Adoption

Adoption
Summary
I. In General
A. Definitions and Distinctions
Research References
§ 1. Adoption
§ 2. --"Open" and "closed" adoptions
§ 3. --Agency adoption; private adoption
§ 4. Other concepts or proceedings distinguished
B. Origin and Legal Basis of Adoption; Adoption Statutes
Research References
§ 5. Origin and legal basis
§ 6. --Characterization as right or privilege
§ 7. Nature of statutes
§ 8. Purposes of statutes
§ 9. --Particular statutes
§ 10. Validity of statutes
§ 11. --Procedural issues; who may petition
§ 12. --Waivers of parental consent
§ 13. Construction of adoption statutes
§ 14. --Construction with regard to rights of natural parents
C. Persons Who May Adopt
Research References
1. In General
§ 15. Statute as controlling
§ 16. Adults
§ 17. Disqualifying factors; expectation or entitlement to adopt
§ 18. --Certification
§ 19. Effect of petitioner's sexual orientation
2. Particular Persons
§ 20. Joint petitioners; married persons
§ 21. Unmarried persons
§ 22. --Unmarried parent
§ 23. Natural parent of legitimate child
§ 24. Other blood relations
§ 25. Foster parents
D. Persons Who May Be Adopted
Research References
§ 26. Generally
§ 27. Adults
§ 28. --Effect of purpose of adoption of adult
§ 29. Blood relations; natural children
§ 30. Spouses; non-marital sexual partners
II. Federal Adoption Programs and Assistance

Research References
§ 31. Adoption assistance
§ 32. --Adoption assistance agreements
§ 33. --National Adoption Information Clearinghouse; other information exchanges
§ 34. Child abuse prevention and treatment; purpose
§ 35. --Administration; services to be provided
III. Governing Law; Interstate Compact on Placement of Children

A. Governing Law
Research References
§ 36. Generally
§ 37. --Foreign decrees
§ 38. Validity of consent or revocation
§ 39. Adoption agreements
B. Interstate Compact on the Placement of Children
Research References
§ 40. Enactment and withdrawal by members
§ 41. Scope and applicability; persons and children within Compact
§ 42. Purposes and construction
§ 43. Conditions for placement for possible adoption; request to, and approval
by, Compact authorities
§ 44. Jurisdiction over child during placement period
§ 45. Effect of violation of Compact; sanctions
IV. Intercountry Adoptions

Research References
§ 46. Generally
§ 47. Information; fees
§ 48. Certificate of adoption
V. Agreements Regarding Adoption

A. In General
Research References
§ 49. Generally
§ 50. Agreements by foster parents not to adopt child
§ 51. Requirement of judicial sanction or approval
B. Payment for Adoption; "Baby-Broker" Acts
Research References
§ 52. Generally
§ 53. Statutes proscribing sale or purchase of child or payment for adoption
§ 54. --Conduct constituting violation
§ 55. ----Surrogate mother arrangements
§ 56. Permissibility of paying particular expenses
§ 57. --Pregnancy and birth-related expenses
§ 58. --Other particular expenses
C. Enforcement; Equitable Adoption
Research References
1. In General
§ 59. Enforcement
2. Equitable or Virtual Adoption; Adoption By Estoppel
§ 60. Generally
§ 61. Basis in equity and estoppel
§ 62. Elements and indicia of equitable adoption
§ 63. Effect of equitable adoption; intestacy of parent
§ 64. Pleadings and proof of equitable adoption
VI. Consent to Adoption

A. Introduction
Research References
§ 65. Generally
§ 66. Consent or statutory substitute as jurisdictional requisite
B. Consent of Particular Persons
Research References
1. Natural Parents
a. In General
§ 67. Generally
§ 68. Minors
b. Mothers
§ 69. Generally
§ 70. Mothers of children born out of wedlock
c. Fathers
§ 71. Generally
§ 72. Fathers of children born out of wedlock
§ 73. --Effect of constitutional guaranties
§ 74. --Effect of continuous relationship and support
§ 75. --Effect of acknowledgment or establishment of paternity
d. Particular Circumstances Under Which Consent is Not Required
(1). Overview
§ 76. Generally
§ 77. Incompetency or mental illness
§ 78. Criminal conviction; imprisonment
§ 79. Judicial deprivation or relinquishment of custody to
agency or organization
(2). Statutory Grounds for Dispensing With Consent
§ 80. Unfitness of parent
§ 81. Abandonment, desertion, or neglect of child
§ 82. --What constitutes abandonment, desertion, or
neglect, generally
§ 83. --Leaving child in care of others
§ 84. --Failure to support
§ 85. --Involuntary confinement
§ 86. Failure to care for and maintain or support child
§ 87. --Necessity of "willful" failure
§ 88. --Indigency as excusing failure to support
§ 89. Failure to communicate with child
§ 90. --What constitutes "justifiable cause" excusing
failure to communicate
2. Other Persons or Bodies
§ 91. Generally; guardian
§ 92. Person to be adopted
§ 93. Agency or organization given legal custody of child
C. Validity of Consent; Formal Requirements
Research References
§ 94. Generally
§ 95. Effect of failure to comply with formal requirements
§ 96. Time of execution
§ 97. Specification of adopting parents; "blanket" consents
§ 98. Voluntariness; effect of fraud, duress, undue influence, error, or mistake
§ 99. --What constitutes duress
§ 100. --What constitutes undue influence
D. Revocation or Withdrawal of Consent
Research References
1. In General
§ 101. Statutory rule that consent is generally irrevocable
§ 102. Statutory rule that consent is generally revocable within specified
time or before specified event
2. Particular Matters as Grounds for Revocation
§ 103. Best interests of child
§ 104. Change of mind
§ 105. Mistake
§ 106. Fraud, duress, undue influence, or coercion
VII. Proceedings for Adoption; Procedure

A. In General
Research References
§ 107. Generally; jurisdiction
§ 108. Scope of court's authority
§ 109. Purpose and nature of proceeding
B. Procedural Requirements; In General
Research References
§ 110. Generally
§ 111. Necessity of compliance with statutory requirements
§ 112. Requirements under Indian Child Welfare Act
§ 113. Appearance before court
§ 114. Petition or application
§ 115. --Where petition may be filed; effect of residence of petitioner or adoptee
or location of placement office
§ 116. Standing
C. Notice and Hearing
Research References
§ 117. Generally
§ 118. Rights of unknown or unwed fathers
§ 119. Waiver of rights
§ 120. Rights to notice and hearing as to termination of parental rights
D. Parties
Research References
§ 121. Generally
§ 122. Child to be adopted; guardian ad litem
§ 123. Natural or putative father
§ 124. Grandparents
§ 125. Other guardians or custodians; government bodies or representatives
E. Proof; Evidence
§ 126. Burden and standard of proof
§ 127. Evidence
F. Factors Affecting Determination
Research References
§ 128. Generally
§ 129. Factors considered significant
§ 130. Consent of parents; matters precluding necessity of consent
§ 131. Welfare and "best interests" of child; generally
§ 132. Relationship of natural parents to child
§ 133. Relation of petitioner to person sought to be adopted
§ 134. --Grandparents
§ 135. --Foster parents
§ 136. Marital status of petitioner
§ 137. Age of petitioner
§ 138. Interethnic adoption
§ 139. --Placement of Indian children
§ 140. Religious beliefs
G. Decree, Order, and Judgment
Research References
1. In General
§ 141. Generally
§ 142. Change of name of adopted person
§ 143. Presumption of validity
§ 144. --Estoppel
§ 145. Challenges to decree
§ 146. Doctrine of res judicata
2. Setting Aside or Revoking Adoption; Collateral Attack
§ 147. Generally
§ 148. Parties
§ 149. --Attack by presumptive heir of adopting parent
§ 150. Time limitations
3. Equitable Relief, Annulment, or Wrongful Adoption
a. In General
§ 151. Generally
§ 152. On application of natural parents
§ 153. --Fraud, duress, or undue influence
§ 154. On application of adoptive parent
§ 155. --Action for wrongful adoption
§ 156. Annulment or vacation on grounds of religious
differences
b. Time Limitations on Annulment or Vacation
§ 157. Statutory limitations
§ 158. --Effect of constitutional issues; lack of notice
§ 159. --Effect of fraud
§ 160. Laches
H. Appeal and Review
Research References
§ 161. Generally
§ 162. Indian children
VIII. Effect of Adoption Upon Individuals' Status, Rights, Duties, and Obligations
A. In General
Research References
1. Natural Parents and Relatives
§ 163. Generally
§ 164. Support of adopted child
§ 165. Effect of adoption by one natural parent on rights of other
§ 166. Visitation; "open adoptions"
§ 167. --Visitation agreements with natural parents
§ 168. --Effect of reservation of rights in giving consent or surrendering
child for adoption
§ 169. --Grandparents
2. Adoptive Parents
§ 170. Generally
§ 171. Duty to support child
3. Adoptee
§ 172. Generally
§ 173. Right to sue adoptive parent for tort
B. Inheritance; Other Means of Disposing of Property
Research References
1. In General; Disposition By Will, Trust, Deed, or Other Instrument
a. Overview
§ 174. Rights of adoptive parents
§ 175. Rights of adoptees
§ 176. --Under legacy to adoptive parent dying before testator;
effect of antilapse statutes
§ 177. Effect of adoption as revoking previously executed will;
rights of adopted child as affected by will
b. Adopted Child as Within Class Designated in Will, Trust, Deed, or
Other Instrument
(1). In General
§ 178. Generally
§ 179. Time of adoption with reference to execution of
instrument as factor
§ 180. Procreative ability of adoptive parent as factor
(2). Particular Terms as Defining Class
§ 181. "Child"; "children"
§ 182. --Adult adoptee as "child"
§ 183. "Grandchild," "grandchildren"
§ 184. "Issue," "heirs of the body," and related terms
§ 185. "Heirs" and related terms
2. Disposition Under Intestacy Laws
a. Overview
§ 186. Generally
§ 187. Recognition of adoption status under foreign decree
§ 188. Governing law; conflicts of law
§ 189. --What law governs in point of time
b. Inheritance From Adoptee
§ 190. Natural parents or adoptive parents
§ 191. Relatives of adoptive parents
c. Inheritance by Adoptee or Adoptee's Children
§ 192. From natural parents
§ 193. From relatives of natural parents
§ 194. From adoptive parents
§ 195. --Inheritance by adult adoptee
§ 196. --Effect of second adoption
§ 197. --Inheritance by adoptee's children
§ 198. From relatives of adoptive parents
IX. Access to Adoption Records

A. Access to Records of Concluded Proceedings
Research References
§ 199. Generally
§ 200. Effect of constitutional provisions; privacy rights
§ 201. Access to adult adoptees
§ 202. Access to persons other than adoptee
§ 203. Notice and hearing
B. Access to Records of Pending Proceedings
Research References
§ 204. Generally
X. Liability of Adoption Agency or Employees Thereof Arising From Adoption or Failure to

Complete Adoption
Research References
§ 205. Generally; contract actions
§ 206. Negligence; malpractice; infliction of emotional distress; fraud
§ 207. Violation of civil rights
AMJUR ADOPTION SUM Page 1
2 Am. Jur. 2d Adoption Summary
American Jurisprudence, Second Edition

Database updated November 2010
Adoption
Tracy Farrell, J.D., Rosemary Gregor, J.D., Anne Payne, J.D., Lisa Zakowlski, J.D.
Correlation Table
Summary
AMJUR ACTION GUIDEThis article discusses adoption, generally, with discussion of such matters as the
origin and legal basis of adoption, persons who may adopt or be adopted, federal adoption programs and assist-
ance, governing law with regard to adoption cases, recognition of foreign decrees, and the Interstate Compact on
the Placement of Children. Also discussed are intercountry adoptions, adoption agreements, the proscription of
payment for adoption as regulated by so-called "baby broker" acts, consent to adoption, proceedings for and pro-
cedural matters involved in adoption, including factors affecting the adoption determination, appeal and review
and subsequent remedies, the effect of adoption on an individual's status, rights, duties, and obligations, access
to adoption records, and liability of an adoption agency or employees of such an agency arising from an adop-
tion or from the failure to complete an adoption.
Scope:
This article discusses adoption, generally, with discussion of such matters as the origin and legal basis of
adoption, persons who may adopt or be adopted, federal adoption programs and assistance, governing law with
regard to adoption cases, recognition of foreign decrees, and the Interstate Compact on the Placement of Chil-
dren. Also discussed are intercountry adoptions, adoption agreements, the proscription of payment for adoption
as regulated by so-called "baby broker" acts, consent to adoption, proceedings for and procedural matters in-
volved in adoption, including factors affecting the adoption determination, appeal and review and subsequent
remedies, the effect of adoption on an individual's status, rights, duties, and obligations, access to adoption re-
cords, and liability of an adoption agency or employees of such an agency arising from an adoption or from the
failure to complete an adoption.
Federal Aspects:This article discusses federal programs to assist adoption procedures in the states and fed-
eral programs for adoption reform. A federal statute creates a National Adoption Information Clearinghouse.
The Indian Child Welfare Act of 1978 also affects adoption of Native Americans. (See "Federal Legislation," in-
fra, for U.S.C.A. citations. As to federal taxation relating to the topic, see "Tax References," infra).
Treated Elsewhere:
Adopted children as aliens, and their admission to the United States, see Am. Jur. 2d, Aliens and Citizens §§
506 to 514, 660, 661, 681, 2884, 3117
Contract to devise or bequeath property as supporting contract to adopt or as consideration for surrender of
child by natural parent, see Am. Jur. 2d, Wills §§ 320, 348
Desertion and nonsupport statutes, adopted children as protected or covered under, see Am. Jur. 2d, Deser-
tion and Nonsupport § 37
Divorce or separation of parents, custody of children after, see Am. Jur. 2d, Divorce and Separation 929 to
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1000
Federally assisted programs for families and children, including child welfare programs, see Am. Jur. 2d,
Welfare Laws §§ 8 to 26
Family Court with exclusive jurisdiction over disputes involving adoptions or marital property as having in-
herent power to adjudicate claim of fraud in independent action to open its decree, see Am. Jur. 2d, Judgments §
882
Habeas corpus, attack by natural parent of adoption without consent by such parent by means of writ of, see
Am. Jur. 2d, Habeas Corpus and Postconviction Remedies § 80
Incest statutes as prohibiting sexual relations between parent and adopted child, see Am. Jur. 2d, Incest § 17
Indian Child Welfare Act, foster or adoptive placement under, see Am. Jur. 2d, Indians §§ 145 to 153
Infants, generally, see Am. Jur. 2d, Infants
Inheritance tax imposed by states, exemptions and preferred rates accorded with regard to transfers to adop-
ted children, spouses or children thereof, see Am. Jur. 2d, Inheritance, Estate, and Gift Taxes §§ 137 to 141, 144
Insurance proceeds, adopted children as designated or entitled to, see Am. Jur. 2d, Insurance § 1699
Marriage, relationship by adoption as impediment to legal, see Am. Jur. 2d, Marriage § 53
Parents' rights to custody, generally, see Am. Jur. 2d, Parent and Child §§ 26 to 40
Power to appoint "children" as including adopted children, see Am. Jur. 2d, Powers of Appointment and
Alienation § 173
Social Security benefits to adopted children, see Am. Jur. 2d, Social Security and Medicare §§ 747 to 758
"Surrogate mother," definition, generally, see Am. Jur. 2d, Parent and Child § 3
Trusts, adopted children as within terms of trust specifying beneficiaries as "children," "heirs," "issue," or
other specific terms, see Am. Jur. 2d, Trusts § 270
Veterans' benefits, eligibility of adopted child for, see Am. Jur. 2d, Veterans and Veterans' Law § 37
Wills, statutes revoking portions thereof, if will was written before birth or adoption of child, or if child is
not mentioned in will, generally, see Am. Jur. 2d, Wills § 556
Workers' compensation laws, adopted child's entitlement to death benefits under, see Am. Jur. 2d, Workers'
Compensation § 185
Wrongful birth, conception, or pregnancy, plaintiff's duty to mitigate damages by abortion or adoption as
consideration in determining right of action for, see Am. Jur. 2d, Prenatal Injuries—Wrongful Life, Birth, or
Conception §§ 119 to 121
Wrongful death actions: adopted children or adoptive parents as beneficiaries, see Am. Jur. 2d, Death §§ 89
to 92, 96
Research References:
Treatises and Practice Aids
West's Texas Practice Series: Juvenile Law and Practice, Interstate Compact On The Placement of Children,
as adopted in Florida § 409.401
Uniform Adoption Act (1994)
Uniform Putative and Unknown Fathers Act
West's Key Number Digest
West's Key Number Digest, Adoption

West's Key Number Digest, Child Support

West's Key Number Digest, Constitutional Law
West's Key Number Digest, Infants
West's Key Number Digest, Records
West's Key Number Digest, Social Security and Public Welfare
West's Key Number Digest, Wills
West's Key Number Digest, Workers' Compensation
Westlaw Databases
American Law Reports (ALR)
Am. Jur. 2d. (AMJUR)
Am. Jur. Legal Forms 2d. (AMJUR-LF)
Am. Jur. Proof of Facts (AMJUR-POF)
Am. Jur. Pl. & Pr. Forms (AMJUR-PP)
Am. Jur. Trials (AMJUR-TRIALS)
Code of Federal Regulations (C.F.R.)
Uniform Laws Annotated (ULA)
U.S. Code Annotated (U.S.C.A.)
Primary Authority
14 U.S.C.A. § 514 (reimbursement of adoption expenses to Coast Guard members)
20 U.S.C.A. § 254c-6 (certain services for pregnant women—infant adoption awareness); 20 U.S.C.A. §
254c-7(special needs adoption programs; public awareness campaign and other activities)
20 U.S.C.A. §§ 1915 to 1917 (adoptive placement of Indian children)
25 U.S.C.A. §§ 1902, 1903, 1911, 1912, 1914, 1915 to 1917
42 U.S.C.A. § 622(b)(9) to (14) (requirements of state child welfare service plans with regard to adoption);
42 U.S.C.A. §§ 670 to 679a (adoption assistance programs, incentives, and payments, including the National
Adoption Information Clearinghouse)
42 U.S.C.A. § 1320a-1a
42 U.S.C.A. § 1983
42 U.S.C.A. § 1996b (interethnic adoption)

42 U.S.C.A. § 5107(a)(1), (b) (authorization of appropriations for adoption, and operation of national adop-
tion information exchange system to facilitate adoptive placement of children)
42 U.S.C.A. §§ 5111 to 5115 (adoption opportunities)
42 U.S.C.A. §§ 14901 to 14954 (intercountry adoptions)
32 C.F.R. §§ 81.1 to 81.3, 584.1 to 584.9 (adoption proceedings involving children of soldiers or members
or former members of armed services)
42 C.F.R. §§ 435.145, 436.118 (Medicaid payments to children for whom adoption assistance payments are
made under specified provisions)
42 C.F.R. §§ 435.227, 436.224 (Medicaid payments to individuals under age 21 who are under State adop-
tion assistance agreements); 45 C.F.R. Parts 1355 to 1357 (regulations relating to public welfare—Office of Hu-
man Development Services, Department of Health and Human Services—Administration on Children, Youth
and Families, foster care maintenance payments, adoption assistance, and child and family services)
A.L.R. Library
A.L.R. Index: Adoption of Children
A.L.R. Index: Attorney or Assistance of Attorney
A.L.R. Index: Children
A.L.R. Index: Due Process
A.L.R. Index: Neglect of Child
A.L.R. Index: Poor Persons
A.L.R. Index: Termination of Parental Rights
A.L.R. Digest: Adoption
A.L.R. Digest: Attorneys
A.L.R. Digest: Constitutional Law
A.L.R. Digest: Descent and Distribution
A.L.R. Digest: Parent and Child
A.L.R. Digest: Wills
Trial Strategy
Defense in Proceeding for Termination of Parental Rights on Ground of Mental Disability, 46 Am. Jur.

Proof of Facts 3d 231
Grounds for Termination of Parental Rights, 32 Am. Jur. Proof of Facts 3d 83
Guardian's Arbitrary and Unreasonable Withholding of Consent to Adoption, 23 Am. Jur. Proof of Facts 2d
163
Equitable Adoption, 18 Am. Jur. Proof of Facts 2d 531
Relinquishment of Parental Claim to Child—Adoption Proceedings, 10 Am. Jur. Proof of Facts 2d 635
Undue Influence in Obtaining Parent's Consent to Adoption of Child, 8 Am. Jur. Proof of Facts 2d 481
Forms
Am. Jur. Legal Forms 2d, Adoption
Am. Jur. Legal Forms 2d, Descent and Distribution
Am. Jur. Legal Forms 2d, Wills
Am. Jur. Pleading and Practice Forms, Adoption
Am. Jur. Pleading and Practice Forms, Descent and Distribution
© 2010 Thomson Reuters. 33-34B © 2010 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All
rights reserved.
AMJUR ADOPTION SUM
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AMJUR ADOPTION I A REF Page 1
2 Am. Jur. 2d Adoption I A Refs.

Adoption
I. In General
Topic Summary Correlation Table
Research References
West's Key Number Digest, Adoption 1
A.L.R. Library
A.L.R. Digest: Adoption § 1
A.L.R. Digest: Parent and Child § 16
rights reserved.
AMJUR ADOPTION I A REF
END OF DOCUMENT

AMJUR ADOPTION § 1 Page 1
2 Am. Jur. 2d Adoption § 1

Adoption
I. In General
Topic Summary Correlation Table References
§ 1. Adoption
"Adoption" has sometimes been specifically defined by state statutes; for example, adoption has been stat-
utorily characterized as the legal proceeding whereby a person takes another person into the relation of child and
thereby acquires the rights and incurs the responsibilities of parent.[1] On the other hand, adoption statutes in
some jurisdictions do not explicitly define adoption,[2] leaving the actual defining to the courts. In this regard,
"adoption" has been defined by some courts as the creation[3] of a legal relationship of parent and child between
persons who were not so related by nature[4] or law,[5] whereupon the person adopted becomes the legal heir of
his or her adopter, and the rights and duties of domestic relation with the adoptee's natural parents are termin-
ated.[6] Adoption is the legal equivalent of biological parenthood.[7]
[FN1] Matter of Adoption of Robert Paul P., 63 N.Y.2d 233, 481 N.Y.S.2d 652, 471 N.E.2d 424, 42
A.L.R.4th 765 (1984); In re Adult Anonymous II, 88 A.D.2d 30, 452 N.Y.S.2d 198 (1st Dep't 1982).
[FN2] Leake v. Grissom, 1980 OK 114, 614 P.2d 1107 (Okla. 1980); In re Adoption of Graham, 63
Ohio Misc. 22, 16 Ohio Op. 3d 347, 17 Ohio Op. 3d 341, 409 N.E.2d 1067 (C.P. 1980).
[FN3] Matter of Estate of Baxter, 1992 OK CIV APP 15, 827 P.2d 184 (Ct. App. Div. 3 1992).
[FN4] Matter of Estate of Baxter, 1992 OK CIV APP 15, 827 P.2d 184 (Ct. App. Div. 3 1992); In re
Adoption of Graham, 63 Ohio Misc. 22, 16 Ohio Op. 3d 347, 17 Ohio Op. 3d 341, 409 N.E.2d 1067
(C.P. 1980).
[FN6] In re Adoption of Graham, 63 Ohio Misc. 22, 16 Ohio Op. 3d 347, 17 Ohio Op. 3d 341, 409
N.E.2d 1067 (C.P. 1980).
[FN7] Smith v. Organization of Foster Families For Equality and Reform, 431 U.S. 816, 97 S. Ct. 2094,

53 L. Ed. 2d 14 (1977).
As to the effect of adoption on the rights, duties and liabilities of parties, generally, see §§ 163 to 198.
rights reserved.
AMJUR ADOPTION § 1
END OF DOCUMENT


Adoption
I. In General
§ 2. Adoption—"Open" and "closed" adoptions
In some jurisdictions, in what is sometimes known as an "open" adoption, the natural mother may select the
adoptive parents for her child.[1] In the case of a "closed" adoption, the relinquishing parent surrenders his or
her rights to unknown parties.[2]
"Open" adoptions have also been described as adoptions in which the court supplements an order of adop-
tion with a provision directing that the adopted child have continuing contacts and visitation with members of
his or her biological family;[3] such adoptions have been specifically rejected by some courts, in the absence of
legislative authority therefor.[4]
[FN1] Matter of Adoption of Male Child, 73 Haw. 314, 832 P.2d 265 (1992) ("open" adoption was
completed through private adoption organization).
[FN2] Yopp v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991).
[FN3] Matter of Welfare of D.D.G., 558 N.W.2d 481 (Minn. 1997); Matter of Gregory B., 74 N.Y.2d
77, 544 N.Y.S.2d 535, 542 N.E.2d 1052 (1989).
As to visitation by natural parents and relatives thereof of the child as affected by adoption, generally,
see §§ 166 to 169.
[FN4] § 166.
rights reserved.
AMJUR ADOPTION § 2

END OF DOCUMENT


Adoption
I. In General
§ 3. Adoption—Agency adoption; private adoption
An adoption is accomplished either through an agency or by independent means.[1] Agency and private ad-
options are different in certain key respects.
In the case of a private adoption, the child is relinquished directly into the hands of the prospective adoptive
parents without interference by the state or a private agency.[2] Legal custody of the child, however, remains in
the natural parent unless and until the adoption is granted.[3] In contrast, in an agency adoption, legal custody
has been relinquished to the agency.[4] In an agency adoption, if the adoptive parents are unsuitable or decline
to go through with the adoption, the agency retains custody over the child until such time as the child is adopted
by another family.[5]
In an agency adoption, unless the prospective adoptive parents were the child's foster parents, the child is
typically not placed in their home until the natural parents' rights have been terminated. In an independent adop-
tion, however, not only have parental rights not been terminated at the time of placement, but in many cases, the
birth mother has not yet given her written consent to the adoption.[6]
The same consideration for the rights and needs of the child apply in both the private and the agency adop-
tion arenas. The state acts to protect the integrity of the adoption process by which the child's rights to support,
management, and care may be reestablished in relation to an adoptive parent, and to provide the child at least
minimal stability through this chaotic period.[7]
[FN1] In re Baby Boy M., 221 Cal. App. 3d 475, 272 Cal. Rptr. 27 (4th Dist. 1990).
[FN2] Gomez v. Savage, 254 Neb. 836, 580 N.W.2d 523 (1998).
[FN3] In re Baby Boy M., 221 Cal. App. 3d 475, 272 Cal. Rptr. 27 (4th Dist. 1990); A.L. v. P.A., 213
N.J. Super. 391, 517 A.2d 494 (App. Div. 1986).

[FN4] In re Baby Boy M., 221 Cal. App. 3d 475, 272 Cal. Rptr. 27 (4th Dist. 1990); Gomez v. Savage,
254 Neb. 836, 580 N.W.2d 523 (1998); A.L. v. P.A., 213 N.J. Super. 391, 517 A.2d 494 (App. Div.
1986).
As to consent to adoption, see §§ 65 to 106.
[FN7] In Interest of McAda, 780 S.W.2d 307 (Tex. App. Amarillo 1989), writ denied, (June 20, 1990).
rights reserved.
AMJUR ADOPTION § 3
END OF DOCUMENT


Adoption
I. In General
§ 4. Other concepts or proceedings distinguished
Although the effect of a decree of adoption relieves the natural parents of all parental rights and terminates
all legal relationships between the adopted child and his natural parents,[1] there is a difference in the effect
between the termination of parental rights and an adoption.[2] The termination of parental rights is designed to
protect a child who has been abandoned, deprived, or unsupported. An adoption does more. A new relationship
between the child and the adopting parents is created. In an adoption proceeding, the rights and obligations of a
natural parent, and those of an adopting parent, to a child are not conclusively altered until the date of the final
order of adoption.[3]
Custody and adoption proceedings are distinguishable in that adoption severs the rights and interests of the
natural parents and permanently terminates the relationship between parent and child while custody proceedings
do not.[4]
A false acknowledgment of fatherhood on a birth certificate will not establish paternity, even if mother
agrees to it, as the mother lacks the legal authority to unilaterally make an unrelated man the father of the child;
rather, adoption of a child may only be accomplished under the adoption statute.[5]
Adoption and legitimation are distinguishable in that they are generally controlled by distinct and separate
statutes, with separate statutory procedures, requirements, and consequences.[6]
[FN1] § 163.
[FN2] Arrington v. Hand, 193 Ga. App. 457, 388 S.E.2d 52 (1989).
[FN3] Arrington v. Hand, 193 Ga. App. 457, 388 S.E.2d 52 (1989).
[FN4] In re Custody of Atherton, 107 Ill. App. 3d 1006, 63 Ill. Dec. 582, 438 N.E.2d 513 (1st Dist.
1982).

[FN5] Crouse v. Crouse, 1996 SD 95, 552 N.W.2d 413 (S.D. 1996) (applying Iowa law).
[FN6] Bridges v. Nicely, 304 Md. 1, 497 A.2d 142 (1985).
As to a discussion of adoption of illegitimate children, generally, see § 15.
As to legitimation, generally, see Am. Jur. 2d, Illegitimate Children §§ 133 to 145.
rights reserved.
AMJUR ADOPTION § 4
END OF DOCUMENT

AMJUR ADOPTION I B REF Page 1
2 Am. Jur. 2d Adoption I B Refs.

Adoption
I. In General
Research References
Uniform Adoption Act (1994)
West's Key Number Digest, Adoption 1 to 3
Primary Authority
42 U.S.C.A. §§ 670 to 679a
A.L.R. Library
A.L.R. Digest: Adoption § 1
A.L.R. Digest: Parent and Child §§ 16, 19
rights reserved.
AMJUR ADOPTION I B REF
END OF DOCUMENT


Adoption
I. In General
§ 5. Origin and legal basis
There is no fundamental right to adopt.[1] Nor does the interest in adopting a child fall within the marital
privacy right, since the adoption statutes require adopters to submit their personal lives to intensive scrutiny be-
fore the adoption may be approved.[2]
Adoption has been practiced since ancient times.[3] Even so, adoption is not a natural right[4] and is un-
known at common law.[5] Rather, it is of wholly statutory origin[6] and is in derogation of the common law.[7]
Any attempt to grant rights to the natural relatives, in the absence of statutory authority, is against public policy
and is void.[8]
One cannot be the legally adopted child of another by private agreement unless there is statutory authority
for doing so,[9] although a court of equity may, where justice requires, decree a person to have rights of an ad-
opted child—that is to have been "equitably adopted"—for purposes of inheritance, under certain circum-
stances.[10]
[FN1] Lindley for Lindley v. Sullivan, 889 F.2d 124 (7th Cir. 1989); Crim v. Harrison, 552 F. Supp. 37
(N.D. Miss. 1982).
[FN2] Lindley for Lindley v. Sullivan, 889 F.2d 124 (7th Cir. 1989).
[FN3] Matter of Adams, 189 Mich. App. 540, 473 N.W.2d 712 (1991); Matter of Adoption of Robert
Paul P., 63 N.Y.2d 233, 481 N.Y.S.2d 652, 471 N.E.2d 424, 42 A.L.R.4th 765 (1984).
[FN4] EMW, Jr. v. JPM, 583 So. 2d 511 (La. Ct. App. 2d Cir. 1991); Hucks v. Dolan, 288 S.C. 468,
343 S.E.2d 613 (1986).
[FN5] Ex parte D.W., 835 So. 2d 186 (Ala. 2002); Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist. Ct.
App. 5th Dist. 1992); Matter of Adoption of Chaney, 126 Idaho 554, 887 P.2d 1061 (1995); In re M.M.,

156 Ill. 2d 53, 189 Ill. Dec. 1, 619 N.E.2d 702 (1993); In re Marriage of Holcomb, 471 N.W.2d 76
(Iowa Ct. App. 1991); Matter of Adams, 189 Mich. App. 540, 473 N.W.2d 712 (1991); Adoption of
C.L.B. v. D.G.B., 812 So. 2d 980 (Miss. 2002); In re Estate of McQuesten, 133 N.H. 420, 578 A.2d 335
(1990); Matter of Adoption of Adult by G.V.C., 243 N.J. Super. 651, 581 A.2d 123 (Ch. Div. 1990);
Michels v. Hodges, 326 Or. 538, 956 P.2d 184 (1998); In re Adoption of R.B.F., 569 Pa. 269, 803 A.2d
1195 (2002); Alley v. Bennett, 298 S.C. 218, 379 S.E.2d 294 (Ct. App. 1989); B.C.S. v. D.A.E., 818
S.W.2d 929 (Tex. App. Beaumont 1991), writ denied, (Feb. 12, 1992); NPA v. WBA, 8 Va. App. 246,
380 S.E.2d 178 (1989); Matter of Adoption of Infant Boy Crews, 60 Wash. App. 202, 803 P.2d 24 (Div.
1 1991), decision aff'd, 118 Wash. 2d 561, 825 P.2d 305 (1992); In Interest of Angel Lace M., 184 Wis.
2d 492, 516 N.W.2d 678 (1994); VJL v. RED, 2002 WY 25, 39 P.3d 1110 (Wyo. 2002).
[FN6] Ex parte D.W., 835 So. 2d 186 (Ala. 2002); Sharon S. v. Superior Court, 31 Cal. 4th 417, 2 Cal.
Rptr. 3d 699, 73 P.3d 554(2003); Petition of S.O., 795 P.2d 254 (Colo. 1990); Kupec v. Cooper, 593
So. 2d 1176 (Fla. Dist. Ct. App. 5th Dist. 1992); Matter of Adoption of Chaney, 126 Idaho 554, 887
P.2d 1061 (1995); In re M.M., 156 Ill. 2d 53, 189 Ill. Dec. 1, 619 N.E.2d 702 (1993); In re Marriage of
Holcomb, 471 N.W.2d 76 (Iowa Ct. App. 1991); Day v. Day, 937 S.W.2d 717 (Ky. 1997); Adoption of
C.L.B. v. D.G.B., 812 So. 2d 980 (Miss. 2002); In re Adoption of Kassandra B., 248 Neb. 912, 540
N.W.2d 554 (1995); In re Estate of McQuesten, 133 N.H. 420, 578 A.2d 335 (1990); Matter of Adop-
tion of Adult by G.V.C., 243 N.J. Super. 651, 581 A.2d 123 (Ch. Div. 1990); Johnson v. Johnson, 2000
ND 170, 617 N.W.2d 97 (N.D. 2000); Michels v. Hodges, 326 Or. 538, 956 P.2d 184 (1998); In re Ad-
option of R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002); In re Jeramie N., 688 A.2d 825 (R.I. 1997);
Crouse v. Crouse, 1996 SD 95, 552 N.W.2d 413 (S.D. 1996) (applying Iowa law); B.C.S. v. D.A.E.,
818 S.W.2d 929 (Tex. App. Beaumont 1991), writ denied, (Feb. 12, 1992); Matter of Adoption of Infant
Boy Crews, 60 Wash. App. 202, 803 P.2d 24 (Div. 1 1991), decision aff'd, 118 Wash. 2d 561, 825 P.2d
305 (1992); In Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994); VJL v. RED, 2002
WY 25, 39 P.3d 1110 (Wyo. 2002).
[FN7] Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992); Matter of Adams, 189 Mich. App. 540,
473 N.W.2d 712 (1991).
[FN8] Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985).
[FN9] § 49.
[FN10] § 60.
rights reserved.
AMJUR ADOPTION § 5
END OF DOCUMENT


Adoption
I. In General
§ 6. Origin and legal basis—Characterization as right or privilege
West's Key Number Digest, Adoption 1, 3
While adoption has often been referred to in the context of a "right" of adoption,[1] the right to adopt is not
absolute[2] and that such "right" is not a natural or fundamental one, but rather a right created by statute.[3] Fur-
thermore, adoption statutes confer a privilege rather than a right;[4] that is, adoption is not a right, but a priv-
ilege which is governed not by the wishes of the prospective parents but by the state's determination that a child
is best served by a particular disposition.[5] Similarly stated, adoption is not a fundamental right, but is rather a
creature of statute.[6] Adoption has sometimes been characterized as a "status" created by the state,[7] and an
"opportunity," rather than a right, to adopt has been said to be a legislatively created device.[8]
[FN1] Crim v. Harrison, 552 F. Supp. 37 (N.D. Miss. 1982); Matter of Pima County Juvenile Action
No. B-8736, 132 Ariz. 583, 647 P.2d 1181 (Ct. App. Div. 2 1982); Matter of Adoption of Adult by
G.V.C., 243 N.J. Super. 651, 581 A.2d 123 (Ch. Div. 1990); Hucks v. Dolan, 288 S.C. 468, 343 S.E.2d
613 (1986).
[FN2] In re Adoption of Charles B., 50 Ohio St. 3d 88, 552 N.E.2d 884 (1990).
[FN3] § 5.
[FN4] Martin v. Putnam, 427 So. 2d 1373 (Miss. 1983).
[FN5] Browder v. Harmeyer, 453 N.E.2d 301 (Ind. Ct. App. 4th Dist. 1983).
[FN6] In re Jeramie N., 688 A.2d 825 (R.I. 1997).
[FN7] § 1.
[FN8] In re Lisa Diane G., 537 A.2d 131 (R.I. 1988).

rights reserved.
AMJUR ADOPTION § 6
END OF DOCUMENT


Adoption
I. In General
§ 7. Nature of statutes
Adoption laws founded upon broad humanitarian principles have been universally adopted.[1] Adoption
statutes embody the fundamental social concept that the relationship of parent and child may be established by
operation of law. Despite the absence of any blood ties, in the eyes of the law an adopted child becomes the nat-
ural child of the adoptive parents with all the attendant personal and proprietary incidents to that relationship.
Indeed, the adoption laws reflect the general acceptance of the ancient principle of "adoptio naturam imit-
atur"—that is, adoption imitates nature.[2]
In addition to state provisions, federal statutes provide adoption assistance to some adoptive parents, under
certain circumstances.[3]
The Uniform Adoption Act was revised in 1969 and amended in 1971. It was significantly revised again in
1994. As revised, the Act is divided into eight articles, pertaining to general and miscellaneous provisions,[4]
the adoption of minors,[5] the general procedure for the adoption of minors,[6] the adoption of a minor stepchild
by a stepparent,[7] the adoption of adults and emancipated minors,[8] the retention and confidentiality of, and
access to, records of adoption proceedings,[9] and prohibited and permissible activities in connection with adop-
tion.[10] At the date of this article's publication, only one jurisdiction—Vermont—had adopted the Act as re-
vised in 1994 or a variation thereof.[11]
In addition to their traditional adoption programs, some states administer programs designed to promote the
adoption of "hard-to-place" children.[12]
[FN1] Eggleston v. Landrum, 210 Miss. 645, 50 So. 2d 364, 23 A.L.R.2d 696 (1951); Blaustein v.
Blaustein, 77 Ohio App. 281, 33 Ohio Op. 46, 45 Ohio L. Abs. 4, 66 N.E.2d 156 (1st Dist. Hamilton
County 1946).
As to discussion of the purposes of adoption statutes, see § 42.

A.L.R.4th 765 (1984).
[FN3] §§ 31, 32.
[FN4] Uniform Adoption Act (1994) §§ 1-101 to 1-108, 8-101 to 8-106.
[FN5] Uniform Adoption Act (1994) §§ 2-101 to 2-409.
[FN11] Uniform Adoption Act (1994) Refs & Annos.
[FN12] Smith v. Alameda County Social Services Agency, 90 Cal. App. 3d 929, 153 Cal. Rptr. 712 (1st
Dist. 1979); Griffith v. Johnston, 899 F.2d 1427, 16 Fed. R. Serv. 3d 844 (5th Cir. 1990).
rights reserved.
AMJUR ADOPTION § 7
END OF DOCUMENT


Adoption
I. In General
§ 8. Purposes of statutes
The purposes of adoption statutes include:

• to create a legal connection between the adoptive parent and a child who are not biologically related,
thereby conferring on each legal rights and obligations that did not previously exist between them[1]
• to sever most enforceable obligations involving the biological parent with the child[2]
• to protect the rights of the parties involved[3]
• to protect children from unnecessary separation from their natural parents, and adoption by individuals
who are unfit for the responsibility[4]
• to protect natural parents from a hurried or ill-considered decision to give up a child[5]
• to protect adoptive parents by providing them information about the child and the child's background, and
from a future disturbance of their relationship with the child by a natural parent[6]
• to preserve and protect the best interests of the child[7]
• to secure the best possible home for the child[8]
• to protect the interests of children whose parents are unable or unwilling to provide for their care[9]
• to secure for the child a permanent, stable environment[10]
• to achieve finality in the placement of children.[11]
• to promote stability in family relationships[12]
• to support the newly-created family and to encourage other families to adopt a child with the knowledge
that biological relatives will not interfere with the new family unit[13]
• to encourage the adoption of as many children as possible[14]
Adoption statutes are not intended to resolve parentage issues arising from gestational surrogacy agree-
ments,[15] nor to advance a procreational right to privacy of the biological parent.[16]
[FN1] Green v. Sollenberger, 338 Md. 118, 656 A.2d 773 (1995);
In Interest of Unnamed Child, 584 S.W.2d 476 (Tex. Civ. App. Fort Worth 1979), writ refused n.r.e.,

(Mar. 26, 1980).
[FN2] In re Adoption of Vito, 431 Mass. 550, 728 N.E.2d 292 (2000).
[FN3] Matter of Adoption of M.L.T., 746 P.2d 1179 (Utah Ct. App. 1987).
[FN4] Green v. Sollenberger, 338 Md. 118, 656 A.2d 773 (1995).
[FN5] In re Lynn M., 312 Md. 461, 540 A.2d 799 (1988).
[FN7] Sharon S. v. Superior Court, 31 Cal. 4th 417, 2 Cal. Rptr.3d 699, 73 P.3d 554 (2003) (basic pur-
pose of an adoption is the welfare, protection, and betterment of the child, and adoption courts ulti-
mately must rule on that basis); In re M.M.D., 662 A.2d 837 (D.C. 1995); Wolinski v. Browneller, 115
Md. App. 285, 693 A.2d 30 (1997); Johnson v. Johnson, 2000 ND 170, 617 N.W.2d 97 (N.D. 2000); In
re Adoption of Zschach, 75 Ohio St. 3d 648, 665 N.E.2d 1070 (1996); Matter of Adoption of Infant Boy
Crews, 60 Wash. App. 202, 803 P.2d 24 (Div. 1 1991), decision aff'd, 118 Wash. 2d 561, 825 P.2d 305
(1992).
The basic principles permeating the law of adoption are fundamental liberty interests and the best in-
terests of the children. JK ex rel. DK v. MK, 5 P.3d 782 (Wyo. 2000).
[FN8] Matter of Jacob, 86 N.Y.2d 651, 636 N.Y.S.2d 716, 660 N.E.2d 397 (1995).
[FN9] Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999).
[FN10] Maertz v. Maertz, 827 P.2d 259 (Utah Ct. App. 1992).
The main purpose of adoption is to find homes for children, not children for families. Schneider v.
S.L.M., 347 N.W.2d 126 (N.D. 1984).
[FN11] Matter of Adoption of Infant Boy Crews, 60 Wash. App. 202, 803 P.2d 24 (Div. 1 1991), de-
cision aff'd, 118 Wash. 2d 561, 825 P.2d 305 (1992).
[FN12] In re Adoption of Zschach, 75 Ohio St. 3d 648, 665 N.E.2d 1070 (1996); Matter of Adoption of
Infant Boy Crews, 60 Wash. App. 202, 803 P.2d 24 (Div. 1 1991), decision aff'd, 118 Wash. 2d 561,
825 P.2d 305 (1992) (involving Indian Child Welfare Act).
As to a discussion of the Indian Child Welfare Act, generally, see Am. Jur. 2d, Indians §§ 145 to 153.
[FN13] In re Adoption of Child by W.P., 163 N.J. 158, 748 A.2d 515 (2000).
[FN15] Culliton v. Beth Israel Deaconess Medical Center, 435 Mass. 285, 756 N.E.2d 1133 (2001).

rights reserved.
AMJUR ADOPTION § 8
END OF DOCUMENT


Adoption
I. In General
§ 9. Purposes of statutes—Particular statutes
The central purpose of the federal Adoption Assistance and Child Welfare Act[1] is to facilitate permanent
placement for children.[2]
The purpose of a criminal statute prohibiting any payment for an adoption is to discourage the marketing of
children by limiting the profitability of such activity and to provide penalties for fees which are of questionable
legitimacy.[3]
[FN1] 42 U.S.C.A. §§ 670 to 679a.
[FN2] Application of L.L., 653 A.2d 873 (D.C. 1995).
[FN3] State v. Brown, 272 Kan. 843, 35 P.3d 910 (2001).
rights reserved.
AMJUR ADOPTION § 9
END OF DOCUMENT


Adoption
I. In General
§ 10. Validity of statutes
A.L.R. Library
Validity and application of statute authorizing change in record of birthplace of adopted child, 14 A.L.R. 4th
739
The state has the power to provide for the adoption of children after notice to, and with the consent of, the
natural parents and other interested persons.[1] The state has a legitimate and important interest in establishing a
stable environment for adopted children.[2]
Generally, statutes which authorize adoption of a child by a stranger, to be valid as against the natural par-
ents, must be construed so as to authorize the adoption only in cases where the parents consent, or where the
child has been abandoned by its parents, or where for other reasons it is manifestly to the interest of the child
that it be taken from their custody.[3]
A parent has no vested rights in the child which require protection accorded to property rights.[4]
Distinctions in statutory treatment of adopted children leaving state custody and those involved in private
custody adoptions do not violate the equal protection prohibition on disparate treatment of similarly situated in-
dividuals where the children are not deemed to have been similarly situated.[5]
[FN1] In re Palmer's Adoption, 129 Fla. 630, 176 So. 537 (1937).
[FN2] In re Adoption of Trystyn D., 259 Neb. 539, 611 N.W.2d 112 (2000).
[FN3] Wiggins v. Rolls, 100 So. 2d 414 (Fla. 1958); Winter v. Director, Dept. of Welfare of Baltimore
City, 217 Md. 391, 143 A.2d 81 (1958); In re Adoption of Morrison, 260 Wis. 50, 51 N.W.2d 713
(1952).

[FN4] People ex rel. Nabstedt v. Barger, 3 Ill. 2d 511, 121 N.E.2d 781, 45 A.L.R.2d 1372 (1954).
[FN5] Griffith v. Johnston, 899 F.2d 1427, 16 Fed. R. Serv. 3d 844 (5th Cir. 1990) (children in state
conservatorship are in no way similarly situated with regard to medical and psychological services
provided by the state and by parents).
rights reserved.
AMJUR ADOPTION § 10
END OF DOCUMENT


Adoption
I. In General
§ 11. Validity of statutes—Procedural issues; who may petition
A statute requiring a petition for relief from a final order or judgment in an adoption proceeding to be filed
not later than one year after entry of the order or judgment is presumptively constitutional.[1] An adoption stat-
ute setting forth the contents of a notice to be sent by an agency to any person who has been identified as the
biological father or possible biological father by the child's mother is facially constitutional.[2]
However, no rational basis exists for applying a residency requirement of an adoption statute to an out-
of-state aunt and her husband who were petitioning to adopt the child of the aunt's deceased twin sister, and
thus, the statute violated the equal protection clause as applied to the aunt and her husband; baby market issues
were not implicated in the case, and the child's best interests would be served by permitting the aunt and her
husband to have their petition heard.[3]
A statute denying an adopted person the right to inherit from collateral kin, as applied to a person who was
adopted as a child, violates the common benefits provision of the a state constitution.[4]
[FN1] In re Tekela, 202 Ill. 2d 282, 269 Ill. Dec. 119, 780 N.E.2d 304 (2002), cert. denied, 538 U.S.
915, 123 S. Ct. 1502, 155 L. Ed. 2d 241 (2003).
As to the procedure involved in adoptions generally, see §§ 107 to 125.
[FN2] In re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256 (2001), cert. denied, 535 U.S.
1035, 122 S. Ct. 1792, 152 L. Ed. 2d 651 (2002).
[FN3] In re Jeramie N., 688 A.2d 825 (R.I. 1997).
[FN4] MacCallum v. Seymour, 165 Vt. 452, 686 A.2d 935 (1996).

rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 12. Validity of statutes—Waivers of parental consent
The validity of legislation permitting adoption without the parents' consent is based upon the fact that the
parent has no inherent right in the property and the right that a parent has to the custody and rearing of his or her
child is not an absolute one, but may be forfeited by abandonment, unfitness of the parent, or where some excep-
tional circumstances render the parent's custody detrimental to the best interests of the child.[1]
Termination of parental rights and waiver of parental consent to adoption in connection with adoption pro-
ceedings may be constitutionally based on a different standard than proceedings which seek only the termination
of parental rights, and may place a more stringent burden on parental conduct in the adoption context; where the
statutory purposes of the statutes justify such differences, there is no violation of the parents' due process or
equal protection rights.[2]
Issues regarding the constitutionality of permitting adoption without paternal consent have arisen in several
contexts. A statute requiring consent for an adoption from a putative biological father who has acknowledged his
paternity, made reasonable and consistent support payments for the mother or the child or both in accordance
with his financial means, and regularly communicated or attempted to communicate with the mother and the
child, is intended primarily to protect the interests and rights of men who have demonstrated paternal responsib-
ility and to facilitate the adoption process in situations where a putative father for all intents and purposes has
walked away from his responsibilities to mother and child, but later wishes to intervene and hold up the adoption
process.[3] In a statute taking a converse approach, a statute providing for the termination of a natural father's
parental rights, in connection with the child's adoption, if the father fails to support the mother in the six months
prior to the child's birth, also does not violate due process, where it also provides the father with notice and an
opportunity to be heard and appointed counsel to represent him if necessary, and requires the safeguard of a
clear and convincing burden of proof before terminating the father's parental rights.[4] However, a statute which
provided that while an unwed mother's consent was always required, an unwed father's consent to the adoption
of his child who was under six months old was required only where the father had openly lived with the child or
the mother for six continuous months immediately preceding the child's placement for adoption, openly acknow-
ledged his paternity during such period, and paid reasonable pregnancy and birth expenses in accordance with

his means, was unconstitutional in that the statutory requirement that the father openly live with the mother be-
fore the child's placement for adoption neither legitimately furthered the state's interest nor sufficiently protected
the father's interest.[5]
Statutes requiring putative fathers to register with the state in order to protect their parental rights, right to
notice, and their right to consent to an adoption of their children have been upheld as not violating due process.[
6] There is also a reasonable basis for requiring unmarried biological fathers to comply with statutory proced-
ures for claiming and establishing paternity before becoming entitled to the right to notice and consent regarding
adoption; thus such statutes do not violate equal protection requirements[7] or due process.[8]
[FN1] Winter v. Director, Dept. of Welfare of Baltimore City, 217 Md. 391, 143 A.2d 81 (1958).
[FN2] Matter of Adoption of B.S.L., 779 P.2d 1222 (Alaska 1989) (the two mechanisms served quite
different purposes; an adoption proceeding operates to replace a parent, while a child-in-need-of-aid
proceeding operates to emancipate a child from an offending parent's legal bonds. Through an adoption
proceeding a child may be placed in a stable, permanent home; through a child-in-need-of-aid proceed-
ing a child may be placed in an environment which, though uncertain, is preferable to the dangerous en-
vironment he or she occupies).
[FN3] In re Byrd, 354 N.C. 188, 552 S.E.2d 142 (2001).
[FN4] In re Adoption of D.M.M., 24 Kan. App. 2d 783, 955 P.2d 618 (1997).
[FN5] Matter of Raquel Marie X., 76 N.Y.2d 387, 559 N.Y.S.2d 855, 559 N.E.2d 418 (1990).
[FN6] Heidbreder v. Carton, 645 N.W.2d 355 (Minn. 2002), cert. denied, 537 U.S. 1046, 123 S. Ct.
621, 154 L. Ed. 2d 518 (2002) (statutes adequately protected putative father's due process right to op-
portunity to form relationship with child; the statutory scheme was unlikely to omit most responsible
fathers and did not place the qualification for notice beyond the putative father's control, and registra-
tion was not the putative father's sole available method for establishing a relationship entitled to due
process protections).
[FN7] In re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256 (2001), cert. denied, 535 U.S.
1035, 122 S. Ct. 1792, 152 L. Ed. 2d 651 (2002) (requiring putative father to file notice of intent to
claim paternity and petition within specified times after child's birth); In re Adoption of B.B.D., 1999
UT 70, 984 P.2d 967 (Utah 1999) (though such procedures differentiated unmarried fathers and unmar-
ried mothers, as unmarried mothers were easily identified but unmarried fathers were not).
[FN8] In re Adoption of B.B.D., 1999 UT 70, 984 P.2d 967 (Utah 1999).
rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 13. Construction of adoption statutes
Adoption statutes must be construed as whole, without isolation of particular sections.[1] An adoption stat-
ute should be interpreted to give consistent, harmonious, and sensible effect to all its parts.[2]
Various views have been followed as to whether adoption statutes should be strictly or liberally construed.
Some courts have followed the general rule that such statutes are to be liberally construed[3] to give due regard
to the rights of all persons affected.[4] Other courts have stated the general rule that adoption statutes are in
derogation of the common law[5] and thus must be strictly construed[6] or that there must be strict adherance to
the statute.[7]
Observation:
The Uniform Adoption Act (1994) is to be so interpreted and construed as to effectuate its general purpose to
make uniform the law of those states which enacted this act.[8]
[FN1] Petition of Filippelli, 207 Ill. App. 3d 813, 152 Ill. Dec. 725, 566 N.E.2d 412 (1st Dist. 1990);
Matter of Adams, 189 Mich. App. 540, 473 N.W.2d 712 (1991).
[FN2] Ex parte S.C.W., 826 So. 2d 844 (Ala. 2001); Matter of Paternity of J.A.V., 547 N.W.2d 374
(Minn. 1996).
[FN3] In re M.M.D., 662 A.2d 837 (D.C. 1995); Matter of Adoption of Adult by G.V.C., 243 N.J. Su-
per. 651, 581 A.2d 123 (Ch. Div. 1990).
The rule is that the adoption statutes are to be liberally construed with a view to effect their objects and
to promote justice, and such a construction should be given as will sustain, rather than defeat, the object
they have in view. Sharon S. v. Superior Court, 31 Cal. 4th 417, 2 Cal. Rptr.3d 699, 73 P.3d 554 (2003)
.

[FN4] Matter of Adoption of Adult by G.V.C., 243 N.J. Super. 651, 581 A.2d 123 (Ch. Div. 1990).
Adoption statutes are construed to protect the rights and privileges of the child being adopted. Depart-
ment of Human Services v. Sabattus, 683 A.2d 170 (Me. 1996).
[FN5] § 5.
[FN6] Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000); Matter of Adoption of Chaney, 126 Idaho
554, 887 P.2d 1061 (1995); EMW, Jr. v. JPM, 583 So. 2d 511 (La. Ct. App. 2d Cir. 1991); Matter of
Adams, 189 Mich. App. 540, 473 N.W.2d 712 (1991); Matter of Jacob, 86 N.Y.2d 651, 636 N.Y.S.2d
716, 660 N.E.2d 397 (1995); In re Adoption of Zschach, 75 Ohio St. 3d 648, 665 N.E.2d 1070 (1996);
In re Adoption of C.D.M., 2001 OK 103, 39 P.3d 802 (Okla. 2001), cert. denied, 535 U.S. 1054, 122 S.
Ct. 1911, 152 L. Ed. 2d 821 (2002); In re Alicia S., 763 A.2d 643 (R.I. 2000); Doe v. Brown, 331 S.C.
491, 489 S.E.2d 917 (1997); In re Estate of Kirkpatrick, 2003 WY 125, 77 P.3d 404 (Wyo. 2003).
As adoption statute is in derogation of common law, nothing can be assumed, presumed, or inferred,
and what is not found in statute is matter for legislature and not courts to supply. Day v. Day, 937
S.W.2d 717 (Ky. 1997).
[FN7] Ex parte S.C.W., 826 So. 2d 844 (Ala. 2001); Day v. Day, 937 S.W.2d 717 (Ky. 1997); In re
Baby Girl P., 147 N.H. 772, 802 A.2d 1192 (2002); Matter of Jacob, 86 N.Y.2d 651, 636 N.Y.S.2d 716,
660 N.E.2d 397 (1995); In re Adoption of R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002); In re Alicia S.,
763 A.2d 643 (R.I. 2000); In re Adoption of B.T., 150 Wash. 2d 409, 78 P.3d 634 (2003); In re Adop-
tion of KJD, 2002 WY 26, 41 P.3d 522 (Wyo. 2002).
Legal adoption results if statutory procedure is followed but fails if any essential requirement of statute
is not complied with. In re Adoption of Baby Z., 247 Conn. 474, 724 A.2d 1035 (1999).
The matter of adoption is statutory, and the manner of procedure and terms are all specifically pre-
scribed and must be followed. In re Adoption of Hemmer, 260 Neb. 827, 619 N.W.2d 848 (2000).
[FN8] Uniform Adoption Act § 8-101 (1994).
rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 14. Construction of adoption statutes—Construction with regard to rights of natural parents
Adoption statutes are strictly construed in favor of the rights of the natural parents[1] for the application of
such statutes results in the severance forever of the parental relation.[2] Adoption statutes are strictly construed
when the proceeding is with regard to or against a nonconsenting parent[3] and every reasonable intendment is
made in favor of that parent's claims.[4] Where two interpretations of a statute are reasonably possible, the inter-
pretation which is most protective of the rights of the natural parent is to be selected.[5] Such strict construction
is mandated by the fact that parental rights are fundamental rights.[6]
[FN1] Griffith v. Brooks, 193 Ga. App. 762, 389 S.E.2d 246 (1989); In re Adoption of B.M.W., 268
Kan. 871, 2 P.3d 159 (2000); In re Adoption of W.B.L., 681 S.W.2d 452 (Mo. 1984); H.W.S. v. C.T.,
827 S.W.2d 237 (Mo. Ct. App. E.D. 1992).
[FN2] Griffith v. Brooks, 193 Ga. App. 762, 389 S.E.2d 246 (1989); In re Adoption of B.M.W., 268
Kan. 871, 2 P.3d 159 (2000); Day v. Day, 937 S.W.2d 717 (Ky. 1997).
[FN3] In re Adoption of B.M.W., 268 Kan. 871, 2 P.3d 159 (2000); Matter of Adoption of BBC, 831
P.2d 197 (Wyo. 1992).
As to the consent required for an adoption, see §§ 65 to 106.
[FN4] Matter of Adoption of BBC, 831 P.2d 197 (Wyo. 1992).
[FN5] Matter of Adoption of A.F.M., 960 P.2d 602 (Alaska 1998).
[FN6] Matter of Adoption of BBC, 831 P.2d 197 (Wyo. 1992).
rights reserved.

END OF DOCUMENT

AMJUR ADOPTION I C REF Page 1
2 Am. Jur. 2d Adoption I C Refs.

Adoption
I. In General
Research References
Uniform Adoption Act § 1-102 (1994)
A.L.R. Library
Forms
Am. Jur. Pleading and Practice Forms, Adoption §§ 5 to 17
rights reserved.
AMJUR ADOPTION I C REF
END OF DOCUMENT


Adoption
I. In General
1. In General
§ 15. Statute as controlling
Forms
Petitions or Applications for Adoption, Am. Jur. Pleading and Practice Forms, Adoption §§ 5 to 17
As with all other aspects of adoption,[1] the question of who may adopt is controlled by statute.[2]
The Uniform Adoption Act (1994) provides that any individual may adopt or be adopted by another indi-
vidual for the purpose of creating the relationship of parent and child between them.[3]
Absent statutory authority, an assignment may not be made of adoption rights from one third party to anoth-
er.[4]
[FN1] § 5.
[FN2] Sharon S. v. Superior Court, 31 Cal. 4th 417, 2 Cal. Rptr.3d 669, 73 P.3d 554(2003); Matter of
Adams, 189 Mich. App. 540, 473 N.W.2d 712 (1991).
[FN3] Uniform Adoption Act (1994) § 1-102.
[FN4] Tyson v. Department of Human Resources, 165 Ga. App. 414, 301 S.E.2d 485 (1983).
rights reserved.
END OF DOCUMENT


Adoption
I. In General
1. In General
§ 16. Adults
Some statutes provide that any adult[1] or any adult resident of the state[2] whether married, unmarried, or
legally separated,[3] is eligible to qualify to adopt children. Other statutes provide that once parental rights are
terminated, any individual may become an adopting parent,[4] or that any adult, whether married or single, is
eligible to adopt.[5] Some statutes expressly state that unmarried individuals may adopt.[6]
[FN1] Harris County Child Welfare Unit v. Caloudas, 590 S.W.2d 596 (Tex. Civ. App. Houston 1st
Dist. 1979).
[FN2] Matter of Pima County Juvenile Action No. B-8736, 132 Ariz. 583, 647 P.2d 1181 (Ct. App. Div.
2 1982); In Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994).
As to requirements regarding residence or domicile, generally, see § 115.
2 1982).
As to marital status as affecting whether one can adopt another, see § 136.
[FN4] In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992).
[FN6] In Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994).
rights reserved.

END OF DOCUMENT


Adoption
I. In General
1. In General
§ 17. Disqualifying factors; expectation or entitlement to adopt
Some statutes require that the persons seeking to adopt be under no legal disability.[1] However, the denial
of an adoption petition based solely on the grounds that both petitioners are deaf mutes constitutes a biased and
discriminatory denial of equal protection and due process of the law.[2]
It is manifestly clear that not every prospective adoptive parent has an expectation or entitlement sufficient
for the recognition of a constitutional liberty interest in the right to adopt a child;[3] for example, foster parents
have no expectation or entitlement that a child will remain permanently in their home and have no liberty or
property interests which are entitled due process protection under the Fifth or 14th Amendment.[4]
Under some statutes, the adoptive parents must be "reputable persons"; an individual's criminal history, his
or her continuing pattern of deception, and employment instability would justify a court in finding that a peti-
tioner for adoption was not a reputable person for such purposes.[5]
An attorney must not adopt the child of his or her client in a private adoption proceeding unless the attorney
withdraws from representation and refers the client to another lawyer who can give independent legal counsel.[6
]
A petition for adoption cannot be granted where the petitioner has died.[7]
[FN1] Dahl v. Grenier, 126 Ill. App. 3d 891, 81 Ill. Dec. 870, 467 N.E.2d 992 (1st Dist. 1984).
[FN2] In re Adoption of Richardson, 251 Cal. App. 2d 222, 59 Cal. Rptr. 323 (2d Dist. 1967).
[FN3] Crim v. Harrison, 552 F. Supp. 37 (N.D. Miss. 1982).
[FN4] § 135.

[FN5] Nees v. Doan, 185 Ill. App. 3d 122, 133 Ill. Dec. 180, 540 N.E.2d 1046 (4th Dist. 1989).
[FN6] State ex rel. Oklahoma Bar Ass'n v. Stubblefield, 1988 OK 141, 766 P.2d 979 (Okla. 1988) (bar
disciplinary proceeding).
[FN7] In re Adoption of R.A.B., 426 So. 2d 1203 (Fla. Dist. Ct. App. 4th Dist. 1983).
rights reserved.
END OF DOCUMENT


Adoption
I. In General
1. In General
§ 18. Disqualifying factors; expectation or entitlement to adopt—Certification
Under some statutes, a person may not petition to adopt a particular child unless he or she has first been cer-
tified by the court as "acceptable" to adopt children, and may not finally adopt the child unless he or she has
been certified by the court as acceptable to adopt based on an investigative report by the specified state agency
considering all relevant facts regarding the applicant's fitness to adopt including the applicant's social history,
financial condition, moral fitness, religious background, physical health, mental health, fingerprint records and
any prior court actions against the applicant involving children, and the agency's recommendation as to accept-
ability of the applicant to adopt.[1] The primary issue the courts should consider when deciding whether to certi-
fy an applicant as suitable to adopt children is the best interest and welfare of any child who might be adopted
by that person.[2]
[FN1] Matter of Appeal in Pima County Juvenile Action B-10489, 151 Ariz. 335, 727 P.2d 830 (Ct.
App. Div. 2 1986).
App. Div. 2 1986).
As to consideration of the welfare of the child and his or her "best interests," generally, see § 129.
rights reserved.
END OF DOCUMENT


Adoption
I. In General
1. In General
§ 19. Effect of petitioner's sexual orientation
A.L.R. Library
Adoption of child by same-sex partners, 27 A.L.R. 5th 54
Forms
Petition or application—By gay couple—Independent adoption. Am. Jur. Pleading and Practice Forms, Ad-
option § 15
The view has been expressed that proposed state legislation which would exclude homosexuals from being
adoptive parents would not violate the due process clauses, or any substantive rights to privacy, of either a par-
ticular state or the Federal Constitutions, nor would such legislation infringe upon any right of freedom of asso-
ciation under either Constitution.[1] Similarly, denial of a petition by a nonmarital partner to adopt the minor
child of the petitioner's nonmarital partner, does not violate the minor's right to equal protection guaranteed by
14th Amendment to United States Constitution by choosing to protect the best interests of those children in tra-
ditional families while not protecting best interests of children in nontraditional families, absent proof beyond a
reasonable doubt that the relevant adoption statutes deprive the minor of the right to equal protection, as the le-
gislative scheme of adoption statutes does not affect a fundamental right and are not based on a suspect classific-
ation and are rationally related to the legitimate governmental interest of protecting the traditional unitary fam-
ily.[2]
Nevertheless, in some jurisdictions, the child's best interest is not predicated or controlled by parental sexual
orientation,[3] permitting persons who are not married but who are in committed personal relationships to adopt
a child,[4] so that the fact that a biological mother and her life partner, who sought adoption, maintained an open
lesbian relationship was not reason to deny the adoption.[5] Similarly, domestic partners may complete an inde-
pendent second-parent adoption of a biological child conceived by the artificial insemination of the other partner

during the partnership.[6] Also, a homosexual partner of a child's biological mother is an "adult unmarried per-
son" with standing to adopt.[7] In such states, the purpose of the statute is the focus, regardless of the sexual ori-
entation of the individual seeking to adopt.[8]
In other jurisdictions the view is that the sexual orientation of one who petitions to be certified as acceptable
to adopt a child is appropriately considered by a court in determining his acceptability as an adoptive parent.[9]
Even so, under such view, the fact that the applicant is bisexual does not, standing alone, render the applicant
unfit to be a parent.[10]
CUMULATIVE SUPPLEMENT
Cases:
Equities weighed in favor of biological mother retaining her parental rights to child conceived by artificial
insemination when biological mother unsuccessfully sought to set aside adoption of child by her former same-
sex domestic partner over a year after the adoption judgment was entered, though by statute the adoption could
not have occurred without the termination of biological mother's parental rights; public policy as expressed in
adoption statute required termination of a biological parent's parental rights so that a child would not be subject
to the parental control of two families, public policy also required that adoption judgments could not be chal-
lenged more than a year after their entry, and equities weighed in favor of allowing adoption judgment, which
included provision that biological mother retained her parental rights, to stand. S.J.L.S. v. T.L.S., 265 S.W.3d
804 (Ky. Ct. App. 2008).
[END OF SUPPLEMENT]
[FN1] Opinion of the Justices, 129 N.H. 290, 530 A.2d 21 (1987).
[FN3] § 131.
[FN4] In re M.M.D., 662 A.2d 837 (D.C. 1995).
[FN5] Matter of Adoption of Evan, 153 Misc. 2d 844, 583 N.Y.S.2d 997 (Sur. Ct. 1992).
[FN6] Sharon S. v. Superior Court, 31 Cal. 4th 417, 2 Cal. Rptr. 3d 699, 73 P.3d 554 (2003) (even
though the other partner did not relinquish all of her parental rights).
App. Div. 2 1986).
App. Div. 2 1986).

rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 20. Joint petitioners; married persons
A.L.R. Library
Marital status of prospective adopting parents as factor in adoption proceedings, 2 A.L.R. 4th 555
Forms
Petition or application—By husband and wife, Am. Jur. Pleading and Practice Forms, Adoption §§ 6 to 11
Under some statutes, a husband and wife may jointly adopt children.[1] Under others, if the petitioner is
married, the petitioner's spouse must also join in the petition.[2]
Either spouse may petition singly where the other spouse is already a biological or adoptive parent of the
minor.[3]
2 1982); In Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994).
[FN2] In re Lynn M., 312 Md. 461, 540 A.2d 799 (1988); Matter of Adams, 189 Mich. App. 540, 473
N.W.2d 712 (1991).
rights reserved.

END OF DOCUMENT


Adoption
I. In General
§ 21. Unmarried persons
A.L.R. Library
Forms
Petition or application—By unmarried man, Am. Jur. Pleading and Practice Forms, Adoption § 14
Some adoption statutes do not require the petitioner for adoption to be married,[1] and, while the right of an
unmarried adult to adopt is permissive and not absolute,[2] in the absence of a statutory prohibition an unmar-
ried person may adopt another person.[3] However, a statutory requirement that both spouses to a marriage join
in the petition to adopt has been interpreted as precluding petitioners for adoption who were married, but not to
each other, from adopting their natural daughter.[4]However, in other jurisdictions, the fact that the petitioners
were not married at the time of the filing of the petition for adoption has not barred them from jointly adopting a
child.[5]
[FN1] In re Adoption No. 90072022/CAD, 87 Md. App. 630, 590 A.2d 1094 (1991); In re Adoption of
Charles B., 50 Ohio St. 3d 88, 552 N.E.2d 884 (1990).
[FN2] In re Adoption of Charles B., 50 Ohio St. 3d 88, 552 N.E.2d 884 (1990).
[FN3] Matter of Adams, 189 Mich. App. 540, 473 N.W.2d 712 (1991).
[FN4] Matter of Adams, 189 Mich. App. 540, 473 N.W.2d 712 (1991) (reaching such conclusion even
though the spouses of both the natural parents had joined in the petition and consented to the proposed

adoption).
[FN5] In re Adoption No. 90072022/CAD, 87 Md. App. 630, 590 A.2d 1094 (1991).
rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 22. Unmarried persons—Unmarried parent
A.L.R. Library
Under the Uniform Adoption Act, an unmarried father or mother of an individual may adopt that individu-
al.[1] Also, under other statutes, the petitioner's status as the natural parent of a child born out of wedlock will
not bar the entrance of a judgment of adoption.[2]
Some courts, interpreting their adoption statutes, have permitted a natural father to adopt his child born out
of wedlock, with the consent of the mother.[3] In other jurisdictions, the natural, unmarried, father of a child
who had custody of the child for at least one year, would be eligible under the applicable statutes, to adopt the
child without the mother's consent.[4]
[FN2] Matter of Adoption of Adult by G.V.C., 243 N.J. Super. 651, 581 A.2d 123 (Ch. Div. 1990)
(adoption by biological father of adult child).
[FN3] In re Jessica W., 122 N.H. 1052, 453 A.2d 1297, 37 A.L.R.4th 717 (1982); Matter of Adoption of
a Child by A. R., 152 N.J. Super. 541, 378 A.2d 87 (County Ct., P. Div. 1977); Matter of A. J. J., 108
Misc. 2d 657, 438 N.Y.S.2d 444 (Sur. Ct. 1981).
As to consent necessary, generally, to effectuate an adoption, see §§ 65, 66.
[FN4] Bridges v. Nicely, 304 Md. 1, 497 A.2d 142 (1985).

rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 23. Natural parent of legitimate child
There is no need for a legally created relationship if the natural relationship of parent and child exists.[1]
Thus, under particular adoption statutes, a parent may not adopt his or her own natural legitimate child,[2] even
with the consent of the other natural parent.[3]
[FN2] Leake v. Grissom, 1980 OK 114, 614 P.2d 1107 (Okla. 1980); Matter of Estate of Baxter, 1992
OK CIV APP 15, 827 P.2d 184 (Ct. App. Div. 3 1992); In Interest of Hughes, 770 S.W.2d 635 (Tex.
App. Houston 1st Dist. 1989); In re Adoption of Graham, 63 Ohio Misc. 22, 16 Ohio Op. 3d 347, 17
Ohio Op. 3d 341, 409 N.E.2d 1067 (C.P. 1980).
[FN3] In re Adoption of Graham, 63 Ohio Misc. 22, 16 Ohio Op. 3d 347, 17 Ohio Op. 3d 341, 409
N.E.2d 1067 (C.P. 1980).
rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 24. Other blood relations
Some adoption statutes make "any adult" eligible to adopt a child;[1] thus, there is no question that, under
the proper circumstances, relatives, other than the parents of a child, such as grandparents, may adopt the child.[
2]
However, while the blood relation of petitioners to the potential adoptee is a matter which may be con-
sidered, it does not create a preference, in determining whether an adoption is proper.[3] Any rights existing in
grandparents with respect to the adoption of their grandchildren must be derived from the statute.[4] The negat-
ive right to be free of governmental interference in an already existing familial relationship does not translate in-
to an affirmative right to create an entirely new family unit out of whole cloth, so as to give grandparents a fun-
damental right to due process in seeking to adopt their biological grandchild.[5] Thus, noncustodial grandparents
have no more rights than strangers to the adoption of their grandchildren.[6] Grandparents qua grandparents
have no constitutionally protected liberty interest in the adoption of their children's offspring.[7]
Under the Indian Child Welfare Act of 1978, in any adoptive placement of an Indian child under state law, a
preference must be given, in absence of good cause to the contrary, to a placement with a member of the child's
extended family, other members of the Indian child's tribe, or other Indian families.[8]
Cases:
Stepmother's adoption of child was not in child's best interests; child resided with both parents during the
first four years of her life, and not only was mother intent on retaining her parental rights and obligations, but
child herself signaled she wanted mother in her life, and stepmother did not claim or allege that mother was un-
worthy or neglected child. In re Adoption of N.W., 933 N.E.2d 909 (Ind. Ct. App. 2010).
An adoptee's biological relatives do not have a preferential legal right to adopt. In re Estate of Quackenbush,
926 N.E.2d 127 (Ind. Tax Ct. 2010).

[END OF SUPPLEMENT]
[FN1] § 15.
[FN2] In Interest of Unnamed Child, 584 S.W.2d 476 (Tex. Civ. App. Fort Worth 1979), writ refused
n.r.e., (Mar. 26, 1980) (notwithstanding that grandparents were legal strangers); In re Adoption of
Tachick, 60 Wis. 2d 540, 210 N.W.2d 865 (1973) (illegitimate child).
[FN3] In re Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).
[FN4] In re Adoption of Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000).
[FN5] Mullins v. State of Or., 57 F.3d 789 (9th Cir. 1995).
[FN6] Mullins v. State of Or., 57 F.3d 789 (9th Cir. 1995) (applying Oregon law).
[FN8] § 138.
rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 25. Foster parents
Forms
Petition or application—By foster parents, Am. Jur. Pleading and Practice Forms, Adoption §§ 12, 13
Foster parents have no expectation or entitlement that a child will remain permanently in their home and
have no liberty or property interests which are entitled due process protection under the Fifth or 14th Amend-
ment.[1] Even so, foster parents are generally among those individuals who may adopt,[2] and are not barred
from adopting their foster child by an agreement between them and the welfare agency providing that no action
for adoption or guardianship may be taken.[3] Furthermore, statutes in some jurisdictions have given a prefer-
ence to foster parents who have cared for a child for more than a specified period with regard to adoption.[4]
While foster parents generally may adopt, they may not have standing to petition therefor unless particular
conditions have been met.[5]
[FN1] Crim v. Harrison, 552 F. Supp. 37 (N.D. Miss. 1982).
[FN2] Knight v. Deavers, 259 Ark. 45, 531 S.W.2d 252, 78 A.L.R.3d 761 (1976); In re Alexander, 206
So. 2d 452 (Fla. Dist. Ct. App. 2d Dist. 1968); Harris County Child Welfare Unit v. Caloudas, 590
S.W.2d 596 (Tex. Civ. App. Houston 1st Dist. 1979).
[FN3] § 50.
[FN4] § 135.
[FN5] § 116.

rights reserved.
END OF DOCUMENT

AMJUR ADOPTION I D REF Page 1
2 Am. Jur. 2d Adoption I D Refs.

Adoption
I. In General
Research References
Uniform Adoption Act §§ 1-102, 5-101 to 5-108
A.L.R. Library
Forms
Am. Jur. Legal Forms 2d, Adoption §§ 9:39, 9:40
rights reserved.
AMJUR ADOPTION I D REF
END OF DOCUMENT


Adoption
I. In General
§ 26. Generally
For adoption to be valid, the potential adoptee must also be eligible for adoption.[1] Who may be adopted is
dependent on the terms of the applicable state statute. For example, the Uniform Adoption Act (1994) provides
that any individual may be adopted.[2] Furthermore, state statutes have sometimes specifically provided for the
adoption of adults.[3]
Adoption statutes contemplate the adoption of living persons so that only a living person may be the subject
of adoption proceedings.[4] A court may not enter a decree of adoption after the death of the child to be adop-
ted,[5] since, in such circumstances, the death of the child would deprive the court of jurisdiction.[6]
[FN1] In Interest of Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994) (finding child was not
eligible for adoption by unmarried partner of natural parent where other partner's parental rights had not
been terminated).
[FN3] § 27.
[FN4] Matter of Edwards' Estate, 106 Ill. App. 3d 635, 62 Ill. Dec. 407, 435 N.E.2d 1379 (2d Dist.
1982).
[FN5] Korbin v. Ginsberg, 232 So. 2d 417 (Fla. Dist. Ct. App. 4th Dist. 1970); In re Adoption of Brad-
field, 97 N.M. 611, 642 P.2d 214 (Ct. App. 1982).
[FN6] § 128.
rights reserved.

