SB 1096 Adoption.
Mark L. Earley | all patrons    ...    notes
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Adoption. The legislation, which is a recommendation of the Joint Subcommittee Studying the Commonwealth's Adoption Laws pursuant to HJR 100, makes a number of changes to Virginia's adoption laws, most of which are designed to make the adoption process run more smoothly. The bill provides that jurisdiction for parental placement adoption consent hearings is in the juvenile and domestic relations district court (or family court if it comes into being) and gives such hearings docket preference. The bill requires the hearing to be advanced on the docket so as to be heard by the court within ten days of filing the petition or as soon thereafter as possible. In some jurisdictions it takes months to get on the docket, which results in a period of uncertainty for the birth parents, the child and the adoptive parents. The bill clarifies venue for adoption hearings. It also clarifies that parental placement consent petitions do not have to be verified but can be signed by the petitioner's counsel. Several courts in the state require that a petition filed pursuant to 63.1-220.3 be verified as a result of language in 16.1-262.

A recent amendment to 16.1-241 provides that a person convicted of rape resulting in the birth of a child cannot be a party with a legitimate interest in determining the custody of the child. Throughout the bill the need for consent or notice to such a birth father when the child is the subject of an adoption petition is eliminated.

A definition of “birth parent” is added. In addition to including the biological parent it provides that for purposes of adoptive placement a parent by a previous adoption is a birth parent so that an adoptive parent may place an adopted child for adoption.

Throughout various code sections “birth” is added before “parent” for clarity. Specific requirements for revocation of consent in an agency adoption are added so that birth parents will know exactly how to revoke their consent and so that the agency will be clear on whether or not a revocation has occurred.

A number of changes were made to the code section governing parental placement adoptions. The bill provides that a birth parent who does not live in Virginia may execute consent in a court having jurisdiction of child custody matters in the jurisdiction where the birth parent resides upon request of a court pursuant to the Uniform Child Custody Jurisdiction Act. Birth parents must be informed that they may be represented by legal counsel. The bill specifically provides that the adoptive parents have custody of the child after the court's acceptance of the birth parents' consent. Revocation procedures and the resultant effect upon the court order accepting consent and transferring custody to the prospective adoptive parents are specified. The timing is clarified for the execution of the out-of-court consent of a birth father.

Under current law there is no way to require birth parents who have placed their child for adoption to execute consent in a timely manner. This bill provides that if a birth parent places the child with prospective adoptive parents and both birth parents fail to appear at a hearing to execute consent, after having received proper notice of the hearing, the court may enter an order waiving consent and transferring custody of the child to the prospective adoptive parents in fifteen days. Prior to the entry of such an order the court may appoint legal counsel for the birth parents and shall find by clear and convincing evidence that the birth parents received proper notice of the hearing and failed to show good cause for their failure to appear and that their consent was withheld contrary to the best interests of the child or is unobtainable. The standards for determining whether it is in the child's best interest to grant the petition without the consent of a person who would otherwise be required to consent are set out and include: the birth parent(s)' efforts to obtain or maintain legal and physical custody of the child, whether the birth parent(s)' efforts to assert parental rights were thwarted by other people, the birth parent(s)' ability to care for the child, the age of the child, the quality of any previous relationship between the birth parent(s) and the child and between the birth parent(s) and any other minor children, the duration and suitability of the child's present custodial environment and the effect on the child of a change of physical custody.

The bill provides that after the revocation period there is no parental presumption in favor of any party if a birth parent or alleged birth parent attempts to exercise parental rights to a child who has been placed for adoption. If the court determines that the birth parent or alleged birth parent is a person whose consent to the adoption is required then it shall determine whether the consent of the alleged birth parent is being withheld contrary to the best interests of the child or is unobtainable.

The bill provides that the consent of the birth mother's husband is not required where a preponderance of evidence establishes the paternity of another man or the impossibility or improbability of cohabitation of the birth mother and her husband for at least 300 days preceding the birth of the child.

Great aunts and uncles are added to the list of relatives that may adopt a child without meeting certain requirements.

The bill broadens and clarifies what expenses may be paid for the adoption and on behalf of the birth parents. Insurance premiums directly related to the birth mother's pregnancy and hospitalization for the birth of the child, mental health counseling for the birth parents if related to the adoption and reasonable expenses (including but not limited to transportation, food and lodging) incurred incident to any court appearance required for a parental placement adoption, and transportation for any of the services for which payment is allowed are added. The penalty for violating the section is reduced from a Class 5 to a Class 6 felony.

The bill provides that it is a Class 6 felony for any person to knowingly and intentionally provide false information in writing and under oath, which is material to an adoptive placement. The Commissioner of Social Services is authorized to investigate such cases and refer them to the Commonwealth's Attorney.

The bill clarifies that in stepparent adoptions an investigation by the local department of social services is undertaken only if the court determines that one is necessary.

Current law provides that in agency or foreign placements the three required agency visits must be conducted within the six months immediately preceding the filing of the petition. The requirement to file the petition immediately upon the close of the six months may be waived by the court for good cause shown as long as the three visits were made in some six-month period preceding the filing. Because current law gives a very narrow window for filing unless good cause is shown, the bill provides that the visits must have occurred in the eight months immediately preceding the filing. The visits themselves must still occur within a six-month period.

