowed by the court to be paid for each investigation that may be authorized or required by the chancellor, other than for an investigation and report by a public authority or agency, in which event no such fee shall be allowed.
All costs paid to any agency, attorney or any other party related to the adoption of a person, shall be disclosed in writing, and documented in the adoption file, prior to filing the adoption.
SECTION 5. 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 July 1, 2005. All private agencies, attorneys, and other parties authorized/licensed to provide adoption services shall maintain adoption files permanently, and file a written plan with the bureau detailing the plan. All adoption records files 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; * * *
(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;
(e) Adopting parties' commitment to comply with post-placement/post-adoption requirements outlined by their state of residence, and copies of post-placement or post-adoption reports; and
(f) Forms 100A, 100B (if applicable) and evidence of Interstate Compact for Placement of Children approval (if applicable).
The Administrative Office of Courts shall assist the bureau in the maintenance of its centralized adoption record by compiling the number of finalized adoptions in each chancery court district on a monthly basis, and submitting this information to the bureau. The bureau shall include these statistics in its centralized adoption record. The information in this report shall include the number of adoptions in this state where the adopting parent is a blood relative of the adoptee and the number of adoptions in this state where the adopting parent is not a blood relative of the adoptee. The report shall not include any individual identifying information. This information shall be updated annually and made available to the public upon request for a reasonable fee.
(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 may 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 and location, or an affidavit expressly prohibiting the bureau from providing the adoptee with any information about such birth parent's identity and location, and prohibiting any licensed adoption agency from conducting a search for such birth parent under the terms of Sections 93-17-201 through 93-17-223. An affidavit filed under this section may be revoked at any time by written notification to the bureau from the birth parent.
(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 6. This act shall take effect and be in force from and after July 1, 2012.