END OF DOCUMENT


Adoption
I. In General
§ 27. Adults
Forms
Adoption agreement—Adult, Am. Jur. Legal Forms 2d, Adoption §§ 9:39, 9:40
If the governing statute, in defining who may be adopted, designates a procedure for adoption of a minor
child, there can be no adoption of an adult,[1] although there is authority that states that the fact that the adop-
tion statute uses the word "child" does not necessarily mean that only a minor can be adopted where the statute
does not further restrict its meaning, and many courts have, indeed, construed statutes using the word "child" as
permitting the adoption of an adult.[2] While some statutes have been construed as indicating a legislative inten-
tion to restrict adoption to minors and not to authorize adoption of an adult,[3] the adoption of an adult has been
deemed permissible under various adoption statutes.[4]
Under some statutes, the adoption of an adult who is neither permanently disabled nor mentally retarded
could occur only if a child-foster parent or child-stepparent relationship had been established during the minor-
ity of the adult to be adopted.[5]
The purpose of a statute authorizing the adoption of adults is apparently to allow for adoptions which, for
one reason or another, were not made during the child's minority.[6]
The Uniform Adoption Act (1994) contains an article detailing the procedure for the adoption of adults and
emancipated minors.[7]
[FN1] Doby v. Carroll, 274 Ala. 273, 147 So. 2d 803 (1962); Appeal of Ritchie, 155 Neb. 824, 53
N.W.2d 753 (1952).
[FN2] Solomon v. Central Trust Co. of Northeastern Ohio, N.A., 63 Ohio St. 3d 35, 584 N.E.2d 1185,
36 A.L.R.5th 873 (1992).

[FN3] Doby v. Carroll, 274 Ala. 273, 147 So. 2d 803 (1962).
[FN4] Matter of Trust Created by Belgard, 829 P.2d 457 (Colo. Ct. App. 1991); In re Lynn M., 312 Md.
461, 540 A.2d 799 (1988); Matter of Adoption of Adult by G.V.C., 243 N.J. Super. 651, 581 A.2d 123
(Ch. Div. 1990); 333 East 53rd Street Associates v. Mann, 121 A.D.2d 289, 503 N.Y.S.2d 752 (1st
Dep't 1986), order aff'd, 70 N.Y.2d 660, 518 N.Y.S.2d 958, 512 N.E.2d 541 (1987); In re Adoption of
Huitzil, 29 Ohio App. 3d 222, 504 N.E.2d 1173 (12th Dist. Butler County 1985); In re McAhren's Ad-
option, 460 Pa. 63, 331 A.2d 419 (1975).
36 A.L.R.5th 873 (1992).
36 A.L.R.5th 873 (1992).
rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 28. Adults—Effect of purpose of adoption of adult
Adoption statutes have provided for the adoption of adults with the purpose of giving the adoptee the status
of heir at law.[1] However, some authority suggests that an adoption of an adult solely to make the adoptee an
heir of an ancestor under the terms of a testamentary interest known and in existence at the time of the adoption
is an act of subterfuge, violative of the intent and purpose of adoption laws, and should not be permitted.[2]
Where authorized, the adoption of an adult by an adult is generally permissible so long as the parties' pur-
pose is neither insincere nor fraudulent,[3] does not violate considerations of public policy,[4] and insofar as the
adoption will promote the moral and temporal interests of the person to be adopted.[5] There is authority that ad-
option is not a legitimate means of obtaining a legal status for a non-marital sexual relationship—whether homo-
sexual or heterosexual—nor is it a procedure by which to legitimize an emotional attachment, however sincere,
but wholly devoid of the filial relationship that is fundamental to the concept of adoption.[6]
[FN1] Matter of Trust Created by Belgard, 829 P.2d 457 (Colo. Ct. App. 1991).
As to inheritance rights of adopted persons, generally, see §§ 174 to 198.
[FN2] Cross v. Cross, 177 Ill. App. 3d 588, 126 Ill. Dec. 801, 532 N.E.2d 486 (1st Dist. 1988).
[FN3] 333 East 53rd Street Associates v. Mann, 121 A.D.2d 289, 503 N.Y.S.2d 752 (1st Dep't 1986),
order aff'd, 70 N.Y.2d 660, 518 N.Y.S.2d 958, 512 N.E.2d 541 (1987).
[FN4] Matter of Estate of Mazzeo, 95 A.D.2d 91, 466 N.Y.S.2d 759 (3d Dep't 1983).
[FN5] In re Adult Anonymous II, 88 A.D.2d 30, 452 N.Y.S.2d 198 (1st Dep't 1982).
[FN6] § 30.

rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 29. Blood relations; natural children
The general prohibition against adoption of adults for fraudulent purposes[1] is applicable to adoptions of
blood relations.[2] In some jurisdictions, there may be a valid adoption where the relation of parent and child
already exists by nature,[3] although there is also authority opposed to this view, at least with regard to the ad-
option of one's own legitimate children.[4] The view however that a natural parent may not adopt his or her nat-
ural children does not appear to extend to an adoption involving one's illegitimate children.[5]
[FN1] § 27.
[FN2] Matter of Adoption of P, 193 N.J. Super. 33, 471 A.2d 1220, 16 Ed. Law Rep. 535 (Law Div.
1983).
[FN3] Couch v. Couch, 35 Tenn. App. 464, 248 S.W.2d 327 (1951).
[FN4] Leake v. Grissom, 1980 OK 114, 614 P.2d 1107 (Oklahoma 1980); Matter of Estate of Baxter,
1992 OK CIV APP 15, 827 P.2d 184 (Ct. App. Div. 3 1992); In re Adoption of Graham, 63 Ohio Misc.
22, 16 Ohio Op. 3d 347, 17 Ohio Op. 3d 341, 409 N.E.2d 1067 (C.P. 1980).
As to ability of a natural parent to adopt his or her legitimate child, generally, see § 23.
[FN5] § 21.
rights reserved.
END OF DOCUMENT


Adoption
I. In General
§ 30. Spouses; non-marital sexual partners
A.L.R. Library
Marital or sexual relationship between parties as affecting right to adopt, 42 A.L.R. 4th 776
The view in some jurisdictions that the adoption of an adult solely for the purpose of making the adoptee an
heir should not be permitted[1] has been evoked in the context of an attempted adoption of a spouse.[2]
Adoption petitions of individuals seeking to adopt their heterosexual[3] and homosexual[4] lovers have
been denied.
[FN1] § 27.
[FN2] Minary v. Citizens Fidelity Bank & Trust Co., 419 S.W.2d 340 (Ky. 1967); Successions of Plum-
mer Through Guttuso v. Plummer, 577 So. 2d 751 (La. Ct. App. 1st Cir. 1991), writ denied, 580 So. 2d
676 (Louisiana. 1991).
[FN3] In re Jones, 122 R.I. 716, 411 A.2d 910 (1980) (30-year-old married man sought to adopt his
20-year-old female lover).
A.L.R.4th 765 (1984) (50-year-old homosexual man sought to adopt 57-year-old male lover and cohab-
itant).
rights reserved.

END OF DOCUMENT

AMJUR ADOPTION II REF Page 1
2 Am. Jur. 2d Adoption II Refs.

Adoption
Research References
Primary Authority
14 U.S.C.A. § 514
20 U.S.C.A. §§ 254c-6, 254c-7
42 U.S.C.A. §§ 622, 670 to 679a, 1320a-1a, 1983, 5107, 5111 to 5115
45 C.F.R. Parts 1355 to 1357
A.L.R. Library
rights reserved.
AMJUR ADOPTION II REF
END OF DOCUMENT


Adoption
§ 31. Adoption assistance
A.L.R. Library
Construction and Application by State Courts of the Federal Adoption and Safe Families Act and Its Imple-
menting State Statutes, 10 A.L.R.6th 173
Construction and Application by State Courts of the Federal Adoption and Safe Families Act and its Imple-
menting State Statutes, 2003 A.L.R. 5th 3
Actions Under 42 U.S.C.A. § 1983 for Violations of Adoption Assistance and Child Welfare Act (42
U.S.C.A. §§ 620 et seq., 670 et seq.), 42 A.L.R. Fed. 2d 411
Actions under 42 U.S.C.A. sec. 1983 for violations of Adoption Assistance and Child Welfare Act (42
U.S.C.A. secs. 620 et seq. and 670 et seq.), 93 A.L.R. Fed. 314
Trial Strategy
Child Neglect, 3 Am. Jur. Proof of Facts 2d 265
Child Abuse—The Battered Child Syndrome, 2 Am. Jur. Proof of Facts 2d 365
Forms
Am. Jur. Legal Forms 2d, Adoption §§ 9:22 to 9:32

Am. Jur. Pleading and Practice Forms, Parent and Child §§ 123 to 135, 143, 145
Law Reviews and Other Periodicals
Adler, The Meanings of Permanence: A Critical Analysis of the Adoption and Safe Families Act of 1997, 38
Harv. J. on Legis. 1 (2001)
Bean, Reasonable Efforts: What State Courts Think, 36 U. Tol. L. Rev. 321 (2005)
DeVault, Notes and Comments, Reasonable Efforts Not So Reasonable: The Termination of the Parental
Rights of a Developmentally Disabled Mother, 10 Roger Williams U. L. Rev. 763 (2005)
Gendell, In Search of Permanency: A Reflection on the First 3 Years of the Adoption and Safe Families Act
Implementation, 39 Fam. & Conciliation C. Rev. 25 (2001)
Heideman, Avoiding the Need to "Unscramble The Egg:" A Proposal for the Automatic Stay of Subsequent
Adoption Proceedings When Parents Appeal a Judgment Terminating Their Parental Rights, 24 St. Louis U.
Pub. L. Rev. 445 (2005)
Hort, Is Twenty-Two Months Beyond the Best Interest of the Child? ASFA's Guidelines for the Termination
of Parental Rights, 28 Fordham Urb. L.J. 1879 (2001)
Moye, City Hall Can Be Beaten: Litigation Strategies for Child and Family Advocates under the Adoption
and Safe Families Act of 1997, 4 J.L. & Fam. Stud. 303 (2002)
Moye, It's a Hard Knock Life: Does the Adoption and Safe Families Act of 1997 Adequately Address Prob-
lems in the Child Welfare System?, 39 Harv. J. on Legis. 375 (2002)
Wexler, Take the Child and Run: Tales from the Age of ASFA, 36 New Eng. L. Rev. 129 (2001)
Wilhelm, Permanency at What Cost? Five Years of Imprudence Under the Adoption and Safe Families Act
of 1997, 16 Notre Dame J.L. Ethics & Pub. Pol'y 617 (2002)
Zavez, The Adoption and Safe Families Act: Implementation and Case Law with a Focus on 15/22 Month
Terminations, 28 Vt. B.J. 37 (2002)
Thompson, The Adoption and Safe Families Act: A New Private Right of Action for Children in Foster
Care Pursuant to Section 1983, 6 U.C. Davis J. Juvenile L. & Policy 123 (2002)
Congress has authorized federal payments for adoption assistance to the states, under state plans which have
been federally approved,[1] with regard to various classifications of children receiving public benefits or in the
custody or care of state or local agencies.[2]
Corresponding provisions in the Social Security Act to the child welfare and social services programs estab-
lish a program of federal support to encourage adoptions of children with special needs where those special
needs tend to discourage adoption. States are responsible for deciding whether adoption assistance is needed,

and whether the adoptive parents meet established income eligibility requirements.[3]
The federal statutes also encourage states to enter into interstate compacts to facilitate adoption and protect
the interests of the adopted child with regard to adoption assistance.[4]
Federal statute also provides that in the case of a child with respect to whom the permanency plan is adop-
tion or placement in another permanent home, documentation of the steps the agency is taking to find an adopt-
ive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit
and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the
adoption or legal guardianship. At a minimum, such documentation shall include child specific recruitment ef-
forts such as the use of state, regional, and national adoption exchanges including electronic exchange systems.[
5]
The Secretary of Health and Human Services may provide technical assistance to the states to assist them to
develop the programs authorized under the federal statutes authorizing federal payments for foster care and ad-
option assistance,[6] and is required to periodically evaluate the programs authorized and collect and publish
data pertaining to the incidence and characteristics of foster care and adoptions in this country.[7]
Violation of the provisions regarding the mandated contents of state plans does not give rise to a private
right of action to individuals for civil rights violations under Section 1983, whether the action is seeking dam-
ages or enforcement of the provisions.[8]
Finally, special provisions exist to reimburse adoption expenses to certain federal military members such as
the Coast Guard.[9]
Statutes:
42 U.S.C.A. § 675(1)(E) was amended in 2006 by inserting "to facilitate orderly and timely in-State and in-
terstate placements" before the period, so that the provision now reads "At a minimum, such documentation
shall include child specific recruitment efforts such as the use of State, regional, and national adoption ex-
changes including electronic exchange systems to facilitate orderly and timely in-State and interstate place-
ments."
Cases:
Statutory definition of "reasonable efforts" that must be made with respect to a child in creating a foster care
plan in order for a state to participate in federal foster care reimbursement program, as expanded by enactment
of the Adoption and Safe Families Act, was unambiguously incorporated into statute conditioning foster care
maintenance reimbursement on a judicial determination that reasonable efforts were made with respect to the
child; statute conditioning maintenance reimbursement on finding of "reasonable efforts" incorporated by refer-
ence statute defining "reasonable efforts" in its entirety. New York ex rel. New York State Office of Children
and Family Services v. U.S. Dept. of Health and Human Services' Admin. for Children and Families, 556 F.3d
90 (2d Cir. 2009).
Provision of Adoption Assistance and Child Welfare Act requiring that the amount each adopted family re-
ceived in adoption assistance payments "shall take into consideration the circumstances of the adopting parents
and the needs of the child being adopted…and be re readjusted periodically…if the circumstances of the parents

or the needs of the child change" created a federal right to individualized adoption assistance payment determin-
ations, enforceable through § 1983, for purposes of class action brought by parents of adopted children with spe-
cial needs whose adoption assistance payments were uniformly reduced by the state of Oregon. ASW v. Oregon,
424 F.3d 970 (9th Cir. 2005).
Provision of Adoption Assistance and Child Welfare Act, requiring that an individual whose claim for bene-
fits is denied or not acted upon with reasonable promptness be given an opportunity for a fair hearing before the
State agency, created a federal right to a fair hearing before a state agency to challenge reduction in adoption as-
sistance payments, enforceable through § 1983, for purposes of class action brought by parents of adopted chil-
dren with special needs whose adoption assistance payments were uniformly reduced by the state of Oregon.
ASW v. Oregon, 424 F.3d 970 (9th Cir. 2005).
[END OF SUPPLEMENT]
[FN1] 42 U.S.C.A. § 671.
As to the requirements of state child welfare service plans with regard to adoption, see 42 U.S.C.A. §
622(b)(9) to (14).
As to reviews of adoption assistance programs for conformity with state plan requirements, see 42
U.S.C.A. § 1320a-1a.
[FN2] 42 U.S.C.A. §§ 670 to 679a.
As to federal regulatory requirements applicable to states seeking federal financial assistance under 42
U.S.C.A. §§ 670 to 679a, see 45 C.F.R. Parts 1355 to 1357.
[FN3] Ferdinand v. Department for Children and Their Families, 768 F. Supp. 401 (D.R.I. 1991).
[FN4] 42 U.S.C.A. § 673a.
As to interstate compacts regarding adoption, and their effect on adoption, see § 40.
[FN5] 42 U.S.C.A. § 675(1)(E).
[FN6] 42 U.S.C.A. §§ 670 et seq.
[FN7] 42 U.S.C.A. § 676(a).
[FN8] Suter v. Artist M., 503 U.S. 347, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992).
As to civil rights actions involving 42 U.S.C.A. § 1983, generally, see Am. Jur. 2d, Civil Rights.
[FN9] 14 U.S.C.A. § 514.
rights reserved.

END OF DOCUMENT


Adoption
§ 32. Adoption assistance—Adoption assistance agreements
Primary Authority
Definition:
The term "adoption assistance agreement" means a written agreement, binding on the parties to the agreement,
between the state agency, other relevant agencies, and the prospective adoptive parents of a minor child which at
a minimum: (1) specifies the nature and amount of any payments, services, and assistance to be provided under
such agreement, and (2) stipulates that the agreement shall remain in effect regardless of the state of which the
adoptive parents are residents at any given time. The agreement shall contain provisions for the protection
(under an interstate compact approved by the Secretary or otherwise) of the interests of the child in cases where
the adoptive parents and child move to another state while the agreement is effective.[1]
Each state having a plan approved[2] is required to enter into adoption assistance agreements with the ad-
optive parents of children with special needs.[3] A child will not be considered a "child with special needs" un-
less the state has determined that the child cannot or should not be returned to the home of his parents; and the
state had first determined that there exists with respect to the child a specific factor or condition—such as his
ethnic background, age, or membership in a minority or sibling group, or the presence of factors such as medical
conditions or physical, mental, or emotional handicaps—because of which it is reasonable to conclude that such
child cannot be placed with adoptive parents without providing adoption assistance or medical assistance, and
that, except where it would be against the best interests of the child because of such factors as the existence of
significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child, a
reasonable, but unsuccessful, effort has been made to place the child with appropriate adoptive parents without
providing adoption assistance or medical assistance.[4]
Provision is made for the payment, under such an agreement, of nonrecurring adoption expenses incurred
and adoption assistance payments, so long as certain statutory requirements are met.[5] Such payments are to be
made directly through the State agency or through another public or nonprofit private agency,[6] in amounts to

be determined in the manner specified by statute.[7] Restrictions apply to such payments in that no payment may
be made to parents with respect to any child who has attained the age of 18 (or, where the state determines that
the child has a mental or physical handicap which warrants the continuation of assistance, the age of 21),[8] and
no payment may be made to parents with respect to any child if the state determines that the parents are no
longer legally responsible for the support of the child or if the state determines that the child is no longer receiv-
ing any support from such parents.[9]
States have an affirmative duty to fully explain all available assistance programs so that potential adoptive
parents can make an informed decision. Thus, the fact that a plaintiff was never made aware of the fact that even
if she did not need a subsidy at that time she might still qualify for nominal assistance that would leave the door
open for later recalculation constituted an extenuating circumstance. Parents should not be allowed to waive ad-
option assistance for their children without full information and knowledge of all possible benefits—present and
future.[10]
In the event that parents decline adoption assistance payments, and do not execute an adoption assistance
agreement prior to the adoption, they cannot later change their minds, as the child loses some of the qualifying
eligibility factors at the time of adoption.[11]
Statutes:
The Adoption Assistance and Child Welfare Act was amended at 42 U.S.C.A. § 673 in 2008 to add subsec-
tion (d) to allow states to provide assistance through "kinship guardianship assistance agreements" by providing
payments on behalf of children to grandparents or other relatives who have assumed legal guardianship of chil-
dren of whom they have cared as foster parents, and wish to care for on a permanent basis.
[END OF SUPPLEMENT]
[FN1] 42 U.S.C.A. § 675(3).
[FN2] § 31.
[FN3] 42 U.S.C.A. § 673(a)(1)(A).
[FN4] 42 U.S.C.A. § 673(c).
[FN5] 42 U.S.C.A. § 673(a)(1)(B) (referring to statutory requirements of 42 U.S.C.A. § 673(a)(2)).
[FN6] 42 U.S.C.A. § 673(a)(1)(B)(i), (ii).
[FN7] 42 U.S.C.A. § 673(a)(3).
[FN8] 42 U.S.C.A. § 673(a)(4)(A).
[FN9] 42 U.S.C.A. § 673(a)(4)(B).

rights reserved.
END OF DOCUMENT


Adoption
§ 33. Adoption assistance—National Adoption Information Clearinghouse; other information exchanges
The Secretary of Health and Human Services is required by statute to establish a National Adoption Inform-
ation Clearinghouse to: collect, compile, and maintain information obtained from available research, studies, and
reports by public and private agencies, institutions, or individuals concerning all aspects of infant adoption and
adoption of children with special needs;[1] compile, maintain, and periodically revise directories of information
concerning crisis pregnancy centers, shelters and residences for pregnant women, training programs on adoption,
educational programs on adoption, licensed adoption agencies, state laws relating to adoption, intercountry ad-
option, and any other information relating to adoption for pregnant women, infertile couples, adoptive parents,
unmarried individuals who want to adopt children, individuals who have been adopted, birth parents who have
placed a child for adoption, adoption agencies, social workers, counselors, or other individuals who work in the
adoption field.[2] The Clearinghouse was also required to disseminate the information and directories so
provided for,[3] and, after the establishment of an adoption and foster care data collection system, disseminate
the data and information made available through that system.[4]
Another federal statute authorizes the Secretary of Health and Human Services, either directly, through
grants to states and public and private, nonprofit organizations and agencies, or through jointly financed cooper-
ative arrangements with states, public agencies, and other agencies and organizations, to provide for activities of
national significance related to adoption reform, including the operation of a national adoption information ex-
change system to facilitate the adoptive placement of children.[5]
The statute also provides for federal support of infant adoption awareness programs for pregnant women,[6]
and to promote public awareness of special needs adoption programs.[7]
[FN1] 42 U.S.C.A. § 679a(1).
[FN2] 42 U.S.C.A. § 679a(2).
[FN3] 42 U.S.C.A. § 679a(3).

[FN4] 42 U.S.C.A. § 679a(4).
[FN5] 42 U.S.C.A. § 5107(a)(1).
[FN6] 42 U.S.C.A. § 254c-6.
[FN7] 42 U.S.C.A. § 254c-7.
rights reserved.
END OF DOCUMENT


Adoption
§ 34. Child abuse prevention and treatment; purpose
The stated purpose of provisions of the Child Abuse Prevention and Treatment and Adoption Reform Act
dealing with adoption opportunities[1] is to facilitate the elimination of barriers, including geographic barriers,
to adoption and to provide permanent and loving home environments for children who would benefit from adop-
tion, particularly children with special needs, including disabled infants with life-threatening conditions.[2] This
purpose is to be carried out by promoting the quality standards for adoption services, preplacement, postplace-
ment and postlegal adoption couseling, and standards to protect the rights of children in need of adoption;[3] by
maintaining an Internet-based national adoption information exchange, and conducting national recruitment ef-
forts to reach prospective parents;[4] and by demonstrating expeditious ways to free children for adoption for
whom it has been determined that adoption is the appropriate plan.[5]
[FN1] 42 U.S.C.A. §§ 5111 to 5115.
[FN2] 42 U.S.C.A. § 5111(b).
[FN3] 42 U.S.C.A. § 5111(b)(1).
[FN4] 42 U.S.C.A. § 5111(b)(2).
[FN5] 42 U.S.C.A. § 5111(b)(2).
rights reserved.
END OF DOCUMENT


Adoption
§ 35. Child abuse prevention and treatment; purpose—Administration; services to be provided
The Secretary of Health and Human Services is required by statute to establish in the Department of Health
and Human Services an appropriate administrative arrangement to provide a centralized focus for planning and
coordinating of all departmental activities affecting adoption and for carrying out the provisions of the Child
Abuse Prevention and Treatment and Adoption Reform Act dealing with adoption opportunities.[1] Further-
more, the Secretary is mandated to make available such consultant services, on-site technical assistance and per-
sonnel, together with appropriate administrative expenses, including salaries and travel costs, as are necessary
for carrying out such purposes, including services to facilitate the adoption of children with special needs and
particularly of disabled infants with life-threatening conditions and services to couples considering adoption of
children with special needs.[2]
The Secretary is also given other specified duties, many of which may be carried out directly or by grant to
or contract with public or private agencies or organizations, to:
(1) conduct an education and training program on adoption, and prepare, publish, and disseminate informa-
tion and education and training materials regarding adoption and adoption assistance programs;
(2) conduct ongoing, extensive recruitment efforts on a national level, develop national public awareness ef-
forts to unite children in need of adoption with appropriate adoptive parents, and establish a coordinated re-
ferral system of recruited families with appropriate state or regional adoption resources to ensure that famil-
ies are served in a timely fashion;
(3) provide for the operation of a national adoption information exchange system, utilizing computers and
data processing methods to assist in the location of children who would benefit by adoption and in the
placement in adoptive homes of children awaiting adoption; and the coordination of such system with simil-
ar state and regional systems;
(4) provide for the provision of technical assistance in the planning, improving, developing, and carrying
out of programs and activities relating to adoption, and to promote professional leadership training of
minorities in the adoption field;
(5) encourage involvement of corporations and small businesses in supporting adoption as a positive family-
strengthening option, including the establishment of adoption benefit programs for employees who adopt
children;

(6) support the placement of children in kinship care arrangements, preadoptive, or adoptive homes;
(7) study the efficacy of states contracting with public or private agencies or sectarian institutions for the re-
cruitment of potential adoptive and foster families and to provide assistance in the placement of children for
adoption;
(8) consult and coordinate with other appropriate federal departments and agencies in order to promote max-
imum coordination of the services and benefits provided under programs carried out by such departments
and agencies with those carried out by the Secretary;
(9) maintain a National Resource Center for Special Needs Adoption to promote professional leadership de-
velopment of minorities, provide technical assistance to providers and agencies to improve professional
competency, and facilitate interdisciplinary approaches to meet adoptive children's needs;
(10) provide for the provision of programs aimed at increasing the number of minority children placed in
adoptive families, with a special emphasis on recruitment of minority families; and
(11) provide for the implementation of programs that are intended to increase the number of older children
placed in adoptive families, with a special emphasis on child-specific recruitment strategies.[3]
The Secretary is also required to provide for the provision of post legal adoption services for families who
have adopted special needs children.[4]
The Secretary is also under a duty to make grants for improving state efforts to increase the placement of
foster care children legally free for adoption, according to a preestablished plan and goals for improvement.[5]
The Secretary is also required to provide for a study designed to determine the nature, scope, and effects of
the interstate (and, to the extent feasible, intrastate) placement of children in adoptive homes (not including the
homes of stepparents or relatives of the child in question) by persons or agencies which are not licensed by or
subject to regulation by any governmental entity,[6] and to conduct research into the dynamics of successful ad-
option.[7]
[FN1] 42 U.S.C.A. § 5113(a) (referring to provisions set forth in 42 U.S.C.A. §§ 5111 to 5115).
[FN2] 42 U.S.C.A. § 5113(a).
[FN3] 42 U.S.C.A. § 5113(b)(1) to (11).
[FN4] 42 U.S.C.A. § 5113(c)(1).
[FN5] 42 U.S.C.A. § 5113(d)(1).
[FN6] 42 U.S.C.A. § 5114(a).
[FN7] 42 U.S.C.A. § 5114(b).
rights reserved.

END OF DOCUMENT

AMJUR ADOPTION III A REF Page 1
2 Am. Jur. 2d Adoption III A Refs.

Adoption

A. Governing Law
Research References
Uniform Adoption Act (1994) § 1-108
West's Key Number Digest, Adoption 3, 6, 25
A.L.R. Library
rights reserved.
AMJUR ADOPTION III A REF
END OF DOCUMENT


Adoption

A. Governing Law
§ 36. Generally
A.L.R. Library
Parents' Mental Illness or Mental Deficiency as Ground for Termination of Parental Rights—Issues Con-
cerning Rehabilitative and Reunification Services, 12 A.L.R.6th 417
Trial Strategy
Forms
Am. Jur. Legal Forms 2d, Adoption § 9:14
1A Am. Jur. Pleading and Practice Forms, Adoption §§ 63 to 65, 68 to 71
19 Am. Jur. Pleading and Practice Forms, Parent and Child § 91
Garcia, Termination of Parental Rights of the Mentally Ill: An Analysis of Washington Law, 37 Gonz.
L.Rev. 489 (2002)
Harding, Involuntary Termination Of Parental Rights: Reform Is Needed, 39 Brandeis L.J. 895 (2001)
Kerr, The Application of The Americans with Disabilities Act to the Termination of the Parental Rights of

Individuals with Mental Disabilities, 16 J. Contemp. Health L. & Pol'y 387 (2000)
Clearly, except in unusual circumstances, the law of the state in which a petition is filed applies to issues
arising out of the adoption petition.[1]
While it has been said that a court ordinarily applies its own state law in determining adoption matters[2]
the questions affecting the existence of an adoption and the method of its creation are generally controlled by the
law of the state or nation that creates it.[3] Thus, a status of adoption, when legally created pursuant to the laws
of the forum of the adoption proceedings, will be recognized and given effect in other states, at least to the ex-
tent that the status created or the rights flowing therefrom are not repugnant to the policy of such other state.[4]
The status created by adoption is, in some jurisdictions, recognized through comity of other states.[5] Other
courts apply the rule that an adoption decree of a court of another state is, under the provisions of the Federal
Constitution, entitled to full faith and credit.[6]
The Indian Child Welfare Act has limited territorial jurisdiction and is not applicable to adoption proceed-
ings which do not involve children being removed from, or taken into, tribal reservations.[7]
[FN1] Stubbs v. Weathersby, 320 Or. 620, 892 P.2d 991 (1995).
[FN2] In re Adoption of C.L.W., 467 So. 2d 1106 (Fla. Dist. Ct. App. 2d Dist. 1985).
[FN3] In re Marriage of Dickson, 983 P.2d 44 (Colo. Ct. App. 1998), as modified on denial of reh'g,
(Dec. 10, 1998) (applying Calif. law to determine the validity of California adoption even though
child's home state was Colorado); Northwestern Nat. Cas. Co. v. Doucette, 817 S.W.2d 396 (Tex. App.
Fort Worth 1991), writ denied, (Jan. 29, 1992).
As to the corresponding provisions of the Uniform Adoption Act (1994), see Uniform Adoption Act
(1994) § 1-108.
[FN4] Estate of O'Dea, 29 Cal. App. 3d 759, 105 Cal. Rptr. 756 (3d Dist. 1973) (Canadian decree val-
id); Matter of Male Child Born July 15, 1985 To L.C., 221 Mont. 309, 718 P.2d 660 (1986); State ex
rel. Smith v. Smith, 75 Ohio St. 3d 418, 1996 -Ohio- 215, 662 N.E.2d 366 (1996).
[FN5] Northwestern Nat. Cas. Co. v. Doucette, 817 S.W.2d 396 (Tex. App. Fort Worth 1991), writ
denied, (Jan. 29, 1992).
[FN6] Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist. Ct. App. 5th Dist. 1992).
[FN7] Matter of Adoption of Crews, 118 Wash. 2d 561, 825 P.2d 305 (1992).
For a discussion of the Indian Child Welfare Act, generally, see Am. Jur. 2d, Indians §§ 145 to 153.
rights reserved.

END OF DOCUMENT


Adoption

A. Governing Law
§ 37. Generally—Foreign decrees
Generally, a foreign country's judicial adoption decree will be recognized by United States courts as produ-
cing a legal adoption,[1] subject to the condition that the foreign decree not be repugnant to the laws of the
state.[2]
Where adoption in a foreign country by United States resident parents is involved, some states have enacted
statutes which require that any adoption in the foreign country be followed by a second adoption in the state of
residence in order to be legal.[3]
A state court need not adhere to or enforce a foreign adoptive status or the rights flowing therefrom when
the adoption is repugnant to the laws or policies of the state.[4] Furthermore, the extraterritorial effect of a for-
eign adoption decree is limited by the principle that the descent of real property is to be governed by the law of
the situs of the property, and the descent of personal property by the law of the domicil of the decedent.[5]
Cases:
Same-sex couple comprised of two men, who obtained joint adoption decree for infant in New York court,
were the "adoptive parents" of Louisiana-born infant for purposes of Louisiana statutes governing birth certific-
ate corrections for out-of-state adoptions and certified copy for adoptive parents. LSA–R.S. 40:76(C)(3), 40:77.
Adar v. Smith, 597 F.3d 697 (5th Cir. 2010).
[END OF SUPPLEMENT]
[FN1] In re Marriage of Lunina, 584 N.W.2d 564 (Iowa 1998).
[FN2] State ex rel. Smith v. Smith, 75 Ohio St. 3d 418, 1996 -Ohio- 215, 662 N.E.2d 366 (1996).

[FN3] In re Marriage of Lunina, 584 N.W.2d 564 (Iowa 1998) (but finding that such statute did not ap-
ply to United States citizen who was not resident of United States when foreign adoption occurred; thus
statute did not require further adoption proceeding in order that former husband's adoption of former
wife's daughter in Azerbaijan, prior to family's immigration to United States, be recognized as legal).
[FN4] Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist. Ct. App. 5th Dist. 1992) (holding that Florida
courts should not enforce German adoption in case where there was no judgment of any court which
provided for the adoption of child by stepparent and, as such, there was nothing that the Florida courts
could recognize).
[FN5] § 187.
rights reserved.
END OF DOCUMENT


Adoption

A. Governing Law
§ 38. Validity of consent or revocation
A consent to adoption which complies with a state's law will support an adoption in that state, regardless of
whether the consent complies with the law of the state in which it was executed.[1] However, a trial court was
held to have properly applied Florida law, which precluded revocation of consent to an adoption, absent fraud,
duress or undue influence, to determine the validity of a natural mother's revocation of consent to adoption,
where the natural mother executed the consent in Pennsylvania immediately after the child's birth, knowing the
adopted parents intended to take the child to Florida.[2]
[FN1] Matter of Adoption of Gates, 6 Kan. App. 2d 945, 636 P.2d 818 (1981) (holding that consents
which did not comply with law of California, where consents were executed, nonetheless supported
Kansas adoption where consents were in compliance with Kansas law); Stubbs v. Weathersby, 320 Or.
620, 892 P.2d 991 (1995).
[FN2] In re Adoption of C.L.W., 467 So. 2d 1106 (Fla. Dist. Ct. App. 2d Dist. 1985).
As to consent necessary to effect an adoption, and revocation of such consent, generally, see §§ 65 to
106.
rights reserved.
END OF DOCUMENT


Adoption

A. Governing Law
§ 39. Adoption agreements
A.L.R. Library
Conflict of laws as to contract to adopt, 81 A.L.R. 2d 1128
In determining whether one whom was sought to be adopted by means of a contract has, as a result of such
contract, the status of an adopted person, it is necessary to look to the law of the state of adoption.[1] This rule
has also been extended to contracts to adopt which have only been partially performed, and the law of the state
in which partial performance has been applied without regard to whether the contract was valid in the state in
which it was made.[2]
[FN1] Kuchenig v. California Co., 410 F.2d 222 (5th Cir. 1969); In re Johnson's Estate, 100 Cal. App.
2d 73, 223 P.2d 105 (2d Dist. 1950); Brewer v. Browning, 115 Miss. 358, 76 So. 519 (1917); Smith v.
Green, 4 Or. App. 533, 480 P.2d 437 (1971).
As to discussion of contracts to adopt, generally, see §§ 49 to 64.
[FN2] In re Lamfrom's Estate, 90 Ariz. 363, 368 P.2d 318 (1962) (contract to adopt which was partially
performed in Arizona where promisor lived for 29 years, died, and left property, and child was domi-
ciled, would be given effect regardless of whether it was valid in Ohio, where it was made).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION III B REF Page 1
2 Am. Jur. 2d Adoption III B Refs.

Adoption

Research References
Treatises and Practice Aids
West's Texas Practice Series: Juvenile Law and Practice, Interstate Compact On The Placement of Children,
as adopted by Florida § 409.401
West's Key Number Digest, Adoption 3 to 5, 25
A.L.R. Library
rights reserved.
AMJUR ADOPTION III B REF
END OF DOCUMENT


Adoption

§ 40. Enactment and withdrawal by members
A.L.R. Library
Construction and Application of Interstate Compact on the Placement of Children, 5 A.L.R.6th 193
Trial Strategy
Forms
The Interstate Compact on the Placement of Children ("ICPC") is open to joinder by any state, territory or
possession of the United States, the District of Columbia, the commonwealth of Puerto Rico, and, with the con-
sent of Congress, the government of Canada or any province thereof.[1] It becomes effective with respect to any
such jurisdiction when such jurisdiction enacts it into law.[2] Withdrawal is by the enactment of a statute repeal-
ing the Compact, but does not take effect until two years after the effective date of such a statute and until writ-
ten notice of the withdrawal has been given by the withdrawing state to the governor of each other party juris-
diction.[3] Withdrawal of a party state does not affect the rights, duties and obligations under the Compact of
any sending agency with respect to a placement made prior to the effective date of the withdrawal.[4]
The Compact authorizes the executive head of each jurisdiction party to the Compact to designate an officer
to be general coordinator of activities under the Compact in his jurisdiction and who, acting jointly with like of-
ficers of other party jurisdictions, will have power to promulgate rules and regulations to carry out more effect-

ively the terms and provisions of the Compact.[5]
[FN1] West's Texas Practice Series: Juvenile Law and Practice, Art IX, Interstate Compact On The
Placement of Children, as adopted by Florida § 409.401.
According to the Comments to the 1994 Uniform Adoption Act, the Interstate Compact has been adop-
ted in all eligible jurisdictions. Uniform Adoption Act § 2-107 (1994).
[FN5] West's Texas Practice Series: Juvenile Law and Practice, Art VII, Interstate Compact On The
rights reserved.
END OF DOCUMENT


Adoption

§ 41. Scope and applicability; persons and children within Compact
Generally, the Interstate Compact applies to adoptions[1] across the jurisdictional lines of its member states,
territories, and provinces, in order to foster cooperation between its members in connection with the interstate
placement of children.[2] The ICPC does not apply to preadoptive or adoptive placements into a state or nation
which is not a member, such as Canada, which is not a member state.[3]
The Compact also applies to private adoptions,[4] allowing adoptive parents to bring a child from one mem-
ber state to another member state for placement with themselves in furtherance of their ultimate desire to adopt
the child.[5] The Compact does not, however, extend to allow parents who have relinquished parental rights to
somehow retain jurisdiction over the child as a "sending agency."[6]
It expressly does not apply to the sending or bringing of a child into a receiving state by his parent, steppar-
ent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such
relative or nonagency guardian in the receiving state;[7] or any placement, sending or bringing of a child into a
receiving state pursuant to any other interstate compact to which both the state from which the child is sent or
brought and the receiving state are party, or to any other agreement between the states which has the force of
law.[8]
The Interstate Compact does not apply to a case where the child was born in one state, the adoptive parents
resided in that state, and the child was never taken from the state to the natural mother's residence in a second
state. In such circumstances, the fact that the natural mother was a resident of a second state was not determinat-
ive, in that the applicable statute did not mandate that the residence of the mother is considered the residence of
the child, and the child was never a resident of the second state and was not placed across state lines; thus, the
Interstate Compact was not applicable.[9]
Cases:

Interstate Compact on the Placement of Children (ICPC) was designed to ensure that placements for chil-
dren across state lines are safe; it was not designed to protect the rights of the birth parents. Doe v. Baby Girl,
376 S.C. 267, 657 S.E.2d 455 (2008).
[END OF SUPPLEMENT]
[FN1] J.D.S. v. Franks, 182 Ariz. 81, 893 P.2d 732 (1995).
[FN2] West's Texas Practice Series: Juvenile Law and Practice, Art I, Interstate Compact On The Place-
ment of Children, as adopted by Florida § 409.401(a).
[FN3] Kessel v. Leavitt, 204 W. Va. 95, 511 S.E.2d 720 (1998).
[FN4] Matter of Adoption of Baby E, 104 Misc. 2d 185, 427 N.Y.S.2d 705 (Fam. Ct. 1980).
[FN5] Matter of Adoption of T. M. M., 186 Mont. 460, 608 P.2d 130 (1980).
[FN6] Matter of Male Child Born July 15, 1985 To L.C., 221 Mont. 309, 718 P.2d 660 (1986) (where
natural mother argued that she was the "sending agency," and that, under the Interstate Compact she
had jurisdiction to effect return of the child).
[FN7] West's Texas Practice Series: Juvenile Law and Practice, Art VIII, Interstate Compact On The
Placement of Children, as adopted by Florida § 409.401(a).
[FN8] West's Texas Practice Series: Juvenile Law and Practice, Art VIII, Interstate Compact On The
Placement of Children, as adopted by Florida § 409.401(b).
[FN9] Yopp v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991) (referring to Nebraska and state of natural
mother's residence, Iowa).
rights reserved.
END OF DOCUMENT


Adoption

§ 42. Purposes and construction
The Interstate Compact on the Placement of Children seeks to foster cooperation between its members in the
interstate placement of children to the end that—
— each child requiring placement shall receive the maximum opportunity to be placed in a suitable environ-
ment and with persons or institutions having appropriate qualifications and facilities to provide a necessary
and desirable degree and type of care.[1]
— the appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain
the circumstances of the proposed placement, thereby promoting full compliance with applicable require-
ments for the protection of the child.[2]
— the proper authorities of the state from which the placement is made may obtain the most complete in-
formation on the basis of which to evaluate a projected placement before it is made.[3]
— appropriate jurisdictional arrangements for the care of children will be promoted.[4]
The Interstate Compact has the goal of preventing jurisdictional tug of wars over children by the member
states.[5] It was intended to facilitate interstate adoption, thereby increasing the pool of acceptable homes for
children in need of placement.[6] To accomplish this purpose, the ICPC extends the jurisdictional reach of a
party state into the borders of another party state for the purpose of investigating a proposed placement and su-
pervising a placement once it has been made.[7]
The provisions of the Interstate Compact on the Placement of Children are to be liberally construed to effec-
tuate the Compact's purposes.[8]
ment of Children, as adopted by Florida § 409.401(a).
ment of Children, as adopted by Florida § 409.401(b).

ment of Children, as adopted by Florida § 409.401(c).
ment of Children, as adopted by Florida § 409.401(d).
[FN5] Matter of Male Child Born July 15, 1985 To L.C., 221 Mont. 309, 718 P.2d 660 (1986).
The drafters in composing, and the legislature in adopting, the Interstate Compact on the Placement of
Children (ICPC) intended the ICPC to regulate adoption proceedings among those jurisdictions which
subscribed to the policies and procedures delineated therein so as to become party states thereto. Kessel
v. Leavitt, 204 W. Va. 95, 511 S.E.2d 720 (1998).
[FN6] In re Adoption No. 10087 in Circuit Court for Montgomery County, 324 Md. 394, 597 A.2d 456,
15 A.L.R.5th 935 (1991).
15 A.L.R.5th 935 (1991).
As to jurisdiction over the child during the placement period, see § 44.
[FN8] West's Texas Practice Series: Juvenile Law and Practice, Art X, Interstate Compact On The
Placement of Children, as adopted by Florida § 409.401 (containing additional provisions as to severab-
ility).
As to construction, generally, see § 13.
rights reserved.
END OF DOCUMENT


Adoption

§ 43. Conditions for placement for possible adoption; request to, and approval by, Compact authorities
Under the Interstate Compact on the Placement of Children no sending agency[1] may send, bring, or cause
to be sent or brought into any other party state any child[2] for placement as a preliminary to a possible adoption
unless the sending agency complies with each and every requirement set forth in Article III of the Com-
pact—pertaining to conditions for placement—and with the applicable laws of the receiving state governing the
placement of children therein.[3] These requirements include providing written notice of the intent to send,
bring, or place the child in the receiving state in the format specified by the Compact, and providing further in-
formation to the receiving state upon request.[4] A child cannot be sent, brought, or caused to be sent or brought
into the receiving state until the appropriate authorities in the receiving state notify the sending agency, in writ-
ing, that the proposed placement does not appear to be contrary to the interests of the child.[5]
Thus, in the case of a private adoption, the prospective adoptive parents cannot transport a child into a mem-
ber state without the consent of the appropriate Compact authorities.[6] However, while approval of the receiv-
ing state's Compact office is necessary to assure, at the outset, that a placement is not contrary to the child's wel-
fare, it is not a substitute for a judicial determination of the child's best interests.[7]
Although the Compact does not specifically direct that the child placement laws of the sending state must be
observed it implies that its policy requires the sending state to evaluate the placement initially.[8]
Cases:
Father who was found to be a non-offending parent in dependency proceedings was nevertheless required to
comply with Interstate Compact on the Placement of Children (ICPC) prior to placement of child in his home,
where, although subpart to ICPC stated that it applied to foster care and "possible adoptions," trial court was still
transferring custody of the child to father who was an out-of-state non-custodial parent. C.K. v. Department of
Children and Families, 949 So. 2d 336 (Fla. Dist. Ct. App. 4th Dist. 2007).
The conditions for placement set forth in Interstate Compact on the Placement of Children are designed to

provide complete and accurate information regarding children and potential adoptive parents from a sending
state to a receiving state and to involve public authorities in the process in order to ensure children have the op-
portunity to be placed in a suitable environment. In re Adoption of Infants H., 904 N.E.2d 203 (Ind. 2009).
Adoption order, which allowed non-resident to adopt minor children, failed to comply with Interstate Com-
pact on the Placement of Children; adoption court had not been notified in writing by receiving state's authorit-
ies that proposed placement did not appear to be contrary to children's interests. In re Adoption of Infants H.,
904 N.E.2d 203 (Ind. 2009).
Waiver of statutory requirement that Department of Child Services or licensed child placing agency must
give prior written approval before a child may be placed in proposed adoptive home was unwarranted in adop-
tion proceeding, where Department did not even know of pending adoption. In re Adoption of Infants H., 904
N.E.2d 203 (Ind. 2009).
Given the plain language of the Interstate Compact on the Placement of Children (ICPC) and its legislative
history, which demonstrated that its drafters intended to limit its reach to foster care/adoption situations, ICPC
did not apply to trial court's decision to allow mother to retrieve her daughter, who had been in New Hampshire
with father, and return with her to Arizona. In re Alexis O., 157 N.H. 781, 959 A.2d 176 (2008).
[END OF SUPPLEMENT]
[FN1] West's Texas Practice Series: Juvenile Law and Practice, Art II, Interstate Compact On The
Placement of Children, as adopted by Florida § 409.401(b) (defining "sending agency" as a party state,
officer or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a
party state; a person, corporation, association, charitable agency or other entity which sends, brings, or
causes to be sent or brought any child to another party state).
[FN2] West's Texas Practice Series: Juvenile Law and Practice, Art II, Interstate Compact On The
Placement of Children, as adopted by Florida § 409.401(a) (defining "child").
[FN3] West's Texas Practice Series: Juvenile Law and Practice, Art III, Interstate Compact On The
Placement of Children, as adopted by Florida § 409.401(b).
Placement of Children, as adopted by Florida § 409.401(d).
15 A.L.R.5th 935 (1991).
15 A.L.R.5th 935 (1991).
15 A.L.R.5th 935 (1991).

rights reserved.
END OF DOCUMENT


Adoption

§ 44. Jurisdiction over child during placement period
The Interstate Compact on the Placement of Children provides that the sending agency retains jurisdiction
over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and dis-
position of the child which it would have had if the child had remained in the sending agency's state, until the
child is adopted.[1] This includes the power to effect or cause the return of the child or its transfer to another
location and custody pursuant to law.[2] Thus, where the parents of a child send the child into another state for
the purposes of a private adoption, they are the "sending agency" under the Compact, and retain authority and
control over the child until the adoption occurs, including the ability to cause the return of the child.[3]
The Compact also makes certain provisions as to the financial responsibility for support of the child during
the placement and adoption process.[4]
The failure of prospective adoptive parents to comply with the ICPC by transporting a child to a state
without the consent of that state's Compact office does not deprive that state of jurisdiction over the adoption.[5]
Cases:
Illinois court did not have jurisdiction over out-of-wedlock child involved in contested child custody and
adoption proceedings under provision of Interstate Compact on the Placement of Children (ICPC) stating that
sending agency was to retain jurisdiction over child sufficient to determine all matters in relation to custody of
child which it would have had if child had remained in sending agency's state, until the child was adopted,
though child was born in Illinois and had been transported to South Carolina to live with prospective adoptive
parents, as this provision of ICPC was not meant to trump provisions of both the Parental Kidnapping Preven-
tion Act (PKPA) and the Uniform Child Custody Jurisdiction Act (UCCJA) more specifically related to confer-
ring jurisdiction, both of which conferred jurisdiction over proceedings on South Carolina court. Doe v. Baby
Girl, 376 S.C. 267, 657 S.E.2d 455 (2008).

[END OF SUPPLEMENT]
[FN1] West's Texas Practice Series: Juvenile Law and Practice, Art V, Interstate Compact On The
[FN3] Stancil v. Brock, 108 N.C. App. 745, 425 S.E.2d 446 (1993).
Placement of Children, as adopted by Florida § 409.401(a) to (c).
15 A.L.R.5th 935 (1991).
As to general discussion of the effects of violations of the Compact, see § 45.
rights reserved.
END OF DOCUMENT


Adoption

§ 45. Effect of violation of Compact; sanctions
Perhaps the most significant aspect of a violation of the Interstate Compact on the Placement of Children is
that it constitutes grounds to revoke any consent or suspend any other legal authorization for the child's place-
ment and possible adoption.[1] Thus, in a private adoption setting, where the adoptive parents, with the biologic-
al mother's consent, brought a child from one state to another for placement with themselves in furtherance of
their ultimate desire to adopt the child, their failure to comply with the terms and procedures of the Compact
constituted full and sufficient grounds for the revocation of the parent's consent.[2]
Nevertheless, despite the fact that a placement of a child is technically unlawful under the Compact and that
other requirements of the Compact have not been met, a final order of adoption may nonetheless be issued where
it is deemed in the best interests of the child,[3] although this option has the effect of undermining the effective-
ness of the Compact, and should only be resorted to in extraordinary circumstances.[4] A more appropriate re-
sponse is to consider ordering retroactive compliance with the Compact,[5] or to deny the adoption in order to
await appropriate investigation and administrative action.[6]
The refusal of a Compact administrator to investigate, review, evaluate or approve illegal placements retro-
actively is contrary to the letter and spirit of the ICPC and gravely undermines the effective detection and
prompt rectification of placements which violate the ICPC, leaving a significant number of children in limbo
and at possible risk.[7]
With regard to actual penalties or punishments for violations, the Compact provides that sending a child,
bringing, or causing a child to be sent or brought into a receiving state in violation of the terms of the Compact
constitutes a violation of the laws respecting the placement of children of both the state in which the sending
agency is located or from which it sends or brings the child and of the receiving state.[8] The punishment avail-
able is left to the laws of each state.[9]
[FN1] West's Texas Practice Series: Juvenile Law and Practice, Art IV, Interstate Compact On The

[FN2] Matter of Adoption of T. M. M., 186 Mont. 460, 608 P.2d 130 (1980).
[FN3] Matter of Adoption of Baby E, 104 Misc. 2d 185, 427 N.Y.S.2d 705 (Fam. Ct. 1980).
15 A.L.R.5th 935 (1991).
15 A.L.R.5th 935 (1991).
[FN6] Matter of Adoption of Jon K., 141 Misc. 2d 949, 535 N.Y.S.2d 660 (Fam. Ct. 1988).
[FN7] Matter of Adoption of Jon K., 141 Misc. 2d 949, 535 N.Y.S.2d 660 (Fam. Ct. 1988).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION IV REF Page 1
2 Am. Jur. 2d Adoption IV Refs.

Adoption
Research References
Primary Authority
42 U.S.C.A. §§ 14901 to 14954
A.L.R. Library
rights reserved.
AMJUR ADOPTION IV REF
END OF DOCUMENT


Adoption
§ 46. Generally
Congress has recognized the 1993 Hague Convention on Protection of Children and Co-operation in Re-
spect of Intercountry Adoption and to that end enacted a federal law governing adoptions and prospective adop-
tions subject to the Convention involving United States residents.[1] The statute contains detailed definitions of
the types of agencies which may legally facilitate such adoptions,[2] and sets forth in detail the process by
which such agencies or organizations may receive accreditation to act as intercountry adoption agencies.[3]
The statute designates the Secretary of State as the central authority for administration of the Convention in
the United States,[4] and sets forth the Secretary's responsibilities,[5] including the presentation of annual re-
ports on intercountry adoptions.[6] It also establishes the duties of the Attorney General as to the filing of ap-
plications by prospective adoptive parents to the central authority of their country of residence.[7]
Violations of the federal statute are punishable by civil money penalty, fine, or imprisonment.[8]
The Convention and the federal statute do not create a private right of action to seek administrative or judi-
cial relief, except to the extent expressly provided.[9]
Statutes:
22 C.F.R. § 42.24, as added in 2007, establishes a rule pertaining to adoption under the Hague Convention
on Protection of Children and Cooperation in Respect of Intercountry Adoption and the Intercountry Adoption
Act of 2000.
[END OF SUPPLEMENT]
[FN1] 42 U.S.C.A. § 14901(a).
[FN2] 42 U.S.C.A. § 14902.

[FN3] 42 U.S.C.A. §§ 14921 to 14924.
[FN4] 42 U.S.C.A. §§ 14911, 14912.
[FN5] 42 U.S.C.A. § 14912.
[FN6] 42 U.S.C.A. § 14914.
[FN7] 42 U.S.C.A. § 14913.
[FN8] 42 U.S.C.A. § 14944.
[FN9] 42 U.S.C.A. § 14954.
rights reserved.
END OF DOCUMENT


Adoption
§ 47. Information; fees
As a condition of accreditation, agencies must agree to provide certain medical and background information
on the children available for adoption, as well as training programs, to prospective adoptive families.[1]
Agencies agree, as a condition of accreditation, to employ persons only on a fee for services basis, and not
on a contingent fee basis.[2]
Caution:
To the extent consistent with the Convention, the Secretary may establish by regulation alternative procedures
for the adoption of children by individuals related to them by blood, marriage, or adoption, in cases subject to
the Convention,[3]
and, on a case-by-case basis may waive the applicable requirements in the interests of justice or to prevent grave
physical harm to the child.[4]
[FN1] 42 U.S.C.A. § 14923(b)(1)(A).
[FN2] 42 U.S.C.A. § 14923(b)(1)(A)(iv).
[FN3] 42 U.S.C.A. § 14952(a).
[FN4] 42 U.S.C.A. § 14952(b).
rights reserved.
END OF DOCUMENT


Adoption
§ 48. Certificate of adoption
With regard to each Convention adoption, the Secretary of State will issue a certificate to the adoptive cit-
izen parent domiciled in the United States that the adoption has been granted or, in the case of a prospective ad-
optive citizen parent, that legal custody of the child has been granted to the citizen parent for purposes of emig-
ration and adoption once the Secretary of State receives appropriate notification from the central authority of
such child's country of origin, and has verified that the requirements of the Convention and the federal statute
have been met with respect to the adoption.[1] If such a certificate is attached to an original adoption decree, the
certificate must be treated by federal and state agencies, courts, and other public and private persons and entities
as conclusive evidence of the facts certified therein and constitutes the certification required by Title 8.[2]
A final adoption in another Convention country, certified by the Secretary of State, must be recognized as a
final valid adoption for purposes of all federal, state, and local laws of the United States.[3]
When a child has entered the United States from another Convention country for the purpose of adoption an
order declaring the adoption final can not be entered unless the Secretary of State has issued the above certific-
ate with respect to the adoption.[4]
Special certification procedures are also mandated by statute with regard to children emigrating from the
United States to foreign Convention countries.[5]
Cases:
Parental rights to child were not subject to termination on basis of continuing abuse, neglect, or abandon-
ment, where child at issue had never been declared dependent. West's F.S.A. § 39.806(1)(e). In re W.B., 915 So.
2d 761 (Fla. Dist. Ct. App. 2d Dist. 2005).
[END OF SUPPLEMENT]

[FN1] 42 U.S.C.A. § 14931(a)(1).
[FN2] 42 U.S.C.A. § 14931(a)(2).
[FN3] 42 U.S.C.A. § 14931(b).
[FN4] 42 U.S.C.A. § 14931(c).
[FN5] 42 U.S.C.A. § 14932.
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION V A REF Page 1
2 Am. Jur. 2d Adoption V A Refs.

Adoption

A. In General
Research References
A.L.R. Library
Forms
Am. Jur. Legal Forms 2d, Adoption §§ 9:37 to 9:44
Am. Jur. Pleading and Practice Forms, Adoption §§ 173, 174, 233 to 235
rights reserved.
AMJUR ADOPTION V A REF
END OF DOCUMENT


Adoption

A. In General
§ 49. Generally
Forms
Adoption agreements, Am. Jur. Legal Forms 2d, Adoption §§ 9:37 to 9:44
Agreements or Contracts of Adoption, Am. Jur. Pleading and Practice Forms, Adoption §§ 173, 174, 233 to
235
Generally, one who is legally competent to adopt another as his or her child may enter into a valid and bind-
ing contract to do so.[1]
Observation:
The contract to adopt does not effect an adoption or create the status of parent and child between the potential
adoptee and the promisor;[2]rather, the contract states that the parties agree that a formal judicial petition will be
made to seek an adoption in accordance with the terms and conditions of the contract.[3]
In theory, the consideration necessary to support a contract to adopt may be any consideration sufficient to
support an ordinary contract,[4] although a payment of money in consideration of adoption is generally deemed
to be against public policy.[5]
The form of the agreement may be oral.[6]
[FN1] D'Accardi v. Chater, 96 F.3d 97 (4th Cir. 1996) (applying New Jersey law; recognizing enforce-
ability of adoption contract); In re Shirk's Estate, 186 Kan. 311, 350 P.2d 1 (1960); Niehaus v. Madden,
348 Mo. 770, 155 S.W.2d 141 (1941); In re Clark's Estate, 105 Mont. 401, 74 P.2d 401, 114 A.L.R. 496
(1937); Wooley v. Shell Petroleum Corporation, 39 N.M. 256, 45 P.2d 927 (1935); Cheney v. Coffey,
131 Tex. 212, 114 S.W.2d 533 (Comm'n App. 1938).

[FN2] Johnson v. Johnson, 2000 ND 170, 617 N.W.2d 97 (N.D. 2000).
Adoption is a statutory proceeding and cannot be accomplished by private contract. Matter of Adoption
of AMD, 766 P.2d 550 (Wyo. 1988).
[FN3] § 50.
[FN4] Foster v. Cheek, 212 Ga. 821, 96 S.E.2d 545 (1957) (detriment of surrendering child, change in
status of child, or benefits in the love and affection accruing to the adopting party); Dixon Nat. Bank of
Dixon v. Neal, 5 Ill. 2d 328, 125 N.E.2d 463 (1955).
[FN5] § 52.
[FN6] D'Accardi v. Chater, 96 F.3d 97 (4th Cir. 1996) (applying New Jersey law); Matter of Estate of
Jenkins, 904 P.2d 1316 (Colorado 1995).
rights reserved.
END OF DOCUMENT


Adoption

A. In General
§ 50. Agreements by foster parents not to adopt child
A.L.R. Library
Validity and enforcement of agreement by foster parents that they will not attempt to adopt foster child, 78
A.L.R. 3d 770
Where foster parents are allowed to adopt children placed under their care,[1] foster parents are not barred
from adopting their foster child by an agreement between them and a state agency having custody and control of
the child providing that no action for adoption may be taken.[2] Any agreement others may have made concern-
ing a child's adoption is subject to the court's independent judgment as to what is in the best interests of the
child;[3] thus, in certain instances, foster parents' petitions to adopt may be granted in spite of agreements they
have made not to adopt their foster child, on the ground that such adoption would be in the child's best interests.[
4]
[FN1] § 25.
[FN2] Knight v. Deavers, 259 Ark. 45, 531 S.W.2d 252, 78 A.L.R.3d 761 (1976); Oxendine v. Catawba
County Dept. of Social Services, 303 N.C. 699, 281 S.E.2d 370 (1981).
[FN3] § 51.
[FN4] Knight v. Deavers, 259 Ark. 45, 531 S.W.2d 252, 78 A.L.R.3d 761 (1976); In re Alexander, 206
So. 2d 452 (Fla. Dist. Ct. App. 2d Dist. 1968).
rights reserved.

END OF DOCUMENT


Adoption

A. In General
§ 51. Requirement of judicial sanction or approval
Since it is the welfare of the child that controls in an adoption proceeding,[1] any agreement others may
have made concerning a child's adoption is subject to the court's independent judgment as to what is in the best
interests of the child.[2] Thus, such determinations cannot be circumvented by an alleged agreement without ju-
dicial sanction,[3] and an open adoption agreement cannot supplant the statutory requisites for an adoption.[4]
[FN1] § 131.
[FN2] R.R. v. M.H., 426 Mass. 501, 689 N.E.2d 790 (1998).
1982).
As to definitions of "open" adoptions, see § 2.
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION V B REF Page 1
2 Am. Jur. 2d Adoption V B Refs.

Adoption

Research References
A.L.R. Library
Forms
rights reserved.
AMJUR ADOPTION V B REF
END OF DOCUMENT


Adoption

§ 52. Generally
A contract whereby a parent agrees to the adoption of his or her child by another in consideration of a mon-
etary consideration is void as against public policy.[1] In this regard it has been stated that sales of children con-
travene public policy and cannot be sanctioned by the courts.[2] However, where the monetary consideration is
to flow to the child—as where an agreement is made between prospective adoptive parents and the natural par-
ent or parents to pay for medical expenses in connection with the child's birth—such a contract is not void
against public policy.[3]
The evils inherent in baby-bartering include that the child is sold without regard to whether the purchasers
will be suitable parents; the natural mother does not receive the benefit of counseling and guidance to assist in
her making a decision that may affect her for a lifetime; the monetary incentive to sell her child may make the
mother's decision less voluntary; the adoptive parents may not be fully informed of the natural parent's medical
history; and that baby-selling potentially results in the exploitation of all parties involved.[4] These negative
consequences are potentially present in the surrogate context, especially the potential for placing and adopting a
child without regard to the interest of the child or the natural mother.[5]
While agreements to give financial assistance to the natural mother of a child in exchange for adoption may
be valid in some jurisdictions, other statutory requirements, as, for example, with regard to consent, must be met
in order for the adoption agreement to be enforceable.[6]
[FN1] Gorden v. Cutler, 324 Pa. Super. 35, 471 A.2d 449, 43 A.L.R.4th 917 (1983).
[FN2] In re Baby Girl D., 512 Pa. 449, 517 A.2d 925 (1986).
[FN3] § 56.
[FN4] Matter of Baby M, 109 N.J. 396, 537 A.2d 1227, 77 A.L.R.4th 1 (1988).

As to general definition of "surrogate mother," see Am. Jur. 2d, Parent and Child § 3.
[FN6] Bryant v. Cameron, 473 So. 2d 174 (Miss. 1985) (prebirth consent was unenforceable where stat-
ute mandated consent could only be given three days after birth of child).
As to consent necessary for a valid adoption, generally, see §§ 65 to 106.
rights reserved.
END OF DOCUMENT


Adoption

§ 53. Statutes proscribing sale or purchase of child or payment for adoption
A.L.R. Library
Criminal liability of one arranging for adoption of child through other than licensed child placement agency
(“baby broker acts”), 3 A.L.R. 4th 468
Statutes in some states specifically proscribe the sale or purchase of a child,[1] or the payment, offering of
payment or acceptance of consideration for receiving or placing, arranging the placement of, or assisting in pla-
cing or arranging the placement of any child for adoption.[2]
Statutes in some jurisdictions make it a felony to intentionally and knowingly receive or accept clearly ex-
cessive fees or expenses in connection with an adoption or placement for adoption.[3]
Statutes may also criminalize unlicensed brokering of adoptions, where state licensure statutes exist.[4]
Such statutes impose criminal penalties for payment or offers to pay money or anything of value to a parent
for the placement for adoption, for the consent to an adoption,[5] or for cooperation in the completion of an ad-
option of his or her minor, and for receipt of any money or anything of value for placing, assisting, or arranging
a minor placement.[6] Even so, agreements for the payment of certain of the mother's expenses, such as mater-
nity connected medical expenses, have been excepted from such broad proscriptions, in some states.[7]
Statutes, in some instances referred to as "baby broker" acts—have focused on activities related to arranging
for adoption of children through other than licensed child placement agencies, proscribing and providing crimin-
al penalties for such activities.[8] Such a statute has been upheld as against claims that it was unconstitutional as
vague and indefinite.[9] Similarly, statutes which make it a felony to intentionally and knowingly receive or ac-
cept clearly excessive fees or expenses in connection with an adoption or placement for adoption are not uncon-
stitutionally vague.[10] However, statutes which attempt to criminalize advertising of services in connection
with adoption services may fall within the constitutional prohibitions regarding vagueness.[11]

[FN1] Kingsley v. State, 744 S.W.2d 191 (Tex. App. Dallas 1987), petition for discretionary review re-
fused (1 pet.), (Jan. 11, 1989) and petition for discretionary review granted (1 pet.), (Jan. 11, 1989) and
petition for discretionary review dismissed with per curiam opinion, 784 S.W.2d 688 (Tex. Crim. App.
1990); State v. Verde, 770 P.2d 116 (Utah 1989).
[FN2] Matter of Adoption of P.E.P., 329 N.C. 692, 407 S.E.2d 505 (1991).
[FN3] State v. Brown, 272 Kan. 843, 35 P.3d 910 (2001).
[FN4] Montana Dept. of Social and Rehabilitation Services v. Angel, 176 Mont. 293, 577 P.2d 1223
(1978) (enjoining further placement of children by unlicensed defendant).
[FN5] § 65.
[FN6] State v. Gooden, 570 So. 2d 865 (Ala. Crim. App. 1990); Matter of Baby M, 109 N.J. 396, 537
A.2d 1227, 77 A.L.R.4th 1 (1988).
[FN7] §§ 56 to 58.
[FN8] Galison v. District of Columbia, 402 A.2d 1263, 3 A.L.R.4th 450 (D.C. 1979) (proscribing per-
sons from arranging for placement of child under 16 years of age without having been licensed as child-
placing agency); A.L. v. P.A., 213 N.J. Super. 391, 517 A.2d 494 (App. Div. 1986) (noting that New
Jersey legislature has provided criminal sanctions for unauthorized intermediaries in adoption).
[FN9] Dobkin v. District of Columbia, 194 A.2d 657 (D.C. 1963); People v. Schwartz, 64 Ill. 2d 275, 1
Ill. Dec. 8, 356 N.E.2d 8 (1976).
[FN10] State v. Clark, 16 Kan. App. 2d 552, 826 P.2d 925 (1992).
[FN11] State v. Gooden, 570 So. 2d 865 (Ala. Crim. App. 1990) (noting that statute had been repealed).
rights reserved.
END OF DOCUMENT


Adoption

§ 54. Statutes proscribing sale or purchase of child or payment for adoption—Conduct constituting viola-
tion
A.L.R. Library
Criminal liability of one arranging for adoption of child through other than licensed child placement agency
(“baby broker acts”), 3 A.L.R. 4th 468
A parent who demands money for giving consent to an adoption has engaged in conduct that is the equival-
ent of selling a child.[1]
It may also be sufficient to play a significant role in the placement activities, such as by contacting pro-
spective adoptive parents or natural mothers, arranging for the physical transfer of the child, taking money in an
amount above that for reasonable medical and hospital expenses related to the birth of the child, and dissuading
a reluctant mother from changing her plans to place the child for adoption.[2]
In connection with surrogacy agreements, a technical violation of the statute may be excused where it is
clear that the monetary consideration was not a key element in the adoption process, that the surrogate mother is
willing to forego any illegal consideration and continues to support the adoption, and that the adoption remains
in the best interests of the children involved, as determined not only by the parties, but also the investigating
agency.[3]
[FN1] People v. Daniel, 195 Cal. App. 3d 623, 241 Cal. Rptr. 3 (2d Dist. 1987).
[FN2] Galison v. District of Columbia, 402 A.2d 1263, 3 A.L.R.4th 450 (D.C. 1979); People v.
Schwartz, 64 Ill. 2d 275, 1 Ill. Dec. 8, 356 N.E.2d 8 (1976); People v. Michelman, 93 Misc. 2d 297, 403
N.Y.S.2d 417 (Sup 1978).
[FN3] Matter of Adoption of Baby A, 128 Or. App. 450, 877 P.2d 107 (1994).

rights reserved.
END OF DOCUMENT


Adoption

§ 55. Statutes proscribing sale or purchase of child or payment for adoption—Conduct constituting viola-
tion—Surrogate mother arrangements
A.L.R. Library
Determination of status as legal or natural parents in contested surrogacy births, 77 A.L.R. 5th 567
Surrogacy may take one of several forms. In one instance, the surrogate is impregnated by artificial insem-
ination, using the husband's sperm. The surrogate then surrenders the child to the biological father and his wife,
who adopt the child.[1] In so-called "gestational surrogacy," the surrogate is not genetically related to the child
she carries; rather, egg and sperm from the parent couple are fertilized in vitro and implanted in the surrogate,
who carries the baby to term and surrenders the child to its biological parents.[2]
The negative consequences of baby-buying are potentially present in the surrogacy context, especially the
potential for placing and adopting a child without regard to the interest of the child or the natural mother.[3]
From a constitutional standpoint, contracts for gestational surrogacy do not run afoul of the constitutional pro-
hibitions on involuntary servitude, nor do they violate public policy.[4]
A surrogacy contract providing that through artificial insemination a surrogate mother would become preg-
nant, carrying the child to term, bear it, deliver it to the natural father and his wife, and thereafter do whatever
was necessary to terminate her maternal rights so that the wife and the natural father could thereafter adopt the
child has been held invalid as conflicting with state laws prohibiting the use of money in connection with adop-
tions, laws requiring proof of parental unfitness or abandonment before termination of parental rights is ordered
or an adoption is granted, and laws that make surrender of custody and consent to adoption revocable in private
placement adoptions.[5]However, the activities of a corporation, which operates a clinic assisting infertile
couples to obtain a child biologically related to the husband through artificial insemination of a surrogate moth-
er, do not constitute participation in buying and selling babies under another state's statute proscribing such
activity.[6]
Caution:

In the case of gestational surrogacy, the question which precedes the issue of who may adopt the child is who is
the parent of the child; because statutes often make proof of maternity dependent on giving birth to a child, is-
sues arise where a birth mother has no genetic link to the child carried for the benefit of the genetic parents. In
such an event, the surrogacy agreement may lend information which allows for a determination of parenthood
first after which the determination of adoption may be addressed.[7]
[FN2] Johnson v. Calvert, 5 Cal. 4th 84, 19 Cal. Rptr. 2d 494, 851 P.2d 776 (1993).
As to general definition of "surrogate mother," see Am. Jur. 2d, Parent and Child § 3.
[FN6] Surrogate Parenting Associates, Inc. v. Com. ex rel. Armstrong, 704 S.W.2d 209 (Ky. 1986).
rights reserved.
END OF DOCUMENT


Adoption

§ 56. Permissibility of paying particular expenses
A.L.R. Library
Validity of agreement to pay expenses attendant on birth of child on condition that natural parents consent
to adoption of child, 43 A.L.R. 4th 935
Traditionally, allowable expenses which adopting parents may agree to pay in connection with an adoption
have been limited to reasonable unimbursed lying-in expenses,[1] reasonable legal fees incident to the adoption
proceedings, and costs of the proceeding.[2] Furthermore, if the adoptive parents agree to the payment of the
birth mother's attorneys fees such payment may not be made contingent upon the outcome of placement or adop-
tion. Even so, such fees could be paid, under applicable adoption statutes, including a statute requiring full dis-
closure of fees paid to the birth mother, with full disclosure by the attorney and consent of the client. The agree-
ment for payment of fees by the adoptive parents in such case should be in writing and consented to by all
parties concerned.[3]
A statute proscribing the receipt of any money or anything of value for placing, assisting or arranging a
minor placement was not intended to prohibit legitimate charges for legal or other professional services.[4]
A distinction is thus made between contracts by which a mother or child agrees to adoption of her child by
another in consideration of a monetary consideration, and those by which the monetary consideration is to flow
to the child; payments to or for natural parents by adopting parents are permissible when the payments are for
services which directly benefit the child, but payments by adopting parents which do not directly benefit the
child are impermissible.[5]
Statutes may require the disclosure of payments made in connection with an adoption, typically requiring
the disclosure to accompany the formal adoption petition, or may criminalize the knowing failure to disclose all
such payments.[6]

[FN1] § 57.
[FN2] Petition of Steve B.D., 111 Idaho 285, 723 P.2d 829 (1986); In re Baby Girl D., 512 Pa. 449, 517
A.2d 925 (1986); Kingsley v. State, 744 S.W.2d 191 (Tex. App. Dallas 1987), petition for discretionary
review refused (1 pet.), (Jan. 11, 1989) and petition for discretionary review granted (1 pet.), (Jan. 11,
1989) and petition for discretionary review dismissed with per curiam opinion, 784 S.W.2d 688 (Tex.
Crim. App. 1990) (recognizing rule but holding particular expenses were not "legal or medical ex-
penses").
[FN3] In re Adoption of Infant Girl Banda, 53 Ohio App. 3d 104, 559 N.E.2d 1373 (10th Dist. Franklin
County 1988).
[FN4] State v. Gooden, 570 So. 2d 865 (Ala. Crim. App. 1990).
[FN6] State v. Clark, 16 Kan. App. 2d 552, 826 P.2d 925 (1992); In re Adoption of Infant Girl Banda,
53 Ohio App. 3d 104, 559 N.E.2d 1373 (10th Dist. Franklin County 1988).
rights reserved.
END OF DOCUMENT


Adoption

§ 57. Permissibility of paying particular expenses—Pregnancy and birth-related expenses
A.L.R. Library
Validity of agreement to pay expenses attendant on birth of child on condition that natural parents consent
to adoption of child, 43 A.L.R. 4th 935
Forms
Authorization for child's medical care. Am. Jur. Legal Forms 2d, Adoption § 9:45
It is commonly the case that persons wishing to adopt a child will make provision with the child's mother, or
mother and father, before the birth of the child to pay hospital and medical expenses in connection with the care
of the mother and child.[1] Some statutes have, in the adoption context, allowed compensation agreements for
expenses incurred in the birth, and in the pregnancy or care of the natural mother.[2] It is generally not against
public policy for prospective adoptive parents and the natural parent or parents to enter into an agreement that
the adopting parents will pay hospital and medical expenses in connection with the birth of the child that is, for
the care of the mother and child[3] and this is true even though such payment is made in exchange for the natur-
al parents' consent to the adoption.[4] Furthermore, would-be adoptive parents may be allowed to recover med-
ical expenses paid for the birth of the child after breach of such an agreement by the natural parents.[5]
It is not unlawful to pay the hospital and necessary living expenses of the mother preceding and during a
pregnancy-related incapacity as an act of charity, so long as the payment was not contingent upon placement of
the minor for adoption, consent to the adoption, or cooperation on the completion of the adoption.[6] Nor was a
statute proscribing the receipt of any money or anything of value for placing, assisting, or arranging a minor
placement, intended to prohibit legitimate charges for medical or prenatal services.[7]
An agreement to pay a mother, in return for the relinquishment of her child, a sum equal to the amount of
the hospital and medical expenses which had already been paid by another constitutes an unwarranted payment
of consideration which vitiates the relinquishment.[8]

[FN2] Matter of Kendrick G.'s Adoption, 114 Misc. 2d 483, 451 N.Y.S.2d 963 (Fam. Ct. 1982).
[FN3] Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90 (1980); In re Baby Girl D., 512 Pa. 449, 517
A.2d 925 (1986).
[FN8] Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90 (1980) (trial court found that mother was to re-
ceive funds for payment of various expenses which had been paid in full or in part by the Department of
Public Welfare).
rights reserved.
END OF DOCUMENT


Adoption

§ 58. Permissibility of paying particular expenses—Other particular expenses
Some statutes have allowed compensation for the placement or adoption of the child, and the care of the ad-
optive child,[1] while others have limited the payment of these expenses to fees of approved agencies.[2]
Payment by adopting parents for counseling natural mothers in preparation for the relinquishment of their
parental rights falls outside the general guideline that payments are permissible where they directly benefit the
child.[3] Medical expenses totally unrelated to the birth, Lamaze classes, prenatal care and sonograms are also
expenses not directly connected with the birth, and thus, are outside the parameters of the traditional allowable
expenses in adoption.[4] Furthermore, under a statute providing that no person, agency, association, corporation,
institution, society, or other organization shall offer or give, charge or accept any fee, compensation, considera-
tion, or thing of value for receiving or placing, arranging the placement of, or assisting in placing or arranging
the placement of any child for adoption, if the adopting parents and their attorney make the funds available for
the purpose of bringing the biological mother into the state for the purpose of facilitating the adoption, including
supporting her and the child through the date of birth and returning the mother to her home state, then such ac-
tions constitute a violation of the statute.[5]
[FN1] Matter of Kendrick G.'s Adoption, 114 Misc. 2d 483, 451 N.Y.S.2d 963 (Fam. Ct. 1982).
rights reserved.

END OF DOCUMENT

AMJUR ADOPTION V C REF Page 1
2 Am. Jur. 2d Adoption V C Refs.

Adoption

Research References
A.L.R. Library
Trial Strategy
Forms
Am. Jur. Pleading and Practice Forms, Adoption §§ 275, 276
rights reserved.
AMJUR ADOPTION V C REF
END OF DOCUMENT


Adoption

1. In General
§ 59. Enforcement
Forms
Complaint, petition, or declaration—By adopted child—To recover inheritance under adoption agree-
ment—Against next of kin of adoptive father. Am. Jur. Pleading and Practice Forms, Adoption § 275
An executory contract or agreement does not, in and of itself, create a status of parent and child between the
child and the promisor or make the child the heir of the promisor; this can be done only by compliance with the
statutory method prescribed.[1]
A mere contract to adopt is not sufficient of itself to make the child a legal heir of the promisor, because the
right to take as heir exists only by operation of law. The child takes in these cases by virtue of the contract and
by way of damages or specific performance.[2] Even so, a child to be adopted pursuant to an agreement between
his or her natural parent and the adoptive parent cannot specifically enforce his or her adoption by the deceased
adoptive parent;[3] nevertheless, because of the agreement he or she can obtain specific enforcement of the be-
nefits that would accrue from such adoption—this remedy is sometimes referred to as an equitable adoption.[4]
Where a natural mother became pregnant in contemplation of giving her child up for adoption, the contract
in which prospective adopting parents agreed to pay medical and legal expenses was enforceable.[5]
[FN1] § 49.
[FN2] Wilks v. Langley, 248 Ark. 227, 451 S.W.2d 209 (1970).
[FN3] In re Adoption of R.A.B., 426 So. 2d 1203 (Fla. Dist. Ct. App. 4th Dist. 1983); Matter of Adop-
tion of A Child by N.E.Y., 267 N.J. Super. 88, 630 A.2d 835 (Ch. Div. 1993).