The bill strengthens an existing section stating that a final order of adoption is not subject to attack after six months by stating that such an order is not subject to attack after six months “for any reason, including but not limited to fraud, duress, failure to give any required notice, failure of any procedural requirement, or lack of jurisdiction over any person”.

Full text:
01/23/95  Senate: Presented & ordered printed LD6054649  pdf
02/07/95  Senate: Printed as engrossed LD6054649-E  pdf
02/20/95  House: Committee substitute printed LD2108649-H1  pdf
02/27/95  Senate: Conference substitute printed LD7424649-S1  pdf
03/14/95  Senate: Bill text as passed Senate and House (SB1096ER)  pdf
04/13/95  Senate: Reenrolled bill text (SB1096ER)  pdf
04/19/95  Governor: Acts of Assembly Chapter text (CHAP0826)  pdf

Senate amendments
Conference amendments
Governor's recommendation

01/23/95  Senate: Presented & ordered printed LD6054649
01/23/95  Senate: Referred to Committee on Rehabilitation and Social Services
02/03/95  Senate: Reported from R. & S. S. w/amendments (15-Y 0-N)
02/06/95  Senate: Constitutional reading dispensed (40-Y 0-N)
02/06/95  Senate: VOTE: CONST. READING DISPENSED (40-Y 0-N)
02/07/95  Senate: Read second time
02/07/95  Senate: Reading of amendments waived
02/07/95  Senate: Committee amendments agreed to
02/07/95  Senate: Engrossed by Senate as amended
02/07/95  Senate: Printed as engrossed LD6054649-E
02/07/95  Senate: Constitutional reading dispensed (40-Y 0-N)
02/07/95  Senate: VOTE: CONST. READING DISPENSED (40-Y 0-N)
02/07/95  Senate: Passed Senate (39-Y 0-N)
02/07/95  Senate: VOTE: PASSAGE (39-Y 0-N)
02/07/95  Senate: Communicated to House
02/08/95  House: Placed on Calendar
02/09/95  House: Read first time
02/09/95  House: Referred to Committee on Health, Welfare and Institutions
02/09/95  House: Reported from H. W. I. (22-Y 0-N)
02/09/95  House: Referred to Committee for Courts of Justice
02/13/95  House: Assigned to C. J. sub-committee: 2
02/20/95  House: Reported from C. J. with substitute (22-Y 0-N)
02/20/95  House: Committee substitute printed LD2108649-H1
02/21/95  House: Read second time
02/22/95  House: Read third time
02/22/95  House: Committee substitute agreed to LD2108649-H1
02/22/95  House: Engrossed by House - com. sub. LD2108649-H1
02/22/95  House: Passed House with substitute (Block Vote) (98-Y 0-N)
02/22/95  House: VOTE: BLOCK VOTE PASSAGE (98-Y 0-N)
02/23/95  Senate: Reading of substitute waived
02/23/95  Senate: House substitute rejected by Senate (0-Y 40-N)
02/23/95  Senate: VOTE: CONCUR HOUSE AMENDMENT (0-Y 40-N)
02/23/95  House: House insisted on substitute
02/23/95  House: House requested conference committee
02/23/95  Senate: Senate acceded to request (39-Y 0-N)
02/23/95  Senate: VOTE: ACCEDE TO REQ. FOR CONF. (39-Y 0-N)
02/23/95  Senate: Conferees appointed by Senate
02/23/95  Senate: Senators: Gartlan, Howell, Earley
02/24/95  House: Conferees appointed by House
02/24/95  House: Delegates: Puller, Copeland, Hamilton
02/25/95  Senate: Reading of conference report waived
02/25/95  Senate: Conference report agreed to by Senate (39-Y 0-N)
02/25/95  Senate: VOTE: ADOPT CONFERENCE REPORT (39-Y 0-N)
02/25/95  Conference: House substitute rejected by conference committee
02/25/95  Conference: Substitute recommended by conference committee
02/25/95  House: Conference report agreed to by House (99-Y 0-N)
02/25/95  House: VOTE: ADOPTION (99-Y 0-N)
02/27/95  Senate: Conference substitute printed LD7424649-S1
03/14/95  Senate: Bill text as passed Senate and House (SB1096ER)
03/15/95  Senate: Enrolled
03/15/95  Senate: Signed by President
03/16/95  House: Signed by Speaker
03/27/95  Senate: Governor's recommendation received by Senate
04/05/95  Senate: Senate concurred in Gov's recommendation (39-Y 0-N)
04/05/95  Senate: VOTE: ADOPT GOV. RECOMMEND. (39-Y 0-N)
04/06/95  House: House concurred in Gov's recommendation (98-Y 0-N)
04/06/95  House: VOTE: ADOPTION (98-Y 0-N)
04/06/95  Governor: Governor's recommendation adopted
04/06/95  Senate: Reenrolled
04/06/95  House: Signed by Speaker as reenrolled
04/06/95  Senate: Signed by President as reenrolled
04/06/95  House: Enacted, Chapter 826 (effective 7/1/95)
04/13/95  Senate: Reenrolled bill text (SB1096ER)
04/19/95  Governor: Acts of Assembly Chapter text (CHAP0826)