[FN4] § 60.
[FN5] Petition of Steve B.D., 111 Idaho 285, 723 P.2d 829 (1986).
rights reserved.
END OF DOCUMENT


Adoption

§ 60. Generally
A.L.R. Library
Modern status of law as to equitable adoption or adoption by estoppel, 97 A.L.R. 3d 347
Trial Strategy
While a child to be adopted pursuant to an agreement between his or her natural parent and the adoptive par-
ent cannot specifically enforce its adoption by the deceased adoptive parent,[1] nevertheless, because of the
agreement, specific enforcement of the benefits that would accrue from such adoption may be obtained in some
jurisdictions—this remedy is sometimes referred to as an equitable adoption.[2]
The courts utilize terms such as "equitable adoption,"[3] "virtual adoption,"[4] and "adoption by estoppel."[
5]
In some instances, the doctrine has been recognized by statute.[6]
While many jurisdictions have adopted the doctrine[7] it has been rejected in others.[8]
[FN1] § 59.
[FN2] In re Adoption of R.A.B., 426 So. 2d 1203 (Fla. Dist. Ct. App. 4th Dist. 1983).
[FN3] Matter of Estate of Jenkins, 904 P.2d 1316 (Colo. 1995); Tarver v. Evergreen Sod Farms, Inc.,
533 So. 2d 765 (Fla. 1988); Flynn v. State, 667 S.W.2d 235 (Tex. App. El Paso 1984), petition for dis-

cretionary review granted, (Oct. 24, 1984) and judgment aff'd, 707 S.W.2d 87 (Tex. Crim. App. 1986);
First Nat. Bank In Fairmont v. Phillips, 176 W. Va. 395, 344 S.E.2d 201 (1985).
[FN4] Miller v. Paczier, 591 So. 2d 321 (Fla. Dist. Ct. App. 3d Dist. 1991); Franklin v. Gilchrist, 268
Ga. 497, 491 S.E.2d 361 (1997).
[FN5] Tarver v. Evergreen Sod Farms, Inc., 533 So. 2d 765 (Fla. 1988); Flynn v. State, 667 S.W.2d 235
(Tex. App. El Paso 1984), petition for discretionary review granted, (Oct. 24, 1984) and judgment aff'd,
707 S.W.2d 87 (Tex. Crim. App. 1986).
[FN6] Pope v. First Nat. Bank in Dallas, 658 S.W.2d 764 (Tex. App. Dallas 1983) (probate code
defined "child" as including an adopted child, whether adopted by any existing or former statutory pro-
cedure or by acts of estoppel).
[FN7] Samek v. Sanders, 788 So. 2d 872 (Ala. 2000); Matter of Estate of Jenkins, 904 P.2d 1316 (Colo.
1995); Miller v. Paczier, 591 So. 2d 321 (Fla. Dist. Ct. App. 3d Dist. 1991); Davis v. Bennett, 263 Ga.
714, 438 S.E.2d 73 (1994); Geramifar v. Geramifar, 113 Md. App. 495, 688 A.2d 475 (1997); Matter of
Estate of Crossman, 145 Mich. App. 154, 377 N.W.2d 850 (1985); Matter of Estate of Mazzeo, 95
A.D.2d 91, 466 N.Y.S.2d 759 (3d Dep't 1983) (stating that equitable adoption has been recognized in
New York under limited circumstances, and that doctrine is viewed in state as a type of contract to
make a will provision); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); Johnson v. Johnson,
2000 ND 170, 617 N.W.2d 97 (N.D. 2000); D.G. v. D.M.K., 1996 SD 144, 557 N.W.2d 235 (S.D.
1996); Flynn v. State, 667 S.W.2d 235 (Tex. App. El Paso 1984), petition for discretionary review gran-
ted, (Oct. 24, 1984) and judgment aff'd, 707 S.W.2d 87 (Tex. Crim. App. 1986); Welch v. Wilson, 205
W. Va. 21, 516 S.E.2d 35 (1999).
[FN8] Maui Land & Pineapple Co. v. Naiapaakai Heirs of Makeelani, 69 Haw. 565, 751 P.2d 1020
(1988); Matter of Edwards' Estate, 106 Ill. App. 3d 635, 62 Ill. Dec. 407, 435 N.E.2d 1379 (2d Dist.
1982); Lindsey v. Wilcox, 479 N.E.2d 1330 (Ind. Ct. App. 1st Dist. 1985); Matter of Estate of Robbins,
241 Kan. 620, 738 P.2d 458 (1987); Pierce v. Pierce, 198 Mont. 255, 645 P.2d 1353 (1982); Matter of
Adoption of A Child by N.E.Y., 267 N.J. Super. 88, 630 A.2d 835 (Ch. Div. 1993); Alley v. Bennett,
298 S.C. 218, 379 S.E.2d 294 (Ct. App. 1989).
rights reserved.
END OF DOCUMENT


Adoption

§ 61. Basis in equity and estoppel
A.L.R. Library
Trial Strategy
The theory of recovery in an equitable adoption case is founded upon either equitable principles or upon the
theory of estoppel. In the former, it is a judicial remedy for an unperformed contract of legal adoption or, in the
alternative, the ordering of specific performance of an implied contract to adopt. The estoppel theory operates to
preclude a party from asserting the invalidity of a status of an "adopted" child for inheritance purposes.[1] "Equit-
able adoption" has been called no more than a legal fiction permitting specific performance of a contract to ad-
opt.[2] Furthermore, the descriptive phrase "adoption by estoppel" has been described as a shorthand method of
saying that because of the promises, acts, and conduct of an intestate deceased, those claiming under and
through him or her are estopped to assert that a child was not legally adopted or did not occupy the status of an
adopted child.[3]
Caution:
The doctrine of equitable adoption has been referred to as a "more specific" doctrine than equitable estoppel
generally, and will be relied on in instances involving adoption issues where both doctrines are asserted by the
parties.[4]
The doctrine is predicated on principles of contract law and equitable enforcement of the agreement to adopt
for the purpose of securing the benefits of adoption that would otherwise flow from the adoptive parent under
the laws of intestacy had the agreement to adopt been carried out; as such it is essentially a matter of equitable

relief.[5]
[FN1] Lindsey v. Wilcox, 479 N.E.2d 1330 (Ind. Ct. App. 1st Dist. 1985).
[FN2] D'Accardi v. Chater, 96 F.3d 97 (4th Cir. 1996) (applying New Jersey law); Estate of Stewart,
122 Cal. App. 3d 625, 176 Cal. Rptr. 142 (4th Dist. 1981).
[FN3] Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); Pope v. First Nat. Bank in Dallas, 658
S.W.2d 764 (Tex. App. Dallas 1983).
[FN4] Geramifar v. Geramifar, 113 Md. App. 495, 688 A.2d 475 (1997).
[FN5] Evergreen Sod Farms, Inc. v. McClendon, 513 So. 2d 1311 (Fla. Dist. Ct. App. 1st Dist. 1987),
decision approved, 533 So. 2d 765 (Fla. 1988); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604
(1997).
rights reserved.
END OF DOCUMENT


Adoption

§ 62. Elements and indicia of equitable adoption
The elements of "adoption by estoppel" or "virtual adoption" have variously been stated as being—
— an agreement to adopt the child[1] or an undertaking to effect statutory adoption.[2]
— reliance on that agreement.[3]
— performance by the natural parents of the child in giving up custody.[4]
— performance by the child in acting as the child of the adoptive parents.[5]
— partial performance by the adoptive parents in taking the child into their home[6] and treating the child
as their child.[7]
— the intestacy of the foster parents.[8]
Observation:Equitable adoption may occur without the termination of the natural parents' parental
rights.[9]
The contract to be enforced must be definite and certain,[10] be free of fraud, duress and misrepresentation,
be equitable, have mutuality of obligations and remedies and be founded upon consideration;[11] it need not,
however, use the word "adopt" or require the formality of execution.[12]
By one view, the doctrine of virtual adoption is not applicable to an agreement to adopt an adult since al-
lowing the claim of the appellant that he or she be declared the virtually adopted child of the decedent would ex-
pand the concept of "virtual adoption" beyond the purpose for which it was conceived and open the door of the
probate courts to fraudulent and frivolous claims of persons who have assisted and befriended the elderly during
the last years of their life.[13] Even so, where an agreement to adopt an adult was finalized but not signed before
the adoptor's death, another court has allowed the adoptee to use the doctrine of equitable adoption to present a
claim against the estate as a creditor, but not as an heir.[14]
[FN1] D'Accardi v. Chater, 96 F.3d 97 (4th Cir. 1996) (applying New Jersey law); Samek v. Sanders,

788 So. 2d 872 (Ala. 2000); Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist. Ct. App. 5th Dist. 1992);
Franklin v. Gilchrist, 268 Ga. 497, 491 S.E.2d 361 (1997); Geramifar v. Geramifar, 113 Md. App. 495,
688 A.2d 475 (1997); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); Titchenal v. Dexter,
166 Vt. 373, 693 A.2d 682 (1997); In re Estate of Seader, 2003 WY 119, 76 P.3d 1236 (Wyo. 2003).
[FN2] Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 (1997).
[FN3] Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist. Ct. App. 5th Dist. 1992) (natural parent must have
acted in reliance of agreement); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); In re Estate
of Seader, 2003 WY 119, 76 P.3d 1236 (Wyo. 2003).
[FN4] Miller v. Paczier, 591 So. 2d 321 (Fla. Dist. Ct. App. 3d Dist. 1991); Chambers v. Chambers,
260 Ga. 610, 398 S.E.2d 200 (1990); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); In re
Estate of Seader, 2003 WY 119, 76 P.3d 1236 (Wyo. 2003).
[FN5] D'Accardi v. Chater, 96 F.3d 97 (4th Cir. 1996) (applying New Jersey law); Miller v. Paczier,
591 So. 2d 321 (Fla. Dist. Ct. App. 3d Dist. 1991); Chambers v. Chambers, 260 Ga. 610, 398 S.E.2d
200 (1990); Holt v. Burlington Northern R. Co., 685 S.W.2d 851 (Mo. Ct. App. W.D. 1984); Lankford
v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); In re Estate of Seader, 2003 WY 119, 76 P.3d 1236
(Wyo. 2003).
200 (1990); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); In re Estate of Seader, 2003 WY
119, 76 P.3d 1236 (Wyo. 2003).
[FN7] Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist. Ct. App. 5th Dist. 1992); Chambers v. Chambers,
260 Ga. 610, 398 S.E.2d 200 (1990); Holt v. Burlington Northern R. Co., 685 S.W.2d 851 (Mo. Ct.
App. W.D. 1984); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); Kisamore v. Coakley, 190
W. Va. 147, 437 S.E.2d 585 (1993) (finding no equitable adoption by father where child was in home
only 57 days before father died, and where adoption agreement precluded filing for adoption for minim-
um of six months after child came into adoptive home); In re Estate of Seader, 2003 WY 119, 76 P.3d
1236 (Wyo. 2003).
200 (1990); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); In re Estate of Seader, 2003 WY
119, 76 P.3d 1236 (Wyo. 2003).
[FN10] Samek v. Sanders, 788 So. 2d 872 (Ala. 2000); Willis v. Kennedy, 267 Ga. 165, 476 S.E.2d 246
(1996).
[FN11] Willis v. Kennedy, 267 Ga. 165, 476 S.E.2d 246 (1996); Matter of Estate of Mazzeo, 95 A.D.2d
91, 466 N.Y.S.2d 759 (3d Dep't 1983); Johnson v. Johnson, 2000 ND 170, 617 N.W.2d 97 (N.D. 2000).
[FN12] Anderson v. Maddox, 257 Ga. 478, 360 S.E.2d 590 (1987).

[FN13] Miller v. Paczier, 591 So. 2d 321 (Fla. Dist. Ct. App. 3d Dist. 1991).
rights reserved.
END OF DOCUMENT


Adoption

§ 63. Effect of equitable adoption; intestacy of parent
A.L.R. Library
Trial Strategy
Forms
ment—Against next of kin of adoptive father—Estoppel to deny adoption. Am. Jur. Pleading and Practice
Forms, Adoption § 276
An adoption by estoppel is an equitable remedy to protect the interests of a person who was supposed to
have been adopted as a child but whose adoptive parents failed to undertake the legal steps necessary to formally
accomplish the adoption.[1] The doctrine is applied in an intestate estate to give effect to the intent of the de-
cedent to adopt and provide for the child.[2] It is not applicable where the decedent dies testate.[3]
Being only an equitable remedy to enforce a contract right,[4] it is not intended or applied to create the legal
relationship of parent and child,[5] nor is it meant to create a legal adoption.[6]
Equitable adoption only affects the child's rights against the intestate estate of his or her adoptive parent,
and not of his or her natural parent.[7] By one view, the reach of the decree of equitable adoption has been lim-
ited to allowing the equitable adopted child to inherit from the adoptive parent but not to inherit through the col-
lateral kin.[8] Other courts have recognized that the doctrine may also be applied to allow the child to inherit

from a blood relative of the adoptive parent.[9]
The doctrine may not be used to preclude the child from personally asserting that he or she is not the adopt-
ive child of his or her custodian.[10] Nor has the doctrine been used to allow an adoptive parent to inherit all or
part of the estate of an equitably adopted child.[11]
Adoption by estoppel prevents only the adoptive parent and those in privity with him from denying the ad-
option. "Privity" for this purpose is defined as the legal relationship between parties incident to succession on
the part of one party to an estate or interest formerly held by the other.[12]
Some courts have refused to extend the doctrine beyond decreeing in the child a right to inheritance,[13] to
other rights, as, for example, to establish that one was a minor child entitled to benefits under workers' compens-
ation statutes,[14] or to receive the benefits allowed a legally adopted child under inheritance tax statutes.[15]
However, at least one court has concluded that the legislature of its state did not intend to preclude an equit-
ably adopted child from bringing a wrongful death action.[16] Furthermore, the doctrine of equitable adoption
may be utilized to impose a duty to pay child support.[17]
[FN1] Matter of Estate of Jenkins, 904 P.2d 1316 (Colo. 1995); Miller v. Paczier, 591 So. 2d 321 (Fla.
Dist. Ct. App. 3d Dist. 1991); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997).
[FN2] Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist. Ct. App. 5th Dist. 1992); Matter of Estate of Cross-
man, 145 Mich. App. 154, 377 N.W.2d 850 (1985); In re Estate of Seader, 2003 WY 119, 76 P.3d 1236
(Wyo. 2003).
[FN3] In re Estate of Wall, 502 So. 2d 531 (Fla. Dist. Ct. App. 4th Dist. 1987); In re Estate of Seader,
2003 WY 119, 76 P.3d 1236 (Wyo. 2003).
[FN4] § 53.
[FN5] Tarver v. Evergreen Sod Farms, Inc., 533 So. 2d 765 (Fla. 1988); Tellis v. Saucier, 133 Ga. App.
779, 213 S.E.2d 39 (1975); Matter of Estate of Mazzeo, 95 A.D.2d 91, 466 N.Y.S.2d 759 (3d Dep't
1983); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997).
[FN6] Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist. Ct. App. 5th Dist. 1992); Holt v. Burlington North-
ern R. Co., 685 S.W.2d 851 (Mo. Ct. App. W.D. 1984); Matter of Estate of Mazzeo, 95 A.D.2d 91, 466
N.Y.S.2d 759 (3d Dep't 1983); Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); In re Estate
of Seader, 2003 WY 119, 76 P.3d 1236 (Wyoming 2003).
[FN7] Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist. Ct. App. 5th Dist. 1992).
[FN8] Holt v. Burlington Northern R. Co., 685 S.W.2d 851 (Mo. Ct. App. W.D. 1984); Pouncy v.
Garner, 626 S.W.2d 337 (Tex. App. Tyler 1981), writ refused n.r.e., (Mar. 31, 1982).
[FN9] First Nat. Bank In Fairmont v. Phillips, 176 W. Va. 395, 344 S.E.2d 201 (1985).
[FN10] Flynn v. State, 707 S.W.2d 87 (Tex. Crim. App. 1986).

[FN11] Travelers Ins. Co. v. Young, 580 F. Supp. 421 (E.D. Mich. 1984).
[FN12] Pope v. First Nat. Bank in Dallas, 658 S.W.2d 764 (Tex. App. Dallas 1983) (noting that a child
adopted by estoppel does not inherit from collateral kindred, as there is no privity of estate between
such kindred and the adoptive parents).
As to effects of adoption, generally, on inheritance, see §§ 174 to 198.
[FN13] Flynn v. State, 707 S.W.2d 87 (Tex. Crim. App. 1986).
[FN14] Evergreen Sod Farms, Inc. v. McClendon, 513 So. 2d 1311 (Fla. Dist. Ct. App. 1st Dist. 1987),
decision approved, 533 So. 2d 765 (Florida 1988).
[FN15] Goldberg v. Robertson, 615 S.W.2d 59 (Missouri 1981) (holding that equitably adopted child
was not legally adopted child within meaning of statute that imposed one percent tax, rather than 5%,
on share of estate left to legally adopted child).
[FN16] Holt v. Burlington Northern R. Co., 685 S.W.2d 851 (Mo. Ct. App. W.D. 1984).
As to the right of adopted children to bring wrongful death actions, generally, see Am. Jur. 2d, Death §§
89 to 92, 96.
[FN17] Geramifar v. Geramifar, 113 Md. App. 495, 688 A.2d 475 (1997); Frye v. Frye, 103 Nev. 301,
738 P.2d 505 (1987); Johnson v. Johnson, 2000 ND 170, 617 N.W.2d 97 (North Dakota 2000).
rights reserved.
END OF DOCUMENT


Adoption

§ 64. Pleadings and proof of equitable adoption
A.L.R. Library
Trial Strategy
An equitable adoption based on contract theory arises at the time of performance by the adoptive parent.[1]
Each case of equitable adoption must be determined on its own peculiar set of facts.[2] Whether the particu-
lar agreement[3] and circumstances of the case merit application of the doctrine of equitable adoption is a factu-
al question which must be resolved by a hearing.[4] The existence of consideration to support a contract to ad-
opt, for purposes of the equitable adoption doctrine, is a question of law.[5]
Given the fact that an agreement to adopt is only one of the elements required to establish equitable adop-
tion,[6] a complaint alleging only an agreement to adopt is insufficient to set forth a cause of action for equitable
or virtual adoption.[7]
In some jurisdictions equitable adoption must be established by a preponderance of the evidence.[8] In other
jurisdictions, one who seeks an equitable adoption must seek to establish the existence of that adoption by clear,
cogent and convincing evidence;[9] in some jurisdictions it is required that proof of the contract supporting the
application of the doctrine be proven by clear and convincing evidence.[10]
There need be no direct evidence of an oral or written agreement to adopt; rather such agreement may be
proven by the acts, conduct and admissions of the parties and other relevant facts and circumstances.[11]

However, if one who seeks equitable adoption does so by the use of circumstantial evidence, then that evidence
must be consistent only with the existence of the equitable adoption and inconsistent with any other reasonable
hypothesis leaving nothing to conjecture.[12] Evidence that a biological parent had told the child that their step-
parent had agreed to adopt the child is insufficient to support a claim of equitable adoption absent some ratifica-
tion by the stepparent of that statement.[13] A definite and specific contract to adopt is not established by evid-
ence that the decedent had occasionally introduced the child as a son or daughter, had referred to the child's
child as his or her grandchild, and may have referred to the child as a son or daughter in an unexecuted will.[14]
A prolonged period of custody, use of the custodian's name and equal treatment with the custodian's natural
children are not in themselves sufficient facts to infer the requisite adoptive intent and agreement.[15] A custody
order is not a contract of adoption.[16]
[FN1] Holt v. Burlington Northern R. Co., 685 S.W.2d 851 (Mo. Ct. App. W.D. 1984).
As to performance by the adopting parent as an element of equitable adoption, see § 62.
[FN2] Matter of Estate of Crossman, 145 Mich. App. 154, 377 N.W.2d 850 (1985); Birdwell v. Phillips,
805 S.W.2d 220 (Mo. Ct. App. W.D. 1991).
[FN3] § 62.
[FN4] Matter of Estate of Mazzeo, 95 A.D.2d 91, 466 N.Y.S.2d 759 (3d Dep't 1983); Lankford v.
Wright, 347 N.C. 115, 489 S.E.2d 604 (1997); Johnson v. Johnson, 2000 ND 170, 617 N.W.2d 97
(North Dakota 2000).
[FN5] Johnson v. Johnson, 2000 ND 170, 617 N.W.2d 97 (North Dakota 2000).
[FN6] § 62.
[FN7] J.E.W. v. Estate of Doe, 443 So. 2d 249 (Fla. Dist. Ct. App. 1st Dist. 1983).
[FN8] Flynn v. State, 667 S.W.2d 235 (Tex. App. El Paso 1984), petition for discretionary review gran-
ted, (Oct. 24, 1984) and judgment aff'd, 707 S.W.2d 87 (Tex. Crim. App. 1986).
[FN9] Birdwell v. Phillips, 805 S.W.2d 220 (Mo. Ct. App. W.D. 1991); Lankford v. Wright, 347 N.C.
115, 489 S.E.2d 604 (1997); Johnson v. Johnson, 2000 ND 170, 617 N.W.2d 97 (N.D. 2000); Welch v.
Wilson, 205 W. Va. 21, 516 S.E.2d 35 (1999).
[FN11] Matter of Estate of Crossman, 145 Mich. App. 154, 377 N.W.2d 850 (1985); Flynn v. State, 667
S.W.2d 235 (Tex. App. El Paso 1984), petition for discretionary review granted, (Oct. 24, 1984) and
judgment aff'd, 707 S.W.2d 87 (Tex. Crim. App. 1986).
[FN12] Birdwell v. Phillips, 805 S.W.2d 220 (Mo. Ct. App. W.D. 1991).
[FN13] Samek v. Sanders, 788 So. 2d 872 (Alabama 2000).

[FN14] Willis v. Kennedy, 267 Ga. 165, 476 S.E.2d 246 (1996).
[FN15] Flynn v. State, 667 S.W.2d 235 (Tex. App. El Paso 1984), petition for discretionary review
granted, (Oct. 24, 1984) and judgment aff'd, 707 S.W.2d 87 (Tex. Crim. App. 1986).
[FN16] Welch v. Welch, 265 Ga. 89, 453 S.E.2d 445 (1995).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VI A REF Page 1
2 Am. Jur. 2d Adoption VI A Refs.

Adoption

A. Introduction
Research References
West's Key Number Digest, Adoption 7.1, 7.7
A.L.R. Library
Forms
Am. Jur. Pleading and Practice Forms, Adoption §§ 83, 151, 152
rights reserved.
AMJUR ADOPTION VI A REF
END OF DOCUMENT


Adoption

A. Introduction
§ 65. Generally
West's Key Number Digest, Adoption 7.1
Forms
Parents, guardian, or next of kin. Am. Jur. Pleading and Practice Forms, Adoption § 83
Request—For approval of consent in open court. Am. Jur. Pleading and Practice Forms, Adoption § 151
Order—Approving execution of consent to adoption in open court. Am. Jur. Pleading and Practice Forms,
Adoption § 152
Generally, consent is required as a prerequisite to the adoption of a child. Consent serves to sever the origin-
al parent-child relationship.[1] Consent to adoption is ordinarily a jurisdictional prerequisite for a decree of ad-
option.[2] Ordinarily, consents of natural parents or substitute consents to adoption must be filed with the adop-
tion petition,[3] unless the court finds that the natural parents are unfit.[4]
While a forfeiture of parental rights may serve to do away with the consent requirement,[5] adoption some-
times requires one to agree to relinquish rights as to the child, as well as to consent to the adoption.[6]
A court may be vested with jurisdiction and power to decree adoption of a child without the consent of its
parent or legally appointed guardian;[7] a decree of adoption may be granted without the consent of anyone
when it appears to be in the best interests of the child.[8]
[FN1] Matter of Adoption of A.M.M., 529 N.W.2d 864 (N.D. 1995).
As to jurisdiction, generally, in adoption proceedings, see § 107.
[FN3] In re Adoption of Kassandra B., 248 Neb. 912, 540 N.W.2d 554 (1995).

As to consent by natural parents, generally, see § 67.
As to consent by other persons or bodies, see §§ 91 to 93.
[FN4] In re Adoption of Syck, 138 Ill. 2d 255, 149 Ill. Dec. 710, 562 N.E.2d 174 (1990).
As to circumstances where the consent of the parent is dispensed with, generally, see § 76.
[FN5] § 76.
As to loss or termination of parental rights, generally, see Am. Jur. 2d, Parent and Child §§ 14, 16.
[FN7] § 66.
[FN8] Adoption of Paula, 420 Mass. 716, 651 N.E.2d 1222 (1995).
rights reserved.
END OF DOCUMENT


Adoption

A. Introduction
§ 66. Consent or statutory substitute as jurisdictional requisite
While there is some authority for the view that the consent of parents or of a parent of the child is not neces-
sarily a jurisdictional requisite to an adoption proceeding,[1] ordinarily the proper consent,[2] waiver of the re-
quired consent,[3] or a statutory substitute for such consent,[4] such as a statutory ground eliminating the need
for obtaining parental consent, as plead in the petition for adoption,[5] or a finding that consent is not necessary
pursuant to the adoption statute,[6] has been regarded as an essential requisite to jurisdiction on the part of the
court to make an order of adoption. Thus, the absence of consent is ordinarily fatal to validity of the decree[7]
unless it is established that the parents by their own misconduct, such as desertion of the child, failure to support
it or provide a home, or ill treatment of the child, have forfeited their rights to consent.[8]
[FN1] Anderson v. Pima County Dept. of Public Welfare, 77 Ariz. 339, 271 P.2d 834 (1954).
[FN2] In re Adoption of Jordan, 72 Ohio App. 3d 638, 595 N.E.2d 963 (12th Dist. Preble County 1991).
[FN3] In re C.W., 753 S.W.2d 933 (Mo. Ct. App. E.D. 1988).
[FN4] Matter of Adoption of Eder, 312 Or. 244, 821 P.2d 400 (1991).
[FN5] Meyers v. Smith, 518 So. 2d 734 (Ala. Civ. App. 1987) (the natural parent's loss of guardianship
was a statutory ground upon which the need for parental consent could be eliminated).
As to grounds eliminating the need for parental consent to an adoption, generally, see §§ 76 to 90.
[FN7] In re Adoption of Zschach, 75 Ohio St. 3d 648, 665 N.E.2d 1070 (1996).
[FN8] § 76.

rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VI B REF Page 1
2 Am. Jur. 2d Adoption VI B Refs.

Adoption

Research References
Uniform Adoption Act (1994) §§ 2-401, 2-402
Uniform Putative and Unknown Fathers Act
West's Key Number Digest, Adoption 7.1, 7.2(1), (3), 7.3, 7.4(1) to (6), 7.8(4), (5)
A.L.R. Library
Trial Strategy
163
Forms
Am. Jur. Legal Forms 2d, Adoption §§ 9:10, 9:14, 9:15, 9:22 to 9:26, 9:29
Am. Jur. Pleading and Practice Forms, Adoption §§ 16, 17, 48 to 54, 59, 85, 86, 88 to 90, 105, 106, 123 to
143, 145 to 149, 158 to 160, 162, 178
rights reserved.

AMJUR ADOPTION VI B REF Page 2
2 Am. Jur. 2d Adoption VI B Refs.
AMJUR ADOPTION VI B REF
END OF DOCUMENT


Adoption

1. Natural Parents
a. In General
§ 67. Generally
West's Key Number Digest, Adoption 7.2(1), 7.8(4)
Forms
Consent to adoption—By parents. Am. Jur. Legal Forms 2d, Adoption § 9:22
Consent to adoption—By mother or father. Am. Jur. Legal Forms 2d, Adoption § 9:23
Consent of natural parent or parents to adoption. Am. Jur. Pleading and Practice Forms, Adoption §§ 123 to
142
Ordinarily, when consent is required by statute,[1] a minor's natural parents[2] or the surviving parent[3] or
guardian[4] must consent to the adoption. Furthermore, in the absence of a statute, the natural right of a parent to
his or her child requires that his or her consent must be obtained before his or her parental rights and duties may
be terminated and reestablished in adoptive parents.[5]
Different rules regarding the requirement of consent sometimes apply to adult adoptions[6] and stepparent-
adoptions.[7]
In some states, a judge can dispense with parental consent to adoption if it is in the best interests of the
child.[8] However, in other states, because of the fundamental nature of parental rights, the issue of the require-
ment of parental consent to an adoption is determined without regard to the best interests of the child.[9]
Adoption statutes are strictly construed, and a person who wishes to adopt a child without the consent of the
parents must prove that consent is unnecessary by clear and convincing evidence.[10]
Cases:

A judicial determination as to the best interests of a child, standing alone, can not override the statutory re-
quirement that a stepparent adoption may not be granted without the consent of the natural parent if that parent
has assumed the duties of a parent toward the child. In re Adoption of G.L.V., 286 Kan. 1034, 190 P.3d 245
(2008).
[END OF SUPPLEMENT]
[FN1] As to a general discussion of when adoption may occur without consent, see § 65.
As to particular circumstances where consent of parents is not necessary, see §§ 76 to 90.
[FN2] In re Adoption of A.F.M., 15 P.3d 258, 102 A.L.R.5th 701 (Alaska 2001); In re T.J., 666 A.2d 1
(D.C. 1995); In re Adoption of Kassandra B., 248 Neb. 912, 540 N.W.2d 554 (1995); Stubbs v. Weath-
ersby, 320 Or. 620, 892 P.2d 991 (1995).
[FN3] Matter of Adoption of C.J.H., 246 Mont. 52, 803 P.2d 214 (1990); In re Adoption of Kassandra
B., 248 Neb. 912, 540 N.W.2d 554 (1995); State ex rel. Smith v. Abbot, 187 W. Va. 261, 418 S.E.2d
575 (1992).
[FN4] § 91.
[FN5] In re Adoption of B.G.S., 556 So. 2d 545 (La. 1990).
The law presumes that consent of a child's natural parents is necessary before an adoption may be ef-
fected. In re Adoption of C.D.M., 2001 OK 103, 39 P.3d 802 (Okla. 2001), cert. denied, 535 U.S. 1054,
122 S. Ct. 1911, 152 L. Ed. 2d 821 (2002).
[FN6] Matter of Adoption of Chaney, 126 Idaho 554, 887 P.2d 1061 (1995) (parental consent statute,
by which the consent of any parent whose rights will be terminated because of an adoption must be ob-
tained in order for valid adoption to occur, applies to the adoption of minors but not to adult adoptions).
[FN7] In re C.N.W., 274 Ga. 765, 560 S.E.2d 1 (2002); In re Adoption of B.M.W., 268 Kan. 871, 2
P.3d 159 (2000).
[FN8] In re Adoption of Gregory, 434 Mass. 117, 747 N.E.2d 120 (2001).
A biological parent who has never shouldered any responsibility for the rearing of that parent's biolo-
gical child does not have a constitutional right to veto child's adoption by a nonbiological parent when
that adoption is deemed to be in child's best interest. Rubano v. DiCenzo, 759 A.2d 959 (R.I. 2000).
As to consideration of the child's "best interests," generally, see § 129.
[FN9] In re Adoption of TLC, 2002 WY 76, 46 P.3d 863 (Wyo. 2002). Statutory requirements for par-
ental consent to adoption must be satisfied before the child's best interests become paramount. In re
M.L.M., 278 Mont. 505, 926 P.2d 694 (1996).
[FN10] Matter of Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997); Matter of Adoption of

R.W.S., 1997 OK 148, 951 P.2d 83 (Okla. 1997); In re Adoption of TLC, 2002 WY 76, 46 P.3d 863
(Wyo. 2002).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
a. In General
§ 68. Minors
West's Key Number Digest, Adoption 7.2(1), (3)
Statutes frequently provide that the minority of a natural parent is not a bar to such parent's consent to adop-
tion.[1] There is no requirement that a guardian ad litem be appointed for a minor mother before she consents to
adoption of her child.[2]
[FN1] Batton v. Massar, 149 Colo. 404, 369 P.2d 434 (1962).
An unmarried minor mother was competent to consent to an adoption complaint. In re Adoption of

D.N.T., 843 So. 2d 690 (Miss. 2003).
A father's status as a minor did not permit revocation of his relinquishment of parental rights and con-
sent to adoption. JK ex rel. DK v. MK, 5 P.3d 782 (Wyo. 2000).
[FN2] Hagy v. Pruitt, 339 S.C. 425, 529 S.E.2d 714 (2000).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
b. Mothers
§ 69. Generally
West's Key Number Digest, Adoption 7.2(1)
Forms
Consent to adoption—By mother or father. Am. Jur. Legal Forms 2d, Adoption § 9:23
Differing standards may be applied in determining whether consent to adoption is required of the natural
mother and the natural father, depending on the father's relationship to the child.[1] Ordinarily, adoption statutes
require the written consent of the mother before a petition to adopt a minor may be granted.[2] Some statutes
provide the consent of the mother is required regardless of the child's best interests.[3]
[FN1] Uniform Adoption Act (1994) § 2-401(a).
As to consent required of fathers, generally, see § 71.
[FN3] Adoption of Kelsey S., 1 Cal. 4th 816, 4 Cal. Rptr. 2d 615, 823 P.2d 1216 (1992).
As to the child's "best interests" as a factor in the adoption determination, generally, see § 131.
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
b. Mothers
§ 70. Mothers of children born out of wedlock
A.L.R. Library
Necessity of securing consent of parents of illegitimate child to its adoption, 51 A.L.R. 2d 497
Forms
Consent to adoption—By unmarried mother. Am. Jur. Legal Forms 2d, Adoption § 9:24
Consent to adoption by unmarried mother. Am. Jur. Pleading and Practice Forms, Adoption §§ 140 to 142
Adoption statutes have generally required the consent of the mother to the adoption of a child born out of
wedlock.[1] Where, however, the mother has abandoned or deserted her illegitimate child, her consent to the ad-
option of the child is not required.[2] Nor is the consent of the mother of an illegitimate child to its adoption ne-
cessary where she has voluntarily turned the child over to an agency and thereby relinquished control over the
child,[3] and where the adoption was in the best interest of the child.[4]
[FN1] Adoption of Michael H., 10 Cal. 4th 1043, 43 Cal. Rptr. 2d 445, 898 P.2d 891, 61 A.L.R.5th 769
(1995); Heidbreder v. Carton, 645 N.W.2d 355 (Minn. 2002), cert. denied, 537 U.S. 1046, 123 S. Ct.
621, 154 L. Ed. 2d 518 (2002).
[FN2] Petition of C.E.H., 391 A.2d 1370 (D.C. 1978); D.S. v. F.A.H., 684 S.W.2d 320 (Ky. Ct. App.
1985); Matter of Adoption of Baby Girl, 103 Misc. 2d 542, 426 N.Y.S.2d 398 (Fam. Ct. 1980); Hucks
v. Dolan, 288 S.C. 468, 343 S.E.2d 613 (1986).

As to abandonment as ground for dispensing with consent to adoption, generally, see § 81.
[FN3] Petition of New England Home for Little Wanderers, 367 Mass. 631, 328 N.E.2d 854 (1975).
As to when consent of a parent may be dispensed with, generally, see §§ 76 to 90.
[FN4] Petition of New England Home for Little Wanderers, 367 Mass. 631, 328 N.E.2d 854 (1975).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
c. Fathers
§ 71. Generally
Some statutes require the consent to adoption of both natural parents,[1] while other statutes have consent
requirements for fathers separate from those applicable to mothers.[2] Under such a statute, whether consent of a
particular father is required is based on the circumstance of his relationship to the child. Thus, for example, a
statute has required the consent of the father where the minor was conceived or born while the father was mar-
ried to the mother and where the minor was his child by adoption.[3]
[FN1] § 67.
[FN2] Adoption of Kelsey S., 1 Cal. 4th 816, 4 Cal. Rptr. 2d 615, 823 P.2d 1216 (1992); Matter of Ad-
option of Doe, 543 So. 2d 741 (Fla. 1989).
Uniform Adoption Act (1994) § 2-401(a)(1).
[FN3] Matter of Adoption of Doe, 543 So. 2d 741 (Fla. 1989).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
c. Fathers
§ 72. Fathers of children born out of wedlock
A.L.R. Library
Rights of unwed father to obstruct adoption of his child by withholding consent, 61 A.L.R. 5th 151
Forms
Consent to adoption—By unmarried father. Am. Jur. Legal Forms 2d, Adoption § 9:25
Natural father—As equitably estopped from refusing to give consent. Am. Jur. Pleading and Practice Forms,
Adoption § 85
Establishing the biological rights doctrine to protect unwed fathers in contested adoptions. 25 Fla. St. U.
L.Rev. 391 (1999)
The unwed biological father's right to contest an adoption: Further reflections on Baby Richard et al. 10 No.
1 Divorce Litig. 1 (1999)
Some statutes require the consent to adoption of both natural parents,[1] but may require the consent of the
putative father of a child born out of wedlock only if certain conditions are met. Thus, for example, consent of a
putative father is only required if he satisfies any one of the three statutory prerequisites, i.e., acknowledgment
of paternity, making reasonable and consistent support payments for mother or child or both in accordance with
his financial means, and regularly communicating or attempting to communicate with mother and child.[2]
The statutory scheme of at least one jurisdiction has differentiated between biological fathers who are "pre-

sumed fathers," and biological fathers who are not "presumed fathers" for purposes of determining the necessity
of obtaining the fathers' consent. Under such a scheme, consent is required of a presumed father, regardless of
the child's best interests. The consent of one is not a presumed father to an adoption of his child by third parties
is not required unless the father makes the required showing that retention of his parental rights is in the child's
best interests. Under the statutes, a man is presumed to be the natural father of a child if he meets any of several
conditions set forth in the statute. For example, a man becomes a "presumed father" if he receives the child into
his home and openly holds out the child as his natural child.[3]
Observation:
However, such statutory distinction was constitutionally invalid to the extent that it applied to an unwed father
who had sufficiently and timely demonstrated a full commitment to his parental responsibilities; the statute viol-
ated the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that
the statutes allowed a mother unilaterally to preclude her child's biological father from becoming a presumed
father and thereby allowed the state to terminate his parental rights on nothing more than a showing of the
child's best interests.[4]
Cases:
Mother who relied on statute permitting adoption to proceed without consent of a natural parent when that
parent failed without justifiable cause to communicate with or support child for at least one year immediately
preceding filing of adoption petition to divest presumed father of his parental rights carried obligation of estab-
lishing presumed father's paternity. R.C. § 3107.07(A). In re Adoption of Pushcar, 110 Ohio St. 3d 332,
2006-Ohio-4572, 853 N.E.2d 647 (2006).
[END OF SUPPLEMENT]
[FN1] § 67.
[FN2] In re Byrd, 354 N.C. 188, 552 S.E.2d 142 (2001).
(1995).
[FN4] Adoption of Kelsey S., 1 Cal. 4th 816, 4 Cal. Rptr. 2d 615, 823 P.2d 1216 (1992).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
c. Fathers
§ 73. Fathers of children born out of wedlock—Effect of constitutional guaranties
A.L.R. Library
An unwed biological father who has no statutory right to block a third-party adoption by withholding con-
sent may nevertheless have a constitutional right to do so under the due process and equal protection clauses of
the 14th Amendment and thereby preserve his opportunity to develop a parental relationship with his child.[1]
While it is true that the relationship between parent and child is afforded some protection by the federal and
state constitutions, the rights of parents are commensurate with the responsibilities they have assumed, and in
the case of unmarried fathers, a biological relationship alone is insufficient to establish constitutionally protected
parental rights.[2] Under such circumstances, the father's constitutional interest is inchoate and does not ripen
into a constitutional right that he can assert to prevent adoption unless he proves that he has promptly come for-
ward and demonstrated a full commitment to his parental responsibilities.[3]
A state statute which permits an unwed mother, but not an unwed father, to prevent the adoption of their
child by simply withholding consent to the adoption violates the equal protection clause of Fourteenth Amend-
ment[4] and applicable state constitutional equal rights provisions.[5] However, a state may, consistent with the
equal protection clause of the Fourteenth Amendment, withhold from the father of an illegitimate child the priv-
ilege of vetoing the adoption of that child in those cases where the father has never come forward to participate
in the rearing of the child; a state may provide by statute that fathers who have abandoned their children have no
right to block adoption of those children.[6] Thus, requiring an unwed father to show that he promptly came for-
ward and demonstrated as full a commitment to his parental responsibilities as the biological mother allowed
and circumstances permitted within a short time after he learned or should have learned that the biological moth-
er was pregnant with his child in order to have federal constitutional right to withhold consent to at-birth, third-
party adoption does not violate the state and federal equal protection clauses by unfairly distinguishing between
unwed father and unwed mothers.[7]

Observation:
The Uniform Putative and Unknown Fathers Act was approved by the National Conference on Uniform State
Laws in 1988. The intent of the Act was to codify United States Supreme Court decisions and to provide an-
swers to some questions left by those decisions. The Act addresses notice, visitation, custody, and termination of
parental rights in connection with adoption and other proceedings.[8]
(1995).
Under the Federal Constitution, a father had a right to be notified of or to withhold his consent to the
adoption of a child born out of wedlock, despite a state statute providing that the father had no right to
complain about the child's adoption; the father made substantial and prompt attempts to establish a rela-
tionship with child, including asking the mother to marry him upon learning of the pregnancy, offering
to provide the mother with financial and other support, filing a declaration of paternity, obtaining a per-
manent injunction to prohibit the adoption, and hiring private investigators to locate the mother. Smith
v. Malouf, 722 So. 2d 490 (Miss. 1998).
As to the effect of 14th Amendment provisions on the right to notice and hearing of adoption proceed-
ings, see § 117.
[FN2] In re Adoption of B.B.D., 1999 UT 70, 984 P.2d 967 (Utah 1999).
(1995).
[FN4] Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979); Matter of "R'' Chil-
dren, 100 Misc. 2d 248, 418 N.Y.S.2d 741 (Fam. Ct. 1979).
[FN5] Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976).
[FN6] Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979).
(1995).
[FN8] Uniform Putative and Unknown Fathers Act, Prefatory Note.
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
c. Fathers
§ 74. Fathers of children born out of wedlock—Effect of continuous relationship and support
A.L.R. Library
Following the rule regarding conduct of a putative father necessary to entitle him to due process protection,[
1] under various statutes, the consent of the natural father of a child born out of wedlock is necessary before an
adoption may be completed if the father has consistently and on a continuing basis exercised rights and per-
formed duties as a parent;[2] if he has provided the child with support in a repetitive, customary manner;[3] if
the putative father has provided substantial support or consistent care with respect to the child and mother;[4] if
he has maintained substantial and continuous or repeated contact with the child;[5] or if he has evidenced an in-
terest in and responsibility for the child.[6]
In an adoption proceeding by strangers, an unwed father who has been physically unable to have a full cus-
todial relationship with his newborn child is entitled to the maximum protection of his relationship, so long as he
promptly avails himself of all the possible mechanisms for forming a legal and emotional bond with his child. In
order to have the benefit of the maximum protection of the relationship—the right to consent to or veto an adop-
tion—the biological father must not only assert his interest promptly (bearing in mind the child's need for only
permanence and stability) but also must manifest his ability and willingness to assume custody of the child.[7]
Practice Guide:
While, for purposes of determining whether the father's consent to an adoption is required, the burden of proof
of a failure of a father to support or communicate with his child is ordinarily on the person or persons seeking
adoption,[8] in some jurisdictions, the biological father of a child born out of wedlock bears the burden of proof
which may be met by establishing payment by him toward the support of the children of a fair and reasonable
sum, according to his means, and that he has visited the children at least monthly when physically and finan-

cially able to do so and not prevented from doing so by the person having lawful custody of the children.[9]
[FN1] § 73.
[FN2] In re Adoption of Youngpeter, 65 Ohio App. 3d 172, 583 N.E.2d 360 (3d Dist. Hancock County
1989); Hucks v. Dolan, 288 S.C. 468, 343 S.E.2d 613 (1986).
[FN3] Matter of Adoption of Doe, 543 So. 2d 741 (Fla. 1989).
[FN4] In re Adoption of Clark, 327 N.C. 61, 393 S.E.2d 791 (1990). "Support," within the meaning of
the statutory requirement that a putative father make support payments for the mother or child or both
in accordance with his financial means, as a element for giving him the right to require his consent to
adoption, means actual, real, and tangible support; attempts or offers of support do not suffice. In re
Byrd, 354 N.C. 188, 552 S.E.2d 142 (2001).
[FN5] Matter of James L., 173 A.D.2d 941, 569 N.Y.S.2d 806 (3d Dep't 1991).
[FN6] Matter of the Adoption of BGH, 930 P.2d 371 (Wyo. 1996).
[FN7] Matter of Lathrop's Adoption, 2 Kan. App. 2d 90, 575 P.2d 894 (1978); Matter of Raquel Marie
X., 76 N.Y.2d 387, 559 N.Y.S.2d 855, 559 N.E.2d 418 (1990).
As to validity of statutes proscribing different requirements regarding consent necessary for fathers and
mothers of illegitimate children, see § 73.
[FN8] §§ 86, 89.
[FN9] Matter of R.E., 645 So. 2d 205 (La. 1994); Matter of James L., 173 A.D.2d 941, 569 N.Y.S.2d
806 (3d Dep't 1991).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
c. Fathers
§ 75. Fathers of children born out of wedlock—Effect of acknowledgment or establishment of paternity
A.L.R. Library
Requirements and Effects of Putative Father Registries, 28 A.L.R.6th 349
Trial Strategy
Proof of Criminal Identity or Paternity Through Polymerase Chain Reaction (PCR) Testing, 36 Am. Jur.
Proof of Facts 3d 1
163
Legitimation of Child by Father Seeking Custody of Child, 14 Am. Jur. Proof of Facts 2d 727
Husband's Sterility as Rebutting Presumption of Legitimacy, 14 Am. Jur. Proof of Facts 2d 409
Forms

Am. Jur. Legal Forms 2d §§ 9:25, 63:107, 89:6
Am. Jur. Pleading and Practice Forms, Bastards §§ 10, 14, 18, 71, 79, 80, 81, 89
Am. Jur. Pleading and Practice Forms, Depositions and Discovery § 578
Am. Jur. Pleading and Practice Forms, Parent and Child §§ 12, 87
Beck, Toward a National Putative Father Registry Database, 25 Harv. J.L. & Pub. Pol'y 1031 (2002)
Moore, Implementing a National Putative Father Registry by Utilizing Existing Federal/State Collaborative
Databases, 36 J. Marshall L. Rev. 1033 (2003)
Nolan, Preventing Fatherlessness Through Adoption While Protecting The Parental Rights of Unwed Fath-
ers: How Effective Are Paternity Registries?, 4 Whittier J. Child & Fam. Advoc. 289 (2005)
Oren, Thwarted Fathers or Pop-up Pops?: How to Determine When Putative Fathers Can Block the Adop-
tion of Their Newborn Children, 40 Fam. L.Q. 153 (2006)
Parness, New Federal Paternity Laws: Securing More Fathers at Birth for the Children of Unwed Mothers,
45 Brandeis L.J. 59 (2006)
Under some statutes, the consent of a father of an illegitimate child is required for the child's adoption if his
paternity has, in the statutorily specified manner, been acknowledged,[1] or established by court proceeding,[2]
and, in some jurisdictions, if the father has additionally filed an agreement to support the child.[3]
In some states, filing with the putative father registry is one way in which a putative father can bring about
judicial awareness of his paternity claim, earn the right to notice of an adoption proceeding, and earn the right to
consent to an adoption.[4]
[FN1] Matter of Adoption of Doe, 543 So. 2d 741 (Fla. 1989); In re Adoption of B.G.S., 556 So. 2d 545
(La. 1990); Matter of Kiran Chandini S., 166 A.D.2d 599, 560 N.Y.S.2d 886 (2d Dep't 1990); In re Ad-
option of Clark, 327 N.C. 61, 393 S.E.2d 791 (1990).
A putative father made a sufficient "acknowledgment" of paternity, as an element for giving him the
right to require his consent to adoption, where the putative father, for two months after learning of the
mother's pregnancy, consistently and unequivocally expressed his desire to be the child's father and a
part of its life, though when the mother later informed the putative father that another man might be the
biological father, the putative father conditioned his acknowledgment of paternity upon a proven biolo-
gical link to the child. In re Byrd, 354 N.C. 188, 552 S.E.2d 142 (2001).
An unwed biological father was allowed by statute to initiate paternity proceedings before the child's
birth in order to preserve his right to notice and consent regarding adoption proceeding. In re Adoption
of B.B.D., 1999 UT 70, 984 P.2d 967 (Utah 1999).

[FN2] In re T.M., 665 A.2d 207 (D.C. 1995); Matter of Adoption of Doe, 543 So. 2d 741 (Fla. 1989); In
re Adoption of Clark, 327 N.C. 61, 393 S.E.2d 791 (1990).
A "person designated as the father pursuant to a court order resulting from a paternity action," as basis
for being a "legal father" whose consent to adoption must be obtained, is one who has been adjudicated
to be the father in an action in which the mother seeks support, and whose child is later put up for adop-
tion. In re Baby Girl P., 147 N.H. 772, 802 A.2d 1192 (2002).
[FN3] Matter of K.B.E., 740 P.2d 292 (Utah Ct. App. 1987).
[FN4] Ex parte S.C.W., 826 So. 2d 844 (Ala. 2001); Heidbreder v. Carton, 645 N.W.2d 355 (Minn.
2002), cert. denied, 537 U.S. 1046, 123 S. Ct. 621, 154 L. Ed. 2d 518 (2002) (registration entitles putat-
ive father to notice of adoption proceedings).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
(1) Overview
§ 76. Generally
Trial Strategy
Forms
One natural parent—Adoption by spouse of other parent—Declaration. Am. Jur. Pleading and Practice
Petition or application—To dispense with consent of natural parents. Am. Jur. Pleading and Practice Forms,
Adoption § 158
Petition or application—To dispense with consent of natural father. Am. Jur. Pleading and Practice Forms,
Adoption § 159
Petition or application—To dispense with consent of natural mother—And to terminate rights. Am. Jur.
Pleading and Practice Forms, Adoption § 160
While parental consent to an adoption of one's natural child is normally required for a valid adoption,[1]
such consent may not be required of a parent who has forfeited his or her parental rights[2] by voluntary relin-
quishment,[3] or by termination by the court[4] based, for example, on the parent's abandonment,[5] miscon-
duct,[6] or a finding that the natural parents are unfit.[7]
Comment:

The particular phrases used by the applicable statute as justifying dispensing with the requirement of parental
consent to adoption, while differing somewhat, often address similar conduct. For example, "abandonment" may
be shown by lack of support,[8] although lack of support is sometimes designated as a separate grounds for dis-
pensing with the consent requirement.[9] Similarly, abandonment is one basis for a finding of parental "unfit-
ness" so as to dispense with the consent requirement in another jurisdiction.[10]
The mere fact that a parent has forfeited the right to have his or her consent to an adoption required does not
mean that the adoption must be granted.[11] The trial court must further find from the evidence that the adoption
is in the best interests of the child.[12]
The consent of a natural father to the adoption of his child is not necessary under some adoption laws where
the nonconsenting parent or putative father has been adjudged by a court of cruelty, abuse, neglect, or mistreat-
ment of the child.[13]
The Uniform Adoption Act (1994) also lists several conditions under which consent is not required.[14]
Under some statutes the court may grant a petition for adoption without any of the usual statutory consents
if, after a hearing, it finds that the necessary consent is withheld contrary to the best interests of the child.[15]
To so prove, the evidence must establish that the person withholding consent is acting prejudicially to the child's
interest.[16]
Cases:
In hearing on biological father's opposition to adoption, evidence did not support finding that father mani-
fested a substantial commitment to his parental interest; while father had heard that biological mother was preg-
nant, he made no attempts to discover if he was, in fact, the father of the child, and father offered no proof that
after being served with the Intent to Surrender, he made any attempts to visit the child or pay for any of the ex-
penses. Doe v. A.B., 949 So. 2d 602 (La. Ct. App. 3d Cir. 2007).
Because adoption terminates the fundamental right of natural parents to the care and custody of their chil-
dren, any exception to the requirement of parental consent to adoption must be strictly construed. R.C. §
3107.07(A). In re Adoption of Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-4572, 853 N.E.2d 647 (2006).
[END OF SUPPLEMENT]
[FN1] § 67.
[FN2] In re Adoption of Syck, 138 Ill. 2d 255, 149 Ill. Dec. 710, 562 N.E.2d 174 (1990); Hucks v.
Dolan, 288 S.C. 468, 343 S.E.2d 613 (1986).
[FN3] Uniform Adoption Act (1994) § 2-402(a)(1).
A parent must ordinarily consent to a child's adoption, but a parent's consent is not required if his or her

relationship with the child has been terminated by court order in an adoption or child in need of aid pro-
ceeding. In re Adoption of A.F.M., 15 P.3d 258, 102 A.L.R.5th 701 (Alaska 2001).
As to notice requirements applicable to adoption proceedings, or proceedings to dispense with the con-
sent of a parent, see § 120.
[FN5] §§ 81 to 85.
[FN6] Hucks v. Dolan, 288 S.C. 468, 343 S.E.2d 613 (1986).
[FN7] § 80.
[FN8] § 84.
[FN9] § 86.
[FN10] § 80.
[FN11] Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988).
[FN12] § 131.
[FN13] Matter of Adoption of R.R.R., 1988 OK 109, 763 P.2d 94 (Okla. 1988); Matter of Adoption of
RHA, 702 P.2d 1259 (Wyo. 1985).
[FN15] King v. Shandrowski, 218 Md. 38, 145 A.2d 281 (1958); Frye v. Spotte, 4 Va. App. 530, 359
S.E.2d 315 (1987).
An adoption statute permitting termination of parental rights for unreasonably withholding consent to
adoption applies solely to parents who do not have custody, and a parent who has rights to visitation is
not a parent who does not have "custody" within the meaning of the statute. Matter of J.L.F., 912 P.2d
1255 (Alaska 1996).
[FN16] Frye v. Spotte, 4 Va. App. 530, 359 S.E.2d 315 (1987).
The birth parents of a special needs child were withholding their consent to adoption contrary to the
child's best interests where they continued to struggle with cocaine addiction and had demonstrated
little commitment to preparing themselves to meet the child's needs, large sums that they appeared to
spend on the children currently residing with them could have been spent on visits to the special needs
child, and the difference in race between that child and prospective adoptive parents was insignificant
in view of child's health needs. In re P.S., 797 A.2d 1219 (D.C. 2001).
rights reserved.

END OF DOCUMENT


Adoption

1. Natural Parents
(1) Overview
§ 77. Incompetency or mental illness
A.L.R. Library
Mental illness and the like of parents as ground for adoption of their children, 45 A.L.R. 2d 1379
Trial Strategy
Forms
Mentally ill—Illegal substance abuse—Both parents. Am. Jur. Pleading and Practice Forms, Adoption § 54
Motion—To appoint guardian ad litem—Mental incompetency of parent. Am. Jur. Pleading and Practice
Mental disorder is relevant in a proceeding brought to dispense with the need for a natural parent's consent
to the adoption of a minor child, only to the extent that it affects the parent's capacity to assume parental re-
sponsibility, and ability to deal with a child's special needs.[1] In this regard, adoption statutes have sometimes
specifically dispensed with consent to adoption of a parent unable to provide proper and adequate care for a de-
pendent child by reason of a parent's mental illness.[2] However, there is authority for the view that if a parent,
through no fault of his or her own is unable to properly care for his or her child as a result of mental illness, the
parent still has the right to consent or withhold consent to the child's adoption, and this right to consent must be
guarded just as zealously as the Constitution guards the right of a natural parent to the custody and companion-

ship of his or her child.[3]
Under the Uniform Adoption Act (1994), the consent of a natural parent to the adoption of his or her child is
not necessary where the parent has been judicially declared incompetent.[4]
[FN1] Adoption of Frederick, 405 Mass. 1, 537 N.E.2d 1208 (1989).
Termination of parental rights and grant of petition to appoint guardian with power to consent to adop-
tion of two children as authorized by statute was not error where mother suffered from incurable
psychotic illnesses and had hitchhiked across several states with her children, the older son had been
primarily responsible for taking care of the children, the children had no desire to live with the mother,
and the mother, who had been on medication for mental illness, had been hospitalized, had resided in
nursing homes and had no other place to live, was found to be unable to make it on the streets.
Garibaldi v. Dietz, 25 Ark. App. 136, 752 S.W.2d 771 (1988).
As to involuntary confinement in mental health facilities as grounds for "abandonment" under statutes
dispensing with the parent's consent to adoption under such circumstances, see § 85.
[FN2] In re Daniel A.D., 66 A.D.2d 728, 411 N.Y.S.2d 582 (1st Dep't 1978), order rev'd on other
grounds, 49 N.Y.2d 788, 426 N.Y.S.2d 729, 403 N.E.2d 451 (1980).
As to parent's failure to properly care for a child as a statutory ground for dispensing with a parent's
consent to adoption, generally, see § 86.
[FN3] In re T.J., 666 A.2d 1 (D.C. 1995).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
(1) Overview
§ 78. Criminal conviction; imprisonment
A.L.R. Library
Parent's involuntary confinement, or failure to care for child as result thereof, as permitting adoption
without parental consent, 78 A.L.R. 3d 712
While imprisonment of a parent does not usually preclude the necessity of a parent's consent to an adoption
based on abandonment[1] or failure to support his or her children,[2] the statutes in some states have specifically
provided that where a parent is imprisoned in a state or federal prison for a term of not less than a specified peri-
od and has actually served for such period, if the court finds that the welfare of the child will be best promoted
through adoption of the child, consent of the imprisoned parent is not required.[3]
Although parental rights generally may not be terminated solely for a parent's incarceration, parental incar-
ceration and the reason for the incarceration, i.e. the nature of the crime committed as well as the person against
whom the criminal act was perpetrated, are relevant to the issue of whether parental consent to an adoption is
necessary.[4] The nature of the crime for which an inmate is incarcerated is a relevant factor in deciding whether
to terminate the inmate's parental rights, thereby dispensing with the need for the inmate's consent to adoption.[5
] A natural father acted unreasonably and contrary to the best interests of his child by refusing to consent to ad-
option of the child by its maternal grandparents after his conviction for murder of the child's mother had been af-
firmed on appeal, which thus supported termination of his parental rights, in light of the slight chance that the
father would prevail on any further attempts to overturn his conviction, the child's serious medical needs requir-
ing support and stability of a permanent family, and the grandparents' ability to provide significant medical care
required by child.[6]

[FN1] § 85.
[FN2] § 86.
[FN3] Stursa v. Kyle, 99 Or. App. 236, 782 P.2d 158 (1989) (the statute did not violate a state constitu-
tional provision that laws for the punishment of crime must be founded on the principles of reformation,
and not of vindictive justice).
[FN4] In re Adoption of C.D.M., 2001 OK 103, 39 P.3d 802 (Okla. 2001), cert. denied, 535 U.S. 1054,
122 S. Ct. 1911, 152 L. Ed. 2d 821 (2002).
[FN5] Matter of Adoption of J.M.H., 1997 ND 99, 564 N.W.2d 623 (N.D. 1997) (a biological father's
incarceration for threatening the stepfather with serious bodily injury was not sufficient, by itself, to
warrant terminating parental rights and dispensing with the father's consent to a stepparent-adoption).
[FN6] R.F. v. S.S., 928 P.2d 1194 (Alaska 1996).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
(1) Overview
§ 79. Judicial deprivation or relinquishment of custody to agency or organization
Forms
Certificate of relinquishment. Am. Jur. Legal Forms 2d, Adoption § 9:15
Deprivation of parental rights—Both parents—By judicial determination. Am. Jur. Pleading and Practice
Judicial deprivation of custody of the child by any court of competent jurisdiction, is reason for dispensing
with the consent of a parent under some statutes.[1] In this regard, consent of a natural parent ordinarily is not
necessary to adoption where the parent has lost guardianship of the child,[2] as, for example, where custody of
the child has been taken from parents for delinquency or dependency by adversary proceedings.[3] Where a par-
ent relinquishes a child to a recognized organization, institution, or society, or to a state agency for adoption, it
is ordinarily not necessary in the subsequent adoption proceedings to obtain the consent of the parent,[4] the
consent of the body with the right to custody of the child ordinarily being the consent required in such circum-
stances.[5] However, there is authority for the view that a parent's due process rights are violated by a statutory
presumption that if a child has been in the care of the state department of social services or a licensed child-care
agency for more than one year, the best interests of the child will be served by granting a petition for adoption or
by issuing a decree dispensing with the need for consent.[6]
[FN1] Matter of Adoption of R.R.R., 1988 OK 109, 763 P.2d 94 (Okla. 1988).
[FN2] Meyers v. Smith, 518 So. 2d 734 (Ala. Civ. App. 1987).
[FN3] In re Magee, 74 S.D. 286, 52 N.W.2d 99 (1952); In re Magee, 74 S.D. 286, 52 N.W.2d 99 (1952)

; Jacob v. State By and Through Public Welfare Commission, 7 Utah 2d 304, 323 P.2d 720 (1958).
As to the authority of juvenile courts to separate children from their natural guardians, generally, see
Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children § 50.
[FN4] Matter of Navajo County Juvenile Action No. JA-691, 171 Ariz. 369, 831 P.2d 368 (Ct. App.
Div. 1 1991); Matter of Adoption of RHA, 702 P.2d 1259 (Wyo. 1985).
[FN5] § 93.
[FN6] Petitions of Department of Social Services to Dispense with Consent to Adoption, 389 Mass.
793, 452 N.E.2d 497 (1983).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
(2) Statutory Grounds for Dispensing With Consent
§ 80. Unfitness of parent
In some jurisdictions, the necessity for obtaining the consent of natural parents is dispensed with upon a
finding that the parents are unfit.[1] One way to find that a parent is unfit for this purpose, is to find that the par-
ent failed to maintain a reasonable degree of interest concerning responsibility as to the child's welfare.[2]
When unfitness is alleged, the court is to determine the unfitness based on any evidence relevant to the par-
ticular grounds of unfitness alleged. At least when the grounds alleged are failure to maintain a reasonable de-
gree of concern, interest, or responsibility regarding the child's welfare, the prospective effect that the termina-
tion of parental rights and adoption of the child by the petitioners will have on the child—that is, the child's
"best interests"—is not relevant to determining the nonconsenting parent's status as unfit.[3] However, under
other statutes, the judge considering a petition to dispense with parental consent to adoption must evaluate
whether the parent contesting the petition is fit to provide for the welfare and best interests of child whose adop-
tion is being considered.[4]
Under some statutes, "parental unfitness" to further the welfare and best interests of the child, so as to war-
rant dispensing with a parent's consent to adoption, means more than ineptitude, handicap, character flaw, con-
viction of a crime, unusual life style, or inability to do as good a job as the child's foster parent; rather, the idea
of parental unfitness means grievous shortcomings or handicaps that put the child's welfare much at hazard.[5]
When a parent's living situation has changed, the judge nonetheless properly may rely on evidence of past par-
ental abuse or neglect in deciding parental unfitness to the extent that this evidence has relevance to current par-
ental fitness on petition to dispense with parental consent to adoption.[6]
Cases:

Under unfitness provision of Adoption Act, court should not make a finding of parent's reasonable progress
toward the return home of his or her child unless the evidence shows the parent's conduct is improving and will
soon comply with ordered directives. S.H.A. 750 ILCS 50/1(D)(m). In re L.W., 383 Ill. App. 3d 1011, 323 Ill.
Dec. 239, 893 N.E.2d 253 (1st Dist. 2008), appeal denied, judgment vacated, 229 Ill. 2d 667, 323 Ill. Dec. 738,
894 N.E.2d 764 (2008).
In order to find that a parent is unfit under the Adoption Act in termination of parental rights action, the trial
court must find clear and convincing evidence that the parent failed to make reasonable progress toward the re-
turn home of his or her child; "reasonable progress" exists when a parent shows a minimum measurable or
demonstrable movement toward the return of his or her child. In re L.W., 383 Ill. App. 3d 1011, 323 Ill. Dec.
239, 893 N.E.2d 253 (1st Dist. 2008), appeal denied, judgment vacated, 229 Ill. 2d 667, 323 Ill. Dec. 738, 894
N.E.2d 764 (2008).
Although Adoption Act sets out various grounds under which a parent may be deemed unfit, an unfitness
finding may be entered in termination of parental rights action if there is sufficient evidence to satisfy any one
statutory ground. In re L.W., 383 Ill. App. 3d 1011, 323 Ill. Dec. 239, 893 N.E.2d 253 (1st Dist. 2008), appeal
denied, judgment vacated, 229 Ill. 2d 667, 323 Ill. Dec. 738, 894 N.E.2d 764 (2008).
Determinations regarding the best interests of the child and the fitness of the nonconsenting parent do not
permit a court to override the requirement in stepparent adoption statute of mandatory consent when a parent has
assumed his or her parental responsibilities. In re J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27 (2009), review
granted, (June 4, 2009).
Although a trial court may consider the best interests of the child and the fitness of the nonconsenting parent
in a stepparent adoption case, the court can only grant the adoption without that parent's consent if the court first
finds the nonconsenting parent has failed to fulfill his or her parental duties under both sides of the twocolumn
ledger. In re J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27 (2009), review granted, (June 4, 2009).
Clear and convincing evidence supported finding that mother failed to correct the conditions that warranted
children's removal from mother, as required to terminate her parental rights; evidence indicated that mother
failed to meaningfully address her drug addiction problem over an extended period of time, and mother's efforts
at remaining in counseling and finding employment were spotty and ineffective. Code 1976, § 20–7–1572(2).
Department of Social Services v. Phillips, 365 S.C. 572, 618 S.E.2d 922 (Ct. App. 2005).
Evidence supported finding that mother engaged in conduct that endangered the physical or emotional well
being of the children, as required to terminate mother's parental rights; evidence showed that mother had been
living in a car, was not caring properly for her children, and was using illegal drugs, that mother allowed her
children to be around her drug supplier whom she knew was dealing drugs, that mother and her drug dealer used
drugs together around the children, that mother supervised the children while under the influence of drugs, that
mother failed to complete drug rehabilitation programs she had begun, and that mother continued to engage in il-
legal drug activity after she had agreed she would not do so. In re T.N., 180 S.W.3d 376 (Tex. App. Amarillo
2005).
For purposes of section providing for termination of parental rights if court finds that parent has engaged in
conduct that endangered the physical or emotional well being of the child, conduct that subjects a child to a life
of uncertainty and instability because of the probability that its parent or parents will be jailed because of illegal
conduct, thereby leaving the child alone, "endangers" the child's physical or emotional well-being. In re T.N.,
180 S.W.3d 376 (Tex. App. Amarillo 2005).
[END OF SUPPLEMENT]

[FN1] In re Adoption of Syck, 138 Ill. 2d 255, 149 Ill. Dec. 710, 562 N.E.2d 174 (1990); Matter of Ad-
option of J.M.H., 1997 ND 99, 564 N.W.2d 623 (N.D. 1997).
As to discussion of the consideration of the adoptee's "best interests," generally, in adoption proceed-
ings, see § 131.
[FN5] In re Adoption of Greta, 431 Mass. 577, 729 N.E.2d 273 (2000) (a mother was unfit where she
had required several psychiatric hospitalizations due to her schizophrenia, she stopped taking psycho-
tropic medications, she rejected an offer of a supportive living program and other assistance programs,
which bore particularly on her inability to provide safely for her daughter's minimum physical needs,
and she was unable to understand and prioritize her daughter's emotional needs).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
§ 81. Abandonment, desertion, or neglect of child
Forms
Relinquishment of child to licensed adoption agency—By mother—Abandonment of child by father. Am.

Jur. Legal Forms 2d, Adoption § 9:10
Abandonment—By father. Am. Jur. Pleading and Practice Forms, Adoption § 48
Abandonment—By mother. Am. Jur. Pleading and Practice Forms, Adoption § 49
Abandonment—By father—Loss of parental rights. Am. Jur. Pleading and Practice Forms, Adoption § 50
Abandonment—By both parents—Residence unknown. Am. Jur. Pleading and Practice Forms, Adoption §
51
Consent of a parent to the adoption of his or her child is generally not necessary where the parental rights
have been relinquished through abandonment of the child.[1] In this regard, some statutes except from the gener-
al requirement of parental consent to the adoption of a child[2] parents who have "abandoned,"[3] with no con-
tact,[4] or "deserted"[5] without affording means of identification,[6] or "neglected"[7] their child, either will-
fully,[8] or otherwise,[9] for a specified period of time preceding the filing of the adoption petition.[10]
Definition:
The term "willfully" in the context of a willful abandonment or desertion, has been said to mean intentionally,
knowingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished
from carelessly, inadvertently, accidentally, negligently, heedlessly, or thoughtlessly.[11]

Cases:
Termination of natural father's parental rights, under statute authorizing termination of parental rights in the
best interest of the child to allow adoption when the child has been in a guardian's custody for two years, did not
violate father's right to due process, where father was not prevented from receiving the child into his home or as-
serting his rights as a presumed father, and where father manifestly failed to fulfill his parental responsibilities
and did not promptly defend his custodial rights; father consented to his parents serving as guardians and agreed
to give up his statutory parental preference in any future custody proceeding, even though father lived with child
and his parents. In re Charlotte D., 45 Cal. 4th 1140, 90 Cal. Rptr. 3d 724, 202 P.3d 1109 (2009).
When a parent is incarcerated, the trial court must consider whether the incarcerated parent has made reas-
onable attempts, under all the circumstances, to maintain a close relationship with his or her child and whether
those attempts are sufficient to require the parent's consent be given to an adoption. In re J.M.D., 41 Kan. App.
2d 157, 202 P.3d 27 (2009), review granted, (June 4, 2009).
In a stepparent adoption case, when a nonconsenting parent is incarcerated and unable to fulfill the custom-
ary parental duties required of an unrestrained parent, the court must determine whether such parent has pursued
the opportunities and options which may be available to carry out such duties to the best of his or her ability. In
re J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27 (2009), review granted, (June 4, 2009).
The term "desertion," as used in statute allowing adoption of a child if a parent has willfully deserted the
child for one year, is parental conduct that evinces a settled purpose to forgo, abandon, or desert all parental du-
ties and parental rights in the child. C.R.H. v. B.F., 215 Or. App. 479, 169 P.3d 1286 (2007), review denied, 343
Or. 690, 174 P.3d 1016 (2007).
[END OF SUPPLEMENT]
[FN1] In re Groleau, 585 N.E.2d 726 (Ind. Ct. App. 3d Dist. 1992); Matter of Adoption of J.M.H., 1997
ND 99, 564 N.W.2d 623 (N.D. 1997); Hucks v. Dolan, 288 S.C. 468, 343 S.E.2d 613 (1986).
[FN2] As to the general requirement, see § 67.
[FN3] Matter of Adoption of Doe, 543 So. 2d 741 (Fla. 1989); In re Adoption of M.J.C., 590 N.E.2d
1095 (Ind. Ct. App. 3d Dist. 1992); Natural Mother v. Paternal Aunt, 583 So. 2d 614 (Miss. 1991); In re
Adoption of W.B.L., 681 S.W.2d 452 (Mo. 1984).
[FN4] Natural Mother v. Paternal Aunt, 583 So. 2d 614 (Miss. 1991).
[FN5] In re Adoption of M.J.C., 590 N.E.2d 1095 (Ind. Ct. App. 3d Dist. 1992); Matter of Adoption of
Eder, 312 Or. 244, 821 P.2d 400 (1991); Swinney v. Mosher, 830 S.W.2d 187 (Tex. App. Fort Worth
1992), writ denied, (Oct. 21, 1992) ("voluntary" desertion); Matter of Adoption of RHA, 702 P.2d 1259
(Wyo. 1985).
[FN6] Smith v. Fernandez, 520 So. 2d 654 (Fla. Dist. Ct. App. 3d Dist. 1988).
[FN7] H.W.S. v. C.T., 827 S.W.2d 237 (Mo. Ct. App. E.D. 1992) (requiring willful, substantial, and
continuous neglect); Mead v. Roberts, 74 Or. App. 238, 702 P.2d 1134 (1985).

As to discussion of failure to care for or maintain and support children, generally, as a cause for allow-
ing an adoption without a parent's consent, see §§ 86 to 90.
[FN8] In re Adoption of W.B.L., 681 S.W.2d 452 (Mo. 1984); Matter of Adoption of Eder, 312 Or. 244,
821 P.2d 400 (1991); Matter of Adoption of RHA, 702 P.2d 1259 (Wyo. 1985).
[FN9] Matter of Adoption of Doe, 543 So. 2d 741 (Fla. 1989); Natural Mother v. Paternal Aunt, 583 So.
2d 614 (Miss. 1991); Application of S.R.S., 225 Neb. 759, 408 N.W.2d 272 (1987); Matter of Adoption
of Doe, 100 N.M. 764, 676 P.2d 1329 (1984).
[FN10] In re Adoption of M.J.C., 590 N.E.2d 1095 (Ind. Ct. App. 3d Dist. 1992) (six months or more);
Natural Mother v. Paternal Aunt, 583 So. 2d 614 (Miss. 1991) (child under age of three, six months); In
re Adoption of W.B.L., 681 S.W.2d 452 (Mo. 1984) (at least six months, for a child one year of age or
older, or at least 60 days, for a child under one year of age); Application of S.R.S., 225 Neb. 759, 408
N.W.2d 272 (1987) (six months).
[FN11] Matter of Adoption of CCT, 640 P.2d 73 (Wyo. 1982).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
§ 82. Abandonment, desertion, or neglect of child—What constitutes abandonment, desertion, or neglect,

generally
West's Key Number Digest, Adoption 7.4(2.1), (3), 7.8(5)
A.L.R. Library
What constitutes abandonment or desertion of child by its parent or parents within purview of adoption laws
(sec. 13 superseded in part Parent's involuntary confinement, or failure to care for child as result thereof, as per-
mitting adoption without parental consent, 78 A.L.R.3d 712) § 3, 35 A.L.R. 2d 662
Although states differ somewhat in their definition of abandonment, a finding of abandonment sufficient to
support adoption of a child without the natural parent's consent requires an actual intent manifested to sever par-
ental relations. A certain degree of parental inattention, neglect, or temporary absence is not enough to establish
willful abandonment, such as will permit the adoption of a child without the consent of its natural parent. A par-
ent's infrequent but continuing contact with a child is sufficient to indicate an intent to maintain parental ties and
prevent a finding of willful abandonment, such as will permit the adoption of a child without the consent of its
natural parent.[1] A trial court, in making the determination of whether a father has abandoned his child, such
that the father's consent is not required for the child's adoption, may consider lack of emotional support and/or
emotional abuse by the father toward the mother during her pregnancy where the language of the statute allow-
ing court to consider the conduct of the father toward mother during pregnancy indicates that legislature did not
intent to limit "conduct" to financial support.[2] A natural parent's "abandonment" of a child, relative to relin-
quishing the right to consent to adoption, does not necessarily refer to some overall course of conduct as "deser-
tion" would, but rather "abandonment" may result from a single decision by a parent, at a particular point in
time, where that parent decides to relinquish parental claims.[3]
Some statutes provide a period for establishing abandonment of a child, as a basis for permitting adoption
proceedings without a parent's consent.[4] Some statutes state factors which presume abandonment. For ex-
ample, if there is evidence in an adoption proceeding that the natural parent has both failed to financially support

the child, and failed to visit or attempt to otherwise communicate with the child in the six months preceding the
filing of the adoption petition, a court will presume the child has been abandoned.[5] Under such statute, for a
natural parent to avoid the presumption that he or she has abandoned a child who is over the age of six months,
the parent is statutorily required to financially support the child, within the means of the parent, and must visit or
otherwise communicate with child when the parent: (1) knows where the child resides; (2) is physically and fin-
ancially able to do so; and (3) is not prevented by the person or authorized agency having the care or custody of
the child.[6]
The fact that a parent is prevented from establishing a relationship with the child may provide a basis on
which the parent could avoid a finding that he or she had abandoned the child and thereby impliedly consented
to the child's adoption.[7]
Caution:
Generally, any noncooperation on the natural mother's part does not serve to excuse the natural father's abandon-
ment as evidenced by his failure to visit his child or pay support therefor.[8] However, there is some authority
for the view that the absence of such minimal expressions as may show willful neglect of a child may be
tempered by a showing that lack of visitation resulted from an unwarranted degree of constraint imposed by the
custodial parent or prospective adoptive parents.[9] Furthermore, where a father attempted to make child support
payments and the mother refused to accept such payments, there was no willful and wanton abandonment of
child by father, so as to obviate the need for the father's consent to the adoption.[10]
Under some statutes, for purposes of grounds for adoption, a parent's conduct constitutes "willful neglect"
if, based on the totality of the evidence the court concludes that, for one year preceding the filing of the petition
for adoption, the nonconsenting parent willfully failed to manifest substantial expressions of concern that show
that the parent has a deliberate, intentional, and good faith interest in maintaining a parent-child relationship. In
applying this standard, the court considers all relevant evidence, including payments of money, gifts, visits,
calls, cards and letters, and other expressions of concern, although the court may disregard incidental visitations,
communications and contributions.[11]
Cases:
Evidence supported trial court's finding that children's deprivation was likely to continue or not be remedied
in proceeding to terminate mother's parental rights; evidence indicated that children were adjudicated deprived
primarily due to mother's drug problems and her neglect of children, mother's longstanding problems with drug
addiction had not been resolved, mother remained a high school dropout who was financially dependent upon
her current boyfriend, and mother failed to complete drug treatment program. West's Ga.Code Ann. § 15–11–94
(b)(4)(A). In re L.W., 276 Ga. App. 197, 622 S.E.2d 860 (2005).
The frequency of visits alone is an invalid basis for gauging whether significant communication has oc-
curred between the biological father and child, for the purposes of determining whether the father has abandoned
the child and, therefore, whether his consent to adoption is required; instead, the court must consider whether the
communication was meaningful. West's A.I.C. 31–19–9–8(b). In re Adoption of J.C., 919 N.E.2d 1230 (Ind. Ct.
App. 2010).
The question of abandonment of a child by a parent, for purposes of determining whether the parent's con-
sent to a step-parent's adoption of the child is necessary, is largely one of intent to be determined in each case

from all the facts and circumstances. Adoption of David C. v. Jerad F., 280 Neb. 719, 790 N.W.2d 205 (2010).
[END OF SUPPLEMENT]
[FN1] In re Adoption of TLC, 2002 WY 76, 46 P.3d 863 (Wyo. 2002) (evidence did not clearly and
convincingly support a finding of willful abandonment of a child by her biological father, such as
would permit adoption of the child by her stepfather without the father's consent; the father's monthly
telephone calls to the child and occasional letters indicated an attempt by the father to maintain contact
with the child to the best of his ability while incarcerated).
[FN2] In re Adoption of Baby E.A.W., 658 So. 2d 961 (Fla. 1995).
As to nonsupport as affecting the abandonment determination, see § 84.
[FN3] In re Adoption of D.N.T., 843 So. 2d 690 (Miss. 2003).
[FN4] Matter of Adoption of Doe, 277 Mont. 251, 921 P.2d 875 (1996) (six months).
[FN5] In re Jeffries, 204 W. Va. 360, 512 S.E.2d 873 (1998) (a father's filing of proceedings to determ-
ine custody of the child did not satisfy the requirement that he "visit or otherwise communicate" with
the child in order to avoid a finding of "abandonment").
[FN6] In re Jeffries, 204 W. Va. 360, 512 S.E.2d 873 (1998).
[FN7] Ex parte F.P., 857 So. 2d 125 (Ala. 2003) (adoptive parents did not wish to allow the biological
father to establish a relationship with the child).
[FN8] Matter of Jennifer Lauren D., 110 A.D.2d 699, 487 N.Y.S.2d 817 (2d Dep't 1985).
[FN9] Ex parte F.P., 857 So. 2d 125 (Ala. 2003) (adoptive parents did not wish to allow the biological
father to establish a relationship with the child); Mead v. Roberts, 74 Or. App. 238, 702 P.2d 1134
(1985).
[FN10] Wiles v. Brothers, 138 Ga. App. 616, 226 S.E.2d 805 (1976).
[FN11] Stubbs v. Weathersby, 320 Or. 620, 892 P.2d 991 (1995) (evidence supported the conclusion
that the mother willfully neglected the child without just and sufficient cause for one year preceding the
filing of a supplemental petition for adoption, thus affording a ground for adoption; the mother's only
expression of concern during the year in question was to pursue litigation contesting the child's adop-
tion; the mother provided no financial support for the child, sent no gifts, and the mother's single, brief
visit with the child did not constitute a substantial expression of concern).
rights reserved.

END OF DOCUMENT


Adoption

1. Natural Parents
§ 83. Abandonment, desertion, or neglect of child—Leaving child in care of others
West's Key Number Digest, Adoption 7.4(2.1), (4), 7.8(5)
A.L.R. Library
mitting adoption without parental consent, 78 A.L.R.3d 712), §§ 8, 14, 35 A.L.R. 2d 662
Forms
Answer—Denial of consent or abandonment—By natural mother. Am. Jur. Pleading and Practice Forms,
Adoption § 178
A strong basis for a finding of the parent's abandonment of his or her child is found where the parent has left
the child permanently or indefinitely in the care of others, given it to another, or surrendered it entirely[1]—that
is, when a parent places a child with another with an intent to relinquish all parental rights and obligations.[2]
However, leaving the child with another merely temporarily,[3] or merely permitting the child to remain for a
time undisturbed in the care of others,[4] does not of itself constitute abandonment of the child within the mean-
ing of the adoption statutes. To constitute an abandonment there must be evidence from which it may be inferred
that the parent did not intend to reserve the right to reclaim the child.[5]
[FN1] Farmer v. Pressley, 152 Ga. App. 288, 262 S.E.2d 499 (1979); Finn v. Rees, 65 Idaho 181, 141
P.2d 976 (1943); Stalder v. Stone, 412 Ill. 488, 107 N.E.2d 696, 35 A.L.R.2d 653 (1952).
[FN2] Matter of Adoption of Halloway, 732 P.2d 962 (Utah 1986).

[FN3] Hartwig v. Hartwig, 333 S.W.2d 101 (Mo. Ct. App. 1960).
[FN4] Solomon v. McLucas, 382 So. 2d 339 (Fla. Dist. Ct. App. 2d Dist. 1980); D.S. v. F.A.H., 684
S.W.2d 320 (Ky. Ct. App. 1985); Petition of Johnson, 247 Md. 563, 233 A.2d 779 (1967); In re Adop-
tion of Austin, 426 Pa. 441, 233 A.2d 526 (1967).
Adoption of a child by guardians without the mother's consent, on the ground that the mother had aban-
doned the child, was not supported by clear and convincing evidence, where, although the mother had
voluntarily placed the child with guardians, the mother remained in continuing, though infrequent, con-
tact with the child during 31/2year guardianship. In re Adoption of SMR, 982 P.2d 1246 (Wyo. 1999).
[FN5] In re Adoption of Strauser, 65 Wyo. 98, 196 P.2d 862 (1948).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
§ 84. Abandonment, desertion, or neglect of child—Failure to support
West's Key Number Digest, Adoption 7.4(2.1), 7.8(5)
A.L.R. Library
mitting adoption without parental consent, 78 A.L.R.3d 712), § 9, 35 A.L.R. 2d 662
Nonsupport, by itself, does not constitute abandonment so as to obviate the necessity of obtaining a parent's
consent to an adoption.[1] However, nonsupport may be one factor indicating that the parent has abandoned[2]
or neglected[3] the child for the purpose of rendering the parent's consent to the adoption unnecessary.[4] Even
so, it has also been stated that these same acts or omissions do not invariably constitute even a factor tending to
establish abandonment, at least where such conduct is excused by the circumstances.[5]
Cases:
The ability of a court to dispense with a natural parent's consent to adoption on statutory ground that parent
failed without justifiable cause to communicate with or support child for at least one year immediately preceding
filing of adoption petition is dependent upon the establishment of the parent-child relationship. R.C. §
3107.07(A). In re Adoption of Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-4572, 853 N.E.2d 647 (2006).
Evidence that child's custodians controlled money from rents in which child's incarcerated father had in-
terest, that child's custodians never sought support from child's father, and that child had estate valued at
$500,000 did not demonstrate that father's failure to support child was other than wilful, within scope of "failure
to support" section of termination of parental rights (TPR) statute, where custodians' use of rent money was lim-
ited to maintenance of rental properties, child's estate was not accessible, father's child support obligation could

not be satisfied from estate funds, father had access to other funds while incarcerated, and custodians were not
required to seek support. Code 1976, § 20–7–1572(4). Stinecipher v. Ballington, 366 S.C. 92, 620 S.E.2d 93 (Ct.
App. 2005).
Failure of child's custodians to seek support from child's father, incarcerated for murder of child's mother,
did not relieve father of his duty to support child, for purposes of termination of parental rights (TPR) statute,
where custodians were not statutorily required to seek support. Code 1976, § 20–7–1572(4). Stinecipher v. Bal-
lington, 366 S.C. 92, 620 S.E.2d 93 (Ct. App. 2005).
[END OF SUPPLEMENT]
[FN1] In re Adoption of Southard, 358 Pa. 386, 57 A.2d 904 (1948); In re Adoption of Maestas, 531
P.2d 492 (Utah 1975).
In examining whether the burden of proving abandonment has been met, courts have held that while the
natural parent's failure to visit and pay support are significant, they are not determinative factors where
they may be properly explained. Matter of Jennifer Lauren D., 110 A.D.2d 699, 487 N.Y.S.2d 817 (2d
Dep't 1985).
As to failure to support as a statutory ground for avoiding the need for consent to adoption, rather than
as evidence of abandonment, see § 86.
[FN2] Adoption of Murray, 86 Cal. App. 3d 222, 150 Cal. Rptr. 58 (4th Dist. 1978); In re C.C.P., 168
Ga. App. 918, 310 S.E.2d 776 (1983); Matter of Adoption of T. G. K., 193 Mont. 139, 630 P.2d 740
(1981); Wendy B v. Ronald B, 53 A.D.2d 160, 385 N.Y.S.2d 821 (3d Dep't 1976).
[FN3] H.W.S. v. C.T., 827 S.W.2d 237 (Mo. Ct. App. E.D. 1992).
[FN4] Matter of Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984).
[FN5] Solomon v. McLucas, 382 So. 2d 339 (Fla. Dist. Ct. App. 2d Dist. 1980); D.S. v. F.A.H., 684
S.W.2d 320 (Ky. Ct. App. 1985).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
§ 85. Abandonment, desertion, or neglect of child—Involuntary confinement
West's Key Number Digest, Adoption 7.4(2.1), 7.8(5)
A.L.R. Library
Forms
Petition or application—To dispense with consent of natural parent—Incarceration on conviction of hom-

icide of other parent. Am. Jur. Pleading and Practice Forms, Adoption § 162
As a general rule, neither incarceration alone,[1] nor inability to support one's children due to such incarcer-
ation,[2] constitutes abandonment or desertion under an adoption statute dispensing with the need for parental
consent in the event of abandonment or desertion on the parent's part. However, some authority exists for the
contrary propositions both as to incarceration per se[3] and as to incarceration-related nonsupport.[4] Further-
more, in some jurisdictions, it has been said that there can be no set rule that will resolve the question of whether
incarceration is justification for nonsupport in all circumstances, but that each case must be decided under its
own particular facts.[5]
Even where incarceration, by itself, does not constitute abandonment, for purposes of determining the ne-
cessity of a parent's consent to an adoption of his or her child, neither should imprisonment preclude a finding of
abandonment.[6] Thus, where an imprisoned father neither spent any available money to support his children,
nor communicated with them, voluntary abandonment, so as to obviate the need for parental consent to adoption,
has been found.[7] Where a father was serving two life sentences, as result of his having murdered child's moth-
er, and made no effort whatsoever to establish even a minimal parental relationship with his child, the father had

abandoned the child so that his consent to the adoption was waived.[8]
When determining abandonment, such as will permit adoption of a child without a parent's consent, the trial
court should consider whether an incarcerated nonconsenting parent, unable to fulfill the customary parental du-
ties of an unrestrained parent, has nonetheless pursued the opportunities and options which may be available to
carry out such duties to the best of his or her ability.[9]
With regard to parents committed to mental health centers or hospitals, ordinarily whether such confine-
ments constitute abandonment sufficient to dispense with the requirement of obtaining the parent's consent to
adoption, will depend on the circumstances of the particular case,[10] although confinement in such a facility
has sometimes been equated with "constructive abandonment" so as to deprive a parent of the right to consent to
the adoption of his or her child.[11]
Observation:
A statute dispensing with the need for an imprisoned parent's consent to an adoption of his or her child if the
parent was under a sentence of not less than three years and had actually served three years was not inconsistent
with a statute safeguarding felons' civil rights, where the purposes of the statutes differed, nor did the statute dis-
pensing with the need for consent violate the Constitution since it imposed no punishment for a crime but merely
made the parent's long-term imprisonment a circumstance that could alter adoption procedures.[12]
[FN1] Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976); H.W.S. v. C.T., 827 S.W.2d
237 (Mo. Ct. App. E.D. 1992); Matter of Delores B., 141 A.D.2d 100, 533 N.Y.S.2d 706 (1st Dep't
1988), order aff'd, 74 N.Y.2d 77, 544 N.Y.S.2d 535, 542 N.E.2d 1052 (1989); In re McCray's Adoption,
460 Pa. 210, 331 A.2d 652 (1975).
A mother did not abandon her children, so as to authorize proceedings on the grandmother's adoption
petition without the mother's consent; although the mother was incarcerated for almost two years prior
to filing of the adoption petition and willingly left the children with grandmother before going to pris-
on, she attempted to stay in contact with the children and repeatedly and firmly refused to grant per-
manent custody to the grandmother. Matter of Adoption of Doe, 277 Mont. 251, 921 P.2d 875 (1996).
[FN2] Matter of Adoption of Maynor, 38 N.C. App. 724, 248 S.E.2d 875 (1978); In re M. T. T.'s Adop-
tion, 467 Pa. 88, 354 A.2d 564 (1976).
[FN3] Hutson v. Haggard, 475 S.W.2d 330 (Tex. Civ. App. Beaumont 1971) (an imprisoned father had
abandoned his child, for a period in excess of the statutory two-year period necessary to dispense with
the need for parental consent to an adoption, by the commission of voluntary acts which brought about
his incarceration in a state penitentiary on a 10- to 25-year sentence, without eligibility for parole for
five years).
[FN4] Hamby v. Hamby, 264 S.C. 614, 216 S.E.2d 536 (1975); In re Dobbs' Adoption, 12 Wash. App.
676, 531 P.2d 303 (Div. 3 1975).
[FN5] In re Brannon, 340 So. 2d 654 (La. Ct. App. 2d Cir. 1976).

[FN6] Jordan v. Hancock, 508 S.W.2d 878 (Tex. Civ. App. Houston 14th Dist. 1974).
[FN7] Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976); Matter of Stephan Joseph S.,
158 A.D.2d 524, 551 N.Y.S.2d 289 (2d Dep't 1990).
[FN8] Turner v. Adoption of Turner, 352 So. 2d 957 (Fla. Dist. Ct. App. 1st Dist. 1977).
[FN9] In re Adoption of TLC, 2002 WY 76, 46 P.3d 863 (Wyo. 2002).
[FN10] Drake v. Drake, 8 Or. App. 57, 491 P.2d 1203 (1971) (although the mother's failure to provide
care, nurture, and support constituted some evidence of both desertion and neglect, the record supported
the trial court's finding that her failure was not willful, as required by statute).
As to a parent's mental illness as affecting the right to consent to an adoption of his or her child, see §
77.
[FN11] Smith v. Lyst, 212 So. 2d 921 (Fla. Dist. Ct. App. 3d Dist. 1968).
[FN12] Stursa v. Kyle, 99 Or. App. 236, 782 P.2d 158 (1989).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
§ 86. Failure to care for and maintain or support child
Forms
Petition or application—By stepparent—Failure of natural father to provide support. Am. Jur. Pleading and
Practice Forms, Adoption § 16
Petition or application—By stepfather and natural mother—Failure of natural father to provide support. Am.
Jur. Pleading and Practice Forms, Adoption § 17
Nonsupport and abandonment—Parents of child born out of wedlock. Am. Jur. Pleading and Practice
Under some statutes an exception to the general rule requiring parental consent to the adoption of a child[1
]—separate from the abandonment exception[2]—is made with regard to a noncustodial parent, if for a period of
at least one year[3] the parent fails, without justifiable cause, to significantly[4] provide for the child's proper[5]
care[6] and maintenance[7] or support,[8] as required by law or judicial decree,[9] at least when able to do so,[
10] or, in some jurisdictions, even in the absence of a divorce decree or a judicially imposed obligation for sup-
port, based on the parent's financial ability.[11] Under some statutes, the failure of a natural parent to support a
child, while a relevant circumstance to be considered is not in and of itself a sufficient basis for permitting the
adoption of the child over the objection of the parent, in that nonpayment does not constitute a settled purpose to
permanently forego all parental rights.[12]
For purposes of the exception to the consent requirement for natural parents concerning failure to support
children for a period of one year prior to adoption petition's filing, a parent cannot choose to support some of his
or her minor children while neglecting others.[13]

Although incarceration is a factual circumstance that the court may consider in deciding what level of sup-
port is reasonable, incarceration does not totally excuse a parent's obligation to provide some child support.[14]
Furthermore, while indigency of a parent is sometimes considered a justifiable cause excusing the failure to sup-
port the child for purposes of determining the necessity of that parent's consent to adoption,[15] when a parent is
unable to pay his or her entire support obligation because of financial hardship, that parent is still obligated to
make a diligent effort to comply with the decree and make whatever payments are possible under the circum-
stances.[16] In this regard, under some statutes, to avoid an adoption, a parent need only show support contribu-
tions commensurate with his or her ability—in any form—towards the child's living expenses, and the adoption
will be denied.[17]
Observation:
Statutes making the failure to care for, maintain, or support a child a grounds for precluding the necessity of a
parent's consent to adoption also frequently include failure to communicate as a ground for such preclusion.[18]
Cases:
Evidence supported trial court's finding that continued deprivation was likely to cause serious emotional
harm to children, as would support terminating mother's parental rights; evidence indicated that mother had a
demonstrated history of irresponsible and neglectful conduct toward her children and had established pattern of
joblessness and instability, and mother's ongoing drug abuse and multiple drug addictions and her failure to
complete essential elements of her case plan would negatively impact children's well-being. West's Ga.Code
Ann. § 15–11–94(b)(4)(A). In re L.W., 276 Ga. App. 197, 622 S.E.2d 860 (2005).
Financial inability to meet courtordered child support cannot be used as evidence that a parent has failed to
assume the financial duties of a parent, in a stepparent adoption case. In re J.M.D., 41 Kan. App. 2d 157, 202
P.3d 27 (2009), review granted, (June 4, 2009).
Evidence was insufficient to support the trial court's finding that father failed to meet his financial obliga-
tions to his children for the two years immediately preceding stepfather's petition for adoption of children; father
paid in full his child support obligation for the ten months immediately prior to stepfather's filing of his petition
for adoption. In re J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27 (2009), review granted, (June 4, 2009).
Family court's order removing children from mother's care sufficiently set forth the conditions which caused
the removal and included necessary information regarding treatment plan; children were removed from the home
because mother stipulated to abuse and neglect of the children and the guardian ad litem recommended the re-
moval, and, according to the plan, mother had to cooperate with counseling until released by her counselor, ob-
tain an assessment and complete any recommended drug programs, refrain from using illegal drugs and from ab-
using alcohol, submit to random drug and alcohol screens, and submit to an evaluation to address her ability to
obtain employment. Code 1976, § 20–7–764. Department of Social Services v. Phillips, 365 S.C. 572, 618
S.E.2d 922 (Ct. App. 2005).
A parent's unstable lifestyle, lack of income, and lack of a home may be considered in determining whether
termination of parental rights is in child's best interests. V.T.C.A., Family Code § 161.001. In re T.N., 180
S.W.3d 376 (Tex. App. Amarillo 2005).
[END OF SUPPLEMENT]

[FN1] As to the general rule, see § 67.
[FN2] In re J.S.J., 180 Ga. App. 873, 350 S.E.2d 843 (1986) (a finding of abandonment is not required
under the exception for failure to support child).
As to failure to support as constituting abandonment, see § 84.
[FN3] Matter of J.J.J., 718 P.2d 948 (Alaska 1986) (any one-year period); Matter of Adoption of Ly-
brand, 329 Ark. 163, 946 S.W.2d 946 (1997) (any one-year period); Petition of R.H.N., 710 P.2d 482
(Colo. 1985) (immediately preceding filing of petition); In re J.S.J., 180 Ga. App. 873, 350 S.E.2d 843
(1986) (immediately preceding filing of petition); Vecchi v. Thomas, 67 Ohio App. 3d 688, 588 N.E.2d
186 (2d Dist. Montgomery County 1990) (immediately preceding filing of petition or placement of
minor in home of petitioner); In re Adoption of TLC, 2002 WY 76, 46 P.3d 863 (Wyo. 2002)
(immediately preceding filing of petition or failed to pay at least 70% of court-ordered child support for
two or more years).
[FN4] Matter of Adoption of Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989); Allen v. Helewski, 184
Ga. App. 450, 361 S.E.2d 711 (1987).
A parent need not totally fail in obligations to support and communicate with a child, in order to fail
"significantly" within the meaning of the statute providing that consent to adoption is not required if the
parent of a child in the custody of another fails "significantly without justifiable cause" to support or
communicate with the child for a one-year period. Matter of Adoption of Lybrand, 329 Ark. 163, 946
S.W.2d 946 (1997).
[FN5] Matter of Adoption of Eder, 312 Or. 244, 821 P.2d 400 (1991); In re Oscar C., 598 A.2d 1093
(R.I. 1991).
[FN6] Matter of K.L.J., 813 P.2d 276 (Alaska 1991); In re Allison H., 230 Cal. App. 3d 154, 281 Cal.
Rptr. 178 (4th Dist. 1991); Matter of Adoption of Eder, 312 Or. 244, 821 P.2d 400 (1991); In re Oscar
C., 598 A.2d 1093 (R.I. 1991).
[FN7] Vecchi v. Thomas, 67 Ohio App. 3d 688, 588 N.E.2d 186 (2d Dist. Montgomery County 1990);
Matter of Adoption of Eder, 312 Or. 244, 821 P.2d 400 (1991); In re Oscar C., 598 A.2d 1093 (R.I.
1991).
Rptr. 178 (4th Dist. 1991); Matter of Adoption of R.M., 241 Mont. 111, 785 P.2d 709 (1990); Vecchi v.
Thomas, 67 Ohio App. 3d 688, 588 N.E.2d 186 (2d Dist. Montgomery County 1990); Matter of Adop-
tion of R.R.R., 1988 OK 109, 763 P.2d 94 (Okla. 1988).
[FN9] Matter of K.L.J., 813 P.2d 276 (Alaska 1991); In re Adoption of M.J.C., 590 N.E.2d 1095 (Ind.
Ct. App. 3d Dist. 1992); Vecchi v. Thomas, 67 Ohio App. 3d 688, 588 N.E.2d 186 (2d Dist. Mont-
gomery County 1990); Matter of Adoption of R.R.R., 1988 OK 109, 763 P.2d 94 (Okla. 1988).
[FN10] In re Adoption of M.J.C., 590 N.E.2d 1095 (Ind. Ct. App. 3d Dist. 1992); In re Oscar C., 598
A.2d 1093 (R.I. 1991).

[FN12] Smith v. Fernandez, 520 So. 2d 654 (Fla. Dist. Ct. App. 3d Dist. 1988); Arrington v. Hand, 193
Ga. App. 457, 388 S.E.2d 52 (1989).
[FN13] Matter of Adoption of R.M., 241 Mont. 111, 785 P.2d 709 (1990) (where father supported child
who was living with him, while not supporting two other children living with mother); Matter of Adop-
tion of J.R.M., 1995 OK 79, 899 P.2d 1155 (Okla. 1995) (father supported five other children for por-
tion of that period).
[FN14] Petition of R.H.N., 710 P.2d 482 (Colo. 1985).
[FN15] § 88.
[FN16] Matter of Adoption of R.M., 241 Mont. 111, 785 P.2d 709 (1990).
[FN18] As to failure to communicate, see §§ 89, 90.
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
§ 87. Failure to care for and maintain or support child—Necessity of "willful" failure
A.L.R. Library
Some statutes specifically require a "willful" failure of a parent to pay for the care, support, or education of
the child, before an adoption may be authorized without that parent's consent.[1]
Observation:
Some states require the failure to support to be willful for the entire statutory period,[2] while others do not re-
quire a finding of willful failure for each and every month of the period.[3]
"Willfully," in the statutory context of a willful failure to contribute to support, means intentionally, know-
ingly, purposely, voluntarily, consciously, deliberately, and without justifiable excuse, as distinguished from
carelessly, inadvertently, accidentally, negligently, heedlessly, or thoughtlessly.[4] If the parent willfully fails to
pay court-ordered child support, incarceration, standing alone, does not provide the direct intent necessary to
constitute willful failure to pay support.[5]
Under other statutes, the failure to support need not be willful[6] but, rather, must only be a knowing fail-
ure—that is, the parent must have been aware of the high probability that he or she was failing to provide sup-
port.[7] Furthermore, the statutory term "failed significantly without justifiable cause" has been construed as de-
noting willful conduct.[8]
Consent is not necessary, under some enactments, where the parent has "willfully neglected" to provide
proper care and maintenance for the child for one year preceding the filing of the adoption petition.[9] To de-

termine "willful neglect" the court must ask whether, during the year preceding the filing of the petition for ad-
option, the nonconsenting parent willfully failed to manifest substantial expressions of concern which showed
the parent had a deliberate, intentional, and good-faith interest in maintaining a parent-child relationship. All rel-
evant evidence demonstrating the presence or absence of willful neglect may be considered by the court, al-
though the court could disregard incidental visitations, communications, and contributions.[10] "Willful neglect"
may not be found merely on the basis of a parent's failure to pay child support.[11]
Cases:
Failure of child's father, incarcerated for murder of child's mother, to support child was "wilful," within
scope of "failure to support" section of termination of parental rights (TPR) statute, where father failed to send
money to aid in child's support and, by refusing to relinquish his rights in estate of child's mother, prevented
child from receiving any benefits from such estate. Code 1976, § 20–7–1572(4). Stinecipher v. Ballington, 366
S.C. 92, 620 S.E.2d 93 (Ct. App. 2005).
Whether a parent's failure to support a child is wilful is a question of intent to be determined by the facts
and circumstances of each case. Code 1976, § 20–7–1572(4). Stinecipher v. Ballington, 366 S.C. 92, 620 S.E.2d
93 (Ct. App. 2005).
[END OF SUPPLEMENT]
[FN1] Matter of Adoption of J.R.M., 1995 OK 79, 899 P.2d 1155 (Okla. 1995); In re Adoption of TLC,
2002 WY 76, 46 P.3d 863 (Wyo. 2002).
A mother's failure to support a child in the year preceding the guardians' filing of a petition to adopt the
child without the mother's consent was not willful, where there was no evidence that the mother had,
during that time, failed to comply with the terms of an agreement requiring her to forward to the guardi-
ans any child support payments from the father, and the guardians had not requested any support from
the mother. In re Adoption of SMR, 982 P.2d 1246 (Wyo. 1999).
[FN3] Matter of Adoption of J.R.M., 1995 OK 79, 899 P.2d 1155 (Okla. 1995).
[FN4] Matter of Adoption of CCT, 640 P.2d 73 (Wyo. 1982).
A temporary order entered in divorce case which specifically reserved the issue of child support until
the father was released from the Department of Corrections deferred the father's support obligation, so
that his failure to pay support while incarcerated was not willful and did not make it unnecessary to ob-
tain his consent to adoption. Matter of Adoption of R.W.S., 1997 OK 148, 951 P.2d 83 (Okla. 1997).
[FN6] Allen v. Helewski, 184 Ga. App. 450, 361 S.E.2d 711 (1987); In re Adoption of M.J.C., 590
N.E.2d 1095 (Ind. Ct. App. 3d Dist. 1992).

[FN7] In re Adoption of M.J.C., 590 N.E.2d 1095 (Ind. Ct. App. 3d Dist. 1992).
(R.I. 1991).
(R.I. 1991).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
§ 88. Failure to care for and maintain or support child—Indigency as excusing failure to support
A.L.R. Library
Natural Parent's Indigence as Precluding Finding that Failure to Support Child Waived Requirement of Con-
sent to Adoption—Factors Other Than Employment Status, 84 A.L.R. 5th 191
Natural Parent's Indigence Resulting from Unemployment or Underemployment as Precluding Finding that
Failure to Support Child Waived Requirement of Consent to Adoption, 83 A.L.R. 5th 375
Comment Note: Natural parent's indigence as precluding finding that failure to support child waived re-
quirement of consent to adoption—general principles, 82 A.L.R. 5th 443
A natural parent's failure to support his or her child does not obviate the necessity of the parent's consent to
the child's adoption, where the parent's financial condition is such that he or she is unable to support the child,[1
] particularly where the statute requires that a parent provide child support only when "able to do so," "according
to the parent's means," or the like,[2] or proscribes nonpayment of child support only "without cause" or
"without justifiable cause."[3]
Practice Guide:
When making a determination as to whether a natural parent's support failure is justifiable due to his or her indi-
gence, some courts put the burden of proof on the party seeking to adopt a child to show that the nonconsenting
natural parent has not contributed to the child's support, although able to do so,[4] while, according to other
courts, once nonpayment of child support is shown in a contested adoption case, in order to retain the right to
consent to the adoption of one's child, the nonsupporting natural parent has the burden of proving that his or her
support failure is with just cause, is occasioned by circumstances beyond the parent's control, or is not willful.[5

Generally, a natural parent may not voluntarily become unemployed and then fail to make court-ordered
child support payments and still retain the parental right to consent to the adoption of his or her child.[6]
However, where the natural parent made a reasonable effort to secure employment, such natural parent's right to
consent to the adoption of his or her child by another is not obviated by the failure of that parent to make support
payments.[7] Conversely, where natural parent failed to exert any reasonable effort to secure employment or to
supplement his or her income in order to contribute to child support, the natural parent's failure to comply with
such support obligation obviates the need for the natural parent's consent to the adoption of his or her children.[8
]
Where the natural parent is experiencing financial difficulties but fails to effect a modification of a court or-
der of support, the parent's failure to make child support payments is not excused and, thus, the requirement of
his or her consent to the adoption of the child is waived.[9]
The fact that the natural parent in a contested adoption case was able to meet financial obligations other
than his or her child support obligation has met various results in the courts. For example, where the natural par-
ent was able to provide support for his or her current family while child support payments were in arrears, some
courts have held that such fact did not indicate that the natural parent was able to make the child support pay-
ments, and thus, those courts have concluded that the natural parent's right to consent to the adoption of his or
her child was not waived due to the nonpayment of child support.[10] However, other courts have taken the
view that the ability to support a subsequent family while child support payments were in arrears waived the nat-
ural parent's right to consent to the adoption of his or her child.[11]
While some courts have held that a parent's consent was required even though that parent possessed valu-
able assets while the child support payments remained unpaid,[12] other courts have held that where a natural
parent possessed valuable assets, the failure to pay child support, although allegedly due to financial hardship,
was without just cause, and thus, those courts have concluded that the requirement of the parent's consent to the
adoption of his or her child was obviated.[13]
While some courts have held that a natural parent's inability to work or earn a living as the result of pro-
longed or chronic physical disability or illness constituted just cause or circumstances beyond his or her control
for the parent's failure to provide child support, and thus, that the natural parent was not deprived of the right to
consent to his or her child's adoption,[14] other courts have held that the natural parent's failure to provide child
support was not based on just cause or circumstances beyond his or her control, despite such parent's alleged in-
ability to work or earn a living due to physical disability or illness.[15] Similarly, there is authority for the view
that where a natural parent's inability to work or earn a living was the result of prolonged or chronic mental or
emotional illness, that natural parent's failure to provide child support was based on just cause or circumstances
beyond his or her control, and thus, the natural parent was not deprived of the right to consent to his or her
child's adoption;[16] however, there is contrary authority where a natural parent's mental problem fell short of
severe illness.[17]
Furthermore, substance abuse resulting in unemployment does not serve as a legal excuse for a natural par-
ent's nonsupport of his or her child so as to obviate the need for such parent's consent to the adoption of his or
her child, at least where the natural parent's activities have shown that he or she was able to function both men-
tally and emotionally, and was able to hold a job if he or she desired to do so.[18]

[FN1] In re Adoptions of Groh, 153 Ohio App. 3d 414, 2003 -Ohio- 3087, 794 N.E.2d 695 (7th Dist.
Belmont County 2003); In re Adoption of TLC, 2002 WY 76, 46 P.3d 863 (Wyo. 2002).
[FN2] Matter of Adoption of K.L.J.K., 224 Mont. 418, 730 P.2d 1135 (1986).
[FN3] Matter of K.L.J., 813 P.2d 276 (Alaska 1991) (specifically defining indigency as a justifiable
cause); Battaglia v. Duke, 230 Ga. App. 667, 497 S.E.2d 250, 84 A.L.R.5th 755 (1998); Stubbs v.
Weathersby, 320 Or. 620, 892 P.2d 991 (1995).
[FN4] Matter of Adoption of B.L.P., 224 Mont. 182, 728 P.2d 803 (1986); Matter of Adoption of Amy
SS., 64 N.Y.2d 788, 486 N.Y.S.2d 912, 476 N.E.2d 311 (1985); In re Adoption of Bovett, 33 Ohio St.
3d 102, 515 N.E.2d 919 (1987).
[FN5] Adoption of Duckett, 48 Cal. App. 3d 244, 121 Cal. Rptr. 574 (2d Dist. 1975); In re Terry, 503
So. 2d 60 (La. Ct. App. 5th Cir. 1987).
[FN6] Pyatt v. Pyatt, 88 Ill. App. 3d 8, 43 Ill. Dec. 241, 410 N.E.2d 241 (5th Dist. 1980); Matter of Ad-
option of B.L.P., 224 Mont. 182, 728 P.2d 803 (1986); Donahue v. Lawrence, 280 S.C. 382, 312 S.E.2d
594 (Ct. App. 1984).
[FN7] Clayton v. Jones, 91 Idaho 87, 416 P.2d 34 (1966); In re Adoption of Masa, 23 Ohio St. 3d 163,
492 N.E.2d 140, 71 A.L.R.4th 295 (1986).
[FN8] Matter of Adoption of A.M.K., 698 N.E.2d 845 (Ind. Ct. App. 1998); In re Adoption of S.E., 232
Mont. 31, 755 P.2d 27 (1988) (disapproved of on other grounds by, In re Adoption of V.R.O., 250
Mont. 517, 822 P.2d 83 (1991)).
[FN9] Ainsworth v. Natural Father, 414 So. 2d 417 (Miss. 1982); Matter of Adoption of K.L.J.K., 224
Mont. 418, 730 P.2d 1135 (1986); In re Adoption of Lay, 25 Ohio St. 3d 41, 495 N.E.2d 9 (1986).
[FN10] Graham v. Starr, 415 N.E.2d 772 (Ind. Ct. App. 1st Dist. 1981); In re Adoption of Fouts, 254
So. 2d 649 (La. Ct. App. 4th Cir. 1971).
[FN11] Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988); Matter of Adoption of B.L.P.,
224 Mont. 182, 728 P.2d 803 (1986); Stubbs v. Weathersby, 320 Or. 620, 892 P.2d 991 (1995).
[FN12] In re Adoption of Southard, 358 Pa. 386, 57 A.2d 904 (1948); Fancher v. Mann, 58 Tenn. App.
471, 432 S.W.2d 63 (1968).
[FN13] Pyatt v. Pyatt, 88 Ill. App. 3d 8, 43 Ill. Dec. 241, 410 N.E.2d 241 (5th Dist. 1980); In re Terry,
503 So. 2d 60 (La. Ct. App. 5th Cir. 1987); T.D.T. v. J.L.S., 675 S.W.2d 913 (Mo. Ct. App. W.D. 1984)
.
[FN14] In re Ragas, 393 So. 2d 925 (La. Ct. App. 4th Cir. 1981); Matter of Adoption of Richards, 624
S.W.2d 483 (Mo. Ct. App. W.D. 1981); In re Adoption of B.N.D., 1997 OK CIV APP 30, 942 P.2d 255
(Div. 1 1997).

[FN15] Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988); Boyd v. Harvey, 173 Ga. App.
581, 327 S.E.2d 551 (1985); In re D.W.H., 457 So. 2d 137 (La. Ct. App. 2d Cir. 1984).
[FN16] Adoption of Otterstatter v. Otterstatter, 525 So. 2d 117 (La. Ct. App. 3d Cir. 1988); Matter of
Adoption of S.P.M., 266 Mont. 269, 880 P.2d 297 (1994); Matter of Adoption of B.R.H., 1991 OK CIV
APP 125, 823 P.2d 383 (Ct. App. Div. 2 1991).
[FN17] In re W.P.B., 444 So. 2d 666 (La. Ct. App. 4th Cir. 1984).
[FN18] Battaglia v. Duke, 230 Ga. App. 667, 497 S.E.2d 250, 84 A.L.R.5th 755 (1998); In re Adoption
of M.J.C., 590 N.E.2d 1095 (Ind. Ct. App. 3d Dist. 1992); In re Adoption of Lassiter, 101 Ohio App. 3d
367, 655 N.E.2d 781 (2d Dist. Clark County 1995).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
§ 89. Failure to communicate with child
While ordinarily the natural parents of a child must consent to the child's adoption,[1] under some statutes
consent is not required of a noncustodial parent, if for a period of at least one year, the parent fails, without justi-
fiable cause, to communicate[2] significantly[3] or meaningfully[4] with the child, when able to do so,[5] or
make a bona fide attempt to communicate with the child.[6]
Observation:
Under some statutes, the failure of communication must have occurred at least one year immediately preceding
either the filing of the adoption petition or the placement of the minor in the home of the petitioner.[7] Under
other statutes, the statutory one-year period may be any one-year period, not merely the one-year period preced-
ing the filing of the adoption petition.[8]
Failure by a parent to communicate with his or her child is sufficient to authorize adoption without that par-
ent's consent, only if it is a complete absence of communication[9]—that is, a failure to communicate in the
nature of a complete abandonment of apparent interest in that child.[10] This exception to the general rule re-
quiring consent of parents to their childrens' adoption is separate from the abandonment exception; a finding of
abandonment is not required.[11]
Some statutes specifically require a "willful" failure of a parent to communicate with the child, before an
adoption may be authorized without that parent's consent.[12] Other statutes have been construed as requiring a
willful failure to communicate,[13] although there is also some authority for the contrary view.[14]
Cases:

Judgment and decree of adoption, that terminated biological father's parental rights and permitted step-
father to adopt step-son, and which stated only that step-father had complied with all formalities of law, that bio-
logical father had no contact with minor child for at least two years, and that proposed adoption was in best in-
terest of child, was deficient, where decree did not contain specific findings of fact and conclusions of law as to
whether biological father's failure to communicate with child for two years occurred immediately prior to filing
of petition for adoption, whether biological father made bona fide attempt to communicate with child, whether
biological father's failure to communicate was without justifiable cause, and basis for trial court's opinion re-
garding best interests of child. West's Ga.Code Ann. §§ 19-8-10(b)(1), 19-8-18(b). Maynard v. Brown, 276 Ga.
App. 229, 622 S.E.2d 901 (2005).
In a stepparent adoption case, a trial court may disregard incidental visitations, contacts, communications,
or contributions in determining whether a parent has failed to demonstrate love and affection toward the child
for the two years preceding the filing of the adoption petition. In re J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27
(2009), review granted, (June 4, 2009).
Evidence was insufficient to support the trial court's finding that father failed to provide emotional support
to his children for the two years immediately preceding stepfather's petition for adoption of children, and thus
father's consent to stepfather's adoption was required; father spoke with his children on the telephone while he
was in prison, and he wrote them letters every week. In re J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27 (2009), re-
view granted, (June 4, 2009).
Clear and convincing evidence established that biological father had abandoned child such that his consent
was not needed for child's adoption by stepfather; child's mother did not hear from biological father, her then
boyfriend, during her pregnancy even though she maintained the same telephone number she had while she and
biological father dated, biological father did not ask to be informed of child's birth and was not present when
child was born, and more than three years passed, with no contact between biological father and child, by the
time mother and her husband, the child's stepfather, petitioned for adoption. Adoption of David C. v. Jerad F.,
280 Neb. 719, 790 N.W.2d 205 (2010).
[END OF SUPPLEMENT]
[FN1] As to a discussion of the general rule, see § 67.
Rptr. 178 (4th Dist. 1991); In re Adoption of M.J.C., 590 N.E.2d 1095 (Ind. Ct. App. 3d Dist. 1992);
Matter of Adoption of A.M.M., 529 N.W.2d 864 (N.D. 1995).
[FN3] Matter of Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997); Allen v. Helewski, 184
Ga. App. 450, 361 S.E.2d 711 (1987); In re Adoption of M.J.C., 590 N.E.2d 1095 (Ind. Ct. App. 3d
Dist. 1992).
Evidence supported a finding that a biological father failed to significantly communicate with his child
without justifiable cause for at least one year, thus justifying termination of parental rights without con-
sent as prerequisite to adoption of child where the father himself admitted that his only contact with
child within the 18-month period arose out of a very short phone call initiated by the mother regarding
failure to pay child support. Matter of Adoption of A.M.M., 529 N.W.2d 864 (N.D. 1995).
[FN4] Matter of K.L.J., 813 P.2d 276 (Alaska 1991).

In distinguishing between meaningful and nonmeaningful communications it is evident that the legis-
lature intended that the mere symbolic observation of birthdays and holidays would not be enough to
maintain the rights of parenthood. Matter of J.J.J., 718 P.2d 948 (Alaska 1986).
[FN5] In re Adoption of M.J.C., 590 N.E.2d 1095 (Ind. Ct. App. 3d Dist. 1992).
[FN6] In re J.S.J., 180 Ga. App. 873, 350 S.E.2d 843 (1986).
[FN7] Vecchi v. Thomas, 67 Ohio App. 3d 688, 588 N.E.2d 186 (2d Dist. Montgomery County 1990).
[FN8] Matter of Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997).
[FN10] Matter of Adoption of Hupp, 9 Ohio App. 3d 128, 458 N.E.2d 878 (8th Dist. Cuyahoga County
1982).
As to abandonment, generally, see §§ 81 to 85.
[FN12] In re Allison H., 230 Cal. App. 3d 154, 281 Cal. Rptr. 178 (4th Dist. 1991).
[FN13] Matter of Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997) (a parent's failure to
communicate with a child without justifiable cause, so as to obviate the need for the parent's consent to
adoption, is one that is voluntary, willful, arbitrary, and without adequate excuse).
[FN14] Allen v. Helewski, 184 Ga. App. 450, 361 S.E.2d 711 (1987).
rights reserved.
END OF DOCUMENT


Adoption

1. Natural Parents
§ 90. Failure to communicate with child—What constitutes "justifiable cause" excusing failure to commu-
nicate
Some statutes which except from the general requirement that parents consent to the adoption of their child
circumstances where a parent fails significantly without justifiable cause to communicate with their child spe-
cifically define indigency as a justifiable cause for such failure.[1] Circumstances resulting from the noncustodi-
al parent's own conduct cannot excuse such a parent's significant failure to maintain meaningful communication.
Moreover, failure to maintain contact with a child should not be excused by the emotional antagonism or awk-
wardness that may exist between former spouses.[2] Significant interference by a custodial parent with commu-
nication between a noncustodial parent and their child, or significant discouragement by the custodial parent of
such communication, constitutes justifiable cause for the noncustodial parent's failure to communicate with that
child, if it demonstrates that the failure to communicate was not voluntary and intentional.[3] However, the fact
that the mother and child had moved out-of-state did not deprive the father of the means to locate the child.[4]
[FN2] Matter of J.J.J., 718 P.2d 948 (Alaska 1986).
[FN3] Matter of Adoption of Hupp, 9 Ohio App. 3d 128, 458 N.E.2d 878 (8th Dist. Cuyahoga County
1982).
[FN4] Matter of Adoption of A.M.M., 529 N.W.2d 864 (N.D. 1995).
rights reserved.

END OF DOCUMENT


Adoption

§ 91. Generally; guardian
Trial Strategy
163
Forms
Consent by person other than natural parent—Guardian—Appointed in dependency proceedings—Father

deceased. Am. Jur. Pleading and Practice Forms, Adoption § 86
Petition—For appointment of guardian ad litem—Of minor. Am. Jur. Pleading and Practice Forms, Adop-
tion § 105
Guardian—Affidavit. Am. Jur. Pleading and Practice Forms, Adoption § 143
Adoption statutes may require, prior to the adoption of a minor, the consent of the parent[1] or guardian[2]
or the person or agency[3] having[4] or entitled to custody of the child, or otherwise empowered to consent.[5]
Statutes sometimes specifically provide that where a parent who has abandoned a child or cannot be found, con-
sent to adoption may be given by the guardian, if there is one.[6] However, in some jurisdictions the status of
persons as kindred to and legal custodians of a child, do not vest in them the prerogative of consenting to adop-
tion and by corollary, withholding consent and thereby thwarting the adoption.[7]
In some jurisdictions, when a biological parent's consent is not statutorily required because the parent relin-
quished the child for adoption by written instrument, has abandoned child for at least six months, has been de-
prived of his parental rights by the order of court of competent jurisdiction, or is incapable of consenting, the
prospective adoptive parents must obtain substitute consent from a court appointed guardian or guardian ad
litem of the child which must be authorized by the court having jurisdiction of such guardian.[8]

The state as parens patriae may authorize a guardian, appointed in guardianship proceedings prior to a peti-
tion for adoption, to consent to adoption of a child.[9] However, since adoption did not exist at common law[10]
a juvenile court's authority to appoint a guardian with the power to consent to adoption must be statutorily de-
rived.[11]
Where an adult is mentally ill or retarded, and made a ward of a guardian for disabled adults appointed in
accordance with applicable provisions of a state probate act, the adult's consent to adoption proceedings vests in
the guardian upon appointment, and the court cannot waive the consent requirements before proceeding to the
merits of the adoption petition.[12]
In the absence of parents or guardian, there is no requirement of the consent of another relative.[13]
Under the Uniform Adoption Act, among the persons who may consent to an adoption are: the minor's
guardian if expressly authorized by a court to consent to the minor's adoption;[14] or the current adoptive or oth-
er legally recognized mother and father of the minor.[15]
[FN1] As to consent by natural parents, generally, see §§ 67 to 90.
[FN2] Stacey v. Manning, 554 So. 2d 1061 (Ala. Civ. App. 1989); In re Adoption of Syck, 138 Ill. 2d
255, 149 Ill. Dec. 710, 562 N.E.2d 174 (1990).
[FN3] § 93.
[FN4] In re Melissa C., 516 A.2d 946 (Me. 1986).
Adoption may be granted if a written consent to adoption has been obtained from the parents or custodi-
ans of a child. In re Groleau, 585 N.E.2d 726 (Ind. Ct. App. 3d Dist. 1992).
[FN5] Matter of W.E.G., 710 P.2d 410 (Alaska 1985).
[FN6] Stacey v. Manning, 554 So. 2d 1061 (Ala. Civ. App. 1989).
[FN7] Martin v. Putnam, 427 So. 2d 1373 (Miss. 1983) (child's grandfather and step-grandmother).
[FN8] In re Adoption of Kassandra B., 248 Neb. 912, 540 N.W.2d 554 (1995).
[FN9] Winter v. Director, Dept. of Welfare of Baltimore City, 217 Md. 391, 143 A.2d 81 (1958).
[FN10] § 5.
[FN11] In re M.M., 226 Ill. App. 3d 202, 168 Ill. Dec. 287, 589 N.E.2d 687 (1st Dist. 1992), judgment
aff'd, 156 Ill. 2d 53, 189 Ill. Dec. 1, 619 N.E.2d 702 (1993).
[FN12] In re Savory's Adoption, 102 Ill. App. 3d 276, 58 Ill. Dec. 359, 430 N.E.2d 301 (3d Dist. 1981).
[FN13] Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974); In re Ryals, 231 La. 683, 92 So. 2d
581 (1957).

rights reserved.
END OF DOCUMENT


Adoption

§ 92. Person to be adopted
Forms
Consent by minor to relinquishment. Am. Jur. Legal Forms 2d, Adoption § 9:14
Consent to adoption—By minor child. Am. Jur. Legal Forms 2d, Adoption § 9:29
Consent to adoption by child. Am. Jur. Pleading and Practice Forms, Adoption §§ 148, 149
Public policy clearly favors the consent of the person to be adopted, and the consent of the one to be adop-
ted, as required by some statutes, must not be presumed.[1] Thus, statutes sometimes require the consent of
minors of a specified age.[2]
Observation:
Some statutes requiring the consent of an adoptee child over a certain age are not applicable to adult adoptions.[
3]
Some adoption statutes have provided that upon fulfillment of certain conditions an adult could be adopted
upon his or her consent, but if the adult was mentally ill or mentally retarded, a court could waive the consent
requirement.[4] Even so, where the mentally ill or retarded adult was made a ward of a guardian for disabled
adults appointed under the state probate act, the adult's consent to adoption proceedings vested in the guardian
upon appointment.[5]
[FN1] Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992) (in absence of evidence of consent of
the child, jurisdiction in the probate court was lacking, and the adoption order was void).

[FN2] In re Lynn M., 312 Md. 461, 540 A.2d 799 (1988) (at least 10 years old).
The Uniform Adoption Act requires the informed consent of the minor to be adopted if he or she is
more than 12 years old, unless the court, in the best interest of such minor, dispenses with the minor's
consent. Uniform Adoption Act (1994) §§ 2-401(c), 2-402(b)(2).
[FN3] Matter of Adoption of Chaney, 126 Idaho 554, 887 P.2d 1061 (1995).
[FN4] In re Savory's Adoption, 102 Ill. App. 3d 276, 58 Ill. Dec. 359, 430 N.E.2d 301 (3d Dist. 1981).
[FN5] § 91.
rights reserved.
END OF DOCUMENT


Adoption

§ 93. Agency or organization given legal custody of child
A.L.R. Library
Adoption of child in absence of statutorily required consent of public or private agency or institution, 83
A.L.R. 3d 373
Forms
Consent to adoption—By institution. Am. Jur. Legal Forms 2d, Adoption § 9:26
Person other than natural parent—Agency. Am. Jur. Pleading and Practice Forms, Adoption § 88
Person other than natural parent—Public agency. Am. Jur. Pleading and Practice Forms, Adoption § 89
Person other than natural parent—Public agency—Child born out of wedlock. Am. Jur. Pleading and Prac-
tice Forms, Adoption § 90
Custodial organization—Affidavit. Am. Jur. Pleading and Practice Forms, Adoption §§ 145, 146
Custodial public agency. Am. Jur. Pleading and Practice Forms, Adoption § 147
Where a private or public agency or organization has been given legal custody of a minor, that agency's con-
sent is ordinarily required prior to an adoption of the minor.[1]
In some jurisdictions, even so-called mandatory language of an adoption statute requiring consent of the
agency or institution having legal custody does not deprive the court of jurisdiction to determine an adoption pe-
tition where the best interests of the child are at stake.[2]
Some statutes that have not phrased the consent authorization as a prerequisite, have nevertheless been

deemed to be mandatory in their requirement of agency consent,[3] while other statutes have been held to permit
independent court action in an adoption proceeding regardless of the refusal of the agency to consent to the ad-
option.[4]
When an agency withholds its consent to an adoption, courts very often look to the reasonableness of the
agency's refusal as an important factor in deciding whether the court will act in compliance with, or in opposi-
tion to, the agency's determination.[5]
Observation:
Members of the extended family of a child surrendered to an authorized agency for adoption have no special
right to custody of the child so as to allow such family members to override the agency's power to select the ad-
optive parents. Recognition of any such right would undermine the natural mother's voluntary decision to deleg-
ate her power to the agency as to a decision to grant or withhold consent to adoption.[6]
[FN1] Matter of W.E.G., 710 P.2d 410 (Alaska 1985); Idaho Dept. of Health and Welfare v. Hays, 137
Idaho 233, 46 P.3d 529 (2002); Smith v. Lascaris, 106 Misc. 2d 1044, 432 N.Y.S.2d 995 (Fam. Ct.
1980); State ex rel. Juvenile Dept. of Multnomah County v. A, 62 Or. App. 293, 660 P.2d 707 (1983).
[FN2] Wolf v. Smith, 435 So. 2d 749 (Ala. Civ. App. 1983); Bland v. Department of Children & Fam-
ily Services, 141 Ill. App. 3d 818, 96 Ill. Dec. 122, 490 N.E.2d 1327 (3d Dist. 1986); In re S.T., 512
N.W.2d 894 (Minn. 1994); State ex rel. Juvenile Dept. of Multnomah County v. A, 62 Or. App. 293,
660 P.2d 707 (1983).
[FN3] Children's Services Division, Dept. of Human Resources v. Zach, 18 Or. App. 288, 525 P.2d 185
(1974).
[FN4] L.W. v. C.W.B., 762 So. 2d 323 (Miss. 2000).
[FN5] Bland v. Department of Children & Family Services, 141 Ill. App. 3d 818, 96 Ill. Dec. 122, 490
N.E.2d 1327 (3d Dist. 1986); Rodriguez v. Miles, 655 S.W.2d 245 (Tex. App. Corpus Christi 1983).
[FN6] Matter of Peter L., 59 N.Y.2d 513, 466 N.Y.S.2d 251, 453 N.E.2d 480 (1983).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VI C REF Page 1
2 Am. Jur. 2d Adoption VI C Refs.

Adoption

Research References
A.L.R. Library
Trial Strategy
Undue Influence in Obtaining Parent's Consent to Adoption of Child, 8 Am. Jur. Proof of Facts 2d 481 §§
11 to 19
rights reserved.
AMJUR ADOPTION VI C REF
END OF DOCUMENT


Adoption

§ 94. Generally
A.L.R. Library
Validity of birth parent's “blanket” consent to adoption which fails to identify adoptive parents, 15 A.L.R.
5th 1
Sufficiency of parent's consent to adoption of child (sec. 7 superseded in part Validity of birth parent's
“blanket” consent to adoption which fails to identify adoptive parents, 15 A.L.R.5th 1), 24 A.L.R. 2d 1127
Statutes have required that a petition for relinquishment and consent to adoption be filed with the court,[1]
and where a parent's consent was not filed at the time of filing the petition for adoption, and there was no valid
order of dependency, a court was without jurisdiction to enter a decree of adoption.[2]
Written consent has been a necessary preliminary to the commencement of action under some statutory
schemes,[3] although other statutes have not required that the consent be in writing.[4]
Statutes have required formalities of execution, such as acknowledgment[5] and verification by affidavit.[6]
Where consent may be revoked within a statutorily specified time period,[7] the consent to adoption must
contain an express notice of the right to revoke such consent.[8]
[FN2] Storey v. Shumaker, 131 Colo. 131, 279 P.2d 1057 (1955).
[FN3] A v. C, 239 Ark. 406, 390 S.W.2d 116 (1965); In re Groleau, 585 N.E.2d 726 (Ind. Ct. App. 3d
Dist. 1992); Matter of Adoption of Infant Boy Crews, 60 Wash. App. 202, 803 P.2d 24 (Div. 1 1991),

decision aff'd, 118 Wash. 2d 561, 825 P.2d 305 (1992).
To constitute an effective written consent to adoption, a document must evidence a clear and unequi-
vocal intent to consent to adoption of the child. Stubbs v. Weathersby, 320 Or. 620, 892 P.2d 991
(1995).
Uniform Adoption Act (1994) § 2-406(a).
[FN4] Wolf v. Smith, 435 So. 2d 749 (Ala. Civ. App. 1983) (consent form was merely a memorandum
preserving that consent for later uses and statutes did not specify a form for the consent, did not require
an authorization, nor require writing, proper question was not whether form was properly filled out and
notarized, but whether mother had, in fact, consented to adoption).
[FN5] Wilde v. Buchanan, 303 S.W.2d 518 (Tex. Civ. App. Austin 1957), writ refused n.r.e., 157 Tex.
606, 305 S.W.2d 778 (1957).
Testimony from an adoption agency's director of social services and its representative, that the repres-
entative was in the room and saw the natural mother sign the "surrender of parental rights and consent
to adoption" documents, established that the documents were properly sworn to or acknowledged. Ad-
option of J.M.M. v. New Beginnings of Tupelo, Inc., 796 So. 2d 975 (Miss. 2001).
[FN6] A v. C, 239 Ark. 406, 390 S.W.2d 116 (1965).
[FN7] § 102.
15 A.L.R.5th 935 (1991).
rights reserved.
END OF DOCUMENT


Adoption

§ 95. Effect of failure to comply with formal requirements
A.L.R. Library
5th 1
“blanket” consent to adoption which fails to identify adoptive parents, 15 A.L.R.5th 1), 24 A.L.R. 2d 1127
While, as a rule, a consent that fails to meet the statutory requirements cannot be given legal effect,[1] it has
also been said that there must be substantial if not strict compliance with whatever specific statutory require-
ments are prescribed with respect to the formalities of the execution of the parent's consent,[2] and that absent
specific statutory provisions respecting formalities of execution, adoption cannot be upset because of insubstan-
tial deviations from the proper form of consent.[3] Where the consent form used was that of another state and
was insufficient under the forum state's adoption law for failure to set forth venue in which adoption proceed-
ings were to be commenced, an adoption proceeding has been dismissed.[4] However, where the requirements of
the state in which the adoption proceeding has been brought were followed, even though the consent was not
properly executed according to the law of the state where effected, such consent has been deemed sufficient in
other instances.[5]
[FN1] Petition of Flangel, 87 Ill. App. 3d 1100, 42 Ill. Dec. 906, 409 N.E.2d 521 (2d Dist. 1980);
Stubbs v. Weathersby, 320 Or. 620, 892 P.2d 991 (1995).
[FN2] A v. C, 239 Ark. 406, 390 S.W.2d 116 (1965); Petition of Foley, 123 Colo. 533, 232 P.2d 186,
24 A.L.R.2d 1123 (1951); Petition of Thompson, 337 Ill. App. 354, 86 N.E.2d 155 (2d Dist. 1949).
[FN3] Meleski v. Havens, 129 Conn. 238, 27 A.2d 159 (1942); LeShure v. Zumalt, 151 Kan. 737, 100
P.2d 643 (1940).

[FN4] Matter of Adoption of James M. G., 86 Misc. 2d 960, 383 N.Y.S.2d 866 (Fam. Ct. 1976).
[FN5] Matter of Adoption of Gates, 6 Kan. App. 2d 945, 636 P.2d 818 (1981) (consents of parents ac-
knowledged before notary in foreign state were sufficient under Kansas law despite fact that law of for-
eign state required consents to adoption to be executed before officer of social services department).
As to law governing adoption proceedings, generally, see § 36.
rights reserved.
END OF DOCUMENT


Adoption

§ 96. Time of execution
A.L.R. Library
“blanket” consent to adoption which fails to identify adoptive parents, 15 A.L.R.5th 1), § 4, 24 A.L.R. 2d 1127
Some statutes prohibit the giving of consent by a parent to an adoption prior to the child's birth[1] or before
a specified period following the birth,[2] while others do not contain any waiting period,[3] or require a waiting
period only in particular instances, as, for example, where the child is an Indian child so that the Indian Child
Welfare Act applies.[4] Furthermore, some statutes provide that a consent to adoption cannot be given by biolo-
gical parents irrevocably prior to the child's birth.[5]
[FN1] Uniform Adoption Act (1994) § 2-404(a) (consent may be given only after the child's birth).
[FN2] Bryant v. Cameron, 473 So. 2d 174 (Miss. 1985) (three days); In re Adoption of Jordan, 72 Ohio
App. 3d 638, 595 N.E.2d 963 (12th Dist. Preble County 1991) (72 hours).
[FN3] Uniform Adoption Act (1994) § 2-404(a) (providing only that consent to adoption be executed
after the birth of the child).
As to a discussion of the Indian Child Welfare Act of 1978 as affecting adoption of Native Americans,
generally, see Am. Jur. 2d, Indians §§ 145 to 153.
[FN5] People ex rel. Anonymous v. Anonymous, 139 A.D.2d 189, 530 N.Y.S.2d 613 (3d Dep't 1988).

rights reserved.
END OF DOCUMENT


Adoption

§ 97. Specification of adopting parents; "blanket" consents
A.L.R. Library
5th 1
Under some statutes, adoption of children who have been made the wards of, or placed with, a public
agency, could be effected by the execution of a "blanket" consent by the parents of the child, given without the
knowledge of the identity of the adoptive parents selected or to be selected by the agency, and the adoption
could be consummated without again going to the parents for their further consent upon the commencement of
formal proceedings for adoption.[1] However, some statutes have required the consent to adoption to be a con-
sent to a particular adoption by particularly named adopting parents recited in the petition for adoption. Under
such a statute a document reciting a consent "that said child be adopted" is insufficient.[2] Likewise, a consent
in which adoptive parents are not named is invalid under a statute providing that consent shall refer to and be ap-
plicable only to the "specific adoption" proposed.[3]
Whether blanket consents that fail to identify the adoptive parents are valid depends on the language of the
state's adoption consent statute and public policy. Under a statute providing that a consent not naming the adopt-
ive parents was valid if it contained a statement that the consent was voluntarily given without identification, a
blanket consent to a private adoption has been held valid even though it did not contain the required statement,
where the consenting parent did not want to know the identities of the adoptive parents and would have signed
the consent if it had contained the statement.[4] However, another court has apparently found a blanket consent
without the statement invalid, but did not require that consent where the mother appeared at the proceeding and
gave oral consent.[5]
Where a statute required that consent be to the specific adoption proposed by the petition, a consent to an
independent adoption which apparently named the adoptive parents, but such names were not shown to the birth
mother when she signed the consent, was valid, where the birth mother either knew their identities or that in-
formation was available to her at the time she signed the consent.[6] In instances where the identities of the ad-

opting parents were apparently not known or available to the consenting parent, a blanket consent to an inde-
pendent adoption has been held proper in some instances,[7] but either void or voidable in others.[8]
Where the applicable statute requires that consent be given to "such" or "proposed" adoption, blanket con-
sents to a private adoption are valid, generally,[9] or, at least absent a desire by the consenting parent to learn
the identities of the adopting parents.[10] In circumstances where the statute required consent only, a blanket
consent to a private adoption has been held valid where the consenting parent apparently intended that the par-
ticular adopting parents adopt the child but did not know their names,[11] while in another instance, it was held
that the adoptive parents must establish that they were the ones to whom the consent was given.[12] Where the
consent was given to persons apparently unknown, some courts have held that the blanket consent to a private
adoption was valid,[13] while others have held that it was not.[14]
It has sometimes been held, where a statute provided that giving up a child to an agency or institution oper-
ated as consent to subsequent adoption, that a blanket consent giving up a child to an agency for placement for
adoption, without naming the prospective adoptive parents, was valid.[15] However, where the statute merely
required that the birth parent consent to the adoption, some courts have held that a blanket consent giving up a
child to an agency for placement for adoption, without naming the prospective adoptive parents, was valid,[16]
while others have held that it was invalid.[17]
Cases:
A trial court can, in appropriate adoption proceedings, order the issuance of a new birth certificate without
naming a "mother". In re Roberto d.B., 399 Md. 267, 923 A.2d 115 (2007).
[END OF SUPPLEMENT]
[FN1] Catholic Charities of Diocese of Galveston, Inc. v. Harper, 161 Tex. 21, 337 S.W.2d 111 (1960);
In re Christl's Estate, 6 Wis. 2d 525, 95 N.W.2d 381 (1959).
[FN2] Matter of Adoption of X, 84 Misc. 2d 770, 376 N.Y.S.2d 825 (Sur. Ct. 1975).
[FN3] Herman v. McIver, 248 Iowa 619, 80 N.W.2d 500 (1957).
[FN4] S. O. v. W. S., 643 P.2d 997 (Alaska 1982).
[FN5] In re Adoption of DeGroot, 335 So. 2d 845 (Fla. Dist. Ct. App. 4th Dist. 1976).
[FN6] Jensen ex rel. Jensen v. Creason, 264 N.W.2d 735 (Iowa 1978).
[FN7] In re Burdette, 83 Ohio App. 368, 38 Ohio Op. 429, 83 N.E.2d 813 (9th Dist. Summit County
1948).
[FN8] Herman v. McIver, 248 Iowa 619, 80 N.W.2d 500 (1957); Las Vegas Sun, Inc. v. Franklin, 74
Nev. 282, 329 P.2d 867 (1958).

[FN9] Rhodes v. Shirley, 234 Ind. 587, 129 N.E.2d 60 (1955); Barwin v. Reidy, 62 N.M. 183, 307 P.2d
175 (1957); Matter of Jackson's Adoption, 89 Wash. 2d 945, 578 P.2d 33 (1978).
[FN10] Matter of Adoption of Baby Girl Chance, 4 Kan. App. 2d 576, 609 P.2d 232 (1980).
[FN11] Wolf v. Smith, 435 So. 2d 749 (Ala. Civ. App. 1983).
[FN12] In re Adoption No. 10087 in Circuit Court for Montgomery County, 324 Md. 394, 597 A.2d
456, 15 A.L.R.5th 935 (1991).
[FN13] In re Adoption of a Minor Child, 127 F. Supp. 256 (D. D.C. 1954); McKinney v. Weeks, 130
So. 2d 310 (Fla. Dist. Ct. App. 2d Dist. 1961); Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175 (1957).
[FN14] Matter of Adoption of X, 84 Misc. 2d 770, 376 N.Y.S.2d 825 (Sur. Ct. 1975); Adoption of
Ashton, 374 Pa. 185, 97 A.2d 368 (1953).
[FN15] In re Adoption of a Minor Child, 60 P.3d 485 (Nev. 2002); Catholic Charities of Diocese of
Galveston, Inc. v. Harper, 161 Tex. 21, 337 S.W.2d 111 (1960); In re Christl's Estate, 6 Wis. 2d 525, 95
N.W.2d 381 (1959).
[FN16] Rhodes v. Shirley, 234 Ind. 587, 129 N.E.2d 60 (1955).
[FN17] In re Holder, 218 N.C. 136, 10 S.E.2d 620 (1940); Adoption of Lyskooka, 54 Pa. D. & C. 591,
1946 WL 2414 (Orphans' Ct. 1946).
rights reserved.
END OF DOCUMENT


Adoption

§ 98. Voluntariness; effect of fraud, duress, undue influence, error, or mistake
A.L.R. Library
Trial Strategy
11 to 19
A valid consent to an adoption is one which has been freely, knowingly and voluntarily given with a full un-
derstanding of the adoption process and the consequences of the consentor's actions.[1] In the absence of threats,
coercion, fraud, or duress, a properly executed relinquishment of parental rights and consent to adoption signed
by a natural parent knowingly, intelligently, and voluntarily is valid.[2]
Consent to an adoption may be invalidated by error,[3] fraud,[4] duress,[5] or undue influence.[6] Under
such circumstances, revocation of consent is generally proper, even where such consent is ordinarily irrevoc-
able.[7]
An order for adoption will not be set aside for fraud on the court unless the court, in entering its order, re-
lied on the alleged fraud.[8]
Error vitiates consent only when it concerns a cause without which the obligation would not have been in-
curred and that cause was known or should have been known to the other party.[9]
Generally speaking, the judge in the adoption proceeding must make a determination that the consent is
freely and knowledgeably given.[10] However, in some jurisdictions there is no requirement, statutory or other-
wise, for a determination of voluntariness of consent in an adoption proceeding, nor is there any authority that

permits the trial judge to make this inquiry prior to entering an adoption decree. Rather, the trial judge must de-
termine whether consent has been obtained from the proper persons and whether adoption is in the best interests
of the child, but has no authority to question the voluntariness of parental consent in the absence of a petition by
one or both of the natural parents to withdraw consent.[11] Furthermore, some statutory schemes require a de-
termination as to voluntariness of consent as to some individuals, but not as to others. For instance, in some jur-
isdictions parents of a child adopted by nonblood relatives must go before a judge of probate who will fully ex-
plain the effect of that consent, and who must then make a determination that the consent is freely and know-
ledgeably given, while parents with a child to be adopted by blood relatives may proceed if their consent to the
adoption is acknowledged before a notary public, who is not an attorney or a partner, associate, nor an employee
of an attorney of the adopting parents.[12]
Cases:
Record supported a finding that adoptive parents did not engage in fraud or misrepresentation with respect
to an open adoption, as possible grounds for invalidating biological mother's consent to the adoption and setting
aside the adoption decree, even though biological mother testified that adoptive parents, who were her father and
stepmother, were going to return child to her when she was ready; adoptive parents denied ever suggesting that
child would be returned to biological mother when she was ready, and, inter alia, biological mother's stepsister
testified that biological mother never indicated that she wanted to undo the adoption or get back child. In re Ad-
option of S.K.L.H., 204 P.3d 320 (Alaska 2009).
Any mistake of biological mother, at the time she consented to an open adoption, in her understanding of
her relationship with her child after the adoption was not a ground for invalidating the consent and setting aside
the adoption decree. In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009).
In a proceeding to revoke consent to relinquish a child for adoption on the ground that the consent was ob-
tained involuntarily, the burden of showing that the consent was obtained involuntarily is on the person seeking
to revoke the consent. McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008).
Biological mother proved that her consent to relinquish child for adoption was involuntary, as a ground for
withdrawal of consent; mother had several emotional stressors, including recent deaths of her boyfriend and her
father, when she delivered child in hospital, there was abundant evidence that mother's stressors and suffering
caused impaired functioning, including evaluators' opinions that mother was incapable of giving her voluntary
consent for adoption when she was in hospital, and, inter alia, mother was encouraged by others regarding her
adoption decision and was led to believe by counseling form that she had a two-week period in which to con-
sider her decision. McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008).
[END OF SUPPLEMENT]
[FN1] In re Adoption of Zschach, 75 Ohio St. 3d 648, 665 N.E.2d 1070 (1996).
A natural parent may have his or her consent for adoption set aside where fraud, coercion, misrepresent-
ation or undue influence is shown. Matter of Adoption of A.W.H., 1998 OK 61, 967 P.2d 1178 (Okla.
1998).

A birth mother's consent to adoption was voluntary, where the birth mother contacted an adoption
agency and sought information regarding adoption, she specified her desire to be involved in the adop-
tion process, personally chose the adoptive parents, and asked them to adopt her child, she presented the
adoptive parents with several personal items for the child, documentation expressly stated the relin-
quishment was irrevocable, and for several months after relinquishment the birth mother expressed her
approval of the adoptive parents in cards written to them, as well as to the agency. In re Adoption of a
Minor Child, 60 P.3d 485 (Nev. 2002).
[FN3] In re J.M.P., 528 So. 2d 1002 (La. 1988) (consent to private adoption).
Div. 1 1991); Sharon S. v. Superior Court, 31 Cal. 4th 417, 2 Cal. Rptr. 3d, 73 P.2d 554 (2003); In re
J.M.P., 528 So. 2d 1002 (La. 1988) (consent to private adoption); Matter of Adoption of A.W.H., 1998
OK 61, 967 P.2d 1178 (Okla. 1998).
Div. 1 1991); Sharon S. v. Superior Court, 31 Cal. 4th 417, 2 Cal. Rptr. 3d, 73 P.2d 554 (2003); In re
J.M.P., 528 So. 2d 1002 (La. 1988) (consent to private adoption).
As to what constitutes duress with regard to consent to adoption, see § 99.
Div. 1 1991); In re Cheryl E., 161 Cal. App. 3d 587, 207 Cal. Rptr. 728 (2d Dist. 1984); Matter of Ad-
option of Doe, 543 So. 2d 741 (Fla. 1989); In re Adoption of Infant Boy, 60 Ohio App. 3d 80, 573
N.E.2d 753 (3d Dist. Allen County 1989).
As to what constitutes undue influence with regard to consent to adoption, see § 100.
[FN7] § 101.
Div. 1 1991).
[FN9] In re J.M.P., 528 So. 2d 1002 (La. 1988).
Evidence was sufficient to support a trial court finding that the birth parents' consents to adoption were
invalid because they were not informed; the birth parents and their attorney testified that the parents
mistakenly believed, based on their attorney's advice, that they had until the termination of parental
rights hearing to revoke consents and have the child returned and that they were unintentionally misin-
formed about the legal consequences of signing consents. Moore v. Asente, 110 S.W.3d 336 (Ky. 2003)
.
[FN10] Porter v. Hoffman, 592 A.2d 482 (Me. 1991).
[FN11] Gardner v. Baby Edward, 288 S.C. 332, 342 S.E.2d 601 (1986).
[FN12] Porter v. Hoffman, 592 A.2d 482 (Me. 1991).

rights reserved.
END OF DOCUMENT


Adoption

§ 99. Voluntariness; effect of fraud, duress, undue influence, error, or mistake—What constitutes duress
A.L.R. Library
What constitutes “duress” in obtaining parent's consent to adoption of child or surrender of child to adoption
agency, 74 A.L.R. 3d 527
Duress sufficient to set aside a consent to adoption requires proof of a wrongful act of one person that com-
pels a manifestation of apparent assent by another to a transaction without his or her volition, or any wrongful
threat of one person by words or other conduct that induces another to enter into a transaction under the influ-
ence of such fear as precludes him or her from exercising free will and judgment, if the threat was intended or
should reasonably have been expected to operate as an inducement.[1]
In considering whether parental consents to adoption or to the surrender of their children to child placement
or similar agencies were obtained through duress, courts have defined and construed the term "duress" according
to its generally understood meaning, to signify that condition which exists where one is induced by the unlawful
act of another to make a contract or to perform or forego an act under circumstances that deprive him or her of
the exercise of his free will.[2] Some such cases extend the generally ascribed meaning of the term "duress" to
include "duress by force of circumstances,"[3] although the concept has been rejected in other cases.[4]
Emotional stress is not such "duress" as will vitiate consent to adoption.[5]
The conclusion that a consent or surrender was not obtained by duress sometimes has been buttressed by the
fact that the consenting natural mother was mature, well educated, or experienced;[6] and had the support and
counsel of family and friends in reaching her own decision.[7] On the other hand, the immaturity of the consent-
ing natural mother sometimes has been regarded as a circumstance supporting the conclusion that a consent was
obtained by duress,[8] and neither the fact that the natural mother encountered parental or family opposition to

retaining the child,[9] nor the fact that she lacked the means to support such child independently,[10] ordinarily
has been deemed to compel a finding of duress.
Furthermore, courts have tended not to find a consent or surrender to have been obtained by duress where
the consenting natural parent executed such consent or surrender only after having been given an opportunity to
deliberate and reflect on the decision, to seek independent advice and counseling on the matter, and to ponder
the alternatives available to him or her;[11] on the other hand, while allegations that consents or placements
were procured through the denial of such independent advice, or through deception or misinformation, usually
have not been deemed to establish duress, a contrary conclusion has been reached where evidence as to such
matters was extraordinarily compelling.[12]
Cases:
"Duress," within meaning of the statute providing that a withdrawal of consent to relinquish a child for ad-
option is not permitted unless, inter alia, the consent was not given voluntarily or was obtained under duress or
through coercion, is a condition of mind produced by improper external pressure or influence that practically
destroys the free agency of a party and causes him to do an act or form a contract not of his own volition. Mc-
Cann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008).
Duress, for purposes of the statute providing that a withdrawal of consent to relinquish a child for adoption
is not permitted unless, inter alia, the consent was not given voluntarily or was obtained under duress or through
coercion, is viewed with a subjective test, looking at the individual characteristics of the person allegedly influ-
enced, and duress does not occur if the person has a reasonable alternative to succumbing and fails to avail
themselves of the alternative. McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008).
Duress is only one consideration for a court in making a determination of whether to allow withdrawal of
consent to relinquish a child for adoption on the ground that the consent was obtained involuntarily, and the
court may look to other factors, including the totality of the circumstances. McCann v. Doe, 377 S.C. 373, 660
S.E.2d 500 (2008).
[END OF SUPPLEMENT]
Div. 1 1991).
Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of
unjust and considerable injury to a party's person, property, or reputation. In re J.M.P., 528 So. 2d 1002
(La. 1988).
As to the definition of duress, generally, see Am. Jur. 2d, Duress and Undue Influence § 1.
[FN2] Petition of Simaner, 16 Ill. App. 2d 48, 147 N.E.2d 419 (1st Dist. 1957), decree aff'd by, 15 Ill.
2d 568, 155 N.E.2d 555 (1959).
Alleged threats by the mother's former husband to deprive the child of food and clothing did not consti-
tute duress warranting vacation of the mother's consent to his adoption of the child, where the former

husband was under no legal obligation to provide such necessities prior to the adoption. Matter of Ash-
lee II, 245 A.D.2d 885, 666 N.Y.S.2d 826 (3d Dep't 1997).
[FN3] In re Interest of G, 389 S.W.2d 63 (Mo. Ct. App. 1965).
[FN4] Barwin v. Reidy, 62 N.M. 183, 307 P.2d 175 (1957); Wooten v. Wallace, 177 W. Va. 159, 351
S.E.2d 72 (1986).
The natural mother's consent to adoption was not obtained by duress where the mother gave up the child
because of generalized social and financial pressures. Matter of Adoption of Doe, 543 So. 2d 741 (Fla.
1989).
[FN5] Matter of Adoption of Baby Boy, 175 Misc. 2d 7, 667 N.Y.S.2d 635 (Sur. Ct. 1997), aff'd, 252
A.D.2d 971, 676 N.Y.S.2d 391 (4th Dep't 1998).
Even though the mother, at time of consent, was undoubtedly distressed by the recent loss of her own
mother and birth of her third child, these factors did not rise to the level necessary to vitiate her consent.
Matter of Jenelle P, 220 A.D.2d 853, 632 N.Y.S.2d 245 (3d Dep't 1995).
[FN6] Anonymous v. Anonymous, 23 Ariz. App. 50, 530 P.2d 896, 74 A.L.R.3d 520 (Div. 1 1975)
(mother was a 25 year old woman of considerable sophistication, having attended college for a year and
having worked as an inhalation therapist); In re Adoption of Giambrone, 262 So. 2d 566 (La. Ct. App.
4th Cir. 1972) (natural mother was 20 years old at the time of birth).
[FN7] Anonymous v. Anonymous, 23 Ariz. App. 50, 530 P.2d 896, 74 A.L.R.3d 520 (Div. 1 1975); In
re Adoption of Allon, 356 Mich. 586, 97 N.W.2d 744 (1959).
[FN8] In re D—-, 408 S.W.2d 361 (Mo. Ct. App. 1966).
[FN9] In re J.M.P., 528 So. 2d 1002 (La. 1988); Batt v. Nebraska Children's Home Soc., 185 Neb. 124,
174 N.W.2d 88 (1970).
[FN10] In re Surrender of Minor Children, 344 Mass. 230, 181 N.E.2d 836 (1962); Barwin v. Reidy, 62
N.M. 183, 307 P.2d 175 (1957).
[FN11] Hindman v. Bischoff, 534 So. 2d 743 (Fla. Dist. Ct. App. 2d Dist. 1988); People ex rel. Drury
v. Catholic Home Bureau, 34 Ill. 2d 84, 213 N.E.2d 507 (1966); JK ex rel. DK v. MK, 5 P.3d 782
(Wyo. 2000).
[FN12] Huebert v. Marshall, 132 Ill. App. 2d 793, 270 N.E.2d 464 (1st Dist. 1971).
Evidence supported a finding that the mother was coerced into signing a surrender of child for adoption
where the mother, who had given up her child to an agency for a 30-day period, was not informed by
the supervisor of the adoption agency of options for care of the child other than the immediate choice of
either irrevocable surrender for adoption or return of the child, was threatened of harassment and litiga-
tion by the supervisor, and was coerced within a half-hour or so into signing the surrender. Sorentino v.
Family and Children's Soc. of Elizabeth, 72 N.J. 127, 367 A.2d 1168 (1976).

rights reserved.
END OF DOCUMENT


Adoption

§ 100. Voluntariness; effect of fraud, duress, undue influence, error, or mistake—What constitutes undue
influence
A.L.R. Library
What constitutes undue influence in obtaining a parent's consent to adoption of child, 50 A.L.R. 3d 918
Trial Strategy
11 to 19
Undue influence has been defined as the exercise of sufficient control over the person, the validity of whose
act is brought in question, to destroy his or her free agency and constrain the person to do what he or she would
not have done if such control had not been exercised.[1]
Although results have differed based on the factual circumstances of each case, among the means claimed to
have constituted undue influence in obtaining a parent's consent to adoption are: over-persuasion,[2] the promise
of economic benefit or threat of economic detriment,[3] the invoking of extreme family hostility to the mother
and child,[4] threats of incarceration or institutionalization,[5] and undue moral persuasion by institutional or
professional persons with whom the parent has contact.[6]
[FN1] Am. Jur. 2d, Duress and Undue Influence § 30.
[FN2] Adoption of J.M.M. v. New Beginnings of Tupelo, Inc., 796 So. 2d 975 (Miss. 2001).

[FN3] Downs v. Wortman, 228 Ga. 315, 185 S.E.2d 387 (1971); Adoption of J.M.M. v. New Begin-
nings of Tupelo, Inc., 796 So. 2d 975 (Miss. 2001); In re Adoption of Minor Child, 109 R.I. 443, 287
A.2d 115, 50 A.L.R.3d 907 (1972).
[FN5] In re Surrender of Minor Children, 344 Mass. 230, 181 N.E.2d 836 (1962); In re H—, 373
S.W.2d 635 (Mo. Ct. App. 1963).
[FN6] Adoption of J.M.M. v. New Beginnings of Tupelo, Inc., 796 So. 2d 975 (Miss. 2001); In re Ad-
option of Zschach, 75 Ohio St. 3d 648, 665 N.E.2d 1070 (1996).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VI D REF Page 1
2 Am. Jur. 2d Adoption VI D Refs.

Adoption

Research References
West's Key Number Digest, Adoption 7.6(1) to (3)
A.L.R. Library
Trial Strategy
11 to 19
Forms
rights reserved.
AMJUR ADOPTION VI D REF
END OF DOCUMENT


Adoption

1. In General
§ 101. Statutory rule that consent is generally irrevocable
A.L.R. Library
Comment Note.—Right of natural parent to withdraw valid consent to adoption of child, 74 A.L.R. 3d 421
Forms
Relinquishment of child to licensed adoption agency—Final and irrevocable surrender. Am. Jur. Legal
Forms 2d, Adoption § 9:9
In some jurisdictions, a valid consent to adopt is irrevocable[1] except by order of the court,[2] for legal
cause shown[3] as where consent was procured through fraud and undue influence, coercion or other improper
methods.[4] It has been stated that, lacking proof of fraud, duress, or coercion, irrevocable consent for adoption,
when executed before a judge, becomes irrevocable at that very moment.[5] In some jurisdictions, in the absence
of fraud, duress, or undue influence, consents to adoption become final and irrevocable upon execution of the
consent to adoption by the natural parents and delivery and surrender of the child to the adoptive parents or ad-
option agency.[6]
Observation:
Where a parent may revoke his or her consent to adoption at any time before the final decree of adoption is
entered, the parent may agree to make his or her consent irrevocable, in which case consent may be revoked
only for fraud or duress.[7]
[FN1] Anderson v. Hetherinton, 560 So. 2d 1078 (Ala. Civ. App. 1990); Matter of Navajo County Ju-
venile Action No. JA-691, 171 Ariz. 369, 831 P.2d 368 (Ct. App. Div. 1 1991); Matter of Adoption of

Doe, 543 So. 2d 741 (Fla. 1989); In re Adoption of D.N.T., 843 So. 2d 690 (Miss. 2003); In re Adop-
tion of Zschach, 75 Ohio St. 3d 648, 665 N.E.2d 1070 (1996).
[FN2] McLaughlin v. Strickland, 279 S.C. 513, 309 S.E.2d 787 (Ct. App. 1983).
[FN3] Ex parte Fowler, 564 So. 2d 962 (Ala. 1990).
[FN4] § 106.
[FN5] Matter of Adoption of E. W. C., 89 Misc. 2d 64, 389 N.Y.S.2d 743 (Sur. Ct. 1976).
[FN6] Petition of Steve B.D., 111 Idaho 285, 723 P.2d 829 (1986); Gomez v. Savage, 254 Neb. 836,
580 N.W.2d 523 (1998).
A mother was precluded from revoking her relinquishment of parental rights, where it was undisputed
that the child had already been placed for adoption. In re Baby M., 277 Mont. 211, 921 P.2d 857 (1996)
.
rights reserved.
END OF DOCUMENT


Adoption

1. In General
§ 102. Statutory rule that consent is generally revocable within specified time or before specified event
A.L.R. Library
Forms
Withdrawal of consent to adoption—By father or mother. Am. Jur. Legal Forms 2d, Adoption § 9:32
Petition or application—To withdraw consent—By natural mother—Changed circumstances. Am. Jur.

Petition or application—To withdraw consent—By natural mother—Refusal of agency to return child within
agreed period of right to rescind. Am. Jur. Pleading and Practice Forms, Adoption § 154
Notice of motion—To withdraw consent—By natural mother. Am. Jur. Pleading and Practice Forms, Adop-
tion § 155
Answer—By child placement agency—Action seeking revocation of consent and requiring disclosure of
name of adoptive parents—Regained custody not in best interests of children. Am. Jur. Pleading and Practice
Decree—Permitting retraction of consent of natural mother to adoption—Dismissing adoption proceedings.

Am. Jur. Pleading and Practice Forms, Adoption § 157
In some jurisdictions, parents generally may revoke their consent to adoption within specified time limits,[1
] or at any time until the consent is approved by the court[2] or the adoption decree is entered.[3]

[FN1] In re Adoption of Baby Girls Mandell, 213 Ill. App. 3d 670, 157 Ill. Dec. 290, 572 N.E.2d 359
(2d Dist. 1991) (12 months from the date the consent or surrender was executed); In re Adoption/
Guardianship No. 11137 in Circuit Court for Montgomery County, 106 Md. App. 308, 664 A.2d 443
(1995) (30 calendar days after they are filed or any time before final decree of adoption is entered,
whichever occurs first); Matter of Baby Girl Z, 154 A.D.2d 471, 545 N.Y.S.2d 941 (2d Dep't 1989)
(extrajudicial consent would become irrevocable 45 days after its execution, unless written notice of re-
vocation was received by court within that period); Matter of Adoption of Infant Boy Crews, 60 Wash.
App. 202, 803 P.2d 24 (Div. 1 1991), decision aff'd, 118 Wash. 2d 561, 825 P.2d 305 (1992) (48 hours
after birth).
Uniform Adoption Act (1994) § 2-408(a) (192 hours after birth).
[FN3] In re Adoption/Guardianship No. 11137 in Circuit Court for Montgomery County, 106 Md. App.
308, 664 A.2d 443 (1995) (all consents to adoption are revocable for 30 calendar days after they are
filed or any time before final decree of adoption is entered, whichever occurs first); Stubbs v. Weath-
ersby, 320 Or. 620, 892 P.2d 991 (1995); T.J.B. v. E.C., 438 Pa. Super. 529, 652 A.2d 936 (1995);
Swinney v. Mosher, 830 S.W.2d 187 (Tex. App. Fort Worth 1992), writ denied, (Oct. 21, 1992).
In the case of an Indian child, consent may be withdrawn for any reason until the entry of a final decree
of adoption. Matter of Adoption of Infant Boy Crews, 60 Wash. App. 202, 803 P.2d 24 (Div. 1 1991),
decision aff'd, 118 Wash. 2d 561, 825 P.2d 305 (1992).
As to a discussion of the Indian Child Welfare Act of 1978 as affecting adoption of Native Americans,
generally, see Am. Jur. 2d, Indians §§ 145 to 153.
rights reserved.
END OF DOCUMENT


Adoption

§ 103. Best interests of child
A.L.R. Library
§§ 3, 4
Courts considering the right of natural parents to withdraw previously given valid consents to the adoption
or adoptive placement of their children have attached great importance to the question whether the withdrawal of
consent would serve the best interests and welfare of the children.[1] In some states where consents to adoptions
are generally irrevocable, an exception has specifically been made for cases where a court finds it to be in the
best interests of the child.[2]
Cases:
Best interests of a child cannot alone overcome a valid consent to an adoption and a previously entered ad-
option decree. In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009).
Reinstatement of biological father's parental rights was in the best interests of the child following revocation
of a conditional judicial surrender executed by the biological father for failure of the material condition preced-
ent that a specific resource adopt the child; child was 17 years old, she refused to consent to adoption, no addi-
tional adoptive resources had been located for her, she evinced a strong desire to live with her father, and all ne-
cessary parties consented to reinstatement. McKinney's Social Services Law § 383–c(2)(a, b), (5)(b)(iii). In re
Commitment of S.D., 906 N.Y.S.2d 896 (Fam. Ct. 2010).
Withdrawal of biological mother's consent to relinquish child for adoption was in child's best interest, as re-
quired for such withdrawal, even though child spent first 11 weeks of life with prospective adoptive parents, and
adoptive parents appeared to be fit, obviously loved child very much, and had sufficient housing, financial re-
sources, extended support systems, and child-care options; mother had an equal ability to care for child, and

mother's consent for relinquishment was involuntary. McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008).
[END OF SUPPLEMENT]
[FN1] Ex parte Fowler, 564 So. 2d 962 (Ala. 1990); A. B. M. v. M. H., 651 P.2d 1170 (Alaska 1982);
Hensman v. Parsons, 235 Neb. 872, 458 N.W.2d 199 (1990); Matter of Eric D., 162 A.D.2d 1051, 559
N.Y.S.2d 57 (4th Dep't 1990); Webb v. Wiley, 1979 OK 119, 600 P.2d 317 (Okla. 1979); Phillips v.
Baker, 284 S.C. 134, 325 S.E.2d 533 (1985).
[FN2] Ex parte Fowler, 564 So. 2d 962 (Ala. 1990); Matter of Adoption of Male Child, 73 Haw. 314,
832 P.2d 265 (1992).
rights reserved.
END OF DOCUMENT


Adoption

§ 104. Change of mind
Under statutes making consents to adoption generally irrevocable, the mere fact that the natural parent has
had a change of heart about an adoption is insufficient grounds to revoke consent to the adoption,[1] since al-
lowing revocation in such circumstances would create a great hardship for the child, and for the adopting par-
ents, and for the field of child adoption in general.[2]
[FN1] Ex parte Fowler, 564 So. 2d 962 (Ala. 1990); In re Adoption of P.R. McD., 440 So. 2d 57 (Fla.
Dist. Ct. App. 4th Dist. 1983); Matter of Blankenship, 165 Mich. App. 706, 418 N.W.2d 919 (1988); In
re Adoption of Infant Boy, 60 Ohio App. 3d 80, 573 N.E.2d 753 (3d Dist. Allen County 1989).
rights reserved.
END OF DOCUMENT


Adoption

§ 105. Mistake
A.L.R. Library
Mistake or want of understanding as ground for revocation of consent to adoption or of agreement releasing
infant to adoption placement agency, 74 A.L.R. 3d 489
General principles of law governing the avoidance of contracts on the ground of mistake[1] have been ap-
plied in cases discussing whether a consent to adoption or an agreement releasing a child to an adoption place-
ment agency may be revoked because of mistake or want of understanding. In this regard, cases dealing with the
question of revocability of consent to adoption due to mistake have sometimes followed the general rule[2] that
a unilateral mistake in the making of an agreement, of which the other party is entirely ignorant and to which he
or she in no way contributes, will not affect the agreement or afford grounds for its avoidance or rescission, un-
less it is such a mistake as goes to the substance of the agreement itself.[3]
In addition, the rule that a mistake as to a future event is not of such nature as will vitiate an otherwise valid
consent has been invoked in support of a holding that a natural mother's mistake as to the possibility of marrying
her illegitimate child's father would not support the revocation of her consent to the adoption of the child.[4]
Among the factors that have been deemed by courts as negating the conclusion that the natural parent's or
parents' consent to the adoption or adoptive placement was obtained by mistake, include: the fact that the parents
were the one initiating the adoption process, or otherwise indicated by their conduct that they wanted to place
their children for adoption;[5] the parent or parents' intelligence, education, or experience;[6] and the fact that
the parent or parents were given an opportunity to examine the relevant documents, to ask questions, and to cor-
rect any misimpressions prior to the execution of such instruments.[7]
[FN1] As to such principles, generally, see Am. Jur. 2d, Contracts §§ 202 to 213.

[FN2] As to discussion of the general rule, see Am. Jur. 2d, Contracts § 202.
[FN3] Anonymous v. Anonymous, 23 Ariz. App. 50, 530 P.2d 896, 74 A.L.R.3d 520 (Div. 1 1975).
Although the father signed the consent to adoption under the mistaken belief that he could revoke his
consent within a six month time period after signing the consent, his mistaken belief that his signature
was not final was insufficient to revoke his consent. JK ex rel. DK v. MK, 5 P.3d 782 (Wyo. 2000).
[FN4] In re Adoption of Child, 114 N.J. Super. 584, 277 A.2d 566 (App. Div. 1971).
[FN5] Stotler v. Lutheran Social Service of Iowa, 209 N.W.2d 121, 74 A.L.R.3d 476 (Iowa 1973); In re
Child, 1 Mass. App. Ct. 256, 295 N.E.2d 693 (1973); In re Schenectady County Dept. of Social Ser-
vices, 73 Misc. 2d 104, 341 N.Y.S.2d 169 (Fam. Ct. 1972).
[FN6] Application of Hendrickson, 159 Mont. 217, 496 P.2d 1115 (1972) (18-year-old high school
senior and a "B" student); Welfare Division of Dept. of Health and Welfare v. Maynard, 84 Nev. 525,
445 P.2d 153 (1968) (licensed practical nurse).
[FN7] In re Adoption of ADA, 789 S.W.2d 842 (Mo. Ct. App. S.D. 1990); Application of Hendrickson,
159 Mont. 217, 496 P.2d 1115 (1972); In re Baby Boy Fontaine, 1972 OK 138, 516 P.2d 1333 (Okla.
1972).
rights reserved.
END OF DOCUMENT


Adoption

§ 106. Fraud, duress, undue influence, or coercion
Trial Strategy
11 to 19
Courts, even those under statutes making consent to adoption generally irrevocable,[1] ordinarily recognize
the right to revoke consent given by parents for the adoption of their children where the consent was obtained by
some improper influence such as through fraud,[2] duress,[3] undue influence,[4] coercion, or other improper
methods.[5]
In some jurisdictions, in order to prevail on an application to rescind extrajudicial consent to an adoption of

his or her child, the petitioner has to show that the consent was signed under compulsion or threat, or against
one's free will, or based upon fraudulent statements.[6]
Even where fraud or duress are grounds for revocation of consents to adoption, they may only be asserted to
revoke an adoption within a specified time under some statutes, after which consent may not be revoked for any
reason.[7]
In the case of a final adoption decree, consent to adopt may be withdrawn upon a proper showing of fraud,
duress, or intimidation.[8] Furthermore, in some jurisdictions, once an interlocutory decree of adoption is
entered, it is to be construed as a final decree if no subsequent hearing is required by the terms of that decree,[9]
and consent cannot be withdrawn after the entry of such a decree unless the natural parent seeking to withdraw
the consent has made a proper showing of fraud, duress, or intimidation.[10]
Duress sufficient to set aside the consent to adoption requires proof of a wrongful act of one person that
compels a manifestation of apparent assent by another to a transaction without his or her volition, or any wrong-
ful threat of one person by words or other conduct that induces another to enter into a transaction under the in-

fluence of such fear as precludes him or her from exercising free will and judgment, if the threat was intended or
should reasonably have been expected to operate as an inducement.[11]
Cases:
"Duress," within meaning of the statute providing that a withdrawal of consent to relinquish a child for ad-
option is not permitted unless, inter alia, the consent was not given voluntarily or was obtained under duress or
through coercion, is a condition of mind produced by improper external pressure or influence that practically
destroys the free agency of a party and causes him to do an act or form a contract not of his own volition. Mc-
Cann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008).
Duress, for purposes of the statute providing that a withdrawal of consent to relinquish a child for adoption
is not permitted unless, inter alia, the consent was not given voluntarily or was obtained under duress or through
coercion, is viewed with a subjective test, looking at the individual characteristics of the person allegedly influ-
enced, and duress does not occur if the person has a reasonable alternative to succumbing and fails to avail
themselves of the alternative. McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008).
Duress is only one consideration for a court in making a determination of whether to allow withdrawal of
consent to relinquish a child for adoption on the ground that the consent was obtained involuntarily, and the
court may look to other factors, including the totality of the circumstances. McCann v. Doe, 377 S.C. 373, 660
S.E.2d 500 (2008).
[END OF SUPPLEMENT]
[FN1] As to the statutory rule followed in some jurisdictions that consent to adoption is generally irre-
vocable, see § 101.
[FN2] Ex parte Fowler, 564 So. 2d 962 (Ala. 1990); Matter of Navajo County Juvenile Action No. JA-
691, 171 Ariz. 369, 831 P.2d 368 (Ct. App. Div. 1 1991); Matter of Adoption of Doe, 543 So. 2d 741
(Fla. 1989); In re Adoption of D.N.T., 843 So. 2d 690 (Miss. 2003); Matter of TR, 777 P.2d 1106
(Wyo. 1989).
Div. 1 1991); Adoption of Jennie L., 111 Cal. App. 3d 422, 168 Cal. Rptr. 695 (4th Dist. 1980); Matter
of Adoption of Doe, 543 So. 2d 741 (Fla. 1989); In re Adoption of D.N.T., 843 So. 2d 690 (Miss. 2003)
; JK ex rel. DK v. MK, 5 P.3d 782 (Wyo. 2000).
As to what constitutes duress to obtain consent to adoption, generally, see § 99.
[FN4] Ex parte Fowler, 564 So. 2d 962 (Ala. 1990); Matter of Navajo County Juvenile Action No. JA-
691, 171 Ariz. 369, 831 P.2d 368 (Ct. App. Div. 1 1991); Matter of Adoption of Doe, 543 So. 2d 741
(Fla. 1989); In re Adoption of D.N.T., 843 So. 2d 690 (Miss. 2003).
As to what constitutes undue influence to obtain consent to adoption, generally, see § 100.

Lower court determinations that a mother's consent to adoption was valid would be reversed where the
mother was threatened with possible criminal child abuse charges by her child's grandmother and by the
attorney hired by the grandmother which charges were not justified and hence invalidated consent was
procured. Wuertz v. Craig, 458 So. 2d 1311 (La. 1984).
[FN6] Matter of Adoption of Baby Boy B., 163 A.D.2d 673, 558 N.Y.S.2d 281 (3d Dep't 1990).
[FN7] In re Adoption of M.D.T., 722 So. 2d 702 (Miss. 1998) (six months); Matter of Adoption of In-
fant Boy Crews, 60 Wash. App. 202, 803 P.2d 24 (Div. 1 1991), decision aff'd, 118 Wash. 2d 561, 825
P.2d 305 (1992) (one year).
[FN8] Matter of Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).
[FN9] § 141.
[FN10] Martin v. Martin, 316 Ark. 765, 875 S.W.2d 819 (1994).
[FN11] § 99.
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VII A REF Page 1
2 Am. Jur. 2d Adoption VII A Refs.

Adoption

A. In General
Research References
West's Key Number Digest, Adoption 9.1, 10, 13
A.L.R. Library
Forms
Am. Jur. Pleading and Practice Forms, Adoption §§ 113 to 119, 183, 212, 267
rights reserved.
AMJUR ADOPTION VII A REF
END OF DOCUMENT


Adoption

A. In General
§ 107. Generally; jurisdiction
Trial Strategy
Forms
Request to set hearing—To clerk—Consent of parents and investigation report filed. Am. Jur. Pleading and
Order—That decree of adoption be recorded—Investigation report and other records to be sealed and with-
held from inspection. Am. Jur. Pleading and Practice Forms, Adoption § 212
Order—To show cause—Why order terminating adoption and awarding custody to natural mother should
not be stayed pending appeal of termination order. Am. Jur. Pleading and Practice Forms, Adoption § 267
An essay on inter-jurisdictional issues in adoption: Where is this child not my child? 32 Creighton L.Rev.
1045 (1999)
Adoption is a creation of statute[1] and therefore the court's authority in matters relating to adoption is lim-
ited to the authority set forth by statute.[2] In general, the law of the forum state applies to adoption cases.[3]
Jurisdiction of adoption proceedings may be conferred upon the court having jurisdiction of probate matters,[4]
upon juvenile courts[5] or family courts[6] in courts of general jurisdiction,[7] or equity courts.[8] Adoption
proceedings may be special proceedings,[9] not civil actions, and are within the original jurisdiction of the clerk
of the superior court.[10]
The usual method of effecting a legal adoption is by a statutory proceeding, in which the adopting parent or

parents invoke the jurisdiction of the appropriate court by an application or petition to adopt the child, setting
out whatever jurisdictional facts may be required by the controlling statutes, and praying for a decree of adop-
tion.[11] A court must look to substance, rather than form, in determining whether the trial court has jurisdiction
over adoption petitions.[12]
In some circumstances, a judge may consolidate adoption and custody proceedings for disposition in the ap-
plicable court.[13]
Practice Guide:
The Interstate Compact on the Placement of Children does not establish a trial court's jurisdiction to decide ad-
option matters.[14]
Observation:
The Uniform Child Custody Jurisdiction Act applies to adoption proceedings,[15] but has only limited applicab-
ility in adoption cases.[16]
Cases:
Petitions for adoption filed in state court by adoptive parents and biological father's wife did not implicate
specific civil rights protecting racial equality, and thus petitions were not removable to federal court on that
basis. In re Adoption of Baby C., 323 F. Supp. 2d 1082 (D. Kan. 2004), aff'd, 138 Fed. Appx. 81 (10th Cir.
2005).
While venue is not jurisdictional in an adoption proceeding, courts should still observe the directives of the
venue statute. In re Adoption of Infants H., 904 N.E.2d 203 (Ind. 2009).
Once a court of competent jurisdiction has begun the task of deciding the long-term fate of a child, all other
courts are to refrain from exercising jurisdiction over that matter. In re Adoption of Pushcar, 110 Ohio St. 3d
332, 2006-Ohio-4572, 853 N.E.2d 647 (2006).
Original and exclusive jurisdiction over adoption proceedings is vested in the probate court. In re Adoption
of Pushcar, 110 Ohio St. 3d 332, 2006-Ohio-4572, 853 N.E.2d 647 (2006).
[END OF SUPPLEMENT]
[FN1] § 7.
[FN2] In re Adoption of C.H., 554 N.W.2d 737 (Minn. 1996).
The power to decree an adoption is purely a creation of statute which prescribes the requisite conditions
under which adoption may be granted and provides a method of its attainment. Eggleston v. Landrum,
210 Miss. 645, 50 So. 2d 364, 23 A.L.R.2d 696 (1951).
[FN3] In re Baby Girl P., 147 N.H. 772, 802 A.2d 1192 (2002).
[FN4] B.W.C. v. A.N.M., 590 So. 2d 282 (Ala. Civ. App. 1991); Porter v. Hoffman, 592 A.2d 482 (Me.

1991); In re Adoption of Ridenour, 61 Ohio St. 3d 319, 574 N.E.2d 1055 (1991).
2 1982).
[FN6] In re Jeramie N., 688 A.2d 825 (R.I. 1997); In re Lisa Diane G., 537 A.2d 131 (R.I. 1988).
[FN7] Spires v. Bittick, 171 Ga. App. 914, 321 S.E.2d 407 (1984).
[FN8] In re Adoption of Perkins, 242 Iowa 1374, 49 N.W.2d 248 (1951); In re Lynn M., 312 Md. 461,
540 A.2d 799 (1988); Matter of Adoption of R.M.P.C., 512 So. 2d 702 (Miss. 1987).
[FN9] Matter of Adoption of Doe, 101 N.M. 34, 677 P.2d 1070 (Ct. App. 1984); In re Adoption of
Searle, 74 N.C. App. 61, 327 S.E.2d 315 (1985).
[FN10] In re Adoption of Searle, 74 N.C. App. 61, 327 S.E.2d 315 (1985).
[FN11] Martinez v. Gutierrez, 66 S.W.2d 678 (Tex. Comm'n App. 1933).
As to agreements for adoption, see §§ 49 et seq.
As to the when consent of a guardian of the potential adoptee is required or sufficient, generally, see §
91.
[FN12] In re A.W.K., 778 A.2d 314 (D.C. 2001).
[FN13] Griffin v. Griffin, 118 N.C. App. 400, 456 S.E.2d 329 (1995).
[FN14] In re Adoption of Asente, 90 Ohio St. 3d 91, 2000 -Ohio- 32, 734 N.E.2d 1224 (2000).
[FN15] State ex rel. Torres v. Mason, 315 Or. 386, 848 P.2d 592 (1993).
[FN16] In re Adoption of D.N.T., 843 So. 2d 690 (Miss. 2003).
rights reserved.
END OF DOCUMENT


Adoption

A. In General
§ 108. Scope of court's authority
The court with jurisdiction, in dealing with an adoption, has only such powers as are conferred by statute or
that can be regarded as inherent powers.[1] In some jurisdictions, although adoption proceedings are special stat-
utory proceedings, the trial court is also invested with some equitable powers.[2]
Courts given exclusive jurisdiction of adoption proceedings are often also given exclusive jurisdiction to
sever the legal ties between parent and child by allowing the adoption of another.[3] The obvious purpose of ter-
minating parental rights in connection with an adoption proceeding is to provide a child with a real parent in-
stead of one whose conduct proves him to be a parent by blood only.[4]
A court is without jurisdiction to enter a final decree of adoption after the death of a minor child sought to
be adopted. The death deprives the trial court of jurisdiction.[5]
[FN1] Wimber v. Timpe, 109 Or. App. 139, 818 P.2d 954 (1991).
[FN2] Matter of Adoption of Doe, 101 N.M. 34, 677 P.2d 1070 (Ct. App. 1984).
An adoption proceeding is not a forum for a determination of custody between parents. State ex rel.
L.L.B. v. Eiffert, 775 S.W.2d 216 (Mo. Ct. App. S.D. 1989).
[FN4] Matter of Adoption of Gotvaslee, 312 N.W.2d 308 (N.D. 1981).
[FN5] In re Adoption of Bradfield, 97 N.M. 611, 642 P.2d 214 (Ct. App. 1982).
rights reserved.

END OF DOCUMENT


Adoption

A. In General
§ 109. Purpose and nature of proceeding
Forms
Investigation of adopting parent—Authorization to divulge employment information. Am. Jur. Legal Forms
2d, Adoption § 9:46
Investigation of child being adopted—Authorization to divulge medical and social history. Am. Jur. Legal
Forms 2d, Adoption § 9:47
Forms regarding investigation. Am. Jur. Pleading and Practice Forms, Adoption §§ 113 to 119
Request to set hearing—To clerk—Consent of parents and investigation report filed. Am. Jur. Pleading and
The trial court, as parens patriae, has an obligation to protect the child's welfare.[1] The basic purpose of an
adoption is the welfare, protection, and betterment of the child, and adoption courts ultimately must rule on that
basis.[2] In addition, the purpose of an adoption proceeding is to change the status of the child in its relation to
the adoptive parent.[3]
Adoption proceedings may be considered to be ex parte and not adversarial in nature.[4] Some jurisdictions
view that the proceeding is in the nature of a proceeding in rem[5] or quasi in rem,[6] while others consider that
the proceeding is one in personam.[7]
Cases:
Stepfather was required to pay $3,941.76 for indigent father's attorney fees and costs, in stepparent adoption
proceeding. In re J.M.D., 41 Kan. App. 2d 157, 202 P.3d 27 (2009), review granted, (June 4, 2009).

[END OF SUPPLEMENT]
[FN1] In re T.W., 732 A.2d 254 (D.C. 1999).
[FN2] Sharon S. v. Superior Court, 31 Cal. 4th 417, 2 Cal. Rptr. 3d 699, 73 P.3d 554 (2003).
The best interests of a child sought to be adopted cannot transcend statutorily defined jurisdictional
boundaries. In re Adoption of Baby Z., 247 Conn. 474, 724 A.2d 1035 (1999).
Statutory requirements for parental consent to adoption must be satisfied before the child's best interests
become paramount. In re M.L.M., 278 Mont. 505, 926 P.2d 694 (1996).
As to best interests considerations in making adoption determinations, generally, see § 131.
[FN3] In re Adoption of Barnett, 54 Cal. 2d 370, 6 Cal. Rptr. 562, 354 P.2d 18 (1960); In re McFarland,
223 Mo. App. 826, 12 S.W.2d 523 (1928).
[FN4] M.R. by Ratliff v. Meltzer, 487 N.E.2d 836 (Ind. Ct. App. 4th Dist. 1986).
[FN5] In re McFarland, 223 Mo. App. 826, 12 S.W.2d 523 (1928).
[FN6] Walter v. August, 186 Cal. App. 2d 395, 8 Cal. Rptr. 778, 83 A.L.R.2d 941 (1st Dist. 1960).
[FN7] Noel v. Olszewski, 350 Ill. App. 264, 112 N.E.2d 727 (1st Dist. 1953).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VII B REF Page 1
2 Am. Jur. 2d Adoption VII B Refs.

Adoption

Research References
Uniform Adoption Act §§ 3-101, 3-102, 3-701
West's Key Number Digest, Adoption 9.1, 11
Primary Authority
25 U.S.C.A. §§ 1902, 1903(4), 1911, 1912(a), 1914
A.L.R. Library
Trial Strategy
32 Am. Jur. Proof of Facts 3d 83 § 1.4
Forms
Am. Jur. Pleading and Practice Forms, Adoption §§ 22 to 31, 69, 119, 184, 186 to 188, 190, 191
rights reserved.
AMJUR ADOPTION VII B REF
END OF DOCUMENT


Adoption

§ 110. Generally
It has been said that the nature of an adoption proceeding, as affecting the rights and interests of the natural
parent as well as those of the child, divides it into two stages. The first stage determines whether the natural par-
ent's rights may be terminated. The second stage is an independent determination as to whether it is in the best
interests of the child to approve the adoption.[1] In the first stage of a contested adoption proceeding, a court
may focus only on the rights and interests of the natural parents; the best interests of the child are not an issue.[2
]
Thus, in some jurisdictions, before authorizing the adoption of a child, the court must terminate the biolo-
gical parent's parental rights.[3] However, some states do not require a judicial termination of parental rights pri-
or to adoption.[4] Rather, the adoption decree automatically results in a termination of parental rights.[5]
Procedural safeguards provided in adoption statutes serve to protect the interests of the parties, the child,
and the public.[6] Legal adoption results if statutory procedure is followed, but fails if any essential requirement
of statute is not complied with,[7] such as fulfilling residency requirements,[8] proper disclosure of documents
and reports,[9] and paternity.[10] The decision to permit or deny an amendment of an adoption petition rests
within the sound discretion of the trial judge[11] and should not be disturbed on appeal absent a showing of an
abuse of that discretion.[12]
Observation:
While the adoption process is a creature of statute,[13]it is not such a technical one that the trial court is left
without power to conduct evidentiary hearings to procure significant evidence or facts before granting or deny-
ing an adoption petition, and to allow the intervention of appropriate and interested parties.[14]

[FN3] In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 736 A.2d 1277 (1999).
Statutory proceedings to terminate parental rights and for adoption may be separate proceedings. Peti-
tion of R.H.N., 710 P.2d 482 (Colo. 1985).
As to abandonment and failure to communicate or provide support as grounds precluding the necessity
of parental consent for adoption, see §§ 81 to 90.
[FN7] In re Adoption of Baby Z., 247 Conn. 474, 724 A.2d 1035 (1999).
[FN8] As to residency requirements, in general, see § 115.
[FN9] In re Adoption of Sigman, 159 Ind. App. 618, 308 N.E.2d 716 (3d Dist. 1974).
[FN10] In re T.M., 665 A.2d 207 (D.C. 1995).
[FN11] In re Adoption of Clark, 327 N.C. 61, 393 S.E.2d 791 (1990).
[FN12] In re Adoption of Clark, 327 N.C. 61, 393 S.E.2d 791 (1990).
[FN13] § 5.
[FN14] In re Adoption of B.T., 150 Wash. 2d 409, 78 P.3d 634 (2003).
rights reserved.
END OF DOCUMENT


Adoption

§ 111. Necessity of compliance with statutory requirements
Compliance with the statutory provisions concerning adoption is mandatory.[1] However, the degree of
compliance varies by jurisdiction as to whether only the essential requirements of the adoption statutes must be
complied with[2] or whether a rule of strict compliance applies.[3]
Caution:
Unless all jurisdictional requirements appear in the record, the resulting decree may be void upon collateral at-
tack.[4]
Cases:
Statutory requirements regarding consent to adoption were not followed, thereby rendering the adoption in-
valid ab initio; if name of the putative father truly was unknown, mother's affidavit to that effect had to accom-
pany her written relinquishment and written consent to adoption, and no such affidavit was filed, and in fact,
mother filed a response to adoption petition in which she specifically denied that name of putative father was
unknown, and at that point, trial court could not proceed with adoption without written relinquishment and writ-
ten consent to adoption signed by putative father. Wyo.Stat.Ann. § 1–22–109. In re JWT, 2005 WY 4, 104 P.3d
93 (Wyo. 2005).
[END OF SUPPLEMENT]
2 1982).
[FN2] Killen v. Klebanoff, 140 Conn. 111, 98 A.2d 520 (1953).

Where the essential statutory requirements have not been met, equity cannot decree an adoption. Appeal
of Ritchie, 155 Neb. 824, 53 N.W.2d 753 (1952).
At least a substantial compliance with the essentials of the provisions governing the adoption proceed-
ings is required to sustain the validity of the proceeding. Kupec v. Cooper, 593 So. 2d 1176 (Fla. Dist.
Ct. App. 5th Dist. 1992).
A petition for adoption is valid where there is substantial compliance with the statutory requirements.
Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001).
[FN3] B.W.C. v. A.N.M., 590 So. 2d 282 (Ala. Civ. App. 1991); Emmons v. Dinelli, 235 Ind. 249, 133
N.E.2d 56 (1956); Heirich v. Howe, 50 N.M. 90, 171 P.2d 312 (1946); In re Adoption of Simpson, 203
Or. 472, 280 P.2d 368 (1955); In re Adoption of W.C.K., 2000 PA Super 68, 748 A.2d 223 (2000), as
revised, (Mar. 14, 2000); Sklaroff v. Stevens, 84 R.I. 1, 120 A.2d 694 (1956); Coonradt v. Sailors, 186
Tenn. 294, 209 S.W.2d 859, 2 A.L.R.2d 880 (1948); In re Adoption of Reinius, 55 Wash. 2d 117, 346
P.2d 672 (1959); Matter of Adoption of SLS, 808 P.2d 207 (Wyo. 1991).
Strict adherence to the statutory procedures for adoption serves the best interests and welfare of all
parties to an adoption. Matter of Adoption of AMD, 766 P.2d 550 (Wyo. 1988).
[FN4] Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992).
rights reserved.
END OF DOCUMENT


Adoption

§ 112. Requirements under Indian Child Welfare Act
Primary Authority
Definition:
Under the Indian Child Welfare Act, the term "Indian child" means any unmarried person who is under age
eighteen and is either: (a) a member of an Indian tribe; or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.[1]
A.L.R. Library
Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.)
Upon Child Custody Determinations, 89 A.L.R. 5th 195
Trial Strategy
Indian Child Welfare Act. Grounds for Termination of Parental Rights, 32 Am. Jur. Proof of Facts 3d 83 §
1.4
The Congress has declared that it is the policy of the nation to protect the best interests of Indian children
and to promote the stability and security of the Indian tribes and families by the establishment of minimum fed-
eral standards for the removal of Indian children from their families and the placement of such children in foster
or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indi-
an tribes in the operation of child and family service programs.[2]
An Indian tribe has exclusive jurisdiction as to any state over any child custody proceeding involving an In-
dian child who resides or is domiciled within the reservation of the tribe, except where such jurisdiction is other-
wise vested in the state by existing federal law.[3] Where an Indian child is a ward of a tribal court, the Indian

tribe retains exclusive jurisdiction, notwithstanding the residence or domicile of the child.[4] In any state court
proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or
residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary,
is required to transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the
petition of either parent or the Indian custodian or the Indian child's tribe, except that such transfer is subject to
declination by the tribal court of such tribe.[5] In any State court proceeding for the foster care placement of, or
termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe
shall have a right to intervene at any point in the proceeding.[6]
In any involuntary proceeding in a state court, where the court knows or has reason to know that an Indian
child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian
child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return re-
ceipt requested, of the pending proceedings and of their right of intervention.[7] If the identity or location of the
parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like
manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian
and the tribe.[8] No foster care placement or termination of parental rights proceeding may be held until at least
ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary. However, the par-
ent or Indian custodian or the tribe must, upon request, be granted up to twenty additional days to prepare for
such proceeding.[9] In addition, any Indian child who is the subject of any action for foster care placement or
termination of parental rights under State law, any parent or Indian custodian from whose custody such child
was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such ac-
tion upon a showing that such action violated any of the above provisions.[10]
[FN1] 25 U.S.C.A. § 1903(4).
[FN2] 25 U.S.C.A. § 1902.
As to Indian child welfare and custody, see Am. Jur. 2d, Indians §§ 145 to 153.
[FN3] 25 U.S.C.A. §§ 1911(a).
[FN4] 25 U.S.C.A. § 1911(a).
[FN5] 25 U.S.C.A. §§ 1911(b).
[FN6] 25 U.S.C.A. §§ 1911(c).
[FN7] 25 U.S.C.A. § 1912(a).
[FN8] 25 U.S.C.A. § 1912(a).
[FN9] 25 U.S.C.A. § 1912(a).
[FN10] 25 U.S.C.A. § 1914.

rights reserved.
END OF DOCUMENT


Adoption

§ 113. Appearance before court
Forms
Order—Fixing time of hearing—Consent of parents filed. Am. Jur. Pleading and Practice Forms, Adoption
§ 184
Notice—Hearing. Am. Jur. Pleading and Practice Forms, Adoption § 186
Notice—Hearing—To natural parents. Am. Jur. Pleading and Practice Forms, Adoption §§ 187, 188
Summons—To appear at hearing—To natural parents. Am. Jur. Pleading and Practice Forms, Adoption §
190
Summons—To appear at hearing—To parent or custodian of child. Am. Jur. Pleading and Practice Forms,
Adoption §§ 191
Under the Uniform Adoption Act (1994), the court must set a date and time for hearing the petition for ad-
option, which must be no sooner than 90 days and no later than 180 days after the petition has been filed, unless
the court for good cause sets an earlier or later date and time.[1]
Some state provisions require an appearance before the applicable court of the person adopting a child, the
child to be adopted, and the other persons whose consent is necessary, and require that the necessary consent be
signed and an agreement be executed by the person adopting to the effect that the child shall be adopted and
treated in all respects as his own lawful child.[2] In private placement adoption proceedings, if the natural moth-
er appears in court, the following considerations should be subject of inquiry:[3]
(1) whether natural mother has been properly counselled as to how and whether she can retain her baby, as
to how she can regain her baby after temporary foster care, as to whether she needs more time to consider fi-
nalizing plans for baby;
(2) as to whether natural mother's emotional state is stable enough to make a final decision;
(3) as to whether natural mother is unduly influenced by duress from her parents or others, or misled by

fraud, to give up baby; and

(4) as to whether natural mother is of sound mind.
Observation:Where a statute requires the presence of the child to be adopted at the adoption hearing,
but there is no legislative direction as to how or when the appearance is to be made, nor what should
transpire at the hearing, it may be left to the discretion of the court as to how fully aware the child must
be regarding the nature and purpose of the hearing.[4]
Practice Guide:If the contesting party is absent from the hearing in an adoption proceeding, and no ex-
press waiver is given, some provision must be made by the trial court for the retention of verbatim testi-
mony so that it may be available in the event of an appeal.[5]
An entry of default judgment may be mandatory in adoption proceedings if one party fails to appear at hear-
ing.[6]
[FN2] Matter of Adoption of M.L.T., 746 P.2d 1179 (Utah Ct. App. 1987);
Appearance may be by telephone. Bergmann v. McCullough, 218 Ga. App. 353, 461 S.E.2d 544 (1995).
An entry of an appearance by a mother's attorney and her subsequent participation in the termination of
parental rights hearing, in connection with an adoption proceeding, without objection to the sufficiency
of notice may waive any claim personal to the mother on this issue.In re Adoption of W.C.K., 2000 PA
Super 68, 748 A.2d 223 (2000), as revised, (Mar. 14, 2000).
[FN3] Matter of Anonymous (G.), 89 Misc. 2d 514, 393 N.Y.S.2d 900 (Sur. Ct. 1977).
[FN4] Matter of Adoption of M.L.T., 746 P.2d 1179 (Utah Ct. App. 1987).
[FN5] In re Coggins' Adoption, 13 Wash. App. 736, 537 P.2d 287 (Div. 3 1975).
[FN6] In Interest of JLB, 914 P.2d 828 (Wyo. 1996).
rights reserved.
END OF DOCUMENT


Adoption

§ 114. Petition or application
Forms
Forms regarding petition or application. Am. Jur. Pleading and Practice Forms, Adoption §§ 22 to 31
An adoption petition cannot be filed until after the child is born, and a natural parent cannot consent to ad-
option prior to birth.[1] A petition for adoption need state only those facts expressly required by statute to be
stated.[2] Even conditions precedent, necessary to support the adoption, need not be set forth in the petition un-
less the statute so requires.[3] Consent of the parent or guardian, and the continued custody of the minor by the
adopting parent for a specified period of time, as required by statute, which must be proved before the court may
enter an order permitting adoption, are not required to be alleged in the petition or to exist at the time of the fil-
ing of the petition if it otherwise complies with statutory requisites and successfully invokes the jurisdiction of
the court.[4] An amendment of a petition to include additional facts with respect to a natural parent's unfitness to
retain parental control of the child is permissible under a statute providing that supplemental pleadings setting
up matters which have arisen after the original pleadings were filed may be filed within a reasonable time by
either party and such additional facts do not establish a new cause of action.[5]
The power to grant or deny a petition for adoption is within the discretion of the trial court.[6] Under appro-
priate circumstances, an adequate basis may exist for dismissing an adoption petition as a penalty for a party's
violation of the Interstate Compact on the Placement of Children (ICPC).[7] Any determination as to whether an
adoption petition may be dismissed, as a sanction for a party's violation of the Interstate Compact on the Place-
ment of Children, should be informed by relevant factors, which may include whether the violation:[8]
(1) was knowingly committed by the adoptive parents or their attorney;
(2) impaired rights of natural parent;
(3) was more than a mere procedural technicality, that adversely affected both the receiving and sending
state's ability to determine the best interests of child;
(4) impeded the sending state's jurisdiction to determine the best interests of the child;
(5) circumvented the sending state's laws in order to effectuate the adoption; or
(6) was made to enhance the adoptive parent's ability to form emotional ties with the child in order to dictate

the adoption in the receiving state's courts.
Under the Uniform Adoption Act, a petition by a stepparent to adopt a minor stepchild must be signed and
verified by the petitioner and contain the required information or state why any of the information is not con-
tained in the petition.[9]
[FN1] Matter of Adoption of Stephen, 168 Misc. 2d 943, 645 N.Y.S.2d 1012 (Fam. Ct. 1996).
[FN2] Eversole v. Smith, 289 Ky. 504, 159 S.W.2d 35 (1942).
[FN3] Eversole v. Smith, 289 Ky. 504, 159 S.W.2d 35 (1942).
[FN4] Mendive v. Third Judicial Dist. Court in and for Lander County, 70 Nev. 51, 253 P.2d 884
(1953).
[FN5] Stalder v. Stone, 412 Ill. 488, 107 N.E.2d 696, 35 A.L.R.2d 653 (1952).
[FN7] In re Adoption/Guardianship No. 3598, 347 Md. 295, 701 A.2d 110 (1997).
rights reserved.
END OF DOCUMENT


Adoption

§ 115. Petition or application—Where petition may be filed; effect of residence of petitioner or adoptee or
location of placement office
A.L.R. Library
Requirements as to residence or domicil of adoptee or adoptive parent for purposes of adoption, 33 A.L.R.
3d 176 §§ 5, 7, 8, 10
Forms
Names—Residences. Am. Jur. Pleading and Practice Forms, Adoption § 21
Length of residence in state. Am. Jur. Pleading and Practice Forms, Adoption § 25
Residence—With petitioners—Placed by institution. Am. Jur. Pleading and Practice Forms, Adoption § 69
Order—Directing release of child to custody of adoptive parents—After investigation—Pending hearing on

adoption. Am. Jur. Pleading and Practice Forms, Adoption § 119
Fulfilling the residency requirements of an adoption statute is a prerequisite to filing a petition for adop-
tion.[1] Adoption statutes often provide that the petitioner for adoption must be a resident of the state in which
the proceeding takes place.[2] Either the adoptive parent or the adoptee may be required to reside within the jur-
isdiction.[3] However, it may only be required that the adoptee must reside within the jurisdiction of the court.[4
] Some adoption statutes require that jurisdiction to grant adoption be in the county in which the adoptee or the
petitioners reside.[5] If the statute is silent as to any requirement of residence of the person who petitions for the
adoption, or of residence of the child within the state, such terms will not be implied.[6]
It may also be required that a child live with the adopting parents for a specified time—for example, six
months—before an adoption decree may be granted.[7] The purpose of such an "in home" period is to provide a
sufficiently long period prior to the adoption hearing to allow the foster parents and the child sought to be adop-

ted to become thoroughly adjusted to each other in the prospective home and to provide time for investigation so
that the court at the hearing may be fully informed as to the advisability making the temporary placement per-
manent.[8] In the absence of a statutory requirement the law does not require that a person desiring to adopt a
child must, as a prerequisite, have had physical custody of the child.[9]
Under the Uniform Adoption Act (1994) a petition for the adoption of a minor may be filed in the court in
the county in which a petitioner lives, the minor lives, or an office of the agency that placed the minor is loc-
ated.[10] Also, under the Act, a state has jurisdiction over a proceeding for the adoption of a minor:[11]
(1) immediately before the commencement of the proceeding, the minor lived in the state with a parent, a
guardian, a prospective adoptive parent, or another person acting as parent, for at least six consecutive
months, excluding periods of temporary absence, or, in the case of a minor under six months of age, lived in
the state from soon after birth with any of those individuals and there is available in the state substantial
evidence concerning the minor's present or future care;
(2) immediately before commencement of the proceeding, the prospective adoptive parent lived in the state
for at least six consecutive months, excluding periods of temporary absence, and there is available in the
state substantial evidence concerning the minor's present or future care;
(3) the agency that placed the minor for adoption is located in the state and it is in the best interest of the
minor that a court of the state assume jurisdiction;
(4) the minor and the prospective adoptive parent are physically present in the 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
(5) it appears that no other state would have jurisdiction under these prerequisites or another state has de-
clined 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 jurisdic-
tion.
Caution:While statutory requirements of adoption statutes as to residence have sometimes been con-
sidered to be jurisdictional in nature, so that an order of adoption would be void where the adoptive par-
ents were not residents, this result may be affected by statutes preventing the challenge of adoptions by
either direct or collateral attack more than a specified time (often one year) after the entry of the final
adoption decree, regardless of whether the decree is void or voidable.[12]
[FN1] Day v. Day, 937 S.W.2d 717 (Ky. 1997).
2 1982).
[FN3] In re Adoption of Baby Boy C., 31 Wash. App. 639, 644 P.2d 150 (Div. 2 1982).
[FN4] Goclanney v. Desrochers, 135 Ariz. 240, 660 P.2d 491 (Ct. App. Div. 2 1982).
[FN5] In re Adoption of G., 502 A.2d 1044 (Me. 1986).
[FN6] In re Pratt, 219 Minn. 414, 18 N.W.2d 147 (1945).

[FN7] Maertz v. Maertz, 827 P.2d 259 (Utah Ct. App. 1992); Matter of Adoption of AMD, 766 P.2d
550 (Wyo. 1988).
[FN8] In re Novak, 536 S.W.2d 33 (Mo. 1976).
[FN9] In re Matthews, 203 Tenn. 161, 310 S.W.2d 185 (1957).
[FN12] Hurt v. Noble, 1991 OK CIV APP 59, 817 P.2d 744 (Ct. App. Div. 3 1991).
As to such statutes, generally, see §§ 157 et seq.
rights reserved.
END OF DOCUMENT


Adoption

§ 116. Standing
Persons having the right to petition for adoption are deemed to have a legally protectible interest in the ad-
option and therefore have standing to object to another person's petition to adopt, and conversely, a person who
has no right to petition lacks that interest and therefore lacks standing to object.[1] The rules of standing are lib-
erally construed where a party has an interest in the proceeding.[2] Foster parents may have standing to petition
for adoption of a child where a judgment for termination of the natural parental rights had been entered.[3] A
grandparent who seeks to intervene in an adoption proceeding following the termination of parental rights has
standing to do so, so long as the requirements of the adoption statute are met.[4] Where grandparents have a pri-
ority status to adopt pursuant to statute, they have standing to file an adoption petition or intervene in the peti-
tion filed by nonrelatives.[5] In considering whether discretionary standing should be afforded to an opponent of
an adoption, the court should look to the type of proofs the opponent wishes to offer, as well as the opponent's
relationship to the child and person or persons who seek or support the adoption.[6]
Observation:
The phrase in an adoption statute setting forth the legislative intent "to maintain sibling groups" would not con-
fer standing on the adoptive child's siblings to challenge the adoption.[7]
[FN1] In re Adoption of J.C.G., 177 Wis. 2d 424, 501 N.W.2d 908 (Ct. App. 1993).
[FN2] Adoption of Lenn E., 182 Cal. App. 3d 210, 227 Cal. Rptr. 63 (5th Dist. 1986).
[FN3] Rodriguez v. Miles, 655 S.W.2d 245 (Tex. App. Corpus Christi 1983).
As to consideration of the child's "best interests" as part of the adoption determination, generally, see §
131.
[FN4] In re Adoption of B.T., 150 Wash. 2d 409, 78 P.3d 634 (2003).

[FN5] B.B. v. Department of Children and Families, 854 So. 2d 822 (Fla. Dist. Ct. App. 1st Dist. 2003).
[FN6] R.K. v. A.J.B., 284 N.J. Super. 687, 666 A.2d 215 (Ch. Div. 1995).
[FN7] S.J. ex rel. M.W. v. W.L., 755 So. 2d 753 (Fla. Dist. Ct. App. 4th Dist. 2000).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VII C REF Page 1
2 Am. Jur. 2d Adoption VII C Refs.

Adoption

Research References

West's Key Number Digest, Constitutional Law 274(5)
A.L.R. Library
Trial Strategy
46 Am. Jur. Proof of Facts 3d 231
Forms
Am. Jur. Pleading and Practice Forms, Adoption §§ 133, 134, 184 to 187
rights reserved.
AMJUR ADOPTION VII C REF
END OF DOCUMENT


Adoption

§ 117. Generally
Forms
Order—Fixing time of hearing—Consent of parents filed. Am. Jur. Pleading and Practice Forms, Adoption
§ 184
Order—Fixing time of hearing—Following publication of notice of hearing and appointment of next friend.
Notice—Hearing. Am. Jur. Pleading and Practice Forms, Adoption § 186
Notice—Hearing—To natural parents. Am. Jur. Pleading and Practice Forms, Adoption § 187
Among the protections accorded a natural parent where the adoption of a child is proposed are the right to
adequate notice and an opportunity to be heard before any parental rights which may exist are terminated.[1]
Due process requires, at a minimum, notice reasonably calculated to afford a natural parent the opportunity to be
heard before his or her parental rights are terminated through adoption, and thus before actual notice may be
deemed an adequate substitute for the required statutory notice, it must be gained prior to the entry of the adop-
tion decree, and knowledge after the decree is entered, even if it is gained within the statutory limitations period,
will not suffice. Notice of a pending adoption must be provided to the child's natural parents, when their consent
is required, in a manner reasonably calculated to apprise them of the proceeding at a time prior to the entry of a
judgment or decree.[2] A putative father is entitled to notice of a pending adoption proceeding so that he may
assert right to grasp his opportunity interest in claiming the obligations of parenthood.[3] A good-faith effort to
notify a natural parent of the adoption proceedings is required.[4] Even where a biological parent is unwilling or
unable to care for a child, the parent's realistic preference for the placement of child with a fit relative is entitled
to significant weight for adoption purposes.[5]
The Uniform Adoption Act provides that unless notice has been waived, notice of a proceeding or adoption
of a minor must be served, within 20 days after a petition for adoption is filed, upon:[6]

(1) an individual whose consent to the adoption is required, but notice need not be served upon an individu-
al whose parental relationship to the minor or whose status as a guardian has been terminated;
(2) an agency whose consent to the adoption is required;
(3) an individual whom the petitioner knows is claiming to be or who is named as the father or possible
father of the minor adoptee and whose paternity of the minor has not been judicially determined, but notice
need not be served upon a man who has executed a verified statement denying paternity or disclaiming any
interest in the minor;
(4) an individual other than the petitioner who has legal or physical custody of the minor adoptee or who
has a right of visitation with the minor under an existing court order issued by a court in this or another
state;
(5) the spouse of the petitioner if the spouse has not joined in the petition; and
(6) a grandparent of a minor adoptee if the grandparent's child is a deceased parent of the minor and, before
death, the deceased parent had not executed a consent or relinquishment or the deceased parent's parental re-
lationship to the minor had not been terminated.
Furthermore, under the Uniform Act, the court must require notice of a proceeding for adoption of a minor
to be served upon any person the court finds, at any time during the proceeding, is:
(1) a person who has not been given notice;
(2) an individual who has revoked a consent or relinquishment or is attempting to have a consent or relin-
quishment set aside; or
(3) a person who, on the basis of a previous relationship with the minor adoptee, a parent, an alleged parent,
or the petitioner, can provide information that is relevant to the proposed adoption and that the court in its
discretion wants to hear.[7]
Observation:Statutes requiring an applicant for adoption of a child to pay costs of notice by publica-
tion cannot be constitutionally applied to an indigent applicant.[8]The right to legally have children is a
fundamental constitutional right which cannot be denied to a person who cannot "purchase jurisdiction"
over an absent mother.[9]
Cases:
Putative father notice of child adoption proceedings was not inherently ambiguous and complied with stat-
ute governing such notices, despite typographical errors contained in notice. Code 1975, § 26-10A-17(b). In re
Adoption of J.C.P., 871 So. 2d 831 (Ala. Civ. App. 2002).
The trial court's refusal to grant father an eight to 12 month continuance, based on the possibility that father
could be released on parole at that time, did not violate father's due process rights, in stepfather's adoption pro-
ceeding; stepfather filed a petition for habeas corpus in an attempt to obtain father's presence at the hearing, and
father had notice of the hearing and an opportunity to be heard at the hearing. In re J.M.D., 41 Kan. App. 2d
157, 202 P.3d 27 (2009), review granted, (June 4, 2009).
[END OF SUPPLEMENT]
[FN1] State ex rel. Smith v. Smith, 75 Ohio St. 3d 418, 1996 -Ohio- 215, 662 N.E.2d 366 (1996).

In addition to due process requirements attaching to adoption proceedings, the prospective adoptive par-
ents are constitutionally entitled to notice and hearing if an agency seeks to remove a child from their
home, even before a formal petition for adoption has been filed. Jinny N. v. Superior Court, 195 Cal.
App. 3d 967, 241 Cal. Rptr. 95 (4th Dist. 1987).
[FN2] Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002).
[FN3] In re T.M., 665 A.2d 207 (D.C. 1995).
[FN4] Petition of Kirchner, 164 Ill. 2d 468, 208 Ill. Dec. 268, 649 N.E.2d 324 (1995).
[FN5] In re T.W., 732 A.2d 254 (D.C. 1999).
[FN6] Uniform Adoption Act § 3-401(a).
[FN7] Uniform Adoption Act (1994) § 3-401(b).
[FN8] Grissom v. Dade County, 293 So. 2d 59 (Fla. 1974).
[FN9] Grissom v. Dade County, 293 So. 2d 59 (Fla. 1974).
rights reserved.
END OF DOCUMENT


Adoption

§ 118. Rights of unknown or unwed fathers
A.L.R. Library
Trial Strategy
Proof of Facts 3d 1
Termination of rights of putative and absent fathers. Grounds for Termination of Parental Rights, 32 Am.
Jur. Proof of Facts 3d 83 § 1.5
163
Forms

Notice—Hearing—To natural parents. Am. Jur. Pleading and Practice Forms, Adoption § 187
45 Brandeis L.J. 59 (2006)
The putative father's right to notice of adoption proceedings: Has Georgia finally solved the adoption equa-
tion? 47 Emory L.J. 1475 (1999)
The Uniform Adoption Act (1994) provides that if, at any time in a proceeding for adoption or for termina-
tion of a relationship of parent and child, the court finds that an unknown father of a minor adoptee may not
have received notice, the court must determine whether he can be identified.[1] The determination must be based
on evidence that includes inquiry of appropriate persons in an effort to identify an unknown father for the pur-
pose of providing notice.[2]
A biological mother does not have an affirmative duty to keep her child's biological father informed of the
progress of her pregnancy or to relay to him any other information pertaining to a proposed adoption of the child
other than that notice required to be given to the child's biological father pursuant to the applicable statutory or
case law.[3] Under some statutory adoption schemes, an unwed father is entitled to notice and a hearing at which
he has the opportunity to demonstrate his biological link and substantial relationship with the child but does not
have the fully established right to a parental relationship until he demonstrates his fitness and commitment.[4]
However, not all putative fathers have a right to notice of an adoption proceeding.[5] A court evaluating the
father's assertion of his opportunity interest is entitled to focus on the extent of the father's involvement as soon
as he learns of the pregnancy.[6] The question of whether a particular unwed, noncustodial father's opportunity
interest will be entitled to substantial protection under the due process clause depends upon application of such
factors as:[7]
(1) the presence or absence of an established relationship between the child and an existing family;
(2) whether the father has established a custodial, personal, or financial relationship with his child, or as-
sumed responsibilities during the mother's pregnancy;

(3) the impact, if any, of state action on the father's opportunity to establish a relationship with his child;
(4) the age of the child when the action to terminate parental rights is initiated; and
(5) the natural father's invocation or disregard of statutory safeguards designed to protect his opportunity in-
terests.
Absent circumstances in which a putative father is entitled to notice of the proposed adoption, there is no
obligation to admit or disclose a putative father's identity to the adoption court.[8]
The fact that an unmarried father, who does not enter his name in a putative father registry, which would
have entitled him to receive notice of his child's adoption proceeding, is not constitutionally entitled to special
notice of the adoption proceeding simply because the court and the mother know that he has filed a paternity pe-
tition in another court.[9]
[FN3] Kessel v. Leavitt, 204 W. Va. 95, 511 S.E.2d 720 (1998).
[FN4] In Interest of E.C.B., 691 So. 2d 687 (La. Ct. App. 2d Cir. 1997), writ denied, 687 So. 2d 394
(La. 1997), decision clarified on other grounds, 691 So. 2d 663 (La. 1997) and writ granted, cause re-
manded on other grounds, 691 So. 2d 663 (La. 1997).
As to the effect of federal constitutional provisions on the right of an unwed father to consent to the ad-
option of his child, see § 73.
As to a mother's right to consent, generally, see §§ 69, 70.
As to waiver of rights, see § 119.
[FN5] Heidbreder v. Carton, 636 N.W.2d 833 (Minn. Ct. App. 2001), review granted, (Feb. 19, 2002)
and aff'd, 645 N.W.2d 355 (Minn. 2002), cert. denied, 537 U.S. 1046, 123 S. Ct. 621, 154 L. Ed. 2d 518
(2002).
[FN6] Appeal of H.R., 581 A.2d 1141 (D.C. 1990).
[FN7] Appeal of H.R., 581 A.2d 1141 (D.C. 1990).
[FN8] Matter of Kevin G., 163 Misc. 2d 849, 622 N.Y.S.2d 420 (Fam. Ct. 1995), order aff'd, 227
A.D.2d 622, 643 N.Y.S.2d 590 (2d Dep't 1996);
Where a mother's complete silence as to the identity of a father had been in her own best interest since
it avoided any embarrassing invasion of her privacy, and where the father's name was not mentioned in
any of the papers, including the birth certificate, it has been held that the mother could not, after issuing
an irrevocable consent to adoption, raise the issue of notice to the natural father to preclude the adop-
tion and the court would not require notice to the father, who was completely unknown and unidenti-
fied.Matter of Adoption of E. W. C., 89 Misc. 2d 64, 389 N.Y.S.2d 743 (Sur. Ct. 1976).

[FN9] Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983).
rights reserved.
END OF DOCUMENT


Adoption

§ 119. Waiver of rights
Forms
One natural parent—Waiver of notice. Am. Jur. Pleading and Practice Forms, Adoption §§ 133, 134
The male abortion: The putative father's right to terminate his interests in and obligations to the unborn
child. 7 J.L. & Pol'y 1 (1999)
Although an alleged father or probable father is entitled to notice, such person may waive that notice in a
specified manner,[1] or, based on particular conduct, may be deemed to have abandoned his child and thus
waived and surrendered any right to notice of or to a hearing in any judicial proceeding for the adoption of a
child.[2] However, a putative father of a child may have no right to notice of an action to adopt a child where he
has executed a waiver of interest in the child.[3] Similarly, the right to notice of adoption proceedings may be
expressly waived.[4] While notice of a hearing on a petition for adoption may sometimes be relinquished by a
writing, the withdrawal of such relinquishment within a specified period and further may provide that the relin-
quishment is invalid unless it states that the parent has this right of withdrawal.[5]
Practice Guide:
By voluntarily appearing in an adoption proceeding, a natural father may waive his right to contest the validity
of service of process.[6]
Cases:
Putative father who fails to update his registration after he changes residences does not necessarily waive

consent requirements and his right to notice of adoption and termination of parental rights proceedings when the
adoption petitioner has actual or constructive knowledge of the whereabouts of the putative father. J.H. v.
K.D.M., 8 So. 3d 372 (Fla. Dist. Ct. App. 5th Dist. 2009).
To show good cause for failing to commence a paternity action within 30 days of receiving adoption re-
gistry notice, as required to preserve right to notice of adoption proceeding as to child, a putative father must
show that he lacked the necessary power, authority, or means to initiate a paternity action within the 30"day
period. M.S.A. §§ 259.49, 259.52. T.D. v. A.K., 677 N.W.2d 110 (Minn. Ct. App. 2004), review denied, (June
29, 2004).
[END OF SUPPLEMENT]
[FN1] Ivy v. Edna Gladney Home, 783 S.W.2d 829 (Tex. App. Fort Worth 1990).
[FN2] Matter of K.B.E., 740 P.2d 292 (Utah Ct. App. 1987).
[FN3] Ivy v. Edna Gladney Home, 783 S.W.2d 829 (Tex. App. Fort Worth 1990).
Div. 1 1991).
[FN5] Matter of Adoption of Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).
[FN6] Matter of Adoption of MSVW, 965 P.2d 1158 (Wyo. 1998).
rights reserved.
END OF DOCUMENT


Adoption

§ 120. Rights to notice and hearing as to termination of parental rights

West's Key Number Digest, Constitutional Law 274(5)
Trial Strategy
Notice is an essential prerequisite to a cutting off of the parent's rights;[1] to divest a parent of his rights
without notice and an opportunity to be heard is not only contrary to every principle of natural justice,[2] but is
prohibited by the Federal Constitution.[3] When the father's identity is known or readily discoverable, he must
be given notice of any proposed action to terminate his rights unless there is clear and convincing evidence that
his interest has lapsed. Where no such notice has been given to the father, and his interest has not lapsed, he is
unconstitutionally deprived of the notice which was his due.[4] Thus, even though it may be asserted that the
parents, by wrongful neglect or criminal conduct, have forfeited their right to give or withhold consent, they
should have due notice that they may be heard upon the question whether they are in a position to give or with-
hold their consent to the decree.[5]
Observation:
Finding that a parent suffers from a mental illness, standing alone, is insufficient grounds to warrant a termina-
tion of parental rights.[6] Rather, to terminate parental rights because of a mental disability, the condition must
be related to the parenting ability.[7]
Practice Guide:
In child protective proceedings culminating in the termination of parental rights, due process of law requires
only that the parents have counsel prior to the permanent custody hearings.[8] Due process does not require that
the parents have counsel during the initial stages of the proceedings.[9]

Cases:
Office of Children and Youth Families (OCYF) substantially complied with notice requirements with re-
spect to biological father of child prior to termination of parental rights and adoption proceedings, thus render-
ing the adoption decree immune from collateral attack; even though OCYF failed to inquire into identities of
possible fathers following mother's statement that father of child could be one of three or four men, a man iden-
tified himself as the child's father, mother thereafter informed OCYF that the man was indeed the father, the
man was present at child's birth, the man visited child for months and participated in OCYF proceedings, and
mother was intentionally concealing the identity of the biological father from OCYF. Pa.O.C.Rule, 15.6, 20
Pa.C.S.A. foll. § 794. In re M.J.S., 206 Pa. Super. 154, 903 A.2d 1 (2006).
[END OF SUPPLEMENT]
[FN1] Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946); Child Sav. Institute v. Knobel, 327 Mo.
609, 37 S.W.2d 920, 76 A.L.R. 1068 (1931).
As to hearing and determination, generally, see §§ 128 et seq.
As to the termination of a parental relationship, generally, see Am. Jur. 2d, Parent and Child § 16.
[FN2] Hughes v. Aetna Cas. & Sur. Co., 234 Or. 426, 383 P.2d 55 (1963).
[FN5] Adoption of Bascom, 126 Mont. 129, 246 P.2d 223 (1952).
As to the determination of the necessity of the consent of a parent to adoption, generally, see § 130.
[FN6] State ex rel. G.J.L., 791 So. 2d 80 (La. 2001).
[FN7] State ex rel. G.J.L., 791 So. 2d 80 (La. 2001).
[FN8] In re Custody of M.W., 2001 MT 78, 305 Mont. 80, 23 P.3d 206 (2001).
As to constitutional provisions regarding due process, generally, see Am. Jur. 2d, Constitutional Law §§
890 to 894.
[FN9] In re Custody of M.W., 2001 MT 78, 305 Mont. 80, 23 P.3d 206 (2001).
rights reserved.

END OF DOCUMENT

AMJUR ADOPTION VII D REF Page 1
2 Am. Jur. 2d Adoption VII D Refs.

Adoption

D. Parties
Research References
A.L.R. Library
Trial Strategy
rights reserved.
AMJUR ADOPTION VII D REF
END OF DOCUMENT


Adoption

D. Parties
§ 121. Generally
A.L.R. Library
Required parties in adoption proceedings, 48 A.L.R. 4th 860
The parties to adoption cases are strictly limited to those with legal rights at stake.[1] Ordinarily the spouse
of the adopting party (other than a spouse who is also a natural parent of the person sought to be adopted) is a
required party to the adoption proceeding.[2] The natural mother of a child sought to be adopted is not a re-
quired party where she has given a valid consent to the adoption.[3] If a natural mother's failure to communicate
with her child is "willful," as that term has been defined by the courts, she would not be a necessary party to
subsequent proceedings for the adoption of the child.[4] However, where she has not given valid consent to the
adoption and has not abandoned the child, the natural mother ordinarily is a required party to the adoption pro-
ceedings.[5]
The husband of the child's mother at the time of the adoption proceedings is generally a required party.[6]
Where the father of the child was divorced from the mother at the time of the proceedings, the father is generally
deemed to be a required party.[7]
[FN1] In re C.M.A., 306 Ill. App. 3d 1061, 239 Ill. Dec. 920, 715 N.E.2d 674 (1st Dist. 1999).
[FN2] Matter of Adams, 189 Mich. App. 540, 473 N.W.2d 712 (1991).
[FN3] Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982).
[FN4] Adoption of Clark by Clark v. Jones, 67 N.C. App. 516, 313 S.E.2d 284 (1984).
[FN5] Adoption of Clark by Clark v. Jones, 67 N.C. App. 516, 313 S.E.2d 284 (1984).

[FN6] Markham v. Markham, 50 Ill. App. 3d 1061, 8 Ill. Dec. 70, 365 N.E.2d 308 (3d Dist. 1977).
[FN7] In re Adoption of Ledbetter, 125 Ill. App. 3d 306, 80 Ill. Dec. 616, 465 N.E.2d 962, 48 A.L.R.4th
855 (4th Dist. 1984).
As to consent to adoption required where the child's parents are divorced, see § 67.
rights reserved.
END OF DOCUMENT


Adoption

D. Parties
§ 122. Child to be adopted; guardian ad litem
A.L.R. Library
Trial Strategy
Guardians ad litem. Grounds for Termination of Parental Rights, 32 Am. Jur. Proof of Facts 3d 83 § 2.5
In some jurisdictions, the child to be adopted must be joined in the petition by guardian ad litem or other-
wise,[1] while in other jurisdictions the view is followed that the child is not a necessary party in the adoption
proceedings,[2] and need not always be represented by a guardian ad litem.[3]
Observation:
The responsibilities of a guardian ad litem appointed under a statute relating to the actions affecting the family
and the responsibilities of a guardian ad litem appointed under a statute relating to the termination of parental
rights and adoptive placement are substantially the same as both guardians ad litem function independently in
the same manner as an attorney for a party and an advocate for the child's best interests, not for the child's
wishes.[4]
[FN1] Lucas v. Lucas, 415 So. 2d 709 (Miss. 1982).
[FN2] Durham v. Barrow, 600 S.W.2d 756 (Tex. 1980).
The appointment of a guardian ad litem is not required in consensual adoptions in which all interested
parties are present. Adoption of C.L.B. v. D.G.B., 812 So. 2d 980 (Miss. 2002).

[FN3] Flinn v. Laughinghouse, 68 N.C. App. 476, 315 S.E.2d 72 (1984).
[FN4] In Interest of Brandon S.S., 179 Wis. 2d 114, 507 N.W.2d 94 (1993).
rights reserved.
END OF DOCUMENT


Adoption

D. Parties
§ 123. Natural or putative father
A.L.R. Library
Trial Strategy
Proof of Facts 3d 1
163
Forms

45 Brandeis L.J. 59 (2006)
A natural or putative father who had never been married to the child's mother may be a required party to an
adoption proceeding[1] but not always,[2] such as where his consent to the adoption was not required since the
child was born out of wedlock, the father's paternity was never established by court proceedings, and the father
never filed an official acknowledgment of his paternity, nor supported or adopted the child,[3] or where his par-
ental rights have already been terminated in a prior adoption proceeding.[4]
Observation:
A gender-based statutory distinction in adoption proceedings between an unmarried mother, whose consent is re-
quired, and an unmarried father, who is disqualified solely on the basis of his sex even after the entry of an order
of filiation and notwithstanding a clearly established relationship with his children, is unconstitutional as being
unrelated to legitimate governmental objectives[5]mandates that an unwed father be made a party respondent to
a termination of parental rights proceeding since he has a right to consent to the adoption of his out-of-wedlock
offspring.[6]
[FN1] Matter of Adoption of Cecilie Ann T., 101 Misc. 2d 472, 421 N.Y.S.2d 167 (Sur. Ct. 1979).
[FN2] Andy v. Lessem, 595 So. 2d 197 (Fla. Dist. Ct. App. 3d Dist. 1992).
[FN3] Andy v. Lessem, 595 So. 2d 197 (Fla. Dist. Ct. App. 3d Dist. 1992).
[FN4] Gray v. Starkey, 41 Ill. App. 3d 555, 353 N.E.2d 703 (5th Dist. 1976).
[FN5] Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979), discussed, gener-

ally in § 73.
[FN6] Matter of ""R'' Children, 100 Misc. 2d 248, 418 N.Y.S.2d 741 (Fam. Ct. 1979).
rights reserved.
END OF DOCUMENT


Adoption

D. Parties
§ 124. Grandparents
A.L.R. Library
Grandparents are generally not necessary parties to an adoption proceeding,[1] except where they are the
legal custodians of the child.[2]
Cases:
Children's maternal grandmother was not aggrieved by orders terminating mother's parental rights and thus
did not have right to appeal those orders. In re L.W., 276 Ga. App. 197, 622 S.E.2d 860 (2005).
[END OF SUPPLEMENT]
[FN1] State ex rel. T.W.N. v. Kehm, 787 S.W.2d 728 (Mo. Ct. App. E.D. 1989).
As to standing, see § 116.
[FN2] Martin v. Putnam, 427 So. 2d 1373 (Miss. 1983).
The maternal grandparents do not have standing to object to the paternal grandmother's adoption of a
minor child, where the child's parents consented to the adoption. In re Adoption of J.J.G., 736 So. 2d
1037 (Miss. 1999).
rights reserved.

END OF DOCUMENT


Adoption

D. Parties
§ 125. Other guardians or custodians; government bodies or representatives
A.L.R. Library
Besides custodians or guardians already mentioned,[1] any other custodian or guardian of a child is ordinar-
ily a required party to the adoption proceeding,[2] including a private child-care agency licensed by the state[3]
and state and local government agencies or representatives.[4]
In some jurisdictions, the state is a party to all adoptions.[5]
[FN1] §§ 121 to 124.
[FN2] Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ct. App. 1980).
[FN3] Kozak v. Lutheran Children's Aid Soc., 164 Ohio St. 335, 58 Ohio Op. 125, 130 N.E.2d 796
(1955).
[FN4] Matter of Adoption of F.N.M., 459 So. 2d 254 (Miss. 1984) (specifying by statute, that the agent
of the county department of public welfare of the State of Mississippi that has placed a child in foster
care, either by agreement or by court order, must be made a party to an adoption proceeding); In re
Matthews, 203 Tenn. 161, 310 S.W.2d 185 (1957).
[FN5] Zockert v. Fanning, 310 Or. 514, 800 P.2d 773 (1990).
rights reserved.

END OF DOCUMENT


Adoption

E. Proof; Evidence
§ 126. Burden and standard of proof
A.L.R. Library
Trial Strategy
32 Am. Jur. Proof of Facts 3d 83 § 9
The burden of proving, by the greater weight or preponderance of the evidence, that adoption is the proper
course of action rests upon the party who wishes to adopt a child.[1] A party seeking a declaration of abandon-
ment in an adoption case must prove his or her case by the heightened "clear and convincing evidence" standard
to safeguard against the wrongful termination of the biological parent's parental rights.[2]
[FN1] Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999).
[FN2] O'Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995).
rights reserved.
END OF DOCUMENT


Adoption

E. Proof; Evidence
§ 127. Evidence
A.L.R. Library
Admissibility of social worker's expert testimony on child custody issues, 1 A.L.R. 4th 837
Trial Strategy
Evidentiary considerations. Grounds for Termination of Parental Rights, 32 Am. Jur. Proof of Facts 3d 83 §
9
A judge must make specific and detailed findings demonstrating that close attention has been given to the
evidence, and these subsidiary findings must be proved by a fair preponderance of the evidence[1] clear and
convincing evidence,[2] or a preponderance of the evidence.[3] The judge who hears the evidence with respect
to an application for a preadoption certification is in the best position to evaluate the witnesses and weigh their
credibility, and is required to weigh the evidence independently from the conclusions of the witnesses.[4] An ap-
pellate court must not reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or
pass upon the credibility of the witnesses in evaluating a decision to terminate the parental rights.[5]
[FN1] Adoption of Dora, 52 Mass. App. Ct. 472, 754 N.E.2d 720 (2001).
[FN2] Apel v. Cummings, 76 Ark. App. 93, 61 S.W.3d 214 (2001); O'Daniel v. Messier, 905 S.W.2d
182 (Tenn. Ct. App. 1995); In re D.T., 34 S.W.3d 625 (Tex. App. Fort Worth 2000).
[FN3] In re H.M.M., 754 So. 2d 425 (La. Ct. App. 2d Cir. 2000), writ denied, 762 So. 2d 14 (La. 2000).
[FN4] Leslie C. v. Maricopa County Juvenile Court, 193 Ariz. 134, 971 P.2d 181 (Ct. App. Div. 1
1997).

[FN5] In re T.S., 276 Kan. 282, 74 P.3d 1009 (2003).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VII F REF Page 1
2 Am. Jur. 2d Adoption VII F Refs.

Adoption

Research References
Primary Authority
25 U.S.C.A. §§ 1915, 1917
42 U.S.C.A. § 1996b(1)
A.L.R. Library
Forms
1A Am. Jur. Legal Forms, Adoption §§ 9:22 to 9:32, 9:46
Am. Jur. Pleading and Practice Forms, Adoption §§ 23, 26, 33, 34, 35, 39, 44, 46, 47, 83 to 96, 98, 99
rights reserved.
AMJUR ADOPTION VII F REF
END OF DOCUMENT


Adoption

§ 128. Generally
Forms
Investigation of adopting parent—Authorization to divulge employment information. Am. Jur. Legal Forms
2d, Adoption § 9:46
Names—Both parents deceased. Am. Jur. Pleading and Practice Forms, Adoption § 44
Nonsupport of child. Am. Jur. Pleading and Practice Forms, Adoption §§ 46, 47
In scrutinizing the placement of a child for adoption, the state court must satisfy itself that the statutory re-
quirements for adoption have been met.[1] A legal adoption results if the statutory procedures for adoption are
followed, but an adoption fails if any essential requirement of the operative adoption statute is not fulfilled.[2]
While each adoption must be judged on its own unique set of facts,[3] the duty of the trial court in adoption mat-
ters is to determine whether the petitioners are eligible to adopt a child,[4] whether they are suitably qualified to
care for and rear the child,[5] whether the child is eligible for adoption,[6] and whether the adoption would be in
the child's best interest.[7] When severing natural bond between parent and child by granting adoption, court's
judgment must reflect careful balancing of importance of all interests, including importance of bond between
natural parent and child.[8]
[FN1] Griffith v. Johnston, 899 F.2d 1427, 16 Fed. R. Serv. 3d 844 (5th Cir. 1990).
As to statutory procedures regarding adoption proceedings, generally, see §§ 109 et seq.
As to residence, generally, see § 115.
[FN2] In re Melissa C., 516 A.2d 946 (Me. 1986).

Adoption matters must be decided on a case-by-case basis through the able exercise of discretion by the
trial court giving due consideration to all known factors in determining what is in the best interest of the
person to be adopted. In re Adoption of Charles B., 50 Ohio St. 3d 88, 552 N.E.2d 884 (1990).
[FN4] Matter of Adoption of G.D.L., 1987 OK 115, 747 P.2d 282 (Okla. 1987).
[FN5] In re Adoption of Ridenour, 61 Ohio St. 3d 319, 574 N.E.2d 1055 (1991).
Once a court is determined, in the context of a stepparent-adoption proceeding, that termination and ad-
option would be in the best interests of the child, the court must then consider whether the child is
"available for adoption" because the natural parent failed to provide reasonable support without cause.
Petition of R.H.N., 710 P.2d 482 (Colo. 1985).
[FN7] § 129.
[FN8] In re Leitch, 732 So. 2d 632 (La. Ct. App. 2d Cir. 1999).
rights reserved.
END OF DOCUMENT


Adoption

§ 129. Factors considered significant
Forms
Moral character. Am. Jur. Pleading and Practice Forms, Adoption § 33
Moral character—Church attendance. Am. Jur. Pleading and Practice Forms, Adoption § 34
Moral character—Allegations in supporting affidavit—By acquaintance. Am. Jur. Pleading and Practice
Moral character—Allegations in supporting affidavit—By attorney. Am. Jur. Pleading and Practice Forms,
Adoption § 36
While no single factor should be allowed to outweigh all others,[1]the court should consider: the desires of
the child;[2]the present or future effects of the adoption, including the detrimental effects of termination of par-
ental rights;[3]the emotional and physical needs of the child now and in the future;[4]the child's emotional ties
to[5] and interaction with[6] the prospective adopting parents[7] or contestants to the adoption;[8]the emotional
and physical danger to the child now and in the future;[9]the parental abilities of the individuals seeking cus-
tody;[10]the programs available to assist these individuals to promote the best interests of the child;[11]the plans
for the child by these individuals;[12] the living arrangements of the adopters;[13]the stability of the environ-
ment[14] or of the family;[15]the adjustment of the child to the living situation;[16]the behavior of the adop-
ters;[17]the acts or omissions of the parents which may indicate that the existing parent-child relationship is not
a proper one;[18]any excuse for the acts or omissions of the parent;[19]the child's age,[20] home, school, and
community record;[21]the adopter's age;[22]the moral fitness of the prospective adopting parents;[23] the reli-
gious beliefs of the adopters and adoptee;[24]the mental and physical health of the parties[25] or of all individu-
als involved;[26] and the background, race, ethnic heritage of the adopters.[27]
Cases:

It is not in accord with the statutory adoption scheme for the decision as to whether adoption by a petitioner
is in the best interests of the child to be based upon the issue of whether a grandparent who is not petitioning for
adoption will have continuing involvement with the child through visitation; rather, the petition for adoption
should be determined on the basis of the fitness of a petitioner who is petitioning to adopt the child and whether
the adoptive home that would be provided for the child by that petitioner is suitable for the child so that the child
can grow up in a stable, permanent, and loving environment. G.S. v. T.B, 985 So. 2d 978 (Fla. 2008).
[END OF SUPPLEMENT]
[FN1] Matter of J.J.J., 718 P.2d 948 (Alaska 1986).
[FN2] Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).
The wishes of the child are not conclusive on the issue. Adoption of Michael D., 209 Cal. App. 3d 122,
256 Cal. Rptr. 884 (6th Dist. 1989).
[FN5] Petition of R.H.N., 710 P.2d 482 (Colo. 1985); Natural Mother v. Paternal Aunt, 583 So. 2d 614
(Miss. 1991).
[FN14] Natural Mother v. Paternal Aunt, 583 So. 2d 614 (Miss. 1991); Holley v. Adams, 544 S.W.2d
367 (Tex. 1976).

As to the age of the petitioner, generally, see § 137.
As to religion as an element in the adoption decision, generally, see § 140.
As to the age of the petitioner, generally, see § 137.
As to race as an element in the adoption decision, generally, see § 138.
As to race and cultural background, generally, see § 140.
rights reserved.
END OF DOCUMENT


Adoption

§ 130. Consent of parents; matters precluding necessity of consent
West's Key Number Digest, Adoption
Forms
Forms regarding consent. Am. Jur. Legal Forms 2d, Adoption §§ 9:22 to 9:32
Forms regarding consent. Am. Jur. Pleading and Practice Forms, Adoption §§ 83 to 95
Generally, in contested adoption proceedings, the adoption court is required to determine that the natural
parent of the child who is the subject of the adoption consents to the adoption or that the parent's consent is not
necessary by virtue of a statutory exception to the general requirement for consent.[1] In the absence of consent,
a judicial determination of the existence of facts rendering the parent's consent unnecessary is generally re-
quired.[2] A ruling by the court that a parent's consent is not required is a final appealable order.[3] If the court
finds that a natural parent's consent to an adoption is not required, a determination of what would be in the
child's best interests is still necessary before parental rights may be terminated,[4] or an adoption petition may
be granted.[5] In weighing the question of whether parental rights are to be irrevocably terminated, in a proceed-
ing brought to dispense with the need for consent of the natural parent to adoption, it is appropriate for a judge
to consider whether, on the basis of credible evidence, there is a reasonable likelihood that the parent's unfitness
at the time of trial may be only temporary.[6] To make that determination, where there is no showing that the
nonconsenting parent is unfit or by his conduct or previous legal action has lost his rights to the child, the party
seeking adoption must produce clear and convincing evidence that a continuance of the parent-child relationship
would be detrimental to the child's welfare.[7]
Practice Guide:
A putative father has no right to a hearing on the issue of paternity in the context of a proceeding to dispense
with the need for parental consent for adoption.[8]
Cases:

Stepfather who sought to adopt child failed to meet his burden of proving by clear and convincing evidence
that presumed father's consent to child's adoption was not required under statute providing that natural parent's
consent to adoption was not required if he failed without justifiable cause to communicate with or support child
for at least one year immediately preceding filing of adoption petition, as requisite one-year period set forth in
statute could not begin to run until there had been a judicial ascertainment of paternity, which was a matter unre-
solved when stepfather filed adoption petition. R.C. § 3107.07(A). In re Adoption of Pushcar, 110 Ohio St. 3d
332, 2006-Ohio-4572, 853 N.E.2d 647 (2006).
[END OF SUPPLEMENT]
As to the requirements for consent to be valid, see §§ 94 et seq.
[FN2] Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946).
[FN3] In re Adoption of Jorgensen, 33 Ohio App. 3d 207, 515 N.E.2d 622 (3d Dist. Hancock County
1986).
[FN4] In re Adoption of V.R.O., 250 Mont. 517, 822 P.2d 83 (1991); In re Adoption of Jones, 70 Ohio
App. 3d 576, 591 N.E.2d 823 (9th Dist. Medina County 1990).
As to the determination of the child's best interests, generally, see § 131.
[FN5] Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).
[FN6] Adoption of Carlos, 413 Mass. 339, 596 N.E.2d 1383 (1992).
[FN7] Linkous v. Kingery, 10 Va. App. 45, 390 S.E.2d 188 (1990).
[FN8] Matter of J.S.V., 402 Mass. 571, 524 N.E.2d 826 (1988).
rights reserved.
END OF DOCUMENT


Adoption

§ 131. Welfare and "best interests" of child; generally
A.L.R. Library
Forms
Welfare of child. Am. Jur. Pleading and Practice Forms, Adoption § 96
Welfare of child—Parents unable to care for child. Am. Jur. Pleading and Practice Forms, Adoption § 98
Welfare of child—Child to become legal heir. Am. Jur. Pleading and Practice Forms, Adoption § 99
It is the duty of the trial court in adoption matters to determine whether the adoption would be in the child's
best interests[1] before the court may grant a petition for adoption.[2] The overriding consideration that must be
addressed in each adoption case is the welfare and best interests of the adopted child.[3] The determination of a
child's best interests is to be made as of the time the adoption decision is made, no earlier.[4]
Best interest considerations in the context of an adoption proceeding concern the appropriateness of a par-
ticular adoption placement.[5] Thus, the trial court must determine whether open adoption serves the best in-
terests of child on case-by-case basis.[6] When the choice of placement for adoption is between two caretakers,
each of whom seeks to be the substitute for the child's biological parents, a judge may consider a wide range of
permissible evidence in determining which placement will serve the child's best interests, and it is for trial judge
to determine weight of evidence.[7]
A court must determine that the adoption is in the child's best interests before it may place a child for adop-
tion,[8] terminate parental rights,[9] and grant a petition or issue a final decree of adoption,[10] and a trial judge
abuses his discretion by failing to base his adoption decisions on the consideration of the best interests of the
children involved.[11] The trial court is invested with broad discretionary powers in determining the best in-

terests of the children;[12] and, as the court to which the application for adoption is made is charged with the
duty of protecting the child and his or her interests, to bring those interests fully before it, it has authority to
make rules to accomplish that end.[13]
The adoptive parents bear the burden of proving—by clear and convincing evidence[14] —that the adoption
is in the child's best interest.[15] A child's interests are best served when all those who demonstrate an interest in
his or her welfare are allowed to be heard.[16] The trial court may reconsider an order of open adoption at any
time a child's best interests are jeopardized.[17]
Caution:
While the primary purpose of both adoption and termination of parental rights is the protection and promotion of
the child's best interest, in factoring the best interests of the child, the trial court must also be sensitive to pro-
tecting the rights of parents.[18]
Observation:
The fact that adoption—or any other action affecting a child—is in the child's best interests, by itself, does not
authorize the court to grant the adoption, because were the court to allow the grant of the adoption petition any-
time the adoption is in the best interests of the child, there would be no need for the plethora of adoption statutes
other than a statute requiring that the adoption statutes be liberally construed to affect the objectives contained in
its chapter.[19]
Cases:
Statute providing for termination of parental rights in guardianship proceedings where the child has been in
the custody of the guardians for at least two years and the court finds that the child would benefit from adoption
applied retroactively to a child's guardianship that the mother consented to before the effective date of the stat-
ute, even if mother probably would not have consented to guardianship had she known it might lead to termina-
tion of her parental rights, where mother's heroin addiction prevented her from caring for the child, mother had
virtually abandoned the child to the guardians, and mother soon found herself in prison due to drug use; a de-
pendency proceeding would have been unavoidable, and mother would then have faced termination of her par-
ental rights on a much shorter timetable. In re Guardianship of Ann S., 45 Cal. 4th 1110, 90 Cal. Rptr. 3d 701,
202 P.3d 1089 (2009).
It is the court's primary duty to grant an adoption only when it is in the best interests of the child. G.S. v.
T.B, 985 So. 2d 978 (Fla. 2008).
In deciding an adoption petition, the focal issue is the fitness and appropriateness of the petitioners as adopt-
ing parents and whether creating the adoptive family composed of the petitioners and the children is in the chil-
dren's best interests; the issue is not whether the children should or should not be adopted or should live with the
petitioners in some other form of custody such as guardianship. G.S. v. T.B, 985 So. 2d 978 (Fla. 2008).
Ordinarily, if a court finds that, in the year before the filing of an adoption petition, the natural parent has
deserted or neglected the child without just and sufficient cause, the court must then decide whether adoption is
in the best interests of the child. West Or.Rev. Stat. Ann. § 109.324. Ellis v. Kristich, 192 Or. App. 213, 84 P.3d
1101 (2004).
Withdrawal of biological mother's consent to relinquish child for adoption was in child's best interest, as re-

quired for such withdrawal, even though child spent first 11 weeks of life with prospective adoptive parents, and
adoptive parents appeared to be fit, obviously loved child very much, and had sufficient housing, financial re-
sources, extended support systems, and child-care options; mother had an equal ability to care for child, and
mother's consent for relinquishment was involuntary. McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008).
Best interest of the child remains, always, the paramount consideration in every adoption. McCann v. Doe,
377 S.C. 373, 660 S.E.2d 500 (2008).
Evidence in proceeding for termination of parental rights (TPR) of child's father, incarcerated for murder of
child's mother, was sufficient to establish that TPR was in child's best interest; child was only three-and-a-half
years old when father was incarcerated and had had no contact with father since then, father was serving sen-
tence of life without parole, and numerous witnesses, including guardian ad litem, testified that child had bonded
with his legal custodians, his maternal grandparents, and was thriving in their care. Stinecipher v. Ballington,
366 S.C. 92, 620 S.E.2d 93 (Ct. App. 2005).
If a trial court finds a proven statutory ground for the termination of parental rights (TPR), it must also find
the best interest of the child would be served by TPR. Stinecipher v. Ballington, 366 S.C. 92, 620 S.E.2d 93 (Ct.
App. 2005).
In a proceeding for the termination of parental rights (TPR), if the child's interests and the parent's interests
conflict, the interests of the child shall prevail. Code 1976, § 20–7–1578. Stinecipher v. Ballington, 366 S.C. 92,
620 S.E.2d 93 (Ct. App. 2005).
In a termination of parental rights case, the best interests of the children are the paramount consideration.
A strong presumption exists that the best interest of the child is usually served by maintaining a parent-child
relationship. In re T.N., 180 S.W.3d 376 (Tex. App. Amarillo 2005).
A analysis of whether termination of parental rights is in a child's best interest may consider circumstantial
evidence, subjective factors, and the totality of the evidence as well as the direct evidence. V.T.C.A., Family
Code § 161.001. In re T.N., 180 S.W.3d 376 (Tex. App. Amarillo 2005).
Evidence proving one or more statutory grounds for termination of parental rights may be considered in as-
sessing the probative evidence that termination is in the best interest of the children. V.T.C.A., Family Code §
161.001(1). In re T.N., 180 S.W.3d 376 (Tex. App. Amarillo 2005).
Clear and convincing evidence supported finding that termination of mother's parental rights was in chil-
dren's best interests; case worker testified that the children were happy about being placed with their paternal
cousins and appeared to have bonded with them, mother's drug history posed an emotional and physical danger
to the children, and, after repeated drug treatment programs, mother was still not free from her drug addiction.
V.T.C.A., Family Code § 161.001. In re T.N., 180 S.W.3d 376 (Tex. App. Amarillo 2005).
[END OF SUPPLEMENT]
[FN1] In re Adoption of C.D.M., 2001 OK 103, 39 P.3d 802 (Okla. 2001), cert. denied, 535 U.S. 1054,
122 S. Ct. 1911, 152 L. Ed. 2d 821 (2002).
308, 664 A.2d 443 (1995).

308, 664 A.2d 443 (1995).
[FN5] In re M.M., 156 Ill. 2d 53, 189 Ill. Dec. 1, 619 N.E.2d 702 (1993).
[FN6] People in Interest of S.A.H., 537 N.W.2d 1 (S.D. 1995).
[FN7] Adoption of Hugo, 428 Mass. 219, 700 N.E.2d 516 (1998).
[FN9] In re Adoption of Jones, 70 Ohio App. 3d 576, 591 N.E.2d 823 (9th Dist. Medina County 1990).
[FN10] In re Adoption of V.R.O., 250 Mont. 517, 822 P.2d 83 (1991); In re Adoption of Ridenour, 61
Ohio St. 3d 319, 574 N.E.2d 1055 (1991).
[FN11] In re Adoption of Ridenour, 61 Ohio St. 3d 319, 574 N.E.2d 1055 (1991).
[FN13] Barnes v. Paanakker, 111 F.2d 193 (App. D.C. 1940).
[FN15] Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988); In re G.E.T., 529 So. 2d 524
(La. Ct. App. 1st Cir. 1988).
[FN16] In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992).
As to notice required prior to adoption proceedings, generally, see §§ 117 et seq.
As to decrees, orders, and judgments, generally, see § 141.
rights reserved.
END OF DOCUMENT


Adoption

§ 132. Relationship of natural parents to child
It has been said that the controlling factor, or guiding principle, in both custody and adoption cases is not
the natural parents' interest in raising the child, but rather what best serves the interest of the child.[1] Therefore,
in all cases where the child's interests are in jeopardy, the paramount consideration is what will best promote the
child's welfare, a consideration of transcendent importance.[2] The court should consider the conduct of the nat-
ural parent evincing a willingness to assume or reassume parental responsibilities previously neglected.[3] In a
determination of whether the child's best interests warrant the approval of an application for adoption over a nat-
ural parent's objection is within the discretion of the trial court.[4] The exercise of that discretion, however, must
be based upon correct legal principles.[5]
As to best-interests considerations in making adoption determinations, generally, see § 129.
As to consent in the adoption decision, generally, see § 130.
[FN2] In re Adoption/Guardianship No. J970013, 128 Md. App. 242, 737 A.2d 604 (1999).
[FN3] Emmons v. Dinelli, 235 Ind. 249, 133 N.E.2d 56 (1956).
rights reserved.

END OF DOCUMENT


Adoption

§ 133. Relation of petitioner to person sought to be adopted
A.L.R. Library
While the status of petitioners as blood relatives of the child for adoption confers no preference,[1] a trial
court hearing a contested adoption proceeding involving two sets of prospective parents may consider blood re-
lationship as a factor in making the best interests of child determination.[2]
Practice Guide:
An adoption statute which provides that in an adoption of children by blood relatives certain procedural require-
ments were relaxed does not give a "preference" to blood relatives in adoption proceedings.[3]
Cases:
Statute governing placement of child with relative in proceeding to terminate parental rights does not dictate
that a court automatically place a child with a relative whenever a relative expresses willingness to raise the
child. West's Ga.Code Ann. § 15–11–103(a)(1). In re L.W., 276 Ga. App. 197, 622 S.E.2d 860 (2005).
[END OF SUPPLEMENT]
[FN1] McCutcheon v. Charleston County Dept. of Social Services, 302 S.C. 338, 396 S.E.2d 115 (Ct.
App. 1990).
[FN2] In re J.D.W., 711 A.2d 826 (D.C. 1998).

[FN3] Dunn v. Dunn, 298 S.C. 365, 380 S.E.2d 836 (1989).
rights reserved.
END OF DOCUMENT


Adoption

§ 134. Relation of petitioner to person sought to be adopted—Grandparents
Decisions as to whether grandparents are suitable adoptive parents for a child who is placed in the custody
of a state agency is best left to the state authorities, who daily deal with such questions in conjunction with the
procedures that provide for the administrative and judicial review of their decisions.[1] Any rights existing in
grandparents must be derived from statutes or conferred by a court of competent jurisdiction pursuant to stat-
utes.[2] Under some statutes, grandparents are not entitled to any presumptive right[3] or preference.[4]
However, an exception may be made such that if the grandparent of a child who has lived with the grandparent
for at least six months petitions the court to adopt the child, such grandparent will be given first priority for the
adoption of the child.[5]
Cases:
State's compelling interest in providing stable and permanent homes for adoptive children, as expressed in
adoption statute, required trial court to grant adoption petition filed by children's maternal grandfather and his
wife following the death of the children's natural parents, rather than grant a split guardianship between the ma-
ternal and paternal grandparents, despite trial court's concerns about continued visitation by the children's pa-
ternal grandparents, where maternal grandfather and his wife were the only ones who sought adoption, they were
found to be fit and appropriate as adopting parents, and they would provide children with a permanent and stable
home. G.S. v. T.B, 985 So. 2d 978 (Fla. 2008).
Placement of children with their maternal grandmother was not in children's best interest following termina-
tion of mother's parental rights, although grandmother had sufficient income, and although grandmother's home
was in good condition; grandmother's perception of mother as "a very good mother" and her avowed denial of
mother's obvious and serious drug problems were problematic, grandmother had seen children only three times
after placement in foster care, children were thriving in foster care, and foster parents wished to adopt children.
West's Ga.Code Ann. § 15–11–103(a)(1). In re L.W., 276 Ga. App. 197, 622 S.E.2d 860 (2005).
Adoption by a child's grandparents is permitted only if such adoptive placement serves the child's best in-
terests, and if, upon a thorough review of the entire record, the circuit court believes that a grandparental adop-

tion is not in the subject child's best interests, it is not obligated to prefer the grandparents over another, alternat-
ive placement that does serve the child's best interests. West's Ann.W.Va.Code, 49–3–1(a). In re Elizabeth F.,
696 S.E.2d 296 (W. Va. 2010).
[END OF SUPPLEMENT]
[FN2] Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981).
A mother's consent to the adoption of her children by their grandparents rendered moot the grandpar-
ent's appeal of the trial court's denial of their petition to adopt the children. In re Adoption of Walgreen,
186 Ill. 2d 362, 238 Ill. Dec. 124, 710 N.E.2d 1226 (1999).
A grandmother does not, by virtue of her status as a grandparent, have any superior right of adoption or
custody to that of a nonrelative. Matter of S.P., 241 Mont. 190, 786 P.2d 642 (1990).
[FN4] McCutcheon v. Charleston County Dept. of Social Services, 302 S.C. 338, 396 S.E.2d 115 (Ct.
App. 1990).
[FN5] In re Adoption of a Minor Child, 593 So. 2d 185 (Fla. 1991).
rights reserved.
END OF DOCUMENT


Adoption

§ 135. Relation of petitioner to person sought to be adopted—Foster parents
State statutes have sometimes provided a statutory preference to foster parents who have cared for a child
for two years or more.[1] Also, an adoption by foster parents rather than the child's natural grandparents has
been deemed supported by evidence that the foster parents had custody of child for three years and five months
and had established with the child a strong bond of attachment and affection.[2] However, where the period re-
quired for the statutory preference to apply has not been met, an adoption by foster parents may be denied.[3]
The statutory language does not suffice to create a liberty interest in the foster family's family relationship.[4]
Notwithstanding the preference state law grants to foster families seeking to adopt their foster children, this pri-
ority does not rise to the level of an entitlement or expectancy.[5]
[FN1] In re Dionisio R., 81 Misc. 2d 436, 366 N.Y.S.2d 280 (Fam. Ct. 1975).
[FN2] Matter of M. D. H., 595 S.W.2d 448 (Mo. Ct. App. S.D. 1980).
[FN3] People ex rel. Ninesling v. Nassau County Dept. of Social Services, 46 N.Y.2d 382, 413
N.Y.S.2d 626, 386 N.E.2d 235 (1978).
[FN4] Procopio v. Johnson, 994 F.2d 325 (7th Cir. 1993).
[FN5] Procopio v. Johnson, 994 F.2d 325 (7th Cir. 1993).
rights reserved.
END OF DOCUMENT


Adoption

§ 136. Marital status of petitioner
A.L.R. Library
Adoption petitions by unmarried couples may be granted or rejected on a case-by-case basis in best interests
of prospective adoptee, if other statutory requirements are met.[1]
[FN1] In re M.M.D., 662 A.2d 837 (D.C. 1995).
The idea of "adoption" does not suggest an inherent, traditional limitation on who may adopt; the Court
of Appeals thus may not use the ordinary meaning of "adoption" to say that Congress assuredly made
unmarried couples ineligible to adopt. In re M.M.D., 662 A.2d 837 (D.C. 1995).
rights reserved.
END OF DOCUMENT


Adoption

§ 137. Age of petitioner
A.L.R. Library
Age of prospective adoptive parent as factor in adoption proceedings, 84 A.L.R. 3d 665
Forms
Ages. Am. Jur. Pleading and Practice Forms, Adoption § 23
Comparative ages as between petitioner and child. Am. Jur. Pleading and Practice Forms, Adoption § 26
While the age of the prospective adoptive parents is one factor that may be considered in determining the
best interests of the child in a contested private placement adoption proceeding, age, alone, must not be decis-
ive.[1] Although the question of whether a prospective adoptive parent is too young to adequately meet the de-
mands of parenthood may be considered,[2] age is a legitimate factor to be considered in adoptions especially if
the petitioner could not be expected to be in good health until the child is emancipated.[3] Reference has been
made to:
(1) the relationship between an adoptive parent's advanced age and the likelihood that the child will suffer
the loss of the parent during a period of the child's growth;[4]
(2) the problem that age can be a factor affecting the ability of the adoptive parent to supply the material
needs of the child;[5]
(3) the problem that a child might be under a psychological burden in having an adoptive parent old enough
to be a grandparent;[6]
(4) the circumstance that as people grow old they tend to become more fixed and inflexible in their mental
attitudes;[7]
(5) the consideration that advanced age limits the ability of the adoptive parent to participate in various so-
cial and school activities with the child;[8] and
(6) the problem that an older adoptive parent may find it more difficult to muster the physical effort re-

quired to control a young child.[9]
[FN1] Matter of Baby Boy P., 244 A.D.2d 491, 664 N.Y.S.2d 340 (2d Dep't 1997).
[FN2] Middlecoff v. Leofanti, 133 Ill. App. 2d 822, 272 N.E.2d 289 (5th Dist. 1971).
As to who may adopt, generally, see § 15.
[FN3] In re S's Adoption, 22 Or. App. 304, 538 P.2d 947 (1975); Sonet v. Unknown Father of Joseph
Daniel Hasty (Sonet), 797 S.W.2d 1 (Tenn. Ct. App. 1990).
[FN4] In re Adoption of Shields, 4 Wis. 2d 219, 89 N.W.2d 827 (1958).
[FN5] Brunt v. Watkins, 233 Miss. 307, 101 So. 2d 852 (1958); In re Adoption of Ann, 461 S.W.2d 338
(Mo. Ct. App. 1970).
[FN6] In re Adoption by Emanuel T., 81 Misc. 2d 535, 365 N.Y.S.2d 709 (Fam. Ct. 1975).
[FN7] Brunt v. Watkins, 233 Miss. 307, 101 So. 2d 852 (1958).
[FN8] In re Adoption of Ann, 461 S.W.2d 338 (Mo. Ct. App. 1970).
[FN9] Adoption of Michelle T., 44 Cal. App. 3d 699, 117 Cal. Rptr. 856, 84 A.L.R.3d 654 (1st Dist.
1975).
rights reserved.
END OF DOCUMENT


Adoption

§ 138. Interethnic adoption
A.L.R. Library
Race as factor in adoption proceedings, 34 A.L.R. 4th 167
The color of desire: Fulfilling adoptive parents' racial preferences through discriminatory state action. 107
Yale L.J. 875 (1999)
A person or government that is involved in adoption or foster care placements may not deny to any indi-
vidual the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin
of the individual, or of the child, involved,[1] or delay or deny the placement of a child for adoption or into
foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, in-
volved.[2] Difficulties inherent in interracial adoption justify the consideration of race as relevant factor on ad-
option under Equal Protection Clause of Fourteenth Amendment.[3]
The general rule is that differences in race between a child and one or both of his or her prospective adopt-
ive parents may be regarded, at most, as a factor in, but not as a complete determinant of, the trial court's consid-
eration of the propriety of a petition for the adoption of the child.[4] The most compelling argument for open ad-
option is founded on the psychological needs of the child.[5] A child has an important need to know his ances-
tral, religious, ethnic, and cultural background, and shrouding a child's past in secrecy may retard emotional de-
velopment and self-identity.[6] The Multiethnic Placement Act (MEPA) does not preclude a judge, as opposed
to an adoption agency, from considering race or ethnicity in crafting an adoption order determined to be in
child's best interest.[7] A statutory requirement that race be a relevant consideration in determining whether an
adoption should be approved has been upheld against equal protection claims.[8]
Practice Guide:

Foster parents, who were white, and were attempting to adopt a child whose natural parents were both black and
white could not sustain a due process claim against a state agency for the failure to consider the plaintiffs as ad-
optive parents for their foster child, since, to sustain a due process claim, the plaintiffs must show they are being
deprived of a federally-secured right by persons acting under the color of state law, and, while the defendants
were clearly acting under the color of state law, foster parents do not have a cognizable liberty interest in main-
taining a relationship with a foster child vis-à-vis prospective adoptive parents, particularly where the relation-
ship is based on a contract under which the state retains responsibility for the child and places him in a foster
home on a temporary basis.[9]
[FN1] 42 U.S.C.A. § 1996b(1)(A).
[FN2] 42 U.S.C.A. § 1996b(1)(B).
[FN3] Drummond v. Fulton County Dept. of Family and Children's Services, 547 F.2d 835 (5th Cir.
1977), on reh'g, 563 F.2d 1200 (5th Cir. 1977).
As to preferences to relatives, generally, see § 133.
Particular sensitivity, awareness and skills are necessary for a successful transracial adoption of a young
child. DeWees v. Stevenson, 779 F. Supp. 25 (E.D. Pa. 1991).
[FN4] Drummond v. Fulton County Dept. of Family and Children's Services, 563 F.2d 1200 (5th Cir.
1977); Spath v. Willis, 71 A.D.2d 489, 423 N.Y.S.2d 551 (3d Dep't 1980).
[FN7] In re Adoption of Vito, 47 Mass. App. Ct. 349, 712 N.E.2d 1188 (1999), aff'd and remanded, 431
Mass. 550, 728 N.E.2d 292 (2000).
[FN8] Petition of R.M.G., 454 A.2d 776, 34 A.L.R.4th 122 (D.C. 1982).
[FN9] DeWees v. Stevenson, 779 F. Supp. 25 (E.D. Pa. 1991).
rights reserved.
END OF DOCUMENT


Adoption

§ 139. Interethnic adoption—Placement of Indian children
A.L.R. Library
Race as factor in adoption proceedings, 34 A.L.R. 4th 167
The color of desire: Fulfilling adoptive parents' racial preferences through discriminatory state action. 107
Yale L.J. 875 (1999)
In any adoptive placement of an Indian child under state law, a preference must be given, in the absence of
good cause to the contrary, to a placement with: (1) a member of the child's extended family; (2) other members
of the Indian child's tribe; or (3) other Indian families.[1]
Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting
which most approximates a family and in which his special needs, if any, may be met.[2] The child shall also be
placed within reasonable proximity to his or her home, taking into account any special needs of the child.[3] In
any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the con-
trary, to a placement with: a member of the Indian child's extended family; a foster home licensed, approved, or
specified by the Indian child's tribe; an Indian foster home licensed or approved by an authorized non-Indian li-
censing authority; or an institution for children approved by an Indian tribe or operated by an Indian organiza-
tion which has a program suitable to meet the Indian child's needs.[4]
If the Indian child's tribe establishes a different order of preference by resolution, the agency or court effect-
ing the placement must follow the order as long as the placement is the least restrictive setting appropriate to the
particular needs of the child.[5] Where appropriate, the preference of the Indian child or parent must be con-
sidered, provided, that where a consenting parent evidences a desire for anonymity, the court or agency shall
give weight to that desire in applying the preferences.[6] Moreover, the standards to be applied in meeting these
preference requirements must be the prevailing social and cultural standards of the Indian community in which

the parent or extended family resides or with which the parent or extended family members maintain social and
cultural ties.[7]
Upon application by an Indian individual who has reached the age of eighteen and who was the subject of
an adoptive placement, the court which entered the final decree shall inform such individual of the tribal affili-
ation, if any, of the individual's biological parents and provide such other information as may be necessary to
protect any rights flowing from the individual's tribal relationship.[8]
[FN1] 25 U.S.C.A. § 1915(a).
[FN2] 25 U.S.C.A. § 1915(b).
[FN3] 25 U.S.C.A. § 1915(b).
[FN4] 25 U.S.C.A. § 1915(b).
[FN5] 25 U.S.C.A. § 1915(c).
[FN6] 25 U.S.C.A. § 1915(c).
[FN7] 25 U.S.C.A. § 1915(c).
[FN8] 25 U.S.C.A. § 1917.
rights reserved.
END OF DOCUMENT


Adoption

§ 140. Religious beliefs
A.L.R. Library
Religion as factor in adoption proceedings, 48 A.L.R. 3d 383
Forms
Religious affiliation. Am. Jur. Pleading and Practice Forms, Adoption §§ 39
Religious beliefs and affiliations of the parties in adoption proceedings, while not controlling, are ordinarily
proper matters for consideration in the determination of what action with respect to a proposed adoption will
best serve the interests of the child.[1] The religious background and convictions of those seeking an adoption
may be viewed as relevant considerations in the determination of their suitability as adoptive parents.[2]
However, difference in religious faiths alone will ordinarily not prevent an adoption which is otherwise in the
best interests of the child.[3] Similarly, a lack of religious belief or church affiliation does not, in itself, disquali-
fy prospective adoptive parents.[4] The wishes and desires of the natural parents regarding the religious upbring-
ing of the child are entitled to some consideration, although the welfare of the child must not be subordinated to
the religious preferences of the parents.[5] However, where an adoptive parent has represented that she will raise
children under a certain faith, which assurance leads a natural parent to consent to their adoption by another, and
such representations turn out to be false, the vacation of the prior adoption orders has been deemed justified, in
some instances.[6]
A statute providing for the consideration of the religion of prospective adoptive parents does not violate
principles of freedom of religion and equal protection of the laws as applied to applicants who have no religious
affiliation.[7] In this regard, a court cannot disqualify someone from adopting solely on religious grounds
without violating that person's rights to free exercise of his religious beliefs.[8] Conversely, a requirement that
prospective adoptive parents profess a belief in a Supreme Being or be members of an established religion is
barred by the First Amendment of the Constitution, as violative of the establishment and free exercise clause

contained therein.[9]
Observation:
The enforcement of religious interests at the expense of the child may not only violate the constitutional prin-
ciple of neutrality in religious matters, but may also deny to the child the equal protection of the law.[10]
[FN1] Dickens v. Ernesto, 30 N.Y.2d 61, 330 N.Y.S.2d 346, 281 N.E.2d 153 (1972).
[FN2] In re Adoption of E, 59 N.J. 36, 279 A.2d 785, 48 A.L.R.3d 366 (1971).
There was presumption that trial court acted upon permissible basis in considering religious affiliation
of parties in determining which petition for adoption should be granted where no findings of fact were
requested or made. Matter of M. D. H., 595 S.W.2d 448 (Mo. Ct. App. S.D. 1980).
[FN3] Com. ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961).
[FN5] In re C., 63 Misc. 2d 1019, 314 N.Y.S.2d 255 (Fam. Ct. 1970).
[FN6] Application of Sohn, 133 Misc. 2d 743, 507 N.Y.S.2d 969 (Sur. Ct. 1986).
[FN7] Dickens v. Ernesto, 30 N.Y.2d 61, 330 N.Y.S.2d 346, 281 N.E.2d 153 (1972).
[FN9] Dickens v. Ernesto, 37 A.D.2d 102, 322 N.Y.S.2d 581 (4th Dep't 1971), order aff'd, 30 N.Y.2d
61, 330 N.Y.S.2d 346, 281 N.E.2d 153 (1972).
[FN10] In re C., 63 Misc. 2d 1019, 314 N.Y.S.2d 255 (Fam. Ct. 1970).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VII G REF Page 1
2 Am. Jur. 2d Adoption VII G Refs.

Adoption

Research References
Uniform Adoption Act (1994) §§ 3-703(a), 3-704, 3-706, 3-707, 5-108
A.L.R. Library
Forms
Am. Jur. Pleading and Practice Forms, Adoption §§ 68, 210 to 225, 249, 255 to 265, 271, 281
rights reserved.
AMJUR ADOPTION VII G REF
END OF DOCUMENT


Adoption

1. In General
§ 141. Generally
A.L.R. Library
Applicability of res judicata to decrees or judgments in adoption proceedings, 52 A.L.R. 2d 406
Forms
Forms regarding judgments, orders, and decrees. Am. Jur. Pleading and Practice Forms, Adoption §§ 210 to
225
Under the provisions of the Uniform Adoption Act, the court will grant a petition for adoption if it determ-
ines that the adoption will be in the best interest of the minor, and that all the requirements are met.[1] If a court
denies a petition for adoption, it must dismiss the proceeding and issue an appropriate order for the legal and
physical custody of the minor.[2] Also, under the Uniform Act, a decree of adoption is a final order for purposes
of appeal when it is issued and becomes final for other purposes upon the expiration of the time for filing an ap-
peal, if no appeal is filed, or upon the denial or dismissal of any appeal filed within the requisite time.[3]
A legal adoption results if the statutory procedure is followed, but fails if any essential requirement of a
statute is not complied with.[4] A decree of adoption has all the force and effect of a judgment of a court of gen-
eral jurisdiction.[5] A decree of adoption obtained by judicial proceedings is sometimes regarded as a judgment
of the court, with the force and effect of any such judgment.[6]
Upon entry of the decree, the court's jurisdiction of the proceeding is terminated and it may not thereafter,
except in a separate proceeding, assume control over the custody of the infant.[7] Although caution should be
used in adoption proceedings and parental rights are fundamental in nature and constitutionally protected, there
should be strong emphasis on finality of adoption proceedings in order to promote stability of home and family,
security for adoptive parents, and closure for natural parents.[8] The court may enter a decree granting less than
was asked by the petition for adoption.[9] Furthermore, a court may decree adoption by only one of the persons

named in the petition.[10] Under the Uniform Adoption Act, the court must send a copy of the decree to each in-
dividual named in the petition at the address stated in the petition.[11]
Observation:
"Open adoption" is one in which the final judgment incorporates the parties' preadoption written agreement that
the child will have continuing contact with one or more members of his or her biological family after the adop-
tion is completed.[12]
Thus, postadoption visitation may be incorporated into a plan of adoption, but whether, in any given case, it is
wise is a matter left to the discretion of the judge who sat on the case.[13]
Caution:
Defects in a final judgment of adoption do not render the adoption void per se but merely voidable.[14
]However, an adoption decreed in the absence of consent by the parents, guardians or other person in loco par-
entis is not merely voidable, but is void.[15]
A court has discretion in determining if a subsequent hearing is necessary when it issues an interlocutory
decree. A court may decide to delay a hearing for the purpose of permitting further investigation or supervision
rather than to issue an interlocutory decree that requires a subsequent hearing.[16] Under certain circumstances a
court cannot immediately issue a final decree.[17] A decree of adoption is appealable, even if it is interlocutory,
if no subsequent hearing is required by the terms of the decree.[18]
Cases:
Decree authorizing adoption and terminating parental rights must present more than mere legal conclusion
which is not supported by mandatory findings of fact, or dry recitation that certain legal requirements have been
met. West's Ga.Code Ann. §§ 19-8-10(b)(1), 19-8-18(b). Maynard v. Brown, 276 Ga. App. 229, 622 S.E.2d 901
(2005).
In proceeding for adoption and termination of parental rights, trial court's oral findings in transcript are not
sufficient to satisfy statutory requirement for express, written findings of fact and conclusions of law. West's
Ga.Code Ann. §§ 19-8-10(b)(1), 19-8-18(b). Maynard v. Brown, 276 Ga. App. 229, 622 S.E.2d 901 (2005).
[END OF SUPPLEMENT]
[FN4] In re Adoption of Baby Z., 247 Conn. 474, 724 A.2d 1035 (1999).
[FN5] Hester v. Young, 154 Neb. 227, 47 N.W.2d 515 (1951).

As to the effect of foreign decrees, generally, see §§ 36 et seq.
[FN6] Wilson v. Anderson, 232 N.C. 212, 59 S.E.2d 836, 18 A.L.R.2d 951 (1950).
[FN7] Spencer v. Franks, 173 Md. 73, 195 A. 306, 114 A.L.R. 263 (1937).
[FN8] Matter of Adoption of A.S.S., 21 Kan. App. 2d 714, 907 P.2d 913 (1995).
[FN9] Taylor v. Aulton, 191 Tenn. 81, 231 S.W.2d 573 (1950).
[FN12] New Jersey Div. of Youth and Family Services v. B.G.S., 291 N.J. Super. 582, 677 A.2d 1170
(App. Div. 1996).
[FN13] Adoption of Nicole, 40 Mass. App. Ct. 259, 662 N.E.2d 1058 (1996).
[FN14] Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925 (1988).
[FN15] Matter of Adoption of Hodges, 146 Or. App. 128, 931 P.2d 827 (1997), decision aff'd, 326 Or.
538, 956 P.2d 184 (1998).
[FN16] Schneider v. S.L.M., 347 N.W.2d 126 (N.D. 1984).
Under the law of some states, once an interlocutory decree of adoption is entered, it is to be construed
as a final decree if no subsequent hearing is required by the terms of that decree. Matter of Adoption of
Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).
As to procedural requirements in adoption proceedings, generally, see § 110.
As to residence requirements, see § 115.
rights reserved.
END OF DOCUMENT


Adoption

1. In General
§ 142. Change of name of adopted person
A.L.R. Library
Change of child's name in adoption proceeding, 53 A.L.R. 2d 927
Forms
Name—After adoption. Am. Jur. Pleading and Practice Forms, Adoption § 68
Judgment—Subsequent to investigation—Providing for change of name. Am. Jur. Pleading and Practice
The issuance of a new birth certificate is the legal equivalent of an adoption decree.[1] It may be required
that the surname of children be changed to that of their adoptive father,[2] or that the surname of the adopted
party be changed unless there has been a request otherwise.[3] Where it is declared that upon entry of the order
of adoption the court should enter a judgment in which the name of the child should be changed to conform to
the prayer of the petition, it is mandatory that the child's surname be altered to that of the adopting parent if re-
quested in the petition.[4] The change of a name cannot be decreed where adoption is denied.[5]
Practice Guide:
Dismissal with prejudice of a mother's prior proceeding for an equitable adoption, in which a name change was
sought for her five children, did not bar a subsequent proceeding for the name change as the next friend of the
children, where the children were not named as parties to the prior proceeding, which was concurrent with the
dissolution action.[6]

[FN1] Buchea v. U.S., 154 F.3d 1114 (9th Cir. 1998).
[FN2] In re Adoption of Watson, 45 Haw. 69, 361 P.2d 1054 (1961).
[FN3] Matter of Fortney's Estate, 5 Kan. App. 2d 14, 611 P.2d 599 (1980).
[FN4] Stanfield v. Willoughby, 286 S.W.2d 908, 53 A.L.R.2d 925 (Ky. 1956).
[FN5] In re Thomas, 416 S.W.2d 52 (Mo. Ct. App. 1967).
[FN6] Barr v. Barr, 987 S.W.2d 471 (Mo. Ct. App. S.D. 1999).
rights reserved.
END OF DOCUMENT


Adoption

1. In General
§ 143. Presumption of validity
The final judgment of an adoption may be presumptively valid,[1] as, for example, where a decree is not
challenged within a specified period of time.[2] An order of adoption, even when made in adoption proceedings
before a probate court, has been regarded as an order of a court of general jurisdiction and entitled to the benefit
of the general rule regarding proceedings before a court of general jurisdiction, that performance of all steps es-
sential to the jurisdiction of the court is presumed in the absence of a contrary showing, even though the record
is silent as to such facts.[3] An adoption decree, in this view, necessarily implies a finding of all material facts
not inconsistent with the record, and so, though a petition for adoption omits allegations of consent of the par-
ents, or averments of facts excusing such omission, the entry of a decree implies that the court found the neces-
sary facts.[4] However, there is also authority for the view that there can be no presumption that jurisdiction was
obtained over the parent of the child if the record of the adoption is silent on the subject.[5]
[FN1] K.L.V. v. Florida Dept. of Health and Rehabilitative Services, 684 So. 2d 253 (Fla. Dist. Ct.
App. 3d Dist. 1996); Knox' Adoption v. Reid, 381 Mich. 582, 165 N.W.2d 1 (1969); Matter of Marriage
of Haley, 66 Or. App. 37, 672 P.2d 1222 (1983).
As to judgments, generally, see Am. Jur. 2d, Judgments §§ 1 to 7.
[FN2] Matter of Marriage of Haley, 66 Or. App. 37, 672 P.2d 1222 (1983).
[FN3] In re Grazzini's Estate, 31 Cal. App. 2d 168, 87 P.2d 713 (1st Dist. 1939); Denton v. Miller, 110
Kan. 292, 203 P. 693 (1922); In re Hoermann's Estate, 108 Mont. 386, 91 P.2d 394 (1939); Milligan v.
McLaughlin, 94 Neb. 171, 142 N.W. 675 (1913); Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562,
92 A.L.R. 343 (1933).
[FN4] In re Grazzini's Estate, 31 Cal. App. 2d 168, 87 P.2d 713 (1st Dist. 1939); Chamberlin v. Thorne,

145 Kan. 663, 66 P.2d 571 (1937); Knox' Adoption v. Reid, 381 Mich. 582, 165 N.W.2d 1 (1969); In re
Hoermann's Estate, 108 Mont. 386, 91 P.2d 394 (1939).
[FN5] In re Youmans' Estate, 218 Minn. 172, 15 N.W.2d 537, 154 A.L.R. 1171 (1944); Truelove v.
Parker, 191 N.C. 430, 132 S.E. 295 (1926); In re McCormick's Estate, 108 Wis. 234, 84 N.W. 148
(1900).
rights reserved.
END OF DOCUMENT


Adoption

1. In General
§ 144. Presumption of validity—Estoppel
Where the adoptive parents have invoked the jurisdiction of the court, secured a decree of adoption, taken
the child into their family, and reared it as their child, they and their heirs or personal representatives are es-
topped to deny the validity of the adoption proceedings or to deny that the child was legally adopted because of
some defect in the proceedings,[1] or at least to deny the legal status of the adopted child, when, by performance
upon the part of the child, the adoptive parents have received all the benefits and privileges accruing from such
performance, and by their representations induced such performance under the belief of the existence of the
status of the adopted child.[2] Thus, the person adopting a minor child and procuring the order for such adop-
tion, and all others claiming as his heirs, are estopped[3] from attacking that decree on the ground that he was
not a resident of the county in which the proceedings were had,[4] or to assert that he had perpetrated a fraud on
the court,[5] and those who are in privity with the adopting parent possess no greater rights.[6] Some effort to
comply with statutory adoption proceedings is necessary to estop one from questioning the validity of an alleged
adoption.[7] Also, in the absence of fraud, deceit, or mistake, the court will not, under the maxim that "equity
will treat as done that which ought to have been done," treat as adopted a child which was not in fact adopted,
merely because of an intention to adopt it and statements leading it to believe that the adoption had been ef-
fected.[8]
Foster parents were not collaterally estopped from pursuing their cause of action to adopt a child, even
though they had filed an amicus curiae brief in the prospective adoptive parents' adoption proceeding, where the
foster parents were not parties to the prospective adoptive parents' action, they were not in privity with the pro-
spective adoptive parents or the state Department of Human Resources since they sought to adopt child and to
prevent the Department and the court from allowing prospective adoptive parents from adopting child, and the
issue of whether the foster parents could adopt child was not litigated in the prospective adoptive parents' adop-
tion proceeding.[9]
Observation:
Neither res judicata nor collateral estoppel were the proper grounds for dismissing a natural parents' motion to

revoke consent to an adoption on the grounds of fraud and misrepresentation, based on allegations that the pro-
spective parents falsely assured the natural parents that at any time prior to the final adoption hearing, the natur-
al parents could withdraw their consent without objection, that the prospective parents falsely promised that the
natural parents would be allowed to be an intricate part of the child's life, that these promises were false when
made and that the prospective adoptive parents knew they were false and intended for the natural parents to rely
on the promises in deciding to consent to the adoption, where the trial court rejected the allegations without the
benefit of hearing any evidence.[10]
[FN1] In re Smith's Estate, 86 Cal. App. 2d 456, 195 P.2d 842 (1st Dist. 1948).
[FN2] Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77 (1940).
[FN3] Avery v. Avery, 160 Ark. 375, 255 S.W. 18 (1923).
[FN4] Milligan v. McLaughlin, 94 Neb. 171, 142 N.W. 675 (1913).
[FN5] James v. Williams, 169 Tenn. 41, 82 S.W.2d 541 (1935).
[FN6] In re Smith's Estate, 86 Cal. App. 2d 456, 195 P.2d 842 (1st Dist. 1948); Coonradt v. Sailors, 186
Tenn. 294, 209 S.W.2d 859, 2 A.L.R.2d 880 (1948).
[FN7] Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951).
[FN8] In re Taggart's Estate, 190 Cal. 493, 213 P. 504, 27 A.L.R. 1360 (1923).
As to the enforcement of rights under a contract to adopt, see § 59.
[FN9] In re T.M.G., 275 Ga. 543, 570 S.E.2d 327, 2 Fulton County D. Rep. 2805, 2002 WL 31155070
(2002) on remand to, Edmondson v. Gilmore, 583 S.E.2d 172, 3 Fulton County D. Rep. 1846, 2003 WL
21299385 (Ga. Ct. App. 2003).
[FN10] In Interest of D.C.C., 971 S.W.2d 843 (Mo. Ct. App. W.D. 1998).
rights reserved.
END OF DOCUMENT


Adoption

1. In General
§ 145. Challenges to decree
An appeal from a decree of adoption or other appealable order issued under the Uniform Adoption Act
(1994) must be heard expeditiously.[1] The validity of a decree of adoption may not be challenged for failure to
comply with an agreement for visitation or communication with an adoptee.[2]
[FN2] Uniform Adoption Act (1994) § 3-707(c).
rights reserved.
END OF DOCUMENT


Adoption

1. In General
§ 146. Doctrine of res judicata
A.L.R. Library
Applicability of res judicata to decrees or judgments in adoption proceedings, 52 A.L.R. 2d 406
Res judicata is applicable to decrees rendered in adoption proceedings.[1] Thus, the rule that a fact once lit-
igated and determined is deemed conclusive in a subsequent suit between the same parties is applicable to de-
crees or judgments in adoption proceedings.[2] A decree or order dismissing a petition to adopt the child follow-
ing an adverse determination that the petitioners were not fit persons to adopt the child and that the child's wel-
fare would not be promoted thereby is a bar to a new proceeding asking for the same relief.[3] However, as to
persons who are neither parties nor privies of parties to the adoption proceeding, an adoption decree, as a judg-
ment in rem, is not conclusive as to the facts upon which the decree is based.[4]
That a second action for adoption of a child is brought under a different law from that under which the first
action was brought does not preclude application of the doctrine of res judicata, where the later statute, although
repealing the earlier statute, contained an express saving clause as to pending proceedings, so that the court in
the earlier case retained jurisdiction and its determination was valid and binding in all respects.[5]
A prior order in a paternity proceeding establishing the biological father's paternity of a child rendered moot
the mother and prospective adoptive father's interlocutory appeal in an adoption proceeding, which focused on
the question of whether the biological father filed his paternity action in a timely manner. The paternity order
constituted a final, appealable judgment, the mother failed to challenge the paternity order through a motion to
correct the error, an appeal, or some other manner, the paternity order had not been superseded, reversed or va-
cated and was, thus, a binding, enforceable judgment, and the doctrine of res judicata proscribed relitigation of
the paternity determination.[6]

[FN1] McNamara v. McNamara, 303 Ill. 191, 135 N.E. 410 (1922); Whitley v. Reeves, 39 Tenn. App.
169, 281 S.W.2d 411, 52 A.L.R.2d 402 (1955).
As to the doctrine of res judicata, generally, see Am. Jur. 2d, Judgments §§ 514 to 517.
[FN2] McNamara v. McNamara, 303 Ill. 191, 135 N.E. 410 (1922); Whitley v. Reeves, 39 Tenn. App.
169, 281 S.W.2d 411, 52 A.L.R.2d 402 (1955).
[FN3] Whitley v. Reeves, 39 Tenn. App. 169, 281 S.W.2d 411, 52 A.L.R.2d 402 (1955).
[FN4] Evens v. Keller, 35 N.M. 659, 6 P.2d 200 (1931).
[FN5] Whitley v. Reeves, 39 Tenn. App. 169, 281 S.W.2d 411, 52 A.L.R.2d 402 (1955).
[FN6] In re Adoption of A.N.S., 741 N.E.2d 780 (Ind. Ct. App. 2001).
rights reserved.
END OF DOCUMENT


Adoption

§ 147. Generally
Forms
Petition or application—Seeking information concerning adoption of party. Am. Jur. Pleading and Practice
Order—Granting permission to obtain information concerning adoption of party. Am. Jur. Pleading and
If the surrender of parental rights complies with statutory requirements, then the biological parents must
either establish fraud, duress, or undue influence by clear and convincing evidence before an adoption decree
will be revoked.[1] A subsidiary factual finding in a proceeding to dispense with a parent's consent for a child's
adoption will only be set aside when it is unsupported by any evidence or when, although there is evidence to
support it, the reviewing court on entire evidence is left with a definite and firm conviction that a mistake has
been committed.[2] An appellate court cannot set aside a juvenile court's findings of fact in the absence of mani-
fest error or unless those findings are clearly wrong.[3] One cannot seek to enforce an oral contract for an adop-
tion and challenge a trial court's jurisdiction to enter an adoption judgment after the time for setting aside the ad-
option judgment and consent have passed.[4]
A decree of adoption is subject to collateral attack only for want of jurisdiction appearing on the face of the
record of the adoption proceedings.[5] The sole inquiry is whether the court had jurisdiction to render the adop-
tion order[6] or judgment.[7] Where none of the parties to the adoption proceeding are complaining, the inquiry
is further narrowed to the question of jurisdiction of the subject matter.[8] An adoption decree rendered by a
court having jurisdiction of the subject matter and the parties is not subject to collateral attack,[9] at least, where
the record shows at a minimum, substantial compliance with the essential provisions of the adoption statute.[10]
If, on the other hand, the adoption decree was rendered by a court of limited jurisdiction it is open to attack un-
less the jurisdictional facts appear affirmatively from the record.[11]

Where lack of jurisdiction affirmatively appears, they are always subject to collateral attack.[12] The courts
are generally not inclined to treat errors and irregularities in the procedure and record as jurisdictional defects,
seriously affecting the validity of the judgment, except as to the person directly affected by such irregularity.[13
] If in a particular case the court can acquire jurisdiction only if the petition conforms to the requirements of the
statute, the proceedings and decree are void and subject to collateral attack if the petition does not conform to
such requirements.[14] Even where notice to the parent or legal custodian of a child to be adopted is not spe-
cifically required by statute, the decree is not conclusive as to rights of the parent or custodian and may be col-
laterally attacked by him.[15]
Caution:
A decree of adoption may be a matter of contract between the parties and is not a judicial act and therefore is
open to collateral attack.[16]
A decree of adoption may be held void for lack of jurisdiction where the child was not physically present in
the state at the time of the adoption proceedings and had its domicil elsewhere.[17] An adoption order may also
be void where it fails to recite the essential jurisdictional facts that the adoptive parent and the adoptee are resid-
ents of the county in which the proceeding is had.[18]
Observation:
The parents did not have an interest in their adult child and her choice to be adopted by another which rose to
the level of an interest in life, liberty, or property and which created in them a due process right to notice of the
impending adoption of their adult child or a right to appear or be heard in connection with that proceeding.[19]
[FN2] In re Adoption of Peggy, 436 Mass. 690, 767 N.E.2d 29 (2002), cert. denied, 537 U.S. 1020, 123
S. Ct. 540, 154 L. Ed. 2d 428 (2002).
[FN3] In re A.J.F., 764 So. 2d 47 (La. 2000).
[FN4] In re J.D., 317 Ill. App. 3d 445, 251 Ill. Dec. 110, 739 N.E.2d 1043 (4th Dist. 2000), cert. denied,
535 U.S. 932, 122 S. Ct. 1308, 152 L. Ed. 2d 218 (2002).
[FN5] Gebhardt v. Warren, 399 Ill. 196, 77 N.E.2d 187 (1948).;
As to grounds for collateral attack of judgments, generally, see Am. Jur. 2d, Judgments §§ 518-520.
[FN6] Gebhardt v. Warren, 399 Ill. 196, 77 N.E.2d 187 (1948).
[FN9] Wilcox v. Fisher, 163 Kan. 74, 180 P.2d 283 (1947).

[FN11] Doby v. Carroll, 274 Ala. 273, 147 So. 2d 803 (1962); In re Zupancis' Heirship, 107 Colo. 323,
111 P.2d 1063 (1941).
[FN12] Hughes v. Industrial Com'n, 69 Ariz. 193, 211 P.2d 463 (1949); Spencer v. Franks, 173 Md. 73,
195 A. 306, 114 A.L.R. 263 (1937); Com. ex rel. Teitelbaum v. Teitelbaum, 160 Pa. Super. 286, 50
A.2d 713 (1947).
As to appeal from adoption proceedings, generally, see § 161.
As to annulment or vacation of a judgment of adoption, generally, see §§ 151 et seq.
[FN13] Avery v. Avery, 160 Ark. 375, 255 S.W. 18 (1923).
A decree of adoption may not be collaterally attacked because of a misnomer of the child in the record.
Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 92 A.L.R. 343 (1933).
[FN14] Ashlock v. Ashlock, 360 Ill. 115, 195 N.E. 657 (1935).
[FN15] Child Sav. Institute v. Knobel, 327 Mo. 609, 37 S.W.2d 920, 76 A.L.R. 1068 (1931).
[FN16] Ronck v. Ronck, 1950 OK 145, 203 Okla. 121, 218 P.2d 902 (1950).
[FN17] In re Pratt, 219 Minn. 414, 18 N.W.2d 147 (1945).
As to residence requirements, see § 115.
[FN18] Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962).
[FN19] Matter of Adoption of Adult by C.K., 314 N.J. Super. 605, 715 A.2d 1030 (Ch. Div. 1998).
rights reserved.
END OF DOCUMENT


Adoption

§ 148. Parties
A.L.R. Library
Who, other than natural or adopting parents, or heirs of latter, may collaterally attack adoption decree, 92
A.L.R. 2d 813
Collateral attack upon an adoption decree for alleged want or lack of jurisdiction over a necessary party to
the adoption proceedings is limited to the person or persons who were not served with notice actually or con-
structively and who did not consent to or appear in the proceedings.[1] Those who participated in the proceed-
ings, those claiming through them, or strangers to the proceedings, cannot attack an adoption decree collaterally
when the court rendering it had jurisdiction of the subject matter.[2] Even if there is a lack of consent and defect
of notice as to one of the real or natural parents appearing on the face of the record, such defect constitutes
merely lack of due process as to the parent not served, and the decree may be attacked only by the person af-
fected by such procedural lack of due process and not by persons over whom the court had jurisdiction.[3] An
objection to the lack of due process in giving the notice to or obtaining the consent of the natural parent is avail-
able only to that parent, and not to the adopting parents.[4]
A nonparty who collaterally attacks an adoption judgment can question only want of jurisdiction of the sub-
ject matter.[5]
[FN1] Hughes v. Aetna Cas. & Sur. Co., 234 Or. 426, 383 P.2d 55 (1963); Coonradt v. Sailors, 186
Tenn. 294, 209 S.W.2d 859, 2 A.L.R.2d 880 (1948).
[FN2] In re Smith's Estate, 86 Cal. App. 2d 456, 195 P.2d 842 (1st Dist. 1948).
[FN3] In re Smith's Estate, 86 Cal. App. 2d 456, 195 P.2d 842 (1st Dist. 1948); Barlow v. Barlow, 170
Colo. 465, 463 P.2d 305 (1969).

[FN4] Allen v. Allen, 214 Or. 664, 330 P.2d 151 (1958).
[FN5] In re J.D., 317 Ill. App. 3d 445, 251 Ill. Dec. 110, 739 N.E.2d 1043 (4th Dist. 2000), cert. denied,
535 U.S. 932, 122 S. Ct. 1308, 152 L. Ed. 2d 218 (2002).
As to want of jurisdiction, see § 147.
rights reserved.
END OF DOCUMENT


Adoption

§ 149. Parties—Attack by presumptive heir of adopting parent
Generally, the kindred of the adopting parent seeking to take by inheritance the property of that parent may
not question the validity of the adoption decree under which the adopted child claims right of inheritance in such
property,[1] either by a direct or by a collateral proceeding.[2] No rights of the parent of the child are impaired
by giving force and effect to the contract of adoption and permitting the child to succeed to the estate of the ad-
optive parent as the adopted child of the latter.[3]
Practice Guide:
An appellee may have standing to challenge a child's adoptive status in his capacity as executor, which was a
challenge he was required to make to protect the decedent's distributees mentioned in his will.[4]
[FN1] Coonradt v. Sailors, 186 Tenn. 294, 209 S.W.2d 859, 2 A.L.R.2d 880 (1948).
[FN2] Barlow v. Barlow, 170 Colo. 465, 463 P.2d 305 (1969); In re Reichel, 148 Minn. 433, 182 N.W.
517, 16 A.L.R. 1016 (1921).
[FN3] Locke v. Merrick, 223 N.C. 799, 28 S.E.2d 523 (1944).
[FN4] Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992).
rights reserved.
END OF DOCUMENT


Adoption

§ 150. Time limitations
The time within which a collateral attack may be brought upon the validity of an adoption may be limited.[1
] A statute of limitations for collateral attacks on adoption decrees recognizes that to allow collateral attacks on
final adoption decrees at any time threatens to unreasonably disrupt the upbringing of the adopted child.[2] Such
time limitations have applied, in some instances, whether the decree for adoption was void or voidable.[3]
Moreover, the time limit for collateral attack on an adoption decree may be absolute and not subject to any ex-
ception for extrinsic fraud.[4]
Observation:
The evident reason for the not-taken-custody exception to the strict one-year statute of limitations for challen-
ging an adoption decree is that undoing an adoption where the exception applies involves either no risk or a re-
duced risk of destabilizing a newly formed family or severing powerful psychological ties to the adoptive par-
ents.[5]
Cases:
A trial court may set aside an adoption decree if it is challenged within the first year. In re Adoption of
S.K.L.H., 204 P.3d 320 (Alaska 2009).
[END OF SUPPLEMENT]
[FN1] Goclanney v. Desrochers, 135 Ariz. 240, 660 P.2d 491 (Ct. App. Div. 2 1982); Hurt v. Noble,
1991 OK CIV APP 59, 817 P.2d 744 (Ct. App. Div. 3 1991).

[FN2] Hernandez v. Lambert, 951 P.2d 436 (Alaska 1998).
[FN4] Hagy v. Pruitt, 331 S.C. 213, 500 S.E.2d 168 (Ct. App. 1998), aff'd as modified, 339 S.C. 425,
529 S.E.2d 714 (2000).
The minority of the natural parent may not operate to prevent the time limit from running, and the only
exceptions which to toll the statute of limitations would be in cases of fraud or where constitutional vi-
olations were present. Hurt v. Noble, 1991 OK CIV APP 59, 817 P.2d 744 (Ct. App. Div. 3 1991).
[FN5] Goliver v. McAllister, 34 P.3d 324 (Alaska 2001).
rights reserved.
END OF DOCUMENT


Adoption

a. In General
§ 151. Generally
A.L.R. Library
“Wrongful adoption” causes of action against adoption agencies where children have or develop mental or
physical problems that are misrepresented or not disclosed to adoptive parents, 74 A.L.R. 5th 1
Annulment or vacation of adoption decree by adopting parent or natural parent consenting to adoption, 2
A.L.R. 2d 887
Forms
Petition or application—To vacate adoption—By natural mother—Fraud and duress in obtaining coun-
sel—Lack of jurisdiction. Am. Jur. Pleading and Practice Forms, Adoption § 255
Petition or application—To vacate adoption—By adopted child—Cruelty by adoptive parents. Am. Jur.
Petition or application—To vacate adoption of adult—By guardian of incompetent adoptive parent—Fraud

and undue influence. Am. Jur. Pleading and Practice Forms, Adoption § 260
Order—To show cause—Why adoption should not be vacated. Am. Jur. Pleading and Practice Forms, Ad-
option § 261
Order—Vacating adoption—Custody given to natural mother. Am. Jur. Pleading and Practice Forms, Adop-
tion §§ 262
A court of general jurisdiction, unless specifically restricted by statute, has the power to vacate an adoption

decree upon such grounds as would entitle the court to vacate any other order or decree which it has made.[1] A
court of general equitable jurisdiction may annul, vacate, or set aside an order of adoption under proper circum-
stances,[2] as where entry of the decree was brought about by fraud, misrepresentation, undue influence,[3] or
other misconduct of an adverse party.[4] The welfare of the child is of paramount consideration in cases in-
volving annulment or vacation of an adoption decree.[5] Thus, if an annulment clearly appears to be in the best
interest of the welfare of the child, this alone will constitute proper grounds for an annulment at the instance of
either the natural or the foster parents,[6] such as, where the adopting parents have mistreated the children.[7]
Observation:
A statutory provision may authorize the court to set aside a decree of adoption within five years of its entry
where the adopted child manifests a developmental disability or mental illness as a result of conditions existing
prior to the adoption and of which the adoptive parents had neither knowledge nor notice.[8] The disability or
illness must also be of such nature that the child is considered unadoptable.[9]Such a statute does not violate
either the due process or equal protection clauses of the state and federal constitutions.[10]
In the case of an order to set aside an adoption decree and judgment directed against out-of-state adoptive
parents, jurisdiction over the adoptive parents is requisite to the validity of the order.[11]
Practice Guide:
The vacation of a decree of adoption has no effect on a prior order granting temporary custody to the adoptive
parents.[12]The order of temporary custody remains in full force and effect.[13]
[FN1] Cotten v. Hamblin, 234 Ark. 109, 350 S.W.2d 612, 92 A.L.R.2d 811 (1961); In re Adoption of
Doe, 57 Del. 132, 197 A.2d 469 (Orphans' Ct. 1964), judgment aff'd, 58 Del. 487, 210 A.2d 863 (1964);
Aramovich v. Doles, 244 Ind. 658, 195 N.E.2d 481 (1964).
As to revocation or withdrawal of one's consent to an adoption, generally, see §§ 101 et seq.
[FN2] Doby v. Carroll, 274 Ala. 273, 147 So. 2d 803 (1962).
An interlocutory decree of adoption had to be set aside and the adoption proceeding dismissed where
the adoptive parents and attorney violated a statute prohibiting a payment for the arrangement of the
placement of, or assistance in the placement of a child for adoption, where the notice to the natural fath-
er was insufficient and that the publication of the notice was made in North Carolina, although the at-
torney knew that the natural father resided in Michigan and, when viewed together, the defects in the
case were substantial and serious enough that the court would set a dangerous precedent by holding that
the adoption could stand in spite of them. Matter of Adoption of P.E.P., 329 N.C. 692, 407 S.E.2d 505
(1991).
[FN3] Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925 (1988); In re Ad-
option of L, 56 N.J. Super. 46, 151 A.2d 435 (County Ct., P. Div. 1959).
As to fraud or duress as grounds for setting aside or anulling a judgment in an action brought by a nat-
ural parent, see § 153.

[FN4] Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925 (1988).
[FN5] Department of Social Welfare v. Superior Court, 1 Cal. 3d 1, 81 Cal. Rptr. 345, 459 P.2d 897
(1969).
A probate court had no jurisdiction to direct the guardian of an incompetent ward to bring an action to
vacate the adoption by that ward of her adult nephew where there was no showing that the interest of
the ward would be advanced by such action and where the sole beneficiaries would be the presumptive
heirs of the ward. In re Schober's Estate, 303 Minn. 226, 226 N.W.2d 895 (1975).
[FN6] Adoption of Jason R., 88 Cal. App. 3d 11, 151 Cal. Rptr. 501 (2d Dist. 1979).
[FN7] Cotten v. Hamblin, 234 Ark. 109, 350 S.W.2d 612, 92 A.L.R.2d 811 (1961).
As to failure to provide a suitable home to the adopted children as grounds for setting aside an adoption
decree in an action brought by a natural parent, see § 152.
[FN8] Adoption of Kay C., 228 Cal. App. 3d 741, 278 Cal. Rptr. 907 (6th Dist. 1991).
[FN11] Risner v. Risner, 243 Ind. 581, 189 N.E.2d 105 (1963).
[FN12] In re Knipper, 39 Ohio App. 3d 35, 528 N.E.2d 1319 (1st Dist. Hamilton County 1987).
[FN13] In re Knipper, 39 Ohio App. 3d 35, 528 N.E.2d 1319 (1st Dist. Hamilton County 1987).
rights reserved.
END OF DOCUMENT


Adoption

a. In General
§ 152. On application of natural parents
A.L.R. Library
A.L.R. 2d 887
Forms
Petition or application—To vacate adoption—By natural mother—Lack of consent and failure to give no-
tice—Seeking to restrain removal of child from jurisdiction. Am. Jur. Pleading and Practice Forms, Adoption §
256
Ordinarily, after a final order or decree of adoption has been entered, a natural parent's mere change of heart
or subsequent regret at having consented to the adoption is not, by itself, sufficient reason for setting aside or an-
nulling the adoption.[1] Nor will the fact that there has been an improvement in the physical or financial condi-
tion of the natural parent since the time of the adoption or the giving of consent thereto alone justify a revoca-
tion or annulment against the wishes of the foster parents.[2] However, a decree may be annulled or set aside on
the application of a natural parent in certain circumstances,[3] such as where it has been shown that the adopting
parents did not provide a suitable home for the child,[4] or where the natural mother has validly withdrawn her
consent to adoption.[5] Adoption, following the termination of natural parental status, is final and not subject to
abrogation except for defects such as newly discovered evidence.[6]
As in determining whether to grant a decree of adoption, on an application to set aside or annul the decree,
the welfare of the child is of paramount importance, and when a parent seeks to annul an adoption he has the

burden of showing some fact or condition suggesting to the court the desirability of taking the child from the
custody of the adopting parent and placing him or her in the care of the natural parent.[7] Generally, the child
will not be taken from the custody of the adopting parents unless the evidence shows affirmatively that such ac-
tion will benefit the child.[8]
An interlocutory decree of adoption may be vacated for failure to comply with statutes requiring the consent
of the parent and notice of the pendency of the proceedings to be given to the person whose consent is neces-
sary.[9] However, a natural mother's motion to set aside a decree of adoption fails where a valid consent has
been signed by the mother, so that notice of the adoption proceedings is not required.[10] Furthermore, in cer-
tain circumstances, the failure to obtain all consents to an adoption which are necessary under applicable stat-
utory provisions does not necessarily require the setting aside of a decree of adoption in an action brought by a
natural parent.[11]
Practice Guide:
A natural mother who has consented to have her child placed for adoption but subsequently seeks to vacate the
adoption decree must prove her claim to relief by clear and convincing evidence.[12]
[FN1] Petition of S.O., 795 P.2d 254 (Colo. 1990).
As to withdrawing or revoking consent before the entry of decree, see § 101.
A rank outsider or mere stranger cannot maintain a petition to annul an order of adoption, although the
grandparents of the adopted child would be proper parties in such an action. Cotten v. Hamblin, 234
Ark. 109, 350 S.W.2d 612, 92 A.L.R.2d 811 (1961).
[FN2] In re Sipes, 24 Wash. 2d 603, 167 P.2d 139 (1946).
[FN3] In re Adoption No. 85365027/AD in Circuit Court for Baltimore City, 71 Md. App. 362, 525
A.2d 1081 (1987).
[FN4] Gillen v. Edge, 214 Ark. 776, 217 S.W.2d 926 (1949).
[FN5] In re Adoption No. 85365027/AD in Circuit Court for Baltimore City, 71 Md. App. 362, 525
A.2d 1081 (1987).
[FN6] In re K. W. V., 92 Misc. 2d 292, 399 N.Y.S.2d 593 (Sur. Ct. 1977).
As to fraud, duress, or undue influence, see § 153.
[FN7] Urrutia v. Urrutia, 142 S.W.2d 267 (Tex. Civ. App. El Paso 1940), writ refused.
[FN8] Hursey v. Thompson, 141 Tex. 519, 174 S.W.2d 317 (1943).
[FN9] Petition of Foley, 123 Colo. 533, 232 P.2d 186, 24 A.L.R.2d 1123 (1951).
As to consent of parents to adoption of their children, generally, see §§ 65 et seq.

As to notice of adoption proceedings, generally, see §§ 107 et seq.
[FN10] Matter of Adoption of Konar, 454 N.E.2d 886 (Ind. Ct. App. 1st Dist. 1983).
[FN11] Wolf v. Smith, 435 So. 2d 749 (Ala. Civ. App. 1983).
As to interstate adoptions under the Interstate Compact on the Placement of Children, generally, see §§
41 et seq.
rights reserved.
END OF DOCUMENT


Adoption

a. In General
§ 153. On application of natural parents—Fraud, duress, or undue influence
A.L.R. Library
5th 1
A.L.R. 2d 887
Forms
Fraud, duress, or other overreaching practices of the adopting parents or others, in obtaining the consent of
the natural parents to adoption of their child, when established, constitute grounds for vacating or setting aside a
decree of adoption, and in a proper case the decree will be set aside on application of the parent.[1] Public policy
requires that[2] when a motion to vacate an order on the ground of fraud involves the adoption of a child, the
court must consider, in addition to whether extrinsic fraud has occurred, the best interests of the child,[3] and the
adoption should not be annulled for a slight cause.[4] On the other hand, judgments should not be sustained
when they result from misleading and false circumstances, which would make their enforcement unconscion-
able.[5]
A natural mother is not barred by an order denying visitation rights under the doctrines of res judicata or
collateral estoppel from bringing an action to set aside an adoption decree on the basis of fraud.[6]

[FN1] Arnold v. Howell, 98 Cal. App. 2d 202, 219 P.2d 854 (1st Dist. 1950).
[FN2] In re Adoption of B.J.H., 564 N.W.2d 387 (Iowa 1997).
[FN6] Lowe v. Clayton, 264 S.C. 75, 212 S.E.2d 582 (1975).
As to natural parents' rights to visitation, generally, see § 166.
rights reserved.
END OF DOCUMENT


Adoption

a. In General
§ 154. On application of adoptive parent
A.L.R. Library
A.L.R. 2d 887
Forms
Petition or application—To vacate adoption—By adoptive parents—Desertion by child. Am. Jur. Pleading
and Practice Forms, Adoption § 257
Petition or application—To vacate adoption—By adoptive parents—Developmental disability or mental ill-

ness of child. Am. Jur. Pleading and Practice Forms, Adoption § 258
Order—Vacating adoption—On petition of adoptive parents—Desertion by child. Am. Jur. Pleading and
Order—Vacating adoption—On petition of adoptive parents—Defect in child discovered after adoption.

Order—Vacating adoption—On petition of adoptive parents—Developmental disability or mental illness of

child. Am. Jur. Pleading and Practice Forms, Adoption § 265
On a petition of the adoptive parents, a court of competent jurisdiction may directly vacate an order of adop-

tion under proper circumstances, as where the entry of the decree was brought about by fraud, misrepresentation,
or undue influence.[1] An adoptive parent may have a decree of adoption vacated by the court which entered the
decree or have the decree set aside by a suit in equity upon the ground of fraud practiced upon him in obtaining
the decree where, for example, the adopting parent was of weak mind and was subjected to undue influence of
the child's parent or other person in bringing about the child's adoption,[2] or for other good cause shown a court
of general equity jurisdiction may set aside a decree of adoption to protect the best interests and welfare of the
child.[3] In petitions brought by adoptive parents for annulment of adoption decrees, the present and future wel-
fare and interest of the child are considered.[4]
Where the position that unless the legislature supplies the procedure and defines the causes for annulment at
the instance of the adopting parent, jurisdiction should not be assumed by other courts to annul the decree at the
instance of the adopting parent and cast the child aside.[5] Conversely, an adoption decree may be annulled at
the instance of the adopting parent,[6] where the vacation of the decree would clearly be for the child's best in-
terests.[7] An abrogation of an adoption will not be allowed if it is premised on the desire of foster parents to rid
themselves of a bad bargain, or because of a mere change in attitude or regret.[8] Furthermore, in the absence of
some compelling reason, the annulment of an adoption should not be decreed, other than for a statutory cause,
where the child would be cast aside to become a public charge and the adoptive parents freed of the obligations
of parenthood.[9] The abrogation of adoption generally applies only where the foster parents seek an abrogation
during the minority of the foster child, so that after the child reaches 21 years of age there is no way the adop-
tion can be abrogated.[10]
Where the adopting parents are the ones seeking to invalidate the adoption decree, such persons must prove
their claim to relief by clear and convincing evidence.[11]
[FN1] In re Welfare of Alle, 304 Minn. 254, 230 N.W.2d 574 (1975).
[FN2] State ex rel. Bradshaw v. Probate Court of Marion County, 225 Ind. 268, 73 N.E.2d 769 (1947).
[FN3] Coonradt v. Sailors, 186 Tenn. 294, 209 S.W.2d 859, 2 A.L.R.2d 880 (1948).
[FN4] C.C.K. v. M.R.K., 579 So. 2d 1368 (Ala. Civ. App. 1991).
[FN5] Kirsheman v. Paulin, 155 Ohio St. 137, 44 Ohio Op. 134, 98 N.E.2d 26 (1951); Coonradt v. Sail-
ors, 186 Tenn. 294, 209 S.W.2d 859, 2 A.L.R.2d 880 (1948).
[FN6] State ex rel. Bradshaw v. Probate Court of Marion County, 225 Ind. 268, 73 N.E.2d 769 (1947).
[FN7] Allen v. Allen, 214 Or. 664, 330 P.2d 151 (1958).
[FN8] In re Adoption of L, 56 N.J. Super. 46, 151 A.2d 435 (County Ct., P. Div. 1959).
[FN9] In re McDuffee, 352 S.W.2d 23 (Mo. 1961).
[FN10] In re Eaton, 305 N.Y. 162, 111 N.E.2d 431 (1953).

rights reserved.
END OF DOCUMENT


Adoption

a. In General
§ 155. On application of adoptive parent—Action for wrongful adoption
A.L.R. Library
Beyond wrongful adoption: Expanding adoption agency liability to include a duty to investigate and a duty
to warn. 29 Golden Gate L.Rev. 181 (1999)
A decree of adoption or other order issued under the Uniform Adoption Act (1994) is not subject to a chal-
lenge begun more than six months after the decree or order is issued.[1]
The traditional common-law causes of action for fraud and negligence apply in an action for wrongful adop-
tion and the negligent placement of an adoptive child.[2] An action for wrongful adoption may be brought by the
adoptive parents of a child against an adoption agency, entitling the plaintiffs to consequential damages, where
the agency's material misrepresentations concerning the child's background and condition have induced the ad-
optive parents to adopt the child despite the fact that the child was suffering from, or prone to incur, mental and
physical problems, provided the elements of a cause of action for fraud are satisfied.[3]
The theory of intentional misrepresentation may be applied in an action for the wrongful adoption and negli-
gent placement of an adoptive child.[4]
[FN1] Uniform Adoption Act (1994) § 3-707(d).

[FN2] Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994).
[FN3] Burr v. Board of County Com'rs of Stark County, 23 Ohio St. 3d 69, 491 N.E.2d 1101, 56
A.L.R.4th 357 (1986).
[FN4] Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994).
rights reserved.
END OF DOCUMENT


Adoption

a. In General
§ 156. Annulment or vacation on grounds of religious differences
A.L.R. Library
Religion as factor in adoption proceedings, 48 A.L.R. 3d 383
As a difference in religious faiths alone will ordinarily not prevent an adoption which is otherwise in the
best interests of the child, so it is true that an adoption decree will not be anulled on that basis alone.[1]
However, where the consent of a natural parent to the adoption of his or her children has been obtained by sub-
stantial and influencing misrepresentations by the adoptive parent to the faith that the children would be raised
in, the parent's applications to vacate the prior orders of adoption may be granted.[2]
[FN1] Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146 (1920).
[FN2] Application of Sohn, 133 Misc. 2d 743, 507 N.Y.S.2d 969 (Sur. Ct. 1986).
rights reserved.
END OF DOCUMENT


Adoption

§ 157. Statutory limitations
A.L.R. Library
Validity and construction of statutes imposing time limitations upon actions to vacate or set aside an adop-
tion decree or judgment, 83 A.L.R. 2d 945
The time in which an action for the annulment or vacation of an adoption order may be brought may be lim-
ited.[1] After the passing of the specified time, any irregularity in the proceeding will may deemed cured and the
validity of the decree will not thereafter be subject to attack on any such ground in any collateral or direct pro-
ceeding.[2] Statutes of this nature have been applied to bar an action seeking to upset an adoption decree where
the ground for attack was lack of requisite consent to the adoption by a necessary party,[3] lack of representation
of the child at the time of the adoption,[4] or other procedural irregularity.[5]
[FN1] In re M.N.M., 605 A.2d 921 (D.C. 1992).
Under a statute of limitations stating that an attempt to invalidate a final decree of adoption by reason of
a jurisdictional or procedural defect may not be received by any court of the District, unless regularly
filed with the court within one year following the date the final decree became effective, the mailing of
a letter by the putative natural father to judges within the statutory period, expressing his objection to
the adoption being finalized, did not meet the statutory requirement of a motion or pleading regularly
filed. In re M.N.M., 605 A.2d 921 (D.C. 1992).
As to time limitations on collateral attack of adoption decrees or judgments, generally, see § 150.
[FN2] Goclanney v. Desrochers, 135 Ariz. 240, 660 P.2d 491 (Ct. App. Div. 2 1982).

As to time limitation for collateral attack, see § 150.
[FN3] Walter v. August, 186 Cal. App. 2d 395, 8 Cal. Rptr. 778, 83 A.L.R.2d 941 (1st Dist. 1960); Ly-
ons v. Goodman, 78 So. 2d 424 (La. Ct. App. 1st Cir. 1955).
[FN4] In re Wells, 281 F.2d 68 (D.C. Cir. 1960).
[FN5] In re Adoption of Hiatt, 157 Neb. 914, 62 N.W.2d 123 (1954).
rights reserved.
END OF DOCUMENT


Adoption

§ 158. Statutory limitations—Effect of constitutional issues; lack of notice
A.L.R. Library
Validity and construction of statutes imposing time limitations upon actions to vacate or set aside an adop-
tion decree or judgment, 83 A.L.R. 2d 945
Under the Uniform Adoption Act, a decree or order may not be vacated or annulled upon application of a
person who waived notice, or who was properly served with notice pursuant to this Act and failed to respond or
appear, file an answer, or file a claim of paternity within the time allowed.[1] If a challenge is brought by an in-
dividual whose parental relationship to an adoptee is terminated by a decree or order under the Uniform Adop-
tion Act (1994), the court must deny the challenge, unless the court finds by clear and convincing evidence that
the decree or order is not in the best interest of the adoptee.[2]
Statutes which provide that no adoption may be challenged on any ground after a specified time following
the final adoption decree may be tolled where constitutional violations are present.[3] Statutes which limit the
time for instituting proceedings to vacate or set aside an adoption decree, which preserve, at least for a reason-
able time, already existing remedies, are constitutionally proper,[4] but such a statute will not be upheld when its
effect is to bar immediately upon its enactment, an already existing remedy, and the right to sue under it.[5]
[FN2] Uniform Adoption Act (1994) § 3-707(d).
[FN4] Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950).

[FN5] In re Bresnehan's Will, 221 Wis. 51, 265 N.W. 93 (1936).
rights reserved.
END OF DOCUMENT


Adoption

§ 159. Statutory limitations—Effect of fraud
Forms
Petition or application—To vacate adoption of adult—By guardian of incompetent adoptive parent—Fraud

and undue influence. Am. Jur. Pleading and Practice Forms, Adoption § 260
The courts may not apply a statute of limitations to bar an attack upon an adoption order where a necessary
signature in the adoption proceedings appears to have been forged under circumstances constituting a fraud upon
the court.[1] However, fraud does not always preclude the application of a statutory limitation period for bring-
ing an action to vacate an adoption decree.[2] In some instances, the application of the discovery rule—under
which a cause of action does not accrue until the cause of action is discovered—is inappropriate, since to allow
an action to set aside an adoption decree from the time of the discovery of fraud would in effect render adoption
decrees vulnerable indefinitely to attack, and the result would be inconsistent with the purposes of the adoption
statutes.[3]
Caution:
A statute tolling the statute of limitations for actions to set aside an adoption decree on the basis of fraud has
been construed as not tolling the statute for the related grounds of undue influence or duress.[4]
Practice Guide:
A limitation for collateral attack on an adoption decree does not bar an action to set aside the adoption on the
ground of extrinsic fraud, although the doctrine of laches will apply in determining whether such action is
barred.[5]

[FN1] Jones v. Sutton, 255 S.W.2d 658 (Ky. 1953).
[FN2] Husband (G.T.B.) v. Wife (G. R.), 424 A.2d 12 (Del. 1980); In re Adoption of Baby Girls Man-
dell, 213 Ill. App. 3d 670, 157 Ill. Dec. 290, 572 N.E.2d 359 (2d Dist. 1991).
[FN3] Street v. Hubert, 141 Ill. App. 3d 871, 96 Ill. Dec. 215, 491 N.E.2d 29 (1st Dist. 1986).
[FN4] Matter of Adoption of Male Minor Child, 1 Haw. App. 364, 619 P.2d 1092 (1980).
[FN5] Hagy v. Pruitt, 339 S.C. 425, 529 S.E.2d 714 (2000).
As to laches, see § 160.
rights reserved.
END OF DOCUMENT


Adoption

§ 160. Laches
Where a natural parent fails to exercise his statutory right to contest an adoption performed without his con-
sent, the equitable doctrine of laches may apply to bar any attempt to invalidate that adoption order.[1] In de-
termining whether laches applies to bar a challenge to an adoption by a natural parent, courts have considered
the length of time the child has resided with the adoptive parents, whether the natural parent has maintained con-
tact with and/or supported the child, and whether the natural parent was aware of an acquiesced in the adoption.[
2]
[FN1] State ex rel. Smith v. Abbot, 187 W. Va. 261, 418 S.E.2d 575 (1992).
[FN2] State ex rel. Smith v. Abbot, 187 W. Va. 261, 418 S.E.2d 575 (1992).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VII H REF Page 1
2 Am. Jur. 2d Adoption VII H Refs.

Adoption

Research References
Primary Authority
25 U.S.C.A. § 1916(a)
A.L.R. Library
A.L.R. Digest: Parent and Child §§ 16, 18, 20, 22
rights reserved.
AMJUR ADOPTION VII H REF
END OF DOCUMENT


Adoption

§ 161. Generally
In some jurisdictions, a direct appeal of a petition for adoption, whether granted or denied, whether termin-
ating parental rights or not, is the proper method of seeking review.[1]
An appellate court must sustain the judgment of the trial court in an adoption proceeding unless there is no
substantial evidence to support it, unless it is against the weight of evidence[2] —the finding of the trial court
will not be disturbed on review unless contrary to the manifest weight of the evidence[3] or unless it erroneously
declares or applies to law.[4] The determination of whether a petition for adoption should be granted or denied is
subject to review for abuse of discretion[5] but an appellate court will not interfere with the trial's courts determ-
ination in an adoption proceeding unless a clear abuse of discretion is manifested.[6] Thus, in reviewing factual
determinations in a contested adoption case, the trial court can be reversed only if it committed a clear abuse of
its discretion, that is if it could not reasonably have concluded as it did.[7] An abuse of discretion occurs when
in light of all the circumstances before it, the trial court exceeds the bounds of reason.[8] In some jurisdictions,
on appeal, an appellate court will not disturb the trial judge's decision in an adoption proceeding unless the evid-
ence at trial led to but one conclusion and the trial judge reached an opposite conclusion.[9] Nor would the court
on appeal weigh conflicting evidence or assess the credibility of witnesses.[10] However, even in jurisdictions
where the court of appeals reviews the record of adoption proceedings de novo, it will not reverse the probate
judge's decision unless it is clearly erroneous or against the preponderance of evidence, after giving regard to his
opportunity to determine the credibility of the witnesses.[11]
A trial court's determination of a child's best interest[12] is entitled to great weight and will not be disturbed
on appeal absent manifest error.[13]
Where a motion, while interlocutory, effectively foreclosed a natural father from contesting adoption case
on the merits, it affected a substantial right and was appealable.[14]
A federal district court is not empowered to sit as a super adoption agency review board.[15]
To be reviewed, an appeal from a final order of adoption must be timely followed, in accordance with the

applicable rules of appellate procedure.[16]
Practice Guide:
A federal appellate court only may only have jurisdiction over the persons specifically named in a notice of ap-
peal styled with specific names of designated plaintiffs "et al."[17]
Cases:
In reviewing a trial court's finding as to whether an adoption serves the best interests of the child, an appel-
late court is governed by the abuse-of-discretion standard. G.S. v. T.B, 985 So. 2d 978 (Fla. 2008).
An appellate court will review de novo whether the trial court's determinations in an adoption proceeding
are based on a proper interpretation of the law. G.S. v. T.B, 985 So. 2d 978 (Fla. 2008).
Mother's failure to appeal from finding that child was deprived was binding on mother, for purposes of ap-
peal from order terminating mother's parental rights. In re M.M., 276 Ga. App. 211, 622 S.E.2d 892 (2005).
Appellate court would decline to find that father waived, for appeal, his claim that trial court erred when it
excluded evidence of his ability to care for minor's four siblings, in action to terminate his parental rights to
minor, when he made no offer of proof at trial to establish his parental fitness with regard to siblings; reviewing
court could, in furtherance of its responsibility to provide a just result and to maintain a sound and uniform body
of precedent, override considerations of waiver that stemmed from the adversarial nature of the court system. In
re L.W., 383 Ill. App. 3d 1011, 323 Ill. Dec. 239, 893 N.E.2d 253 (1st Dist. 2008), appeal denied, judgment va-
cated, 229 Ill. 2d 667, 323 Ill. Dec. 738, 894 N.E.2d 764 (2008).
In termination of parental rights action, trial court's best-interest finding will not be reversed unless it is
against the manifest weight of the evidence. In re L.W., 383 Ill. App. 3d 1011, 323 Ill. Dec. 239, 893 N.E.2d 253
(1st Dist. 2008), appeal denied, judgment vacated, 229 Ill. 2d 667, 323 Ill. Dec. 738, 894 N.E.2d 764 (2008).
In termination of parental rights action, appellate courts only disturb a trial court's finding that there is clear
and convincing evidence that a parent is unfit if that finding is found to be against the manifest weight of the
evidence. In re L.W., 383 Ill. App. 3d 1011, 323 Ill. Dec. 239, 893 N.E.2d 253 (1st Dist. 2008), appeal denied,
judgment vacated, 229 Ill. 2d 667, 323 Ill. Dec. 738, 894 N.E.2d 764 (2008).
In appeals concerning adoption proceedings, like any appeal from family court, the Supreme Court may find
the facts in accordance with its own view of the preponderance of the evidence. McCann v. Doe, 377 S.C. 373,
660 S.E.2d 500 (2008).
Broad scope of review applicable in appeals concerning adoption proceedings does not require the Supreme
Court to disregard the findings of the family court judge, who saw and heard the witnesses and was in a better
position to evaluate their credibility; this degree of deference is especially true in cases involving the welfare
and best interests of a minor child. McCann v. Doe, 377 S.C. 373, 660 S.E.2d 500 (2008).
Court reviewing a ruling in a termination of parental rights (TPR) proceeding may review the record and
make its own findings as to whether clear and convincing evidence supports the TPR. Stinecipher v. Ballington,
366 S.C. 92, 620 S.E.2d 93 (Ct. App. 2005).
Broad scope of appellate review of a termination of parental rights (TPR) proceeding does not require the
reviewing court to disregard the findings of the trial court or to ignore the fact that the court was in a better posi-
tion to assess the credibility of witnesses. Stinecipher v. Ballington, 366 S.C. 92, 620 S.E.2d 93 (Ct. App. 2005).
Clear and convincing evidence supported finding that termination of mother's parental rights was in chil-
dren's best interest; expert in the field of child therapy testified that continued contact between the children and

mother would not be in the children's best interest, expert testified one of the children was exposed to inappro-
priate sexual behaviors involving mother and child's father, and guardian ad litem recommended that mother's
parental rights be terminated, noting that she was specifically concerned with mother's failure to work on her
treatment plan for drug abuse and pay child support. Department of Social Services v. Phillips, 365 S.C. 572,
618 S.E.2d 922 (Ct. App. 2005).
On appeal of a termination of parental rights proceeding, an appellate court may review the record and make
its own determination of whether the grounds for termination are supported by clear and convincing evidence.
[END OF SUPPLEMENT]
[FN3] Nees v. Doan, 185 Ill. App. 3d 122, 133 Ill. Dec. 180, 540 N.E.2d 1046 (4th Dist. 1989).
[FN7] Matter of Adoption of CJH, 778 P.2d 124 (Wyo. 1989).
[FN9] In re Adoption of Subzda, 562 N.E.2d 745 (Ind. Ct. App. 3d Dist. 1990).
[FN10] In re Adoption of Subzda, 562 N.E.2d 745 (Ind. Ct. App. 3d Dist. 1990).
[FN11] Matter of Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).
[FN12] As to such determination, generally, see §§ 129 et seq.
[FN13] In re G.E.T., 529 So. 2d 524 (La. Ct. App. 1st Cir. 1988).
[FN15] DeWees v. Stevenson, 779 F. Supp. 25 (E.D. Pa. 1991).
[FN16] In re Adoption of a Minor Child, 570 So. 2d 340 (Fla. Dist. Ct. App. 4th Dist. 1990), approved
in part, 593 So. 2d 185 (Fla. 1991).
As to the Federal Adoption Assistance Act, generally, see §§ 31 et seq.

rights reserved.
END OF DOCUMENT


Adoption

§ 162. Indian children
Notwithstanding state law to the contrary, whenever a final decree of adoption of an Indian child has been
vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the
child, a biological parent or prior Indian custodian may petition for return of custody and the court will grant the
petition unless there is a showing, in a proceeding, that such return of custody is not in the best interests of the
child.[1]
[FN1] 25 U.S.C.A. § 1916(a).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VIII A REF Page 1
2 Am. Jur. 2d Adoption VIII A Refs.

Adoption
A. In General
Research References

West's Key Number Digest, Child Support 33
West's Key Number Digest, Social Security and Public Welfare 137.5
West's Key Number Digest, Workers' Compensation 450
A.L.R. Library
Forms
Am. Jur. Pleading and Practice Forms, Adoption §§ 226, 270, 273
rights reserved.
AMJUR ADOPTION VIII A REF
END OF DOCUMENT


Adoption
A. In General
§ 163. Generally
Forms
Petition or application—To inspect adoption records. Am. Jur. Pleading and Practice Forms, Adoption § 226
Generally, a final decree, order, or judgment of adoption completely severs the adopted child's ties and rela-
tionship with his or her relatives,[1] including the natural parents.[2] While proceedings for custody of a child
are usually for custody during minority and subject to modification from time to time, a decree of adoption ter-
minating the relationship between the natural parents and the child is permanent and continues for life;[3] fur-
thermore, the relation of the natural parents and the child that existed before the adoption proceedings is not re-
vived by the death of the adopting parent or parents.[4]
However, where the adoption is by the spouse of the child's parent, the relationship of the child to such par-
ent will remain unchanged by the decree of adoption.[5] In such circumstances, the parental rights of the non-
custodial parent will be terminated.[6]
Observation:
In at least one jurisdiction, the stepparent exception, which states that the rights of a natural parent married to a
stepparent are not cut off by the stepparent's adoption of the child, applies to prevent an adoptive parent's rights
from being terminated by his homosexual partner's adoption of the child. Thus, when a natural parent by birth or
adoption is living in a committed personal relationship with the prospective adoptive parent, the rights and rela-
tion as between the adoptee, the natural (including adoptive) parent, and collateral relations are not altered.[7]
Furthermore, there is some authority for the view that the adoption of an adult who has children in being at
the entry of a judgment of adoption does not operate to sever the relationship of those children with their natural
relatives.[8]
Even so, ordinarily, a final adoption decree generally terminates all legal relationships between the adopted

person and his or her natural parents[9] and other relatives, so that the adopted person thereafter is a stranger to
the former relatives.[10] Alternatively, in applicable cases, a final adoption decree severs all legal relationships
to the former legal guardian.[11]
A final order or decree of adoption relieves the natural parents of all parental rights,[12] privileges,[13] re-
sponsibilities,[14] and other legal consequences of the relationship[15] and creates a wholly new relationship
with the adoptive parents.[16]
Observation:
Where the state legislature had not yet amended the state code to terminate possible parental rights of a sperm
donor, only through adoption could the rights of a sperm donor be divested and the rights of the husband of the
natural mother and the children born to his wife as a result of artificial insemination be as secure as their rights
would be in a natural father-child relationship. In this regard, the adoption procedure was available to the hus-
band of a woman to whom a child was born by means of artificial insemination by sperm of a third-party donor.[
17]
[FN1] Worley v. Worley, 534 So. 2d 862 (Fla. Dist. Ct. App. 1st Dist. 1988); Wailes v. Curators of
Central College, 363 Mo. 932, 254 S.W.2d 645, 37 A.L.R.2d 326 (1953).
With very narrow and specific exceptions, all legal relationships between an adopted individual and his
or her natural relatives are terminated upon adoption. Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914
(1997).
Adoption has the legal effect of severing all rights and duties between the adoptee and his or her natural
parents, their issue and collateral relatives. In re T.J., 666 A.2d 1 (D.C. 1995).
[FN2] Matter of K.L.J., 813 P.2d 276 (Alaska 1991); Worley v. Worley, 534 So. 2d 862 (Fla. Dist. Ct.
App. 1st Dist. 1988); Wailes v. Curators of Central College, 363 Mo. 932, 254 S.W.2d 645, 37
A.L.R.2d 326 (1953); Bond v. Yount, 47 Wash. App. 181, 734 P.2d 39 (Div. 1 1987); In re Estate of
Kirkpatrick, 2003 WY 125, 77 P.3d 404 (Wyo. 2003).
Since adoption is a statutory right which forever severs the parental relationship, strict compliance with
statutory procedures is required. Day v. Day, 937 S.W.2d 717 (Ky. 1997).
[FN3] In re Morris, 224 N.C. 487, 31 S.E.2d 539 (1944).
[FN4] In re Jobson's Estate, 164 Cal. 312, 128 P. 938 (1912); Betz v. Horr, 276 N.Y. 83, 11 N.E.2d 548,
114 A.L.R. 491 (1937); Ex parte Moulin, 1950 OK 82, 203 Okla. 99, 217 P.2d 1029 (1950); Thomas v.
Garraghty, 258 Va. 530, 522 S.E.2d 865 (1999).
[FN5] Matter of K.L.J., 813 P.2d 276 (Alaska 1991); B.G. v. H.S., 509 N.E.2d 214 (Ind. Ct. App. 3d
Dist. 1987); Northwestern Nat. Cas. Co. v. Doucette, 817 S.W.2d 396 (Tex. App. Fort Worth 1991),
writ denied, (Jan. 29, 1992) (interpreting Arizona statute); In Interest of Angel Lace M., 184 Wis. 2d
492, 516 N.W.2d 678 (1994).

[FN6] Petition of S.O., 795 P.2d 254 (Colo. 1990).
[FN7] In re M.M.D., 662 A.2d 837 (D.C. 1995) (holding that the stepparent exception cannot be limited
to couples who marry).
[FN8] Worley v. Worley, 534 So. 2d 862 (Fla. Dist. Ct. App. 1st Dist. 1988).
[FN9] Matter of K.L.J., 813 P.2d 276 (Alaska 1991); In re Pillsbury's Estate, 175 Cal. 454, 166 P. 11, 3
A.L.R. 1396 (1917); Arrington v. Hand, 193 Ga. App. 457, 388 S.E.2d 52 (1989); Wailes v. Curators of
Central College, 363 Mo. 932, 254 S.W.2d 645, 37 A.L.R.2d 326 (1953); Matter of Gregory B., 74
N.Y.2d 77, 544 N.Y.S.2d 535, 542 N.E.2d 1052 (1989); Byrd v. Byrd, 78 Ohio App. 73, 33 Ohio Op.
422, 69 N.E.2d 75 (5th Dist. Richland County 1945); Ex parte Moulin, 1950 OK 82, 203 Okla. 99, 217
P.2d 1029 (1950); Northwestern Nat. Cas. Co. v. Doucette, 817 S.W.2d 396 (Tex. App. Fort Worth
1991), writ denied, (Jan. 29, 1992) (interpreting Arizona statute).
[FN11] Child Sav. Institute v. Knobel, 327 Mo. 609, 37 S.W.2d 920, 76 A.L.R. 1068 (1931).
[FN12] In re Brock, 157 Fla. 291, 25 So. 2d 659 (1946); Arrington v. Hand, 193 Ga. App. 457, 388
S.E.2d 52 (1989); Moore v. Asente, 110 S.W.3d 336 (Ky. 2003); In re Lynn M., 312 Md. 461, 540 A.2d
799 (1988); In re Adoption of V.R.O., 250 Mont. 517, 822 P.2d 83 (1991); Matter of Gregory B., 74
N.Y.2d 77, 544 N.Y.S.2d 535, 542 N.E.2d 1052 (1989); Matter of Adoption of Eder, 312 Or. 244, 821
P.2d 400 (1991); McLaughlin v. Strickland, 279 S.C. 513, 309 S.E.2d 787 (Ct. App. 1983); Northwest-
ern Nat. Cas. Co. v. Doucette, 817 S.W.2d 396 (Tex. App. Fort Worth 1991), writ denied, (Jan. 29,
1992) (interpreting Arizona statute); Thomas v. Garraghty, 258 Va. 530, 522 S.E.2d 865 (1999); In In-
terest of Angel Lace M., 184 Wis. 2d 492, 516 N.W.2d 678 (1994).
The general adoption statute providing that the birth parents of an adopted child are, from the time of
the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and
have no right over the child, declares a legal consequence of the usual adoption, waivable by the parties
thereto, rather than a mandatory prerequisite to every valid adoption. Sharon S. v. Superior Court, 31
Cal. 4th 417, 2 Cal. Rptr.3d 699, 73 P.3d 554 (2003).
Subsequent to an adoption decree, the natural parent has no rights to the child unless provided for in the
decree. Birth Mother v. Adoptive Parents, 59 P.3d 1233 (Nev. 2002), cert. denied, 123 S. Ct. 1760, 155
L. Ed. 2d 519 (U.S. 2003).
denied, (Jan. 29, 1992) (interpreting Arizona statute).
[FN14] Matter of K.L.J., 813 P.2d 276 (Alaska 1991); In re Brock, 157 Fla. 291, 25 So. 2d 659 (1946);
Arrington v. Hand, 193 Ga. App. 457, 388 S.E.2d 52 (1989); In re Adoption of Syck, 138 Ill. 2d 255,
149 Ill. Dec. 710, 562 N.E.2d 174 (1990); B.G. v. H.S., 509 N.E.2d 214 (Ind. Ct. App. 3d Dist. 1987);
In re Adoption of V.R.O., 250 Mont. 517, 822 P.2d 83 (1991); Matter of Gregory B., 74 N.Y.2d 77, 544
N.Y.S.2d 535, 542 N.E.2d 1052 (1989); Northwestern Nat. Cas. Co. v. Doucette, 817 S.W.2d 396 (Tex.
App. Fort Worth 1991), writ denied, (Jan. 29, 1992) (interpreting Arizona statute); Frye v. Spotte, 4 Va.

App. 530, 359 S.E.2d 315 (1987).
denied, (Jan. 29, 1992) (interpreting Arizona statute); In Interest of Angel Lace M., 184 Wis. 2d 492,
516 N.W.2d 678 (1994).
[FN16] § 170.
[FN17] Welborn v. Doe, 10 Va. App. 631, 394 S.E.2d 732 (1990).
rights reserved.
END OF DOCUMENT


Adoption
A. In General
§ 164. Support of adopted child

Generally, the adoption of a minor child terminates all legal relations between the minor and his or her nat-
ural parents,[1] so that thereafter, the natural parents are under no obligation to support the adopted child but are
relieved from legal responsibility for it.[2]
Caution:
Signing a consent to adoption will not, by itself, relieve a parent of his or her child support obligations.[3]
Moreover, a decree of adoption does not operate in a retroactive manner to relieve the payor spouse of all past-
due child support arrearages not reduced to judgment prior to the adoption.[4]
[FN1] § 163.
[FN2] Betz v. Horr, 276 N.Y. 83, 11 N.E.2d 548, 114 A.L.R. 491 (1937); Byrd v. Byrd, 78 Ohio App.
73, 33 Ohio Op. 422, 69 N.E.2d 75 (5th Dist. Richland County 1945).
[FN3] Agen v. State, Dept. of Revenue, Child Support Enforcement Div., 945 P.2d 1215 (Alaska 1997).
[FN4] Bercaw v. Bercaw, 45 Ohio St. 3d 160, 543 N.E.2d 1197 (1989).
A mother cannot be equitably estopped from collecting child support arrearages on the basis of her
agreement to forgive those arrearages in exchange for the obligor father's consent to allow the mother's
husband to adopt the child; such arrangement involves the giving and receiving of consideration for the
placement of the child for adoption, and the agreement is thus void as being contrary to the public
policy of North Carolina. State on Behalf of Raines v. Gilbert, 117 N.C. App. 129, 450 S.E.2d 1 (1994).

rights reserved.
END OF DOCUMENT


Adoption
A. In General
§ 165. Effect of adoption by one natural parent on rights of other
A.L.R. Library
Natural parent's parental rights as affected by consent to child's adoption by other natural parent, 37 A.L.R.
4th 724
Under certain circumstances and certain statutory schemes, a child may be adopted by one of its natural par-
ents. For example, under the Uniform Adoption Act (1994), an unmarried father or mother of an individual may
adopt that individual.[1] While the general rule is that the valid adoption of a child entirely terminates the par-
ental rights of the natural parent or parents,[2] this rule might not be fully applicable to a parent whose consent
is sought for the adoption of his or her natural child by that child's other natural parent, and the consenting nat-
ural parent would, or at least conceivably might, retain certain parental rights in the child following such con-
sent.[3] In this regard, courts have concluded that it is not necessary to strictly construe the applicable wording
of adoption statutes to apply them to the peculiar circumstances of such an adoption, which are ordinarily not
specifically considered or covered by such statutes.[4]
[FN1] § 15.
[FN2] § 163.
[FN3] In re Jessica W., 122 N.H. 1052, 453 A.2d 1297, 37 A.L.R.4th 717 (1982); Matter of Adoption of
a Child by A. R., 152 N.J. Super. 541, 378 A.2d 87 (County Ct., P. Div. 1977); Matter of A. J. J., 108
Misc. 2d 657, 438 N.Y.S.2d 444 (Sur. Ct. 1981).
[FN4] In re Jessica W., 122 N.H. 1052, 453 A.2d 1297, 37 A.L.R.4th 717 (1982) (stating, where a
mother gave consent to adoption of a child by the natural father to whom she was not married, that
while the applicable statute specifically provided that an adopted child should no longer be considered

the child of his or her natural parent, this provision clearly failed specifically to cover the type of situ-
ation involved).
rights reserved.
END OF DOCUMENT


Adoption
A. In General
§ 166. Visitation; "open adoptions"
A.L.R. Library
Postadoption visitation by natural parent, 78 A.L.R. 4th 218
Differing views have been followed as to the validity of agreements between adopting parents and the natur-
al parent or parents of a child for visitation after adoption.[1] Although some courts have authorized such agree-
ments,[2] the opinion has also been expressed that judicially requiring such contacts may threaten the integrity
of the adoptive family unit.[3] Thus, "open adoptions"—described by some courts as adoptions in which the
court supplements an order of adoption with a provision directing that the adopted child have continuing con-
tacts and visitation with members of his or her biological family[4] —have been specifically rejected by some
courts, in the absence of legislative authority therefor.[5]
It is said that the rule that adoption terminates all rights of the natural parent over the adopted child[6] oper-
ates to terminate visitation rights of the natural parent[7] and his or her relatives,[8] and that where an adoption
statute gives the adopted child the status of a natural child and frees the natural parents of legal obligations to-
ward it, a court granting an adoption decree is without authority to include in it a grant of visitation privileges to
the natural parent[9] or to members of the parent's family.[10] Some courts find that the clear language of the
applicable adoption statutes preclude granting postadoption visitation to any blood relative, regardless of that re-
lative's bond with the child.[11] In addition, courts sometimes follow the general view that adoptions preclude
such visitation awards to natural parents under reasoning that they would undermine the new family status estab-
lished and supported by the adoption statutes.[12]
On the other hand, the view is sometimes followed that adoption does not necessarily preclude granting bio-
logical relatives a right to continue visitation,[13] and that courts may be permitted[14] or required[15] to grant
postadoption visitation rights to natural parents in order to promote the best interests of the adopted children.

Cases:
Existence, but not the details, of post-adoption visitation rights must be set forth in an adoption decree. In re
Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009).
[END OF SUPPLEMENT]
[FN1] § 167.
[FN2] § 167.
[FN3] Matter of Gregory B., 74 N.Y.2d 77, 544 N.Y.S.2d 535, 542 N.E.2d 1052 (1989).
[FN4] § 2.
[FN5] Matter of Gregory B., 74 N.Y.2d 77, 544 N.Y.S.2d 535, 542 N.E.2d 1052 (1989).
[FN6] § 163.
A parent whose rights are terminated by adoption has no statutory visitation rights. Matter of Adoption
of A.F.M., 960 P.2d 602 (Alaska 1998).
[FN8] Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997) (when the natural parent consents to ad-
option of the child by another person, the consenting parent's relatives lose their legal rights to visita-
tion, because such rights are derivative of the consenting parent's rights and likewise are terminated
when parental rights end).
[FN9] Matter of Fox, 1977 OK 126, 567 P.2d 985 (Okla. 1977).
[FN10] Browning v. Tarwater, 215 Kan. 501, 524 P.2d 1135 (1974); Matter of Fox, 1977 OK 126, 567
P.2d 985 (Okla. 1977).
[FN11] Matter of W.E.G., 710 P.2d 410 (Alaska 1985); Poe v. Case, 263 Ark. 488, 565 S.W.2d 612
(1978); Bikos v. Nobliski, 88 Mich. App. 157, 276 N.W.2d 541 (1979).
Although the court of common pleas had basic statutory jurisdiction to grant visitation to a biological
parent, it was patently and unambiguously divested by the adoption statute of jurisdiction to proceed on
a biological mother's motions relating to visitation following an adoption decree terminating her parent-
al rights, and a writ of prohibition preventing the court from doing so was appropriate. State ex rel.
Kaylor v. Bruening, 80 Ohio St. 3d 142, 1997 -Ohio- 350, 684 N.E.2d 1228 (1997).
[FN12] Matter of W.E.G., 710 P.2d 410 (Alaska 1985); Marckwardt v. Superior Court, 150 Cal. App.
3d 471, 198 Cal. Rptr. 41 (2d Dist. 1984); People in Interest of M.M., 726 P.2d 1108 (Colo. 1986);
Matter of C.O.W., 519 A.2d 711 (D.C. 1987); Sanders v. Sanders, 498 So. 2d 1063 (Fla. Dist. Ct. App.
5th Dist. 1986); In re Adoption of Herbst, 217 Kan. 164, 535 P.2d 437 (1975); Jouett v. Rhorer, 339

S.W.2d 865 (Ky. 1960); Matter of C.P., 221 Mont. 180, 717 P.2d 1093 (1986); Matter of Fox, 1977 OK
126, 567 P.2d 985 (Okla. 1977); In re Adoption of Dearing, 572 S.W.2d 929 (Tenn. Ct. App. 1978); In
re A.V.D., 62 Wash. App. 562, 815 P.2d 277 (Div. 1 1991); Matter of Adoption of RDS, 787 P.2d 968
(Wyo. 1990).
[FN13] Futral v. Henry, 45 Ala. App. 214, 228 So. 2d 827 (Civ. App. 1969); Woodson v. Kilcrease, 7
Ark. App. 252, 648 S.W.2d 72 (1983); Mimkon v. Ford, 66 N.J. 426, 332 A.2d 199 (1975); People ex
rel. Sibley on Behalf of Sheppard v. Sheppard, 54 N.Y.2d 320, 445 N.Y.S.2d 420, 429 N.E.2d 1049
(1981); Graziano v. Davis, 50 Ohio App. 2d 83, 4 Ohio Op. 3d 55, 361 N.E.2d 525 (7th Dist. Mahoning
County 1976).
[FN14] Kambitch v. Ederle, 642 S.W.2d 690 (Mo. Ct. App. E.D. 1982); Morse v. Daly, 101 Nev. 320,
704 P.2d 1087 (1985); Matter of Adoption of Children by F., 170 N.J. Super. 419, 406 A.2d 986 (Ch.
Div. 1979); Matter of Custody and Guardianship of Dana Marie E., 128 Misc. 2d 1018, 492 N.Y.S.2d
340 (Fam. Ct. 1985); People in Interest of S.A.H., 537 N.W.2d 1 (S.D. 1995); Matter of Adoption of
Halloway, 732 P.2d 962 (Utah 1986).
A trial judge's purpose in ordering postadoption visitation between a child and her biological mother, to
address the child's curiosity regarding her mother's welfare and to know that the mother was alright,
was a legally insufficient basis upon which to order postadoption visitation, where: (1) there was no sig-
nificant relationship between the mother and child to maintain; (2) there was no observable bond
between child and mother; and (3) such visitation would necessarily have intruded on ordinary prerog-
atives of the adoptive family. In re Adoption of Greta, 431 Mass. 577, 729 N.E.2d 273 (2000).
A finding that postadoption visitation between a natural mother and child was in the child's best in-
terests was supported by evidence that the child had lived with its natural mother for over three years
prior to being adopted and by testimony that the child had developed a bond with the natural mother
and would likely suffer from issues of abandonment, identity, and grieving unless appropriate visitation
was granted, even though the adoptive parents testified that the child was moody and insecure after vis-
iting the natural mother. Groves v. Clark, 1999 MT 117, 294 Mont. 417, 982 P.2d 446 (1999).
[FN15] Kattermann v. DiPiazza, 151 N.J. Super. 209, 376 A.2d 955 (App. Div. 1977); Matter of Cus-
tody and Guardianship of Dana Marie E., 128 Misc. 2d 1018, 492 N.Y.S.2d 340 (Fam. Ct. 1985).
rights reserved.
END OF DOCUMENT


Adoption
A. In General
§ 167. Visitation; "open adoptions"—Visitation agreements with natural parents
A.L.R. Library
Forms
Adoption agreement—Visitation by natural parents. Am. Jur. Legal Forms 2d, Adoption § 9:42
The view has been followed that adoptive parents are generally free, at their election, to permit contacts
between the adopted child and the child's biological parent.[1] Under this view, adoptive parents and natural par-
ents may enter into any agreement with respect to visitation rights between the child and the natural parents, so
long as the visitation is in the best interest of the child and public policy does not prevent such visitation;[2] and
postadoption visitation agreements between natural parents and prospective adoptive parents should be enforced
if continued visitation is in the child's best interest.[3]
Other courts, however, have ruled that such agreements are invalid or unenforceable[4] in that they conflict
with the adoption statutes,[5] are against public policy,[6] are detrimental to the best interests of the adopted
children,[7] might hinder the new parent-child relationship with very undesirable consequences,[8] and impair
the adoptive parents' rights.[9]
Observation:
Furthermore, an agreement permitting postadoption visitation by a child's natural parent was invalidated, where
it constituted a private attempt to circumvent a custody determination reached in prior adoption proceedings.[10]

[FN1] Matter of Custody and Guardianship of Alexandra C., 157 Misc. 2d 262, 596 N.Y.S.2d 958
(Fam. Ct. 1993).
[FN2] Weinschel v. Strople, 56 Md. App. 252, 466 A.2d 1301 (1983).
"Open adoptions," whereby parties formally agree to allow the natural parents visitation rights, are per-
missible under Maryland law. A.J. v. L.O., 697 A.2d 1189 (D.C. 1997).
Postadoptive visitation by a natural parent may, in limited circumstances, be included in a plan for ad-
option. Whether to do so is more a question of what is in the interest of the child, rather than one of the
rights of the parent. Adoption of Abigail, 23 Mass. App. Ct. 191, 499 N.E.2d 1234 (1986).
[FN3] Groves v. Clark, 277 Mont. 179, 920 P.2d 981 (1996).
An out-of-state adoption decree incorporating an agreement permitting visitation by a natural father was
deemed to be enforceable, where the out-of-state court apparently determined that postadoption visita-
tion would promote the child's best interests. Rodgers v. Williamson, 489 S.W.2d 558 (Tex. 1973).
[FN4] In re Adoption of Hammer, 15 Ariz. App. 196, 487 P.2d 417 (Div. 1 1971); Hill v. Moorman,
525 So. 2d 681 (La. Ct. App. 1st Cir. 1988); In re Guardianship of K.H.O., 161 N.J. 337, 736 A.2d 1246
(1999); Whetmore v. Fratello, 197 Or. 396, 252 P.2d 1083 (1953); In re Alicia S., 763 A.2d 643 (R.I.
2000); Lowe v. Clayton, 264 S.C. 75, 212 S.E.2d 582 (1975); Stickles v. Reichardt, 203 Wis. 579, 234
N.W. 728 (1931).
[FN5] In re Adoption of Hammer, 15 Ariz. App. 196, 487 P.2d 417 (Div. 1 1971); Lowe v. Clayton,
264 S.C. 75, 212 S.E.2d 582 (1975).
While an agreement may grant a natural parent rights to postadoption contact, enforcing it is inconsist-
ent with the legislature's mandate that a natural parent may not exercise any right to the adopted child
not incorporated in the adoption decree. Birth Mother v. Adoptive Parents, 59 P.3d 1233 (Nev. 2002),
cert. denied, 123 S. Ct. 1760, 155 L. Ed. 2d 519 (U.S. 2003).
Arrangements permitting continued contact between biological relatives and the adopted child cannot
be judicially enforced, given the potential for disruption of the child's family life under such arrange-
ments and the fact that under the adoption laws, the adoptive parents' rights are paramount. In re Adop-
tion of Child by W.P., 163 N.J. 158, 748 A.2d 515 (2000).
[FN6] Hill v. Moorman, 525 So. 2d 681 (La. Ct. App. 1st Cir. 1988); Whetmore v. Fratello, 197 Or.
396, 252 P.2d 1083 (1953).
[FN7] In re Adoption of Hammer, 15 Ariz. App. 196, 487 P.2d 417 (Div. 1 1971); Whetmore v. Fra-
tello, 197 Or. 396, 252 P.2d 1083 (1953) (concluding that enforcement of a visitation agreement would
obviously result in a harmful split relationship contrary to the child's well-being).
[FN8] Hill v. Moorman, 525 So. 2d 681 (La. Ct. App. 1st Cir. 1988); Stickles v. Reichardt, 203 Wis.
579, 234 N.W. 728 (1931).
[FN9] Hill v. Moorman, 525 So. 2d 681 (La. Ct. App. 1st Cir. 1988); Stickles v. Reichardt, 203 Wis.

579, 234 N.W. 728 (1931).
1982).
rights reserved.
END OF DOCUMENT


Adoption
A. In General
§ 168. Visitation; "open adoptions"—Effect of reservation of rights in giving consent or surrendering

child for adoption
A.L.R. Library
Courts have sometimes considered the propriety of granting postadoption visitation rights to natural parents
who conditioned their consent to the adoptions on the reservation of such rights.[1] In this regard, based on a de-
termination that it would promote the best interests of the adopted children, a decree has been issued giving two
daughters the right to continue visiting their natural father after they were adopted by their stepfather.[2] On the
other hand, an adoption decree has been vacated, based upon a finding that such an arrangement conflicted with
the state's adoption statutes.[3]
A statute which provided for a biological parent's surrender, for adoption purposes, of all rights to a child in
foster care, including rights to custody and visitation, did not deprive a biological parent of the right to sub-
sequently seek visitation rights, where the statute authorized a reservation of rights by the parent upon agree-
ment with the other parties involved.[4] Such a statute was deemed not to confer an automatic right to visitation,
but simply as permitting the biological parent to petition the court after adoption and, where appropriate, to con-
duct a hearing to determine the best interests of the child.[5]
[FN1] As to consent to adoption, generally, see §§ 65 et seq.
[FN2] Matter of Adoption of Children by F., 170 N.J. Super. 419, 406 A.2d 986 (Ch. Div. 1979).
[FN3] Smith (L. Mike) v. Hartman (William E., Jr.), 30 Wash. App. 1068 (1982).

(Fam. Ct. 1993) (noting an apparent conflict with the adoption statute which relieved natural parents of
all parental rights and duties, but stating that nothing in the adoption statute purported to abrogate the
child's interests in continued family contacts, and that the legislature was presumed to know what stat-
utes were in effect when it enacted new laws, so that the legislature must have been aware of the adop-
tion statute when it enacted the surrender statute and intended each to have its full effect).
(Fam. Ct. 1993).
rights reserved.
END OF DOCUMENT


Adoption
A. In General
§ 169. Visitation; "open adoptions"—Grandparents
Courts have increasingly recognized that grandparents may have a legal right of visitation, if such visitation
is in the best interests of the particular child involved.[1] However, any rights existing in grandparents must be
derived from statutes or conferred by a court of competent jurisdiction pursuant to statutes.[2]
Adoption statutes often preclude granting postadoption visitation rights to blood relatives,[3] including the
child's natural grandparents.[4]
Observation:
Rights to grandparents' visitation after an adoption have been rejected, even where a statute specifically
provided that a court was permitted to order visitation rights for any person when visitation would serve the best
interests of the child, and that any person could petition the court for visitation rights at any time, since it was
concluded that the state legislature had not intended by such statute to chip away the strong policy holding the
privacy of adoption to be sacrosanct.[5]
In some jurisdictions, however, an exception to the general statutory rule severing all former relationships
of the adopted child has been made, such that visitation may be granted to grandparents whose tie to the adopted
child is severed by the adoption, if the child is adopted by[6] or consent is executed to[7] the child's blood relat-
ive, or if consent to adoption is executed to[8] or the child is adopted by[9] a natural parent's spouse—that is, by
a stepparent. Under this statutory exception, there is no presumption in favor of visitation by any grandparent,
and the court has discretion to deny such visitation rights. Reasonable visitation rights can be given to grandpar-
ents upon proof of special circumstances which make such visitation rights necessary to the best interests of the
child.[10]
In some jurisdictions, the general rule denying grandparents visitation following an adoption has been modi-
fied such that grandparents have no right of visitation, absent a court order[11] or decree.[12]

Observation:
Under this rule, it has been said that where such an order or decree is issued, visitation rights may be granted to
grandparents despite the protestations of the adoptive parents.[13]
To authorize visitation to grandparents, statutes in the divorce-custody area which authorize grandparents'
visitation have sometimes been construed together with adoption statutes which, while relieving the natural par-
ents of all rights over and responsibilities for the adopted child, do not specifically abrogate the interests of the
grandparents and the child in having continued contacts.[14] However, such an interpretation of statutory provi-
sions has been expressly rejected by some courts.[15]
[FN1] Am. Jur. 2d, Divorce and Separation § 977.
A natural mother and adoptive father had the right to refuse visitation by paternal grandparents, where
there was no evidence that the child was in danger of substantial harm; the natural mother and adoptive
father were entitled to constitutional protection of their parental rights. Simmons v. Simmons, 900
S.W.2d 682 (Tenn. 1995).
[FN3] § 166.
[FN4] Matter of W.E.G., 710 P.2d 410 (Alaska 1985); People In Interest of N.S., 821 P.2d 931 (Colo.
Ct. App. 1991); In re Adoption of Ridenour, 61 Ohio St. 3d 319, 574 N.E.2d 1055 (1991).
Natural maternal grandparents did not have standing to seek visitation with a child, following termina-
tion of the parental rights of the child's mother and adoption of the child by third parties. Sowers v.
Tsamolias, 262 Kan. 717, 941 P.2d 949 (1997).
In a proceeding by a paternal grandmother seeking visitation rights with a child who was adopted by the
paternal grandfather and his second wife, the court did not err in denying the grandmother's petition,
where: (1) the child's mother had died and her father had consented to the adoption; (2) there was no
statutory recognition of the rights of grandparents to visitation, except in the context of child custody or
dissolution proceedings; (3) grandparent visitation was not included within the circumstances in which
a statute allowed for open adoption agreements; (4) the adoption by the grandfather and his wife termin-
ated any visitation rights the grandmother might have had; and (5) the grandmother lacked standing to
petition for visitation once the adoption became final. In re Custody of B.S.Z-S., 74 Wash. App. 727,
875 P.2d 693 (Div. 1 1994).
[FN5] Bond v. Yount, 47 Wash. App. 181, 734 P.2d 39 (Div. 1 1987).
[FN6] Echols v. Smith, 207 Ga. App. 317, 427 S.E.2d 820 (1993).

[FN9] Jackson v. Tangreen, 199 Ariz. 306, 18 P.3d 100 (Ct. App. Div. 1 2000); Bush v. Squellati, 122
Ill. 2d 153, 119 Ill. Dec. 366, 522 N.E.2d 1225 (1988); In re Groleau, 585 N.E.2d 726 (Ind. Ct. App. 3d
Dist. 1992); In Interest of A.C., 428 N.W.2d 297 (Iowa 1988); Hicks v. Enlow, 764 S.W.2d 68 (Ky.
1989); In re Adoption No. 92A41, 95 Md. App. 461, 622 A.2d 150 (1993).
Previously granted visitation rights of maternal grandparents did not automatically terminate when the
new wife of the children's father adopted the children, as the original family unit was permanently dis-
rupted by the biological mother's death and the creation of a new intact family unit did not vitiate the
rights the grandparents acquired as a result of disruption of the old intact family unit. Lasky v. Pivnick,
46 Conn. Supp. 539, 759 A.2d 560 (Super. Ct. 2000).
A prior court order granting grandparent visitation is not automatically terminated because of a biolo-
gical parent's voluntary relinquishment of parental rights and the subsequent adoption of the minor
child by his or her stepparent. Pier v. Bolles, 257 Neb. 120, 596 N.W.2d 1 (1999).
[FN10] Motes v. Love, 202 Ga. App. 749, 415 S.E.2d 334 (1992).
A court properly denied maternal grandparents' motion for visitation rights with a seven-year-old,
where: (1) the child's mother had died; (2) the child's father had remarried and his new wife had adop-
ted the child; (3) visitation had continued for a period of time after adoption but there apparently had
been continued tension over visitation; (4) the child expressed a desire not to have visitation with the
grandparents; (5) it was obvious that the court believed that continuing tension and litigation between
the maternal grandparents and the father and his wife was not in the child's best interest; (6) the child's
peace and sense of security in her relationship with her parents had to be given primary consideration;
(7) there was no claim that the child was not being adequately cared for in her father's home; and (8) a
review of the record indicated that the court had denied visitation after concluding that continued visita-
tion was not in the child's best interest. Puleo v. Forgue, 634 A.2d 857 (R.I. 1993).
[FN12] People ex rel. Sibley on Behalf of Sheppard v. Sheppard, 54 N.Y.2d 320, 445 N.Y.S.2d 420,
429 N.E.2d 1049 (1981).
429 N.E.2d 1049 (1981).
429 N.E.2d 1049 (1981).
[FN15] Matter of W.E.G., 710 P.2d 410 (Alaska 1985) (refusing to conclude that the more recent
"grandparents' visitation" statute in the divorce-custody area was intended to liberalize strict adoption
statute).
rights reserved.

END OF DOCUMENT


Adoption
A. In General
2. Adoptive Parents
§ 170. Generally
Forms
Petition or application—Seeking writ of habeas corpus to compel return of adopted child—Custody wrong-
fully retained by grandparents. Am. Jur. Pleading and Practice Forms, Adoption § 270
After a final decree of adoption is entered, a wholly new relationship is created;[1] the adopting parent as-
sumes the legal relationship of parent to the child[2] and obtains all the legal rights and obligations of a natural
parent.[3]
Observation:
In other words, upon entry of an adoption decree, the parent-child relationship exists between the adopted child
and the adopted parents as if the adopted child were born to them.[4]
The effect of the adoption decree is to transfer to the adoptive parent all legal rights, duties, and con-
sequences of the parental relationship;[5] accordingly, the adoption decree transfers the right to custody of the
child,[6] the right to control the child's education,[7] the duty of obedience owing by the child, and all other leg-
al consequences and incidents of the natural relation in the same manner as if the child had been born of such
adoptive parents in lawful wedlock.[8] From the time of the adoption, the adopting parent is, so far as concerns
all legal rights and duties flowing from the relation of parent and child, the parent of the adopted child.[9]
Observation:
Adoptive parents are entitled to the same constitutional protection of parenting decisions as natural parents.[10]
Cases:

Adoptive children and adopting parents are legally the same as natural children and natural parents. G.S. v.
T.B, 985 So. 2d 978 (Fla. 2008).
[END OF SUPPLEMENT]
[FN1] Bond v. Yount, 47 Wash. App. 181, 734 P.2d 39 (Div. 1 1987); In re Estate of Kirkpatrick, 2003
WY 125, 77 P.3d 404 (Wyo. 2003) (an adoption decree severs the relationship between the child and its
biological parents and creates a new and exclusive parent-child relationship between the child and the
adoptive parents).
[FN2] In re Pierce's Estate, 32 Cal. 2d 265, 196 P.2d 1 (1948); Bilderback v. Clark, 106 Kan. 737, 189
P. 977, 9 A.L.R. 1622 (1920); McKeown v. Argetsinger, 202 Minn. 595, 279 N.W. 402, 116 A.L.R. 398
(1938); In re Adoption of V.R.O., 250 Mont. 517, 822 P.2d 83 (1991).
[FN3] In re Pierce's Estate, 32 Cal. 2d 265, 196 P.2d 1 (1948); Bilderback v. Clark, 106 Kan. 737, 189
P. 977, 9 A.L.R. 1622 (1920); Green v. Sollenberger, 338 Md. 118, 656 A.2d 773 (1995); McKeown v.
Argetsinger, 202 Minn. 595, 279 N.W. 402, 116 A.L.R. 398 (1938); Frye v. Spotte, 4 Va. App. 530, 359
S.E.2d 315 (1987).
An adoptive father became the "natural parent" of children adopted by himself and his wife at the time
of adoption. A.J. v. L.O., 697 A.2d 1189 (D.C. 1997).
Adoptive parents have the same legal rights toward their children that biological parents do. In re Adop-
tion of Vito, 431 Mass. 550, 728 N.E.2d 292 (2000).
[FN4] B.C.S. v. D.A.E., 818 S.W.2d 929 (Tex. App. Beaumont 1991), writ denied, (Feb. 12, 1992).
[FN5] In re M.M.D., 662 A.2d 837 (D.C. 1995).
[FN6] In re M.M., 156 Ill. 2d 53, 189 Ill. Dec. 1, 619 N.E.2d 702 (1993); Spencer v. Franks, 173 Md.
73, 195 A. 306, 114 A.L.R. 263 (1937); Grider v. Grider, 182 Tenn. 406, 187 S.W.2d 613 (1945); In re
Gustafson's Adoption, 28 Wash. 2d 526, 183 P.2d 787 (1947).
As a general rule, the adoption of a child creates the status of parent and child, with the duty of care,
maintenance, training and education, along with the right to the custody, control, and services of the
child. Ex parte D.W., 835 So. 2d 186 (Ala. 2002).
[FN7] Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146 (1920).
[FN8] In re Brock, 157 Fla. 291, 25 So. 2d 659 (1946); Spencer v. Franks, 173 Md. 73, 195 A. 306, 114
A.L.R. 263 (1937); McKeown v. Argetsinger, 202 Minn. 595, 279 N.W. 402, 116 A.L.R. 398 (1938);
Grider v. Grider, 182 Tenn. 406, 187 S.W.2d 613 (1945).
[FN9] In re Jobson's Estate, 164 Cal. 312, 128 P. 938 (1912); Wilson v. Bass, 70 Ind. App. 116, 118
N.E. 379 (Div. 2 1918); Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146 (1920); Common-
wealth v. Kirk, 212 Ky. 646, 279 S.W. 1091, 44 A.L.R. 816 (1926); Boutlier v. City of Malden, 226

Mass. 479, 116 N.E. 251 (1917); Ross v. Ross, 129 Mass. 243, 1880 WL 14396 (1880); Child Sav. In-
stitute v. Knobel, 327 Mo. 609, 37 S.W.2d 920, 76 A.L.R. 1068 (1931); Brickell v. Hines, 179 N.C.
254, 102 S.E. 309 (1920).
[FN10] Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995).
rights reserved.
END OF DOCUMENT


Adoption
A. In General
2. Adoptive Parents
§ 171. Duty to support child

West's Key Number Digest, Social Security and Public Welfare 137.5
West's Key Number Digest, Workers' Compensation 450
Forms
Complaint, petition, or declaration—By guardian ad litem—To establish duty to support—Against adoptive

father. Am. Jur. Pleading and Practice Forms, Adoption § 273
Generally, upon the adoption of a child, the primary duty of support of the child is imposed upon the adopt-
ing parent.[1]
Observation:
A statute governing the liability of a stepparent for support of a stepchild would not preclude application of the
doctrine of equitable adoption to impose a child support obligation in a case where:
(1) a wife and her husband agreed to adopt the wife's biological grandchild;
(2) the wife and husband led the child to believe she was their natural child;
(3) the wife and husband referred to the husband as the child's "father"; and
(4) after the child learned her true parentage, the wife and husband told the child they had formally ad-
opted her.[2]
Thus, the adopting parent is liable for necessaries furnished the child.[3] In addition, he or she is subject to
all civil remedies allowed against a natural parent to enforce proper maintenance of the child and statutes
providing punishment of a parent who leaves, deserts, or abandons a child, leaving it in destitute circumstances.[

4] Furthermore, statutes providing for enforcement of child support orders by contempt proceedings give author-
ity to require adoptive parents to contribute to the support of adopted children and to punish failure to do so by
contempt proceedings.[5]
Reminder:
Even so, a decree of adoption does not operate in a retroactive manner to relieve the payor spouse of all past-due
child support arrearages not reduced to judgment prior to the adoption.[6]
[FN1] In re Ballou's Estate, 181 Cal. 61, 183 P. 440 (1919).
A parent's child support obligation is paramount to all other financial obligations, and a parent has a
legal duty to support his or her biological and adopted children. Little v. Little, 193 Ariz. 518, 975 P.2d
108 (1999).
Once it was established that a husband was a child's equitably adopted parent, the husband's child sup-
port obligations could be terminated only by order of court. Geramifar v. Geramifar, 113 Md. App. 495,
688 A.2d 475 (1997).
Equitable adoption is generally discussed in §§ 59 to 64.
[FN3] Commonwealth v. Kirk, 212 Ky. 646, 279 S.W. 1091, 44 A.L.R. 816 (1926).
[FN4] Commonwealth v. Kirk, 212 Ky. 646, 279 S.W. 1091, 44 A.L.R. 816 (1926).
[FN5] Ex parte Goldsmith, 155 Tex. 605, 290 S.W.2d 502 (1956).
[FN6] § 164.
rights reserved.
END OF DOCUMENT


Adoption
A. In General
3. Adoptee
§ 172. Generally
The adoption of a child creates, between the adopted child and the adopting parent or parents, the legal in-
cidents of the natural relation of parent and child.[1] It has variously been stated that the policy of adoption stat-
utes is to treat adopted children in all respects as natural children,[2] that no legal distinction is drawn between
adopted children and natural born children once the adoption process is complete,[3] and that the rights[4] and
status[5] of an adopted child are the same as those of a natural child. Thus, a legal adoption, obtained in the
manner prescribed by statute, severs the child entirely from its own family tree and engrafts it upon that of its
new parentage.[6]
While these general principles have often been referred to, and while it has been said that adoption statutes
attempt to place an adopted child, as far as possible and to all intents and purposes, in the same position as a nat-
ural child,[7] some legal differences and consequences still exist between adopted and natural children,[8] par-
ticularly, but not always, in regard to the rights of an adopted child under the statutes of descent and distribution
as compared with those of a natural child[9] and whether an adopted child is within the meaning of designated
classes of persons described in a will, trust, deed, or other instrument.[10]
[FN1] § 170.
[FN2] Douglas v. Harrelson, 454 So. 2d 984 (Ala. Civ. App. 1984), writ quashed, 454 So. 2d 988 (Ala.
1984).
[FN4] Alexander v. Samuels, 1936 OK 260, 177 Okla. 323, 58 P.2d 878, 105 A.L.R. 1171 (1936).
[FN5] In re M.M., 156 Ill. 2d 53, 189 Ill. Dec. 1, 619 N.E.2d 702 (1993); Green v. Sollenberger, 338
Md. 118, 656 A.2d 773 (1995); Alexander v. Samuels, 1936 OK 260, 177 Okla. 323, 58 P.2d 878, 105

A.L.R. 1171 (1936).
[FN6] Kilby v. Folsom, 238 F.2d 699, 60 A.L.R.2d 1065 (3d Cir. 1956); Adoption of Harvey, 375 Pa.
1, 99 A.2d 276 (1953).
An adoption created the new legal status of parent and child for the adoptive parents and adopted child;
the child no longer remained child of its natural parents, and the child had new parents and new grand-
parents as well. Sowers v. Tsamolias, 262 Kan. 717, 941 P.2d 949 (1997).
[FN7] Hoellinger v. Molzhon, 77 N.D. 108, 41 N.W.2d 217, 19 A.L.R.2d 1147 (1950).
[FN8] In re Smith's Estate, 343 Mich. 291, 72 N.W.2d 287, 51 A.L.R.2d 847 (1955).
[FN9] §§ 175 to 177.
[FN10] §§ 178 to 180.
rights reserved.
END OF DOCUMENT


Adoption
A. In General
3. Adoptee
§ 173. Right to sue adoptive parent for tort
A.L.R. Library
Liability of parent for injury to unemancipated child caused by parent's negligence—modern cases, 6 A.L.R.
4th 1066
There is authority for the view that the reason for the general parent-child tort immunity doctrine, preclud-
ing natural children from suing natural parents for voluntary torts committed upon them, does not exist between
adopted children and adopting parents.[1] Thus, a child could sue one through whose negligence she was in-
jured, even though that person subsequently adopted her before the commencement of the action.[2]
On the other hand, some courts have refused to make a distinction between natural parents and adoptive par-
ents in applying the general parent-child tort immunity rule.[3] Thus, the liability of an adoptive parent for a
wilful, wanton, and malicious assault administered to an adopted child under the pretense of correction has been
denied.[4] Furthermore, an unemancipated minor was not allowed to maintain an action against her adoptive
father for injuries received in an automobile accident as a result of his negligence.[5]
[FN1] Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245, 122 A.L.R. 1348 (1939).
[FN2] Adams v. Nadel, 124 N.Y.S.2d 427 (Sup 1953).
[FN3] Cook v. Cook, 232 Mo. App. 994, 124 S.W.2d 675 (1939) (abrogated on other grounds by, Hart-
man by Hartman v. Hartman, 821 S.W.2d 852 (Mo. 1991)).
[FN4] Cook v. Cook, 232 Mo. App. 994, 124 S.W.2d 675 (1939) (abrogated on other grounds by, Hart-
man by Hartman v. Hartman, 821 S.W.2d 852 (Mo. 1991)).

[FN5] Franco v. Davis, 51 N.J. 237, 239 A.2d 1 (1968) (overruled in part on other grounds by, France
v. A. P. A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970)).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION VIII B REF Page 1
2 Am. Jur. 2d Adoption VIII B Refs.

Adoption
Research References

West's Key Number Digest, Wills 497(5), 506(5)
A.L.R. Library
A.L.R. Digest: Descent and Distribution §§ 27 to 32
A.L.R. Digest: Wills §§ 205, 211, 212.3
Forms
Am. Jur. Legal Forms 2d, Descent and Distribution § 88:27
Am. Jur. Legal Forms 2d, Wills §§ 266:204, 266:208, 266:210, 266:216, 266:217
Am. Jur. Pleading and Practice Forms, Adoption §§ 219, 274 to 275
Am. Jur. Pleading and Practice Forms, Descent and Distribution §§ 15, 41
rights reserved.
AMJUR ADOPTION VIII B REF
END OF DOCUMENT


Adoption
a. Overview
§ 174. Rights of adoptive parents
In the absence of some specific contractual undertaking giving the adopted child a right to a share of the ad-
optive parent's estate upon the parent's death, an agreement to adopt does not prevent the person making the
agreement from disposing of all of his or her property by will to persons other than the adopted child.[1] Fur-
thermore, a contract with a child or a decree of adoption which does not obligate the parents to give the child
any more than they give to one born to them in lawful wedlock does not restrict the parents' rights to dispose of
their property by deed or will.[2]
Caution:
However, an adoptive parent has been held to be bound by a promise in an adoption decree not to disinherit the
child, where such promise is made a condition of the decree.[3]
[FN1] Kilby v. Folsom, 238 F.2d 699, 60 A.L.R.2d 1065 (3d Cir. 1956); Hale v. Iowa-Des Moines Nat.
Bank & Trust Co., 243 Iowa 303, 51 N.W.2d 421 (1952).
[FN2] Hester v. Young, 154 Neb. 227, 47 N.W.2d 515 (1951).
[FN3] Pool v. Harold, 149 Colo. 29, 367 P.2d 592 (1961).
rights reserved.
END OF DOCUMENT


Adoption
a. Overview
§ 175. Rights of adoptees
Forms
Decree—Granting petition for adoption—Establishing right of inheritance. Am. Jur. Pleading and Practice
Complaint, petition, or declaration—By adopted child—To prevent disinheritance contrary to de-

cree—Against executor and beneficiaries under will of deceased adoptive father. Am. Jur. Pleading and Practice
ment—Against next of kin of adoptive father. Am. Jur. Pleading and Practice Forms, Adoption §§ 275 to 277
Any difference between the rights of adopted and nonadopted children to inherit under a will must be desig-
nated by legislation.[1]
It has been said that the law recognizes no distinction between natural children and adopted children for
purposes of inheritance,[2] and this principle is frequently embodied in adoption statutes.[3] Generally, such
statutes do not limit rights of an adopted child to benefit under a will or trust.[4]
In case of adoption by unrelated persons, there is a termination of the adopted individual's legal ties with his
or her natural parents, not only for purposes of intestate succession but also with regard to the passing of prop-
erty by virtue of written instruments, including wills and trusts.[5] Thus, grandchildren, who were adopted after
their mother's parental rights were terminated, were not entitled to a share of assets placed in trust by their natur-
al grandfather for benefit of his descendants, where the grandfather did not specify that he wanted to include the
grandchildren as trust beneficiaries.[6]

Cases:
The statute governing inheritance by and from adoptive kindred allows all children eighteen years of age or
younger at the time of their adoption to inherit from the lineal ancestors of their adoptive parents. Fleet Nat.
Bank v. Hunt, 944 A.2d 846 (R.I. 2008).
[END OF SUPPLEMENT]
[FN1] Matter of Daigle's Estate, 642 P.2d 527 (Colo. Ct. App. 1982).
[FN3] See, for example, In re Estate of Leonard, 128 N.H. 407, 514 A.2d 822 (1986).
[FN4] In re Estate of Leonard, 128 N.H. 407, 514 A.2d 822 (1986).
Generally, as to adopted children as within classes designated in wills, deeds, trusts, or other instru-
ments, see § 178
[FN5] Miller v. Walker, 270 Ga. 811, 514 S.E.2d 22 (1999).
[FN6] Miller v. Walker, 270 Ga. 811, 514 S.E.2d 22 (1999).
rights reserved.
END OF DOCUMENT


Adoption
a. Overview
§ 176. Rights of adoptees—Under legacy to adoptive parent dying before testator; effect of antilapse stat-
utes
A.L.R. Library
Who is “child,” “issue,” “descendant,” “relation,” “heir,” etc., within anti-lapse statute describing the person
taking through or from the legatee or devisee, 19 A.L.R. 2d 1159
Terms such as "child," "issue," "descendant," and "heir," as used in antilapse statutes describing the persons
who may take a legacy in the event of the death of the named legatee prior to the death of the testator, are gener-
ally construed to include an adopted child, where it is evident that it is the legislative intent of the adoption stat-
utes to make an adopted child bear, to all intents and purposes, the same relation to its adopting parents as a nat-
ural child.[1] Since a testator is presumed to know the law, if he desires that adopted children should not take
under a nonlapse statute he must make provision to that effect in the will.[2]
[FN1] In re Baker's Estate, 172 So. 2d 268 (Fla. Dist. Ct. App. 2d Dist. 1965); In re Upjohn's Will, 304
N.Y. 366, 107 N.E.2d 492 (1952); Hoellinger v. Molzhon, 77 N.D. 108, 41 N.W.2d 217, 19 A.L.R.2d
1147 (1950); Third Nat. Bank & Trust Co. v. Glendening, 17 Ohio Op. 2d 337, 86 Ohio L. Abs. 340,
175 N.E.2d 239 (Prob. Ct. 1960).
[FN2] Kirsheman v. Paulin, 155 Ohio St. 137, 44 Ohio Op. 134, 98 N.E.2d 26 (1951).
Where the testatrix devised her entire estate to two nieces and a nephew and the nephew predeceased
the testatrix, the nephew's adopted child was entitled to receive the legacy by virtue of the antilapse
statute; had the testatrix wanted only her blood kindred to share her estate, she could have made provi-
sion for a gift over and made the lapse statute inoperative. In re Baker's Estate, 172 So. 2d 268 (Fla.

Dist. Ct. App. 2d Dist. 1965).
rights reserved.
END OF DOCUMENT


Adoption
a. Overview
§ 177. Effect of adoption as revoking previously executed will; rights of adopted child as affected by will
A.L.R. Library
Adopted child as subject to protection of statute regarding rights of children pretermitted by will, or statute
preventing disinheritance of child, 43 A.L.R. 4th 947
Adoption of child as revoking will, 24 A.L.R. 2d 1085
The rule that the birth of a child revokes an antecedent will making no provision for after-born children has
been extended to adopted children.[1] However, other courts have taken the view that subsequent adoption of a
child does not have the effect of revoking the antecedent will of his adopting parents.[2]
The more usual form of statutes protecting after-born and pretermitted children renders the previously ex-
ecuted will inoperative as to such children, giving them the right to share in the estate of the decedent as if he or
she had died intestate, and in most cases where the question has arisen, the courts have held that a child adopted
after the making of a will and who is unprovided for in the will comes within the provisions of the statutes for
after-born and pretermitted children and is entitled to the protection and benefit of those provisions.[3]
The question whether a testator has provided for, or contemplated the contingency of, the future adoption of
a child, so as to prevent partial revocation or a partially inoperative effect of the will when a child is sub-
sequently adopted, is largely a matter of the intention of the testator as drawn from the language of the will and
the circumstances surrounding its execution.[4]
[FN1] Grimes v. Jones, 193 Ark. 858, 103 S.W.2d 359 (1937); Thornton v. Anderson, 207 Ga. 714, 64
S.E.2d 186, 24 A.L.R.2d 1079 (1951); Succession of Meaux, 558 So. 2d 273 (La. Ct. App. 3d Cir.
1990), writ denied, 563 So. 2d 1152 (La. 1990).

[FN2] Hamilton v. Smith, 264 Ala. 199, 86 So. 2d 283 (1956); Sorrell v. Sorrell, 193 N.C. 439, 137
S.E. 306 (1927).
[FN3] Risher v. U.S., 465 F.2d 1 (5th Cir. 1972) (applying Alabama law); Bryant v. Thrower, 239 Ark.
783, 394 S.W.2d 488 (1965); Estate of Turkington, 147 Cal. App. 3d 590, 195 Cal. Rptr. 178, 43
A.L.R.4th 941 (5th Dist. 1983); J.E.W. v. Estate of Doe, 443 So. 2d 249 (Fla. Dist. Ct. App. 1st Dist.
1983); Matter of Estate of Rivas, 233 Kan. 898, 666 P.2d 691 (1983) (by statute); Davis v. Davis, 278
Md. 534, 365 A.2d 1004 (1976) (recognizing rule); In re Jones' Estate, 146 Mont. 439, 408 P.2d 482
(1965) (recognizing rule); Matter of Jackson, 117 N.H. 898, 379 A.2d 832 (1977) (will executed sub-
sequent to adoption); In re Markowitz' Estate, 126 N.J. Super. 140, 312 A.2d 901 (County Ct., P. Div.
1973) (recognizing rule); In re Lawrence's Will, 86 Misc. 2d 579, 381 N.Y.S.2d 713 (Sur. Ct. 1974);
Barnstable v. U. S. Nat. Bank, 232 Or. 36, 374 P.2d 386 (1962); Estate of Marshall, 27 Wash. App. 895,
621 P.2d 187 (Div. 1 1980).
Decedent's adopted daughter was a pretermitted heir entitled to an intestate share in the decedent's es-
tate, notwithstanding that she was named in a will executed 12 years prior to her adoption and notwith-
standing an alleged settlement outside of the will, where: (1) decedent's will named the adopted daugh-
ter as his wife's niece, not as his child, and hence this bequest was not a bequest to his "child;" and (2)
property constituting the alleged settlement was either a gift to her, as niece, from the decedent and his
wife, or a later gift to her, as adopted daughter, only by the wife. Brown v. Crawford, 1984 OK CIV
APP 59, 699 P.2d 162 (Ct. App. Div. 3 1984).
[FN4] Fulton Trust Co. v. Trowbridge, 126 Conn. 369, 11 A.2d 393, 127 A.L.R. 747 (1940).
rights reserved.
END OF DOCUMENT


Adoption
b. Adopted Child as Within Class Designated in Will, Trust, Deed, or Other Instrument
(1) In General
§ 178. Generally
West's Key Number Digest, Wills 497(5), 506(5)
A.L.R. Library
Adopted child as within class named in deed or inter vivos trust instrument, 37 A.L.R. 5th 237
Adopted child as within class named in testamentary gift, 36 A.L.R. 5th 395
Forms
Agreement as to division of estate—Between heirs and alleged adopted children. Am. Jur. Legal Forms 2d,
Descent and Distribution § 88:27
Whether an adopted child has the right to succeed to interests in property which, by the terms of a deed of
conveyance, a trust indenture, a will, or other instrument, are limited to "a child," "children," "issue," "heirs,"
"legal heirs," or "heirs of the body" of the person or class of persons named in such instrument, is affected by the
content and phraseology of the particular instruments involved.[1]
In determining the rights of an adopted child under a contract, trust instrument, or will, the statutes govern-
ing rights of inheritance of adopted children may be considered as an aid to construction of the instrument;[2]
ordinarily, however, the controlling question is not whether the adopted child would inherit from his or her ad-
optive parent under the statutes of descent and distribution, but whether the adopted child is included among the
persons the grantor, settlor, or testator intended to share in the estate.[3] In this regard, it has been said that the
primary consideration, particularly in the case of a will, is whether the person who executed the instrument in-
tended, by the term of description used, to include an adopted child.[4]
Even so, in some jurisdictions, where it cannot be concluded with reasonable certainty whether a settlor in-

tended to include or exclude adopted children in a trust instrument, the settlor is presumed to have intended to
include all children, whether by adoption or by blood descent.[5] Similarly, in at least one jurisdiction, a statute
provides that a child adopted at any time is to be deemed a child born to the adopting parents for the purposes of
determining the property rights of any person under any instrument executed before a specified date, unless the
intent to exclude such child is demonstrated by clear and convincing evidence.[6]
Observation:
Variations in interpretation may turn upon whether the settlor or testator was the adopting parent or whether the
issue involves adopted children of persons other than the testator or settlor.[7]
Although the rights of inheritance of an adopted child are generally determined by the law as it existed at
the time of the death of the intestate in whose property the child claims an interest,[8] the determination whether
an adopted child is embraced within the meaning of a descriptive class of persons within a will or other instru-
ment will generally be determined by the law in force at the time the instrument was executed.[9] And in de-
termining the construction of the instrument, the court looks to the law of the state where the testator died, rather
than to the law of the state in which the adoption took place.[10]
[FN1] Tankersley v. Davis, 195 N.C. 542, 142 S.E. 765 (1928); Cutrer v. Cutrer, 162 Tex. 166, 345
S.W.2d 513, 86 A.L.R.2d 105 (1961); Fletcher v. Flanary, 185 Va. 409, 38 S.E.2d 433, 166 A.L.R. 145
(1946).
[FN2] Vaughn v. Vaughn, 161 Tex. 104, 337 S.W.2d 793 (1960).
[FN3] In re Pierce's Estate, 32 Cal. 2d 265, 196 P.2d 1 (1948); Comer v. Comer, 195 Ga. 79, 23 S.E.2d
420, 144 A.L.R. 664 (1942); Merson v. Wood, 202 Va. 485, 117 S.E.2d 661 (1961).
[FN4] Weitzel v. Weitzel, 16 Ohio Misc. 105, 45 Ohio Op. 2d 55, 45 Ohio Op. 2d 83, 239 N.E.2d 263
(Prob. Ct. 1968); Uihlein v. Uihlein, 11 Wis. 2d 219, 105 N.W.2d 351 (1960).
[FN5] Am. Jur. 2d, Trusts § 270.
[FN6] Schuttler v. Ruark, 225 Ill. App. 3d 678, 167 Ill. Dec. 837, 588 N.E.2d 478 (2d Dist. 1992).
[FN7] Fiduciary Trust Co. v. Brown, 152 Me. 360, 131 A.2d 191 (1957).
[FN8] § 189.
[FN9] Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 133 A.L.R. 586 (1941).
However, a beneficiary's adopted daughter was a lineal descendant under the testator's will, where the
law in effect at the time of the testator's death granted an adopted child the same inheritance rights and
privileges as a natural born child. Haley v. Regions Bank, 277 Ga. 85, 586 S.E.2d 633 (2003).
[FN10] Mesecher v. Leir, 241 Iowa 818, 43 N.W.2d 149 (1950).

rights reserved.
END OF DOCUMENT


Adoption
(1) In General
§ 179. Time of adoption with reference to execution of instrument as factor
West's Key Number Digest, Wills 497(5)
In deciding whether an adopted child is embraced in a gift to a designated class, the court considers the sur-
rounding circumstances at the time the instrument was executed.[1] The fact that the adoption occurred sub-
sequent to the execution of the deed or trust instrument has been noted in cases in which the adopted child was
held not to be entitled to take under the trust instrument as a child of the grantee.[2] However, it does not neces-
sarily follow that a child adopted prior to the execution of a trust instrument comes within a class named in the
instrument.[3] Furthermore, a child adopted several years after the execution of the instrument may be in-
cluded.[4]
In cases involving a testamentary gift, the time of adoption is also considered a significant factor, and the
fact that the testator knew and approved of the adoption supports the inference that he or she intended the adop-
ted child to be a member of the benefited class.[5] On the other hand, many courts treat the fact that adoption
did not occur until after the death of the testator as an indication that an adopted child was not included within a
testamentary gift to a class,[6] except where statute expressly provides to the contrary.[7]
[FN1] Uihlein v. Uihlein, 11 Wis. 2d 219, 105 N.W.2d 351 (1960).
[FN2] Brunton v. International Trust Co., 114 Colo. 298, 164 P.2d 472 (1945); Smyth v. McKissick,
222 N.C. 644, 24 S.E.2d 621 (1943).
[FN3] Brunton v. International Trust Co., 114 Colo. 298, 164 P.2d 472 (1945).
[FN4] Gilliam v. Guaranty Trust Co. of New York, 186 N.Y. 127, 78 N.E. 697 (1906).
[FN5] In re Clancy's Estate, 159 Cal. App. 2d 216, 323 P.2d 763 (2d Dist. 1958); Bradford v. Johnson,

237 N.C. 572, 75 S.E.2d 632 (1953); In re Breese's Estate, 7 Wis. 2d 422, 96 N.W.2d 712 (1959).
[FN6] Morgan v. Keefe, 135 Conn. 254, 63 A.2d 148 (1948); Stewart v. Lafferty, 12 Ill. 2d 224, 145
N.E.2d 640 (1957); Trueax v. Black, 53 Wash. 2d 537, 335 P.2d 52 (1959).
[FN7] Central Trust Co. of Northern Ohio, N.A. v. Smith, 50 Ohio St. 3d 133, 553 N.E.2d 265 (1990).
rights reserved.
END OF DOCUMENT


Adoption
(1) In General
§ 180. Procreative ability of adoptive parent as factor
The fact that the testator knew that the adopting parent was incapable of having natural children is regarded
by some courts as a circumstance indicating that an adopted child was included within the class intended to re-
ceive a testamentary gift.[1]
The inference that the testator believed that the adopting parent would have no natural children has rested
upon the age of the adopting parent at the time of execution of the will[2] and upon the length of time the adopt-
ing parent had been married without natural issue.[3] However, some courts refuse to impute to the testator a be-
lief that the adopting parent was unable to have natural children because of age at the time of execution of the
will.[4]
[FN1] Peirce v. Farmers State Bank of Valparaiso, 222 Ind. 116, 51 N.E.2d 480 (1943) (approving the
rule, but holding evidence that the testator discussed with his son the latter's sterility, and urged him to
marry a woman of his acquaintance and adopt her child, inadmissible to explain the testator's unam-
biguous will).
[FN2] Ansonia Nat. Bank v. Kunkel, 105 Conn. 744, 136 A. 588 (1927); In re Breese's Estate, 7 Wis.
2d 422, 96 N.W.2d 712 (1959).
[FN3] In re Upjohn's Will, 304 N.Y. 366, 107 N.E.2d 492 (1952) (niece over 40 years of age and
without natural children during 20 years of marriage).
[FN4] Hoog v. Litchfield Bank & Trust Co., 349 Ill. App. 444, 111 N.E.2d 182 (3d Dist. 1953) (no pre-
sumption that a wife 57 years of age could not have children).

rights reserved.
END OF DOCUMENT


Adoption
(2) Particular Terms as Defining Class
§ 181. "Child"; "children"
A.L.R. Library
Forms
Construction of will; definition—"Adopted;" "Legally adopted." Am. Jur. Legal Forms 2d, Wills § 266:204
Construction of will; definition—"child" or "children"—adopted child included. Am. Jur. Legal Forms 2d,
Wills § 266:208
Construction of will; definition—"child" or "children;" "issue"—adopted child excluded. Am. Jur. Legal
Forms 2d, Wills § 266:210
Generally, courts must confine and limit the application of the word "child" or "children," when used in a
will or trust, to designate objects of the testator's bounty as excluding adopted children of persons designated in
the instrument,[1] unless: (1) the context of the instrument indicates the testator's intention to include adopted
children or use the term in a more extensive sense than its natural import;[2] (2) such intention is to be inferred
from the attendant circumstances;[3] or (3) such a construction is required by statutory definition.[4]
Reminder:
In some jurisdictions, where it cannot be concluded with reasonable certainty whether a settlor has intended to

include or exclude adopted children in a trust instrument, the settlor is presumed to have intended to include all
children, whether by adoption or by blood descent.[5]
[FN1] Faulk v. Faulk, 240 Ga. 373, 240 S.E.2d 848 (1977) (testator's adopted grandson was unable to
take under will); Ross v. Bateman, 200 Tenn. 148, 291 S.W.2d 584 (1956); Trueax v. Black, 53 Wash.
2d 537, 335 P.2d 52 (1959).
[FN2] Wilson v. Ingram, 207 Ga. 271, 61 S.E.2d 126 (1950); In re Puterbaugh's Estate, 261 Pa. 235,
104 A. 601, 5 A.L.R. 1277 (1918); Ross v. Bateman, 200 Tenn. 148, 291 S.W.2d 584 (1956).
A provision in a will designating "my daughter's children" included persons adopted by the testators'
daughter subsequent to their deaths, where there was testimony that the testators intended such and no
evidence of contrary intention. Zimmerman v. First Nat. Bank of Birmingham, 348 So. 2d 1359 (Ala.
1977).
[FN3] Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621 (1943); Rhode Island Hosp. Trust Co. v. Sack,
79 R.I. 493, 90 A.2d 436 (1952), amended on denial of reargument, 79 R.I. 493, 91 A.2d 676 (1952);
Estes v. Ruff, 267 S.C. 396, 228 S.E.2d 671 (1976).
[FN4] Purifoy v. Mercantile-Safe Deposit & Trust Co., 398 F. Supp. 1075 (D. Md. 1974), certified
question answered, 273 Md. 58, 327 A.2d 483 (1974) (applying Maryland law); Woolums v. Simonsen,
214 Kan. 722, 522 P.2d 1321 (1974) (statute stated that an adopted child was qualified to the same in-
heritance rights as a natural born child); Simpson v. Simpson, 29 N.C. App. 14, 222 S.E.2d 747 (1976)
(statute declared that "child" referred to both natural and adopted children unless a contrary intent
plainly appeared in the will); Brown v. Crawford, 1984 OK CIV APP 59, 699 P.2d 162 (Ct. App. Div. 3
1984); Cutrer v. Cutrer, 334 S.W.2d 599 (Tex. Civ. App. San Antonio 1960), writ granted, (July 13,
1960) and judgment aff'd, 162 Tex. 166, 345 S.W.2d 513, 86 A.L.R.2d 105 (1961).
[FN5] § 178.
rights reserved.
END OF DOCUMENT


Adoption
§ 182. "Child"; "children"—Adult adoptee as "child"
A.L.R. Library
Marital or sexual relationship between parties as affecting right to adopt, 42 A.L.R. 4th 776
Where an adult's adoption is permissible under an interpretation of a statute authorizing an adult to be adop-
ted as the "child" of another,[1] and where there is no specific language in a trust provision of a will prohibiting
an adopted child from taking under the trust, a child adopted by a trust beneficiary, after the testator's death, may
take under the terms of the instrument as a member of the class of "then living children" of the beneficiary, even
though the adoptee was an adult at the time of his or her adoption.[2] Even so, where a court concludes that the
settlor or testator would not have intended to name a particular adopted adult as a "child" benefiting from an in-
strument, status of an adult adoptee as a "child" for inheritance purposes may be denied.[3]
Observation:
In some jurisdictions, adult adoptees are presumptively included as "children" for purposes of benefiting from a
trust, unless evidence shows that the adoption would not be within the normal expectations of the transferor. In
this regard, the normal expectations of a testator would be that an adoptive parent and an adopted adult would
have had an in loco parentis relationship, so that the adopted adult would not ordinarily be included in a class
gift from a stranger to the adoption as a "child" or "legally adopted child" unless the adult had originally been
taken into the adoptive home as a minor and reared as a member of the adopting parent's family.[4]
[FN1] § 27.

36 A.L.R.5th 873 (1992).
An adult adopted by the testator's child was entitled to take land under the testator's will and divest re-
maindermen as heir by adoption, where a state statute gave the same rights to adopted and natural chil-
dren and, for purposes of the statute, an adopted adult was considered the same as a child. Matter of
Fortney's Estate, 5 Kan. App. 2d 14, 611 P.2d 599 (1980).
[FN3] Abramovic v. Brunken, 16 Cal. App. 3d 719, 94 Cal. Rptr. 303 (1st Dist. 1971); In re Nowels Es-
tate, 128 Mich. App. 174, 339 N.W.2d 861 (1983); Matter of Griswold's Estate, 140 N.J. Super. 35, 354
A.2d 717 (County Ct., P. Div. 1976).
[FN4] First Nat. Bank of Dubuque v. Mackey, 338 N.W.2d 361 (Iowa 1983).
The inferred intent of the testator of a will executed prior to the time adoption of adults became legal is
best served by excluding adult adoptees from class designations of "children" and "children of chil-
dren." However, adult adoptees who were actually taken into the adoptive parent's home as minors and
reared by the adoptive parent in loco parentis constitute an exception and are deemed to come within
such a class designation, unless it is shown that the purpose of their adoption was to diminish or defeat
the interests of other beneficiaries for purposes of financial gain or as a spite device. Estate of Pittman,
104 Cal. App. 3d 288, 163 Cal. Rptr. 527 (4th Dist. 1980).
rights reserved.
END OF DOCUMENT


Adoption
§ 183. "Grandchild," "grandchildren"
In some jurisdictions, the terms "grandchild" or "grandchildren," when descriptive of a class in a testament-
ary gift, do not include a child adopted by a testator's child, since the law does not recognize such a person as a
grandchild by adoption.[1] Other courts take the position that a class designated by the word "grandchildren"
may include an adopted child[2] and permit adoptees to be included within the beneficiaries of a class testament-
ary gift, especially where there is evidence that the testator was aware of, or intended to benefit, the adopted
child.[3] However, where the son of a testatrix had adopted a child after the execution of the will, and the test-
atrix was a stranger to the adoption, the adopted child did not take under a gift to the "grandchildren" of the test-
atrix, in the absence of other evidence showing any intent on the testatrix's part that an adopted child should
take.[4]
[FN1] Bullock v. Bullock, 251 N.C. 559, 111 S.E.2d 837 (1960).
[FN2] Hayes v. St. Louis Union Trust Co., 280 S.W.2d 649 (Mo. 1955).
[FN3] Weitzel v. Weitzel, 16 Ohio Misc. 105, 45 Ohio Op. 2d 55, 45 Ohio Op. 2d 83, 239 N.E.2d 263
(Prob. Ct. 1968) (children adopted by the testatrix' son after execution of will are presumed included as
"grandchildren," though the testatrix had other natural grandchildren).
Granddaughter, who had been adopted out of the testatrix' family when she was 21 by foster parents
with whom she had lived since she was two, was entitled to participate in a class gift by the testatrix to
her granddaughters, where the granddaughter was close to the testatrix and where the testatrix men-
tioned the granddaughter by name in another paragraph of the will and referred to her as "my grand-
daughter"; although there is a strong public policy against allowing adopted-out children to inherit from

or through their natural parents because of a need to maintain confidentiality, no such consideration
entered into the instant case, since the facts showed that the granddaughter's whereabouts were well-
known to all concerned parties and that she had developed a meaningful relationship with the testatrix.
Matter of Estate of Lippincott, 141 Misc. 2d 186, 532 N.Y.S.2d 1021 (Sur. Ct. 1988).
[FN4] Fidelity Union Trust Co. v. Hall, 125 N.J. Eq. 419, 6 A.2d 124 (Ch. 1939).
rights reserved.
END OF DOCUMENT


Adoption
§ 184. "Issue," "heirs of the body," and related terms
Forms
Construction of will; definition—"child" or "children;" "issue"—adopted child excluded. Am. Jur. Legal
Forms 2d, Wills § 266:210
Construction of will; definition—"issue" as including adopted children. Am. Jur. Legal Forms 2d, Wills §
266:216.
Construction of will; definition—"issue"—adopted children and their issue excluded. Am. Jur. Legal Forms
2d, Wills § 266:217
Under some statutes, the use of the term "issue" in a will does not bar adopted children from taking under
the will.[1] In fact, while a common-law presumption is that adopted children are not included in the term "is-
sue,"[2] in some jurisdictions, statutes have been enacted which specifically reverse this common-law presump-
tion and include legally adopted persons unless the documents in question clearly indicate a contrary intention.[3
]
Observation:
A statute providing that the word "issue" in any will shall be held to include any adopted person, unless the con-
trary plainly appears by the terms of the will itself, whether the will was executed before or after the final order
of adoption and irrespective of whether the will was executed before or after the enactment of the statute, is con-
stitutional.[4]
The question whether the terms "issue" and "lawful issue," as used in wills, trust indentures, or convey-
ances, include adopted children or are limited to descendants by blood, irrespective of statutes generally includ-

ing adopted children within the definition of "issue,"[5] depends primarily upon the intention of the testator or
settlor[6] and on the particular circumstances of each case,[7] such as the testator's knowledge of the adoption
and approval or disapproval thereof.[8]
It has been held that the phrase "issue of her body" clearly evinces a testator's intent to exclude adopted chil-
dren from the class described.[9] The term "issue," when used in a devise "to surviving issue of each deceased
child" of a testator, also has been held not to include a child adopted by the deceased devisee subsequent to the
testator's death.[10] Furthermore, the use of terms such as "bodily heirs,"[11] "heirs of his body," or related ex-
pressions,[12] has been held to indicate an intention to exclude adopted children. However, there is also author-
ity that the term "issue of her body" does not plainly express the testator's intent to exclude an adopted child.[13]
[FN1] Hines v. First Nat. Bank and Trust Co. of Oklahoma City, 1985 OK 78, 708 P.2d 1078 (Okla.
1985).
[FN2] Matter of Estate of Best, 66 N.Y.2d 151, 495 N.Y.S.2d 345, 485 N.E.2d 1010, 71 A.L.R.4th 361
(1985).
[FN3] Connecticut Bank and Trust Co. v. Coffin, 212 Conn. 678, 563 A.2d 1323 (1989) (holding that
where the settlor specifically provided that the term "issue," as used in a trust indenture, was not inten-
ded to include adopted persons and their issue, the presumption against disinheriting heirs at law had
certainly been overcome by the settlor's expressed intention to limit the beneficiaries of the trust);
Wilmington Trust Co. v. Chichester, 369 A.2d 701 (Del. Ch. 1976), judgment aff'd, 377 A.2d 11 (Del.
1977) (under the probate statute, "issue" included persons adopted as adults after the testator's death);
Stoney v. MacDougall, 31 N.C. App. 678, 230 S.E.2d 592 (1976).
[FN4] Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973).
[FN5] Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973).
[FN6] Comer v. Comer, 195 Ga. 79, 23 S.E.2d 420, 144 A.L.R. 664 (1942); Fiduciary Trust Co. v.
Brown, 152 Me. 360, 131 A.2d 191 (1957).
[FN7] Continental Ill. Nat. Bank & Trust Co. of Chicago v. Clancy, 18 Ill. 2d 124, 163 N.E.2d 523
(1959).
An income beneficiary's child, who was adopted out by a stepparent, was not the "issue" or "child" of
the income beneficiary, required to be a remainder beneficiary under terms of the testamentary trust and
the law in effect when the will was executed, even though the child would have been considered "issue"
under the law in effect at the income beneficiary's death. Newman v. Wells Fargo Bank, 14 Cal. 4th
126, 59 Cal. Rptr. 2d 2, 926 P.2d 969 (1996).
[FN8] In re Pierce's Estate, 32 Cal. 2d 265, 196 P.2d 1 (1948).
"Issue" to whom bequests were made under the residuary clause of a will included adopted children,
inasmuch as the adoption took place before the will had been executed and the testator knew and liked
the adoptive children. Trantham v. Trice, 567 S.W.2d 389 (Mo. Ct. App. 1978).

[FN9] Moore v. McAlester, 1967 OK 100, 428 P.2d 266 (Okla. 1967).
[FN10] Mealy v. First Nat. Bank & Trust Co. of Tulsa, 1968 OK 134, 445 P.2d 795 (Okla. 1968).
[FN11] Stover v. Seitz, 527 S.W.2d 829 (Tex. Civ. App. Waco 1975), writ refused n.r.e., (Jan. 7, 1976).
[FN12] Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997) (1930 deed granting real property to the
grantors' daughter and "legal heirs of her body"); Hurt v. Noble, 1991 OK CIV APP 59, 817 P.2d 744
(Ct. App. Div. 3 1991); Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513, 86 A.L.R.2d 105 (1961)
("heirs of his body").
[FN13] Wielert v. Larson, 84 Ill. App. 3d 151, 39 Ill. Dec. 520, 404 N.E.2d 1111 (2d Dist. 1980).
rights reserved.
END OF DOCUMENT


Adoption
§ 185. "Heirs" and related terms
A.L.R. Library
In some jurisdictions, adopted children are presumed to be within the class designated in a will as "heirs" or
"heirs at law."[1] Generally, however, whether an adoptee is within the class specified by the term "heirs" or re-
lated terms depends upon the intent of the testator or settlor in the applicable instrument.[2]
Observation:
In some instances, the testatorial intent has been found from the language of the will, interpreted in the light of
the surrounding circumstances, with little regard to the applicable statutes.[3]
The language of a gift over after the termination of a life estate may be sufficiently broad to include adopted
children of the life tenant, as where a conveyance of real property in trust is for the use of a designated benefi-
ciary during his natural life and at his decease for the use of his "heirs at law."[4] However, the widow of a life
beneficiary in a testamentary trust, adopted by the beneficiary after the creation of the trust and the death of the
grantor, is not entitled to take the corpus of the trust under a will providing that upon the death of the benefi-
ciary, the remainder shall be distributed to "my then surviving heirs" according to laws of descent and distribu-
tion;[5] the adoption of an adult for the purpose of bringing that person under the provisions of a preexisting
testamentary instrument, when he or she clearly was not intended to be so covered, should not be permitted.[6]
Observation:

Where a deed in Hawaiian gave a life estate with the remainder over to the heirs of the siblings of the life tenant
should she die without issue, the Hawaiian word "hooilina," used in the deed to describe heirs, could not be ex-
tended to include foster children of a child of the life tenant's sibling who were never legally adopted but were
"keiki hanai" by Hawaiian custom.[7]
[FN1] Vega v. Kosair Charities Committee, Inc., 832 S.W.2d 895 (Ky. Ct. App. 1992).
[FN2] Merson v. Wood, 202 Va. 485, 117 S.E.2d 661 (1961).
[FN3] New England Trust Co. v. Sanger, 151 Me. 295, 118 A.2d 760 (1955); Mott v. National Bank of
Commerce, 190 Va. 1006, 59 S.E.2d 97 (1950).
[FN4] Isaacs v. Manning, 312 Ky. 326, 227 S.W.2d 418 (1950) ("legal heirs" of deceased child); Brock
v. Dorman, 339 Mo. 611, 98 S.W.2d 672 (1936).
[FN5] Minary v. Citizens Fidelity Bank & Trust Co., 419 S.W.2d 340 (Ky. 1967).
[FN6] § 27.
[FN7] Maui Land & Pineapple Co. v. Naiapaakai Heirs of Makeelani, 69 Haw. 565, 751 P.2d 1020
(1988).
rights reserved.
END OF DOCUMENT


Adoption
a. Overview
§ 186. Generally
It has been said that the law recognizes no distinction between natural children and adopted children for
purposes of inheritance, and this principle is frequently embodied in adoption statutes.[1]
In some jurisdictions, an adopted child may inherit both from his natural parents and from his adopted par-
ents.[2] However, there is also authority directly opposing this view.[3]
Rights of inheritance, as defined by the statutes of descent and distribution, are generally modified by stat-
utes regulating the effect of adoption, which may effectively define the rights of the adopted child and adoptive
parent to inherit from and through each other.[4] Thus, statutes of adoption and those of succession, descent, or
distribution must be read and construed together.[5]
[FN1] § 175.
[FN2] In re Estate of Orzoff, 116 Ill. App. 3d 265, 72 Ill. Dec. 150, 452 N.E.2d 82 (1st Dist. 1983).
The mere fact that the adopting parent is a blood relative does not prevent the child from inheriting both
from the adoptive parent and also from his or her natural parent by right of representation. In re Bren-
ner's Estate, 109 Utah 172, 166 P.2d 257 (1946).
[FN3] Mississippi Valley Trust Co. v. Palms, 360 Mo. 610, 229 S.W.2d 675 (1950).
In case of adoption by unrelated persons, there is a termination of the adopted individual's legal ties
with his or her natural parents, not only for the purpose of intestate succession but also with regard to
the passing of property by virtue of written instruments, including wills and trusts. Miller v. Walker,
270 Ga. 811, 514 S.E.2d 22 (1999).

As to an adoptee's right to inherit from and through: natural parents, generally, see §§ 192, 193; adopt-
ive parents, generally, see §§ 194, 198.
[FN4] Franklin v. White, 263 Ala. 223, 82 So. 2d 247 (1955); In re Esposito's Estate, 57 Cal. App. 2d
859, 135 P.2d 167 (2d Dist. 1943).
[FN5] Industrial Trust Co. v. Glanding, 28 Del. Ch. 125, 38 A.2d 752 (1944), order aff'd, 28 Del. Ch.
499, 45 A.2d 553 (1945); Phelan v. Conron, 323 Mass. 247, 81 N.E.2d 525 (1948).
rights reserved.
END OF DOCUMENT


Adoption
a. Overview
§ 187. Recognition of adoption status under foreign decree
A.L.R. Library
Conflict of laws as to adoption as affecting descent and distribution of decedent's estate, 87 A.L.R. 2d 1240
While questions affecting the existence of an adoption and the method of its creation are controlled by the
law of the state or nation that creates it,[1] in determining the descent and distribution of the property of an in-
testate decedent and the right of an adopted child to share in such estate, a status of adoption acquired under the
law of one state will be recognized and given effect in another state,[2] provided that: (1) the foreign court had
jurisdiction of the adoption proceedings;[3] (2) the foreign court had jurisdiction to fix the status of the child
with respect to the adoptive parents;[4] and (3) recognition of that status, as fixed by the foreign decree, is not
inconsistent with, and will not offend, the laws or public policy of the forum.[5] The same principle applies to
the recognition of adoption proceedings of a foreign country.[6]
Under the rule stated, the status acquired by a valid decree of adoption in one state will be recognized and
given the same effect by the courts of another state, in determining rights of inheritance, as would be given if the
status of adoption had been created by a valid decree of a court in the latter state,[7] even though the law of the
state creating the status of adoption is dissimilar to the law of the situs of the property or the domicile of the de-
cedent, and the child would not be regarded as an adopted child had the formalities for adoption taken place
there.[8]
[FN1] § 49.
[FN2] In re Zaepfel's Estate, 102 Cal. App. 2d 774, 228 P.2d 600 (2d Dist. 1951); Glanding v. Industrial
Trust Co., 29 Del. Ch. 517, 46 A.2d 881 (1946); Watson v. Watson, 208 Ga. 512, 67 S.E.2d 704 (1951);

Pyle v. Fischer, 278 Ky. 287, 128 S.W.2d 726 (1939); In re Youmans' Estate, 218 Minn. 172, 15
N.W.2d 537, 154 A.L.R. 1171 (1944); Zanzonico v. Neeld, 17 N.J. 490, 111 A.2d 772 (1955); Barrett v.
Delmore, 143 Ohio St. 203, 28 Ohio Op. 133, 54 N.E.2d 789, 153 A.L.R. 192 (1944); In re Crossley's
Estate, 135 Pa. Super. 524, 7 A.2d 539 (1939); Cribbs v. Floyd, 188 S.C. 443, 199 S.E. 677 (1938);
Smith v. Mitchell, 185 Tenn. 57, 202 S.W.2d 979 (1947).
[FN3] Brown v. Hall, 385 Ill. 260, 52 N.E.2d 781 (1944).
[FN4] Brown v. Hall, 385 Ill. 260, 52 N.E.2d 781 (1944); Zanzonico v. Neeld, 17 N.J. 490, 111 A.2d
772 (1955).
[FN5] Cook v. Todd's Estate, 249 Iowa 1274, 90 N.W.2d 23, 66 A.L.R.2d 1257 (1958); Phelan v. Con-
ron, 323 Mass. 247, 81 N.E.2d 525 (1948); Zanzonico v. Neeld, 17 N.J. 490, 111 A.2d 772 (1955);
Doulgeris v. Bambacus, 203 Va. 670, 127 S.E.2d 145 (1962).
[FN6] Doulgeris v. Bambacus, 203 Va. 670, 127 S.E.2d 145 (1962).
[FN7] McLaughlin v. People, 403 Ill. 493, 87 N.E.2d 637 (1949).
[FN8] Zanzonico v. Neeld, 17 N.J. 490, 111 A.2d 772 (1955) (where an adoption was validly effected
in Italy by American residents).
rights reserved.
END OF DOCUMENT


Adoption
a. Overview
§ 188. Governing law; conflicts of law
A.L.R. Library
Conflict of laws as to adoption as affecting descent and distribution of decedent's estate, 87 A.L.R. 2d 1240
While the status of an adopted child is fixed by the law of the state of adoption,[1] the adopted child's rights
of inheritance, and the extent of such rights, will be determined, not by the law of the state where the adoption
took place, but in the case of real property by the law of the state where the property is located,[2] and in the dis-
tribution of personal property by the law of the domicile of the intestate owner at the time of death.[3]
[FN1] § 36.
[FN2] In re Drumheller's Estate, 252 Iowa 1378, 110 N.W.2d 833, 87 A.L.R.2d 1233 (1961); New Eng-
land Trust Co. v. Sanger, 151 Me. 295, 118 A.2d 760 (1955); Zanzonico v. Neeld, 17 N.J. 490, 111
A.2d 772 (1955); Delamotte v. Stout, 207 Tenn. 406, 340 S.W.2d 894 (1960); Northwestern Nat. Cas.
Co. v. Doucette, 817 S.W.2d 396 (Tex. App. Fort Worth 1991), writ denied, (Jan. 29, 1992).
Whether an adopted child can inherit an interest in land upon intestacy is determined by the law that
would be applied by the courts of the situs, and those courts usually apply their own local law in de-
termining the question. Pyles v. Russell, 36 S.W.3d 365 (Ky. 2000).
[FN3] Rauhut v. Short, 26 Conn. Supp. 55, 212 A.2d 827 (Super. Ct. 1965); Cook v. Todd's Estate, 249
Iowa 1274, 90 N.W.2d 23, 66 A.L.R.2d 1257 (1958); Phelan v. Conron, 323 Mass. 247, 81 N.E.2d 525
(1948); In re Patrick's Will, 259 Minn. 193, 106 N.W.2d 888 (1960).

rights reserved.
END OF DOCUMENT


Adoption
a. Overview
§ 189. Governing law; conflicts of law—What law governs in point of time
A.L.R. Library
What law, in point of time, governs as to inheritance from or through adoptive parent, 18 A.L.R. 2d 960
While some statutes leave rights of inheritance to be determined by the law in force at the time of adoption,[
1] in most cases the right to inherit in cases of adoption is controlled by the statute in force at the time of death
of the intestate.[2] In other words, inheritance rights of adopted persons are generally governed by the law of ad-
option and law of descent and distribution in force at the time of death of the person whose estate is involved.[3]
Observation:
Under this rule, an adoptive parent inherits according to the law in effect at the time of the death of the adopted
person, although at the time of adoption, there was no provision for inheritance from an adopted child.[4]
Some statutes fixing inheritance rights of adopted children explicitly provide that they apply to adoptions
taking place both before and after the enactment.[5] However, application of a statute enacted subsequent to the
death of the intestate, determining the right of the adopted child to inherit, has generally been denied upon the
ground that rights in respect to inheritance become vested upon the death of the intestate and permitting such ap-
plication would amount to unconstitutional interference with such rights.[6]
[FN1] Weber v. Griffiths, 349 Mo. 145, 159 S.W.2d 670 (1941); Wilson v. Anderson, 232 N.C. 212, 59
S.E.2d 836, 18 A.L.R.2d 951 (1950).
The right of a child adopted pursuant to Florida law to inherit from his natural father, a resident of New
Jersey, was governed by the laws in effect in New Jersey at the time of adoption. Matter of Neuwirth's

Estate, 155 N.J. Super. 410, 382 A.2d 972 (County Ct., P. Div. 1978).
[FN2] In re Gray's Estate, 168 F. Supp. 124 (D. D.C. 1958); Gamble v. Cloud, 263 Ala. 336, 82 So. 2d
526 (1955); Wheeler v. Myers, 330 Ark. 728, 956 S.W.2d 863 (1997); Ogborne v. Ogborne, 135 Ind.
App. 615, 193 N.E.2d 914 (Div. 2 1963); Matter of Estate of Hinderliter, 20 Kan. App. 2d 29, 882 P.2d
1001 (1994); In re Williams, 154 Me. 88, 144 A.2d 116 (1958); Hines v. First Nat. Bank and Trust Co.
of Oklahoma City, 1985 OK 78, 708 P.2d 1078 (Okla. 1985); In re Cilley, 400 Pa. 567, 163 A.2d 302
(1960); Black v. Washam, 57 Tenn. App. 601, 421 S.W.2d 647 (1967); Rothman v. Gillett, 315 S.W.2d
956 (Tex. Civ. App. Fort Worth 1958), writ refused n.r.e.; In re Raymond Estate, 161 Vt. 544, 641 A.2d
1342 (1994); McFadden v. McNorton, 193 Va. 455, 69 S.E.2d 445 (1952).
[FN3] McClure v. Noble, 602 So. 2d 377 (Ala. 1992).
[FN4] Franklin v. White, 263 Ala. 223, 82 So. 2d 247 (1955); In re Williams, 154 Me. 88, 144 A.2d
116 (1958).
[FN5] Bennett v. Cain, 248 N.C. 428, 103 S.E.2d 510 (1958).
[FN6] Eck v. Eck, 145 S.W.2d 231 (Tex. Civ. App. Austin 1940), writ dismissed, judgment correct,
(Jan. 29, 1941).
A statute enacted after adoption that alters the effect of adoption on the right to inherit from an intestate
decedent is prospective, not retroactive, as long as the statute was effective before an intestate's death.
Matter of Estate of Jank, 186 Wis. 2d 409, 521 N.W.2d 162 (Ct. App. 1994).
rights reserved.
END OF DOCUMENT


Adoption
§ 190. Natural parents or adoptive parents
When an adopted child dies intestate without leaving a surviving spouse, children, or descendants, but leav-
ing both his natural parent and adoptive parent surviving, the question whether the adoptive parent or the natural
parent inherits the child's estate must be determined by reference to the adoption statutes and the statutes of des-
cent and distribution. Adoption statutes sometimes explicitly provide that the adopting parents, and not the nat-
ural parents, may inherit from a child who has been adopted.[1] Furthermore, some courts construe adoption
statutes as conferring upon the adoptive parents the right to inherit the estate of an adopted child to the exclusion
of the child's natural parents, where the statutory language is reasonably open to such a construction,[2] as
where a statute declares that the adopted child shall be treated in all respects as though he or she were the child
of the adopting parents.[3]
Equitable adoption does not allow an adoptive parent to inherit from a child absent a formal, legal adop-
tion.[4]
[FN1] In re Levy's Estate, 141 So. 2d 803 (Fla. Dist. Ct. App. 2d Dist. 1962).
[FN2] Wright v. Wysowatcky, 147 Colo. 317, 363 P.2d 1046 (1961); Alexander v. Lamar, 188 Ga. 273,
3 S.E.2d 656, 123 A.L.R. 1032 (1939); Jackson's Adm'x v. Alexiou, 223 Ky. 95, 3 S.W.2d 177, 56
A.L.R. 1345 (1928).
Under adoption and intestacy statutes, descendants of an adopted intestate's biological siblings were not
entitled to inherit. In re Estate of Kirkpatrick, 2003 WY 125, 77 P.3d 404 (Wyo. 2003).
[FN3] In re Garlow's Estate, 313 Mich. 402, 21 N.W.2d 178 (1946).
[FN4] In re Jarboe's Estate, 235 F. Supp. 505 (D. D.C. 1964); Travelers Ins. Co. v. Young, 580 F. Supp.

421 (E.D. Mich. 1984); Rumans v. Lighthizer, 363 Mo. 125, 249 S.W.2d 397 (1952); Heien v. Crabtree,
369 S.W.2d 28 (Tex. 1963).
Equitable adoption is generally discussed in §§ 59 to 64.
rights reserved.
END OF DOCUMENT


Adoption
§ 191. Relatives of adoptive parents
In considering the right of relatives of an adoptive parent to inherit from an adopted child, the adoption stat-
utes must be read into the statutes of descent and distribution.[1] Some statutes have been construed to entitle
the heirs and next of kin of adoptive parents to the estate of an adopted child dying intestate, leaving neither an
adoptive parent, widow, child, nor descendant of a child.[2] Other statutes have been construed to give the heirs
and next of kin of adoptive parents no right of inheritance in the adopted child's estate.[3]
[FN1] In re Frazier's Estate, 180 Or. 232, 177 P.2d 254, 170 A.L.R. 729 (1947).
[FN2] Alexander v. Lamar, 188 Ga. 273, 3 S.E.2d 656, 123 A.L.R. 1032 (1939); Willson v. Carmichael,
665 S.W.2d 52 (Mo. Ct. App. W.D. 1984) (adoptive brothers and sisters, as descendants of the adoptive
parents, were heirs of an adopted child).
When a child is adopted, the relatives by blood or adoption of the adoptive parent have the right to in-
herit from the adopted child. Kirby v. Albert T.J., 517 So. 2d 974 (La. Ct. App. 3d Cir. 1987), writ
denied, 519 So. 2d 107 (La. 1987).
[FN3] In re Frazier's Estate, 180 Or. 232, 177 P.2d 254, 170 A.L.R. 729 (1947); Black v. Washam, 57
Tenn. App. 601, 421 S.W.2d 647 (1967).
rights reserved.
END OF DOCUMENT


Adoption
§ 192. From natural parents
A.L.R. Library
Adoption as affecting right of inheritance through or from natural parent or other natural kin, 37 A.L.R. 2d
333
Forms
Complaint, petition, or declaration—By adopted child—To prevent disinheritance contrary to de-

cree—Against executor and beneficiaries under will of deceased adoptive father. Am. Jur. Pleading and Practice
The right of a child to inherit from his or her natural parents, or to share in the intestate personalty of their
estates, is affected by the legal adoption of the child only to the extent that such rights are taken away or limited
by the terms of the applicable statutes of adoption and descent and distribution or by necessary implication
therefrom.[1] Thus, the right of adopted children to inherit from their natural parents depends on the adoption
and inheritance laws in effect at the time of the adoption.[2] However, there is authority that under intestate suc-
cession and adoption laws, adopted out relatives are not entitled to inherit from a natural relative's estate, even if
the law in effect at the time of the adoptions provided otherwise.[3]
A final decree, order, or judgment of adoption completely severs the adopted child's ties and relationship
with his or her relatives, including the natural parents.[4] Thus, the view has been followed that if an adoption
decree is valid, it has the effect of barring a child from inheriting the estate of its natural parent.[5] By their ex-
press terms, some statutes bar the right of adopted children to inherit from their natural parents[6] or cut off a
child's right to inherit from persons who were parents just prior to the decree of adoption, except where the ad-
option was by the spouse of the child's parent, in which case the relationship of the child to such parent will re-

main unchanged by the adoption decree.[7]
Observation:
Where a child had not been adopted at the time of her natural father's death, her rights in his estate had already
vested; therefore, statutes barring adopted persons from inheriting from their natural parents did not apply.[8]
On the other hand, there is some authority for the view that a child is not, because of adoption, deprived of a
right of inheritance from its natural parents[9] unless a statute expressly so provides.[10] Furthermore, some
statutes expressly save the rights of an adopted child to inherit from its natural parents.[11] Thus, the rule in
some jurisdictions is that the child retains a right to inherit from the divested parent, unless the court otherwise
provides.[12]
Cases:
The public policy behind continuing to allow adoptive children to inherit from their natural parents is to
protect minor children from losing their birthright without consent or knowledge. Jenkins v. Jenkins, 990 So. 2d
807 (Miss. Ct. App. 2008).
[END OF SUPPLEMENT]
[FN1] Glanding v. Industrial Trust Co., 29 Del. Ch. 517, 46 A.2d 881 (1946); In re Tilliski's Estate, 390
Ill. 273, 61 N.E.2d 24 (1945); Mississippi Valley Trust Co. v. Palms, 360 Mo. 610, 229 S.W.2d 675
(1950); In re Kay's Estate, 127 Mont. 172, 260 P.2d 391 (1953); In re Brenner's Estate, 109 Utah 172,
166 P.2d 257 (1946).
[FN2] Estate of David v. Snelson, 776 P.2d 813 (Colo. 1989).
[FN3] § 193.
[FN4] § 163.
[FN5] Matter of Tapp's Estate, 569 S.W.2d 281 (Mo. Ct. App. 1978).
[FN6] Estate of David v. Snelson, 776 P.2d 813 (Colo. 1989); Green v. Quincy State Bank, 368 So. 2d
451 (Fla. Dist. Ct. App. 1st Dist. 1979); Eig v. Savage, 177 Ga. App. 514, 339 S.E.2d 752 (1986); In re
Estate of Carlson, 457 N.W.2d 789 (Minn. Ct. App. 1990); Matter of Ragone, 58 N.Y.2d 864, 460
N.Y.S.2d 528, 447 N.E.2d 76 (1983); Matter of Estate of Jank, 186 Wis. 2d 409, 521 N.W.2d 162 (Ct.
App. 1994).
denied, (Jan. 29, 1992) (construing Arizona statute); First Nat. Bank of East Liverpool v. Collar, 27
Ohio Misc. 88, 56 Ohio Op. 2d 302, 272 N.E.2d 916 (C.P. 1971).
[FN8] Stone v. Gulf American Fire and Cas. Co., 554 So. 2d 346 (Ala. 1989); Matter of C.G.F., 168

Wis. 2d 62, 483 N.W.2d 803 (1992).
[FN9] In re Estate of Orzoff, 116 Ill. App. 3d 265, 72 Ill. Dec. 150, 452 N.E.2d 82 (1st Dist. 1983);
Spillman v. Parker, 332 So. 2d 573, 83 A.L.R.3d 796 (La. Ct. App. 4th Cir. 1976); Alack v. Phelps, 230
So. 2d 789 (Miss. 1970); Saintignon v. Saintignon, 5 Ohio App. 2d 133, 34 Ohio Op. 2d 243, 214
N.E.2d 124 (2d Dist. Darke County 1966).
A child's adoption by a stepparent does not affect the relationship between the adopted person and
either of his natural parents for purposes of intestacy under the Probate Code. Estate of Jacobs, 1998
ME 233, 719 A.2d 523 (Me. 1998).
[FN10] Burnes v. Burnes, 199 U.S. 605, 26 S. Ct. 746, 50 L. Ed. 330 (1905); Shaver v. Nash, 181 Ark.
1112, 29 S.W.2d 298, 73 A.L.R. 961 (1930) (involving Texas law); In re Kay's Estate, 127 Mont. 172,
260 P.2d 391 (1953); Dismukes v. Carletta, 269 S.C. 110, 236 S.E.2d 421 (1977); Coonradt v. Sailors,
186 Tenn. 294, 209 S.W.2d 859, 2 A.L.R.2d 880 (1948).
[FN11] Adams v. Slater, 132 Ind. App. 105, 175 N.E.2d 706, 94 A.L.R.2d 1194 (Div. 1 1961).
In a proceeding for final settlement of an intestate's estate, the court did not err in ruling that the estate
passed to a child of the intestate's second marriage as well as to children of his first marriage who had
been adopted by their stepfather after their mother's divorce and remarriage, where: (1) the law in effect
at the time of the intestate's death allowed adopted children to inherit from their biological parents; (2)
res judicata, collateral estoppel, and equitable estoppel did not bar the adopted children's claim, in that
no one claimed that the adoption decree had determined the issue of the children's right to inherit from
the intestate, there was no identity in the things sued for between the children's adoption and their
present claim of inheritance rights, and there was nothing in the record to support the contention that
the children had "acquiesced in" their adoption so as to voluntarily give up their inheritance rights. Mat-
ter of Estate of Hinderliter, 20 Kan. App. 2d 29, 882 P.2d 1001 (1994).
Texas law provides that an adopted child shall inherit from his or her natural parent or parents. North-
western Nat. Cas. Co. v. Doucette, 817 S.W.2d 396 (Tex. App. Fort Worth 1991), writ denied, (Jan. 29,
1992).
[FN12] B.C.S. v. D.A.E., 818 S.W.2d 929 (Tex. App. Beaumont 1991), writ denied, (Feb. 12, 1992).
Adoption of a child does not cut off her right of inheritance, unless the provisions of the adoption
clearly so state or the law of another state controls this particular issue. Briney v. U.S. Fidelity & Guar.
Co., 714 So. 2d 962 (Miss. 1998).
rights reserved.
END OF DOCUMENT


Adoption
§ 193. From relatives of natural parents
A.L.R. Library
Adoption as affecting right of inheritance through or from natural parent or other natural kin, 37 A.L.R. 2d
333
Forms
Petition or application—For determination of heirship—By daughter—Granddaughter who was adopted by

stepfather after death of natural father not entitled to inherit from natural grandparents. Am. Jur. Pleading and
Practice Forms, Descent and Distribution § 15
In some jurisdictions, an adopted child may inherit from natural relatives unless he or she is denied such
right by statute.[1] However, some statutes, by their express terms, bar adopted children of the right to inherit
from their natural kin.[2]
Statutes often make an exception to the general rule precluding adopted children from inheriting from natur-
al relatives after adoption, where the natural parent has remarried and the stepparent has adopted the child.[3]
For example, some statutes allow a child to inherit through both the birth parent's family and the adoptive par-
ent's family, where the birth parent has died and the child has subsequently been adopted by a stepparent.[4]
Moreover, such a statute has been held to permit the child of divorced parents whose mother remarried, and who
subsequently was adopted by her stepfather prior to the death of her natural father, to inherit from the estate of
her paternal grandmothers.[5]
Caution:
Even so, there is some authority denying a child a right to inherit from a natural parent's relatives after the par-

ent has died and the other natural parent has remarried to one who has subsequently adopted the child.[6]
[FN1] In re Levy's Estate, 141 So. 2d 803 (Fla. Dist. Ct. App. 2d Dist. 1962) (upholding the right of an
adopted child to inherit from collateral blood kindred); Dismukes v. Carletta, 269 S.C. 110, 236 S.E.2d
421 (1977).
[FN2] In re Dolan's Estate, 169 Cal. App. 2d 628, 337 P.2d 498 (3d Dist. 1959); Katz v. Koronchik, 369
Mass. 125, 338 N.E.2d 339 (1975); In re Estate of Carlson, 457 N.W.2d 789 (Minn. Ct. App. 1990);
Wailes v. Curators of Central College, 363 Mo. 932, 254 S.W.2d 645, 37 A.L.R.2d 326 (1953); Nickell
v. Gall, 49 N.J. 186, 229 A.2d 511 (1967); Matter of Nelson's Estate, 107 Misc. 2d 1035, 436 N.Y.S.2d
594 (Sur. Ct. 1981).
Adopted children were precluded from inheriting any part of their natural grandfather's estate; the law
in effect at time of the natural grandfather's death, rather than the law in effect at the time of adoption,
was controlling as to the adopted children's right to inherit from his estate, and it provided that all legal
relationships between adopted children and their natural relatives, including right of inheritance, were
terminated upon a final decree of adoption. Wheeler v. Myers, 330 Ark. 728, 956 S.W.2d 863 (1997).
Under Kentucky law, two children of decedent's daughter, who were adopted by their paternal grand-
parents following their parents' deaths, were not descendants for purposes of intestate succession and,
thus, could not inherit from decedent's estate. Pyles v. Russell, 36 S.W.3d 365 (Ky. 2000).
[FN3] In re Estate of McQuesten, 133 N.H. 420, 578 A.2d 335 (1990).
[FN4] Turner v. Weeks, 384 So. 2d 193 (Fla. Dist. Ct. App. 2d Dist. 1980); Matter of C.G.F., 168 Wis.
2d 62, 483 N.W.2d 803 (1992); First Nat. Bank of East Liverpool v. Collar, 27 Ohio Misc. 88, 56 Ohio
Op. 2d 302, 272 N.E.2d 916 (C.P. 1971).
[FN5] First Nat. Bank of East Liverpool v. Collar, 27 Ohio Misc. 88, 56 Ohio Op. 2d 302, 272 N.E.2d
916 (C.P. 1971).
[FN6] Hall v. Vallandingham, 75 Md. App. 187, 540 A.2d 1162 (1988) (under statute, when children
were adopted by their stepfather after the death of their natural father and remarriage of their natural
mother, they lost all right to inherit the share of an uncle's estate their natural father would have taken
had he survived their uncle); Matter of Holt's Estate, 95 N.M. 412, 622 P.2d 1032 (1981) (an adopted
child could not inherit from her natural grandmother, where: (1) the child's natural father predeceased
her grandmother; and (2) the child's adoption by her mother's husband took place after the natural fath-
er's death but before the natural grandmother's death).
rights reserved.
END OF DOCUMENT


Adoption
§ 194. From adoptive parents
Forms
Statement of claim of interest in estate—Right to inherit as adopted child of deceased relative of decedent.
Am. Jur. Pleading and Practice Forms, Descent and Distribution § 41
The right of an adopted child to inherit property of an adoptive parent who dies intestate is dependent upon
whether the adoption statutes or statutes of descent and distribution give adopted children such rights of succes-
sion, either by express provisions or by necessary implication; and there is authority that unless a statutory au-
thority is found, adopted children do not inherit from the adopting parent.[1]
Observation:
In this regard, it has been said that a right of inheritance from the adoptive parent is not a necessary incident of
the relationship.[2]
Even so, in accordance with the modern view that adopted children have the same status, rights, and duties
regarding their adoptive parents as a natural child has with regard to its natural parents,[3] it has been stated that
adopted children are deemed to be heirs of their adoptive parents, as if they were their natural children;[4] that
when a child is adopted, he or she is considered for all purposes the forced heir of the adoptive parent;[5] and
that from the date of the final decree of adoption, an adopted child is entitled to inherit real property from the
adoptive parents in accordance with the statutes of descent and distribution.[6] Furthermore, some statutes spe-
cifically confer upon an adopted child the right to inherit from his or her adoptive parent.[7]
Observation:
Under some statutes, there is a presumption that an adopted child is the descendant of the adopting parent for
purposes of inheritance from the adoptive parents; however, such language applies only where a contrary inten-

tion is not plainly shown.[8]
In a situation where the statutes themselves do not confer inheritance rights or succession upon an adopted
child, but provide that the property rights or material benefits vested by the proceeding must be set out in the pe-
tition for adoption, an adopted child acquires no right of heirship from the adopting parent where the petition
and decree of adoption do not vest such right;[9] and where the adoptive petition is signed by the adoptive father
but not by his wife and contains a statement making the child legal heir of the adoptive father only, the child
cannot inherit from the wife.[10]
Cases:
Intestate decedent's adopted brother, who was also surviving son of decedent's predeceased sister, was en-
titled to one share of decedent's estate under the laws of descent and distribution in his capacity as her adopted
brother and was also entitled to a second share of her estate in his capacity as the surviving son of her prede-
ceased sister, absent any provision limiting the adopted child's right to inherit from the adoptive kindred in the
final adoption decree; statute governing intestate succession and statute setting forth the effect of adoption on
child's inheritance rights were not inconsistent or ambiguous. Jenkins v. Jenkins, 990 So. 2d 807 (Miss. Ct. App.
2008).
[END OF SUPPLEMENT]
[FN1] Meeks v. Cornelius, 244 Ala. 532, 14 So. 2d 145 (1943).
[FN2] In re Uihlein's Estate, 269 Wis. 170, 68 N.W.2d 816 (1955) (holding, however, that the legis-
lature's power to confer upon the adopted child the right to inherit from its adoptive parent cannot be
questioned).
[FN3] § 172.
[FN5] Kirby v. Albert T.J., 517 So. 2d 974 (La. Ct. App. 3d Cir. 1987), writ denied, 519 So. 2d 107
(La. 1987).
[FN7] Matter of Trust Created by Belgard, 829 P.2d 457 (Colo. Ct. App. 1991).
[FN8] Cross v. Cross, 177 Ill. App. 3d 588, 126 Ill. Dec. 801, 532 N.E.2d 486 (1st Dist. 1988).
[FN9] Reeves v. Lowe, 213 Miss. 152, 56 So. 2d 475 (1952).

rights reserved.
END OF DOCUMENT


Adoption
§ 195. From adoptive parents—Inheritance by adult adoptee
The right of a child, adopted as an adult, to inherit from the adopting parents is not affected by the fact that
the child may also inherit from his or her natural parents.[1] Furthermore, in some jurisdictions, adoption of an
adult solely for the purpose of making that person an heir is permitted;[2] thus, it has been held that even though
an adoptee was adopted at age 47 for the sole purpose of constituting him an heir of the decedent, an incompet-
ent, the adoptee was entitled to share in decedent's estate where the decedent died intestate, since such action
could not subvert the intent of the decedent as to disposition of his estate.[3]
[FN1] Adams v. Slater, 132 Ind. App. 105, 175 N.E.2d 706, 94 A.L.R.2d 1194 (Div. 1 1961).
[FN2] § 27.
[FN3] Harper v. Martin, 552 S.W.2d 690 (Ky. Ct. App. 1977).
An adoptive son was a mother's "child," entitled to inherit from her by intestacy; the term "child" in the
adoption statute included persons adopted as adults. Tinney v. Tinney, 799 A.2d 235 (R.I. 2002).
rights reserved.
END OF DOCUMENT


Adoption
§ 196. From adoptive parents—Effect of second adoption
There is authority that the status of parent and child fixed by adoption, and the rights of an adopted child to
inherit from his or her adoptive parent, are not annulled by a second adoption of the child by a third person fol-
lowing the death of the first foster parent.[1] Furthermore, some courts have taken the view that a second adop-
tion of a child before the death of the first adoptive parents does not destroy the child's right to inherit from the
first adoptive parents.[2]
Other courts take the view that a second adoption during the lifetime of the first adoptive parents extin-
guishes the child's right to inherit from such first adoptive parents.[3]
[FN1] Succession of Gambino, 225 La. 674, 73 So. 2d 800 (1954); In re Talley's Estate, 1941 OK 1,
188 Okla. 338, 109 P.2d 495, 132 A.L.R. 773 (1941); Coonradt v. Sailors, 186 Tenn. 294, 209 S.W.2d
859, 2 A.L.R.2d 880 (1948).
[FN2] Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951); In re Egley's Estate, 16 Wash. 2d
681, 134 P.2d 943, 145 A.L.R. 821 (1943).
[FN3] In re Estate of Orzoff, 116 Ill. App. 3d 265, 72 Ill. Dec. 150, 452 N.E.2d 82 (1st Dist. 1983); In
re Carpenter's Estate, 327 Mich. 195, 41 N.W.2d 349 (1950); In re Talley's Estate, 1941 OK 1, 188
Okla. 338, 109 P.2d 495, 132 A.L.R. 773 (1941).
A second adoption of a child by his mother's second husband, following divorce of his mother and his
adoptive father, extinguished the child's right to inherit from the estate of his first adoptive father. Rist
v. Taylor, 955 P.2d 436 (Wyo. 1998).

rights reserved.
END OF DOCUMENT


Adoption
§ 197. From adoptive parents—Inheritance by adoptee's children
If an adopted child dies during the life of the adopting parent, leaving children, such children are regarded,
for purposes of inheritance, as natural grandchildren of the adopting parent.[1] Accordingly, the adoptee's chil-
dren are entitled to represent their parent and receive from the estate of the adopting parent what the adopted
child would have been entitled to receive, had he or she been living at the time of the parent's death.[2]
[FN1] In re Hebert's Estate, 42 Cal. App. 2d 664, 109 P.2d 729 (2d Dist. 1941); Adams v. Slater, 132
Ind. App. 105, 175 N.E.2d 706, 94 A.L.R.2d 1194 (Div. 1 1961).
[FN2] In re Hebert's Estate, 42 Cal. App. 2d 664, 109 P.2d 729 (2d Dist. 1941); Adams v. Slater, 132
Ind. App. 105, 175 N.E.2d 706, 94 A.L.R.2d 1194 (Div. 1 1961).
rights reserved.
END OF DOCUMENT


Adoption
§ 198. From relatives of adoptive parents
A.L.R. Library
Right of adopted child to inherit from kindred of adoptive parent, 43 A.L.R. 2d 1183
Forms
Statement of claim of interest in estate—Right to inherit as adopted child of deceased relative of decedent.
Am. Jur. Pleading and Practice Forms, Descent and Distribution § 41
Statutes in some jurisdictions specifically provide that a child shall inherit through its adoptive parents or
from relatives or kindred of such parents.[1] In this regard, specific enactments provide that an adopted child is a
descendant of the adopting parent for purposes of inheritance from the lineal and collateral kindred of the adopt-
ing parent,[2] or that an adopted child inherits from the lineal kindred of an adopting parent or parents in the
same manner and to the same extent as though said adopted child were a natural child of such adopting parent or
parents.[3]
Observation:
In some jurisdictions, such statutes allow an equitably adopted child to inherit from another child of the adoptive
parent;[4] however, there is authority to the contrary.[5]
In some jurisdictions, courts hold that adopted children are not to inherit from relatives of their adoptive
parents, unless clear support for the inheritance is found in the terms of the applicable statute[6] or the right is
expressly provided for by statute.[7] In this regard, the view is sometimes followed that no right to inherit or
take from collateral kindred of the parent is conferred by statutes providing, in substance, that the adopted child
shall be entitled to inherit or take property by succession from, or shall be "to all intents and purposes" the heir

of, the adopting parent, but making no mention of inheritance or succession from kindred of such parent.[8] Oth-
er courts are more liberal in construing the adoption statutes and the statutes of descent and distribution in favor
of the rights of an adopted child to inherit from kindred of the adoptive parent.[9]
Cases:
Statute governing inheritance by adoptive kindred precluded parties who were adopted as adults by settlor's
son from being considered son's "issue" for purposes of living trust providing that upon the death of the last sur-
vivor of settlor's children or his wife the corpus would be distributed to the children and issue then living of
settlor's children, and thus trust failed in its entirety when all of settlor's children died, leaving no natural chil-
dren, but only the parties who were adopted as adults. Fleet Nat. Bank v. Hunt, 944 A.2d 846 (R.I. 2008).
Under the statute governing inheritance by and from adoptive kindred, when construing a writing, the defin-
ition of "lawful heirs, issue, children, or descendants" does not include those persons who were over the age of
eighteen at the time of their adoption. Fleet Nat. Bank v. Hunt, 944 A.2d 846 (R.I. 2008).
[END OF SUPPLEMENT]
[FN1] McClure v. Noble, 602 So. 2d 377 (Ala. 1992); Kirby v. Albert T.J., 517 So. 2d 974 (La. Ct.
App. 3d Cir. 1987), writ denied, 519 So. 2d 107 (La. 1987); In re Bunker's Estate, 106 N.H. 391, 211
A.2d 902 (1965); First Nat. Bank In Fairmont v. Phillips, 176 W. Va. 395, 344 S.E.2d 201 (1985).
[FN2] In re Estate of Orzoff, 116 Ill. App. 3d 265, 72 Ill. Dec. 150, 452 N.E.2d 82 (1st Dist. 1983).
As to equitable adoption, generally, see §§ 59 to 64.
[FN5] Pouncy v. Garner, 626 S.W.2d 337 (Tex. App. Tyler 1981), writ refused n.r.e., (Mar. 31, 1982).
The doctrine of equitable adoption is limited to claims made by an equitably adopted child against the
estate of an adoptive parent and does not extend to allow the equitably adopted child to take through the
adoptive parent from the estate of a more remote ancestor. Matter of Estate of Jenkins, 904 P.2d 1316
(Colo. 1995).
[FN6] Woods v. Crump, 283 Ky. 675, 142 S.W.2d 680 (1940).
Under a statute simply providing for descent of an estate to children or, if dead, to the issue of the de-
ceased children, adopted children do not inherit from relatives of their adoptive parents. In re Smith's
Estate, 7 Utah 2d 405, 326 P.2d 400 (1958).
[FN7] Macon, D. & S. R. Co. v. Porter, 195 Ga. 40, 22 S.E.2d 818 (1942); In re Hodges' Will, 294 N.Y.
58, 60 N.E.2d 540 (1945).

[FN8] In re Warr's Estate, 111 Colo. 85, 137 P.2d 408 (1943); Welch v. Funchess, 220 Miss. 691, 71
So. 2d 783, 43 A.L.R.2d 1178 (1954); In re Hodges' Will, 294 N.Y. 58, 60 N.E.2d 540 (1945); Hoch v.
Hoch, 140 Tex. 475, 168 S.W.2d 638 (1943); In re Harrington's Estate, 96 Utah 252, 85 P.2d 630, 120
A.L.R. 830 (1938).
[FN9] Vreeland v. Vreeland, 296 S.W.2d 55 (Mo. 1956); Alexander v. Samuels, 1936 OK 260, 177
Okla. 323, 58 P.2d 878, 105 A.L.R. 1171 (1936).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION IX A REF Page 1
2 Am. Jur. 2d Adoption IX A Refs.

Adoption

Research References
West's Key Number Digest, Records 32 to 35
A.L.R. Library
Forms
Am. Jur. Pleading and Practice Forms, Adoption §§ 212, 226 to 229
rights reserved.
AMJUR ADOPTION IX A REF
END OF DOCUMENT


Adoption

§ 199. Generally
West's Key Number Digest, Records 32
A.L.R. Library
Restricting Access to Judicial Records of Concluded Adoption Proceedings, 103 A.L.R. 5th 255
Forms
Biological parent identification and information exchange. Am. Jur. Legal Forms 2d, Adoption § 9:57
Order—That decree of adoption be recorded—Investigation report and other records to be sealed and with-
held from inspection. Am. Jur. Pleading and Practice Forms, Adoption § 212
Petition or application—To inspect adoption records. Am. Jur. Pleading and Practice Forms, Adoption § 226
Order—Granting permission to inspect adoption records. Am. Jur. Pleading and Practice Forms, Adoption §
227
Request to maintain confidentiality of adoption records. Am. Jur. Pleading and Practice Forms, Adoption §
228
Petition or application—By adoptive parent—To obtain birth certificate showing deceased spouse of peti-
tioner as parent of adopted child. Am. Jur. Pleading and Practice Forms, Adoption § 229
Statutes in some jurisdictions place restrictions on access to records of concluded adoption proceedings.
Thus, for example, some statutes provide only for disclosure of those characteristics of biological parents that
will provide adoptees with physical and historical information about their biological parents without disclosing
their identities and prohibit the disclosure of the names of biological parents to the adoptee or anyone else absent
consent.[1]
Adoption statutes typically provide that adoption records must be sealed and opened only under specified

circumstances.[2] These circumstances vary from jurisdiction to jurisdiction but include good cause,[3] compel-
ling reasons,[4] good cause and exceptional circumstances,[5] the protection or promotion of the welfare of the
child involved,[6] the best interests of the child or the public,[7] or psychological trauma or medical need.[8]
Observation:
However, in some instances, a showing of psychological need has not sufficed to authorize the release of certain
information in adoption records.[9]
Furthermore, where allowable, disclosure is authorized by the pertinent statutes only upon order of the
court[10] or, in some jurisdictions, by order of the court or as authorized in writing by the adoptive parent or the
adopted child.[11] Moreover, under some statutes, the trial court, in determining whether "good cause" exists for
release of adoption records, should undertake to learn if the natural parents have waived confidentiality.[12]
Observation:
Even where all parties still living consent to unsealing adoption records, a request for unsealing is sometimes
denied, based on the reasoning that the state has an interest in preventing public disclosure of potentially embar-
rassing information that might be disruptive to the relationship between children and adoptive parents.[13]
[FN1] Axelrod v. Laurino, 145 Misc. 2d 818, 548 N.Y.S.2d 405 (Sup 1989).
[FN2] In re Wells, 281 F.2d 68 (D.C. Cir. 1960); Hubbard v. Superior Court In and For Yuba County,
189 Cal. App. 2d 741, 11 Cal. Rptr. 700 (3d Dist. 1961); W. D. A. v. City and County of Denver, 632
P.2d 582 (Colo. 1981); In re Lay, 382 So. 2d 814 (Fla. Dist. Ct. App. 1st Dist. 1980); Matter of Roger
B., 85 Ill. App. 3d 1064, 41 Ill. Dec. 386, 407 N.E.2d 884 (1st Dist. 1980), judgment aff'd, 84 Ill. 2d
323, 49 Ill. Dec. 731, 418 N.E.2d 751 (1981); Kirsch v. Parker, 383 So. 2d 384 (La. 1980); Application
of Maples, 563 S.W.2d 760 (Mo. 1978); Application of Hayden, 106 Misc. 2d 849, 435 N.Y.S.2d 541
(Sup 1981); Matter of Adoption of Spinks, 32 N.C. App. 422, 232 S.E.2d 479 (1977); Bradey v. Chil-
dren's Bureau of South Carolina, 275 S.C. 622, 274 S.E.2d 418 (1981).
[FN3] Alma Soc. Inc. v. Mellon, 601 F.2d 1225 (2d Cir. 1979); Hubbard v. Superior Court In and For
Yuba County, 189 Cal. App. 2d 741, 11 Cal. Rptr. 700 (3d Dist. 1961); W. D. A. v. City and County of
Denver, 632 P.2d 582 (Colo. 1981); Matter of Roger B., 85 Ill. App. 3d 1064, 41 Ill. Dec. 386, 407
N.E.2d 884 (1st Dist. 1980), judgment aff'd, 84 Ill. 2d 323, 49 Ill. Dec. 731, 418 N.E.2d 751 (1981);
Application of Gilbert, 563 S.W.2d 768 (Mo. 1978); Matter of Wilson, 153 A.D.2d 748, 544 N.Y.S.2d
886 (2d Dep't 1989); Bradey v. Children's Bureau of South Carolina, 275 S.C. 622, 274 S.E.2d 418
(1981).
Good cause to invade the privacy of biological parents by unsealing adoption records, and thus reveal-
ing the identity of the biological parents without their consent, should include no less than a showing of
a medical need to save the life of, or prevent irreparable physical or mental harm to, an adult adopted
person requesting the identifying information. In re Adoption of S.J.D., 641 N.W.2d 794 (Iowa 2002).
In a petition for production and inspection of petitioner's adoption records, where petitioner claimed to
be a previously unknown Siamese twin daughter of an heir to the estate of an automobile manufacturer,

psychological need constituted good cause for access to the records, though petitioner no longer had a
valid claim to a share of the estate. Matter of Estate of Dodge, 162 Mich. App. 573, 413 N.W.2d 449
(1987).
[FN4] Kirsch v. Parker, 383 So. 2d 384 (La. 1980); Gardner v. Baby Edward, 288 S.C. 332, 342 S.E.2d
601 (1986).
To establish good cause for purposes of unsealing adoption records, the adoptee must show a compel-
ling need for the identifying information; what constitutes a compelling need depends upon the circum-
stances of each case. In re Adoption of S.J.D., 641 N.W.2d 794 (Iowa 2002).
[FN5] Hubbard v. Superior Court In and For Yuba County, 189 Cal. App. 2d 741, 11 Cal. Rptr. 700 (3d
Dist. 1961); In re Lay, 382 So. 2d 814 (Fla. Dist. Ct. App. 1st Dist. 1980).
[FN6] In re Wells, 281 F.2d 68 (D.C. Cir. 1960).
[FN7] Matter of Adoption of Spinks, 32 N.C. App. 422, 232 S.E.2d 479 (1977).
[FN8] Application of Hayden, 106 Misc. 2d 849, 435 N.Y.S.2d 541 (Sup 1981).
[FN9] Application of Maples, 563 S.W.2d 760 (Mo. 1978) (holding that where an adoptee-applicant
showed little more than a claim of "psychological need to know," the identity and whereabouts of the
natural parents should not be disclosed without their consent).
[FN10] In re Wells, 281 F.2d 68 (D.C. Cir. 1960); W. D. A. v. City and County of Denver, 632 P.2d
582 (Colo. 1981); Application of Maples, 563 S.W.2d 760 (Mo. 1978).
[FN11] In re Lay, 382 So. 2d 814 (Fla. Dist. Ct. App. 1st Dist. 1980).
[FN12] Application of Gilbert, 563 S.W.2d 768 (Mo. 1978).
The trial court properly dismissed an application to review a determination of the state department of
health denying an adoptee's request for information concerning her adoption, where consent of the bio-
logical parents was not present. Lefevre v. State Dept. of Health, 186 A.D.2d 972, 589 N.Y.S.2d 213
(3d Dep't 1992).
[FN13] In re Estate of McQuesten, 133 N.H. 420, 578 A.2d 335 (1990).
rights reserved.
END OF DOCUMENT


Adoption

§ 200. Effect of constitutional provisions; privacy rights
A.L.R. Library
A biological mother's right of privacy, which a sealed adoption records statute seeks to protect, is not abso-
lute but may give way if good cause is shown for permitting access to sealed adoption records.[1] However, the
privacy rights of biological parents require that they be given notice and an opportunity to litigate in a proceed-
ing to determine good cause.[2]
A statute denying access to adoption records, except upon order of court for good cause shown, has been
held not to violate the adoptee's equal protection rights.[3] Challenges to statutes restricting access to records of
adoption proceedings have also been rejected where brought on due process and other constitutional grounds.[4]
On the other hand, a statute that would allow disclosure of previously confidential adoption records does not
violate the federal constitutional right to familial privacy, if such right exists; under the new scheme, people are
still free to marry, raise children, adopt children, and give children up for adoption.[5]
[FN1] Matter of Maxtone-Graham, 90 Misc. 2d 107, 393 N.Y.S.2d 835 (Sur. Ct. 1975).
[FN2] Application of Anonymous, 89 Misc. 2d 132, 390 N.Y.S.2d 779 (Sur. Ct. 1976).
As to requirements of notice and hearing with regard to unsealing adoption records, generally, see § 203
.
[FN3] In re Roger B., 84 Ill. 2d 323, 49 Ill. Dec. 731, 418 N.E.2d 751 (1981); Bradey v. Children's Bur-
eau of South Carolina, 275 S.C. 622, 274 S.E.2d 418 (1981).

A difference between the ability of adoptees and nonadoptees to obtain their original birth records did
not violate equal protection, since there was a rational basis for the legislature's view on the subject of
confidentiality. Matter of Linda F. M., 95 Misc. 2d 581, 409 N.Y.S.2d 638 (Sur. Ct. 1978), order aff'd,
72 A.D.2d 734, 442 N.Y.S.2d 963 (1st Dep't 1979), order aff'd, 52 N.Y.2d 236, 437 N.Y.S.2d 283, 418
N.E.2d 1302 (1981).
[FN4] Alma Soc. Inc. v. Mellon, 601 F.2d 1225 (2d Cir. 1979); Aimone v. Finley, 113 Ill. App. 3d 507,
69 Ill. Dec. 433, 447 N.E.2d 868 (1st Dist. 1983).
Adoptees do not have a fundamental right to learn the identities of their biological parents; the right of
information asserted by adoptees directly conflicts with the birth parents' right to be left alone. In re
Adoption of S.J.D., 641 N.W.2d 794 (Iowa 2002).
A statute effectively providing that adoption records shall not be open to inspection, except upon order
of court on good cause shown, constituted an exercise of a valid state interest—protecting the integrity
of the adoption process—and did not violate an adoptee's First Amendment right to receive information,
First and Fourteenth Amendment rights to liberty and privacy, or Fourteenth Amendment right to equal
protection. Application of Maples, 563 S.W.2d 760 (Mo. 1978).
[FN5] Doe v. Sundquist, 106 F.3d 702, 1997 FED App. 0051P (6th Cir. 1997).
A statute allowing disclosure of sealed adoption records to adopted persons over age 21 did not impede
traditional familial privacy rights such as marrying, having children, or raising children in violation of
the state constitution; the statute limited disclosure to adopted persons or their legal representatives over
age 21, birth parents could register to prohibit adopted persons from contacting them, and the risk of
disruption to birth parents was speculative. Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999).
rights reserved.
END OF DOCUMENT


Adoption

§ 201. Access to adult adoptees
A.L.R. Library
Where adult adoptees have sought access to their adoption records, the courts have sometimes permitted un-
restricted access[1] or restricted access,[2] based on the circumstances of the case, although access has also been
denied under other circumstances.[3]
A statute providing that records in adoption proceedings shall be sealed does not bar inspection of adoption
records by an adult adoptee asserting her own interest in inspection, where each of the parents concerned, both
biological and adoptive, has consented.[4]
Observation:
Retrospective application of statutory amendments allowing disclosure of sealed adoption records to adopted
persons over age 21 did not violate the state constitution by impairing any vested rights of birth parents; the
amendments were related to achieving goals in the public interest, birth parents had no reasonable expectation
that adoption records would be permanently sealed, and the amendments were procedural and remedial in
nature.[5]
[FN1] Spillman v. Parker, 332 So. 2d 573, 83 A.L.R.3d 796 (La. Ct. App. 4th Cir. 1976).
[FN2] Chattman v. Bennett, 57 A.D.2d 618, 393 N.Y.S.2d 768 (2d Dep't 1977) (adult adoptee would be
allowed access to the medical information in her sealed adoption records, but not to any other informa-
tion, where the adoptee, who was considering starting her own family, was concerned with the possibil-
ity of problematic genetic factors in her background).

[FN3] Application of George, 630 S.W.2d 614 (Mo. Ct. App. W.D. 1982) (where, in an action by an
adult adoptee suffering from leukemia seeking identities of his natural parents as prospective bone mar-
row donors, the trial court properly withheld names from adoptee, where (1) the court contacted the nat-
ural mother and she was found unsuitable for transplant, and (2) the court contacted the alleged natural
father and he denied paternity); In re Assalone, 512 A.2d 1383 (R.I. 1986).
[FN4] In re D.E.D., 672 A.2d 582 (D.C. 1996).
rights reserved.
END OF DOCUMENT


Adoption

§ 202. Access to persons other than adoptee
A.L.R. Library
Requests for access to adoption records by biological and adoptive parents have received varying treatment
depending on the particular circumstances presented.[1]
Observation:
In this regard, it has been held that a natural mother's desire to contact her child's adoptive parents with the hope
of seeing the child does not constitute good cause for purposes of a statute making records of adoption proceed-
ings confidential unless otherwise ordered by the court.[2]
When the request to inspect sealed adoption records is made by a stranger to the original adoption proceed-
ing, a factor in the courts' decisions is the purpose for which access is sought. Thus, in litigation attacking the
original adoption decree, access to sealed adoption records is permitted.[3] However, strangers are not permitted
to have access to sealed adoption files for use in litigation unrelated to the original adoption proceeding.[4]
Observation:
A grand jury investigating illegal adoptions was allowed access to all court adoption records during a given time
period; a grand jury was not a "person" within the meaning of a statute withholding such records from any per-
son, and the secrecy of the grand jury proceedings satisfied policy considerations underlying the statute.[5]
[FN1] In re Wells, 281 F.2d 68 (D.C. Cir. 1960) (access not permitted); Bone v. Shadoan, 746 S.W.2d
68 (Ky. 1988) (access permitted); Matter of Creed, 128 Mich. App. 710, 341 N.W.2d 187 (1983) (good
cause shown for release of information regarding adoption procedures and adoptive parents); Anonym-

ous v. Anonymous, 59 Misc. 2d 149, 298 N.Y.S.2d 345 (Sup 1969) (access permitted).
Adoptive parents demonstrated good cause as to why releasing information pertaining to a child's adop-
tion was in the child's best interests, and thus, the parents were entitled to view all papers and records
pertaining to the adoption; apart from the child's physical difficulties with respiratory problems and a
cyst on his brain, the child's behavioral history showed him to be dangerous to himself and his immedi-
ate family. Doe v. Ward Firm, P.A., 353 S.C. 509, 579 S.E.2d 303 (2003).
[FN2] In re Christine, 121 R.I. 203, 397 A.2d 511 (1979).
[FN3] Application of Lord, 28 A.D.2d 1202, 288 N.Y.S.2d 27 (4th Dep't 1967).
[FN4] W. D. A. v. City and County of Denver, 632 P.2d 582 (Colo. 1981) (access sought by a city's
Board of Adjustment-Zoning); Cooley v. Cooley, 329 Mich. 91, 44 N.W.2d 884 (1950); Application of
Minicozzi, 51 Misc. 2d 595, 273 N.Y.S.2d 632 (Sup 1966).
[FN5] Matter of Grand Jury Subpoenas Duces Tecum, 58 A.D.2d 1, 395 N.Y.S.2d 645 (1st Dep't 1977).
rights reserved.
END OF DOCUMENT


Adoption

§ 203. Notice and hearing
West's Key Number Digest, Records 34, 35
When an adopted person seeks to discover confidential information concerning the circumstances of his or
her birth, the interests of the adopted person, the adoptive parents, the biological parents, and society must be
balanced. Therefore, both notice to the biological parents (if possible) or to the guardian appointed to represent
their interests and a hearing (where necessary) at which interested parties may appear in person or through coun-
sel are sometimes required before a finding of good cause under a statute restricting access to adoption records
may be made and the adopted person granted the relief requested.[1]
Observation:
However, in a case where the location of the natural parents is unknown and not likely to be easily ascertainable,
a requirement of notice to the natural parents and appointment of a guardian ad litem to represent their interests
is considered excessive.[2]
[FN1] Golan v. Louise Wise Services, 69 N.Y.2d 343, 514 N.Y.S.2d 682, 507 N.E.2d 275 (1987).
[FN2] Matter of Linda F. M., 92 Misc. 2d 828, 401 N.Y.S.2d 960 (Sur. Ct. 1978).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION IX B REF Page 1
2 Am. Jur. 2d Adoption IX B Refs.

Adoption

Research References
A.L.R. Library
rights reserved.
AMJUR ADOPTION IX B REF
END OF DOCUMENT


Adoption

§ 204. Generally
A.L.R. Library
Restricting access to judicial records of pending adoption proceedings, 83 A.L.R. 3d 824
Statutes restricting access to records in pending adoption proceedings vary across jurisdictions.[1] Some en-
dow the court with discretionary authority to determine the issue of access.[2] Others protect the anonymity of
the biological parents from the adoptive parents but not the anonymity of the adoptive parents from the biologic-
al parents.[3]
Some courts hold that litigants are entitled to inspect investigative reports in a pending adoption proceed-
ing;[4] others have denied litigants in pending adoption proceedings access to investigative reports.[5]
[FN1] Terzian v. Superior Court, 10 Cal. App. 3d 286, 88 Cal. Rptr. 806 (1st Dist. 1970) (statute mak-
ing court records in adoption proceedings confidential allowed a judge to authorize inspection of docu-
ments filed in adoption proceedings in exceptional circumstances and for good cause approaching the
necessitous); In re Adoption of S. E. D., 324 A.2d 200 (D.C. 1974) (statute placed the opening of sealed
records within discretion of the court); In re Harshey, 40 Ohio App. 2d 157, 69 Ohio Op. 2d 165, 318
N.E.2d 544, 83 A.L.R.3d 815 (8th Dist. Cuyahoga County 1974) (statute specifying what information
was to be included in an investigative report of a pending adoption proceeding and also providing that
certain portions of the report were to be available for inspection only upon personal direction of the pro-
bate judge).
[FN2] In re Harshey, 40 Ohio App. 2d 157, 69 Ohio Op. 2d 165, 318 N.E.2d 544, 83 A.L.R.3d 815 (8th
Dist. Cuyahoga County 1974).
[FN3] Anonymous v. Anonymous, 59 Misc. 2d 149, 298 N.Y.S.2d 345 (Sup 1969).

[FN4] In re Adoption of Blumenthal, 346 F.2d 783 (3d Cir. 1965); Williams v. Pope, 281 Ala. 416, 203
So. 2d 271 (1967); In re Adoption of Sigman, 159 Ind. App. 618, 308 N.E.2d 716 (3d Dist. 1974);
Young v. Smith, 193 Tenn. 480, 246 S.W.2d 93 (1952).
A guardian ad litem, whose duty extended to involvement in placement of a juvenile for adoption, was
entitled to information concerning the adoption selection process, including confidential information re-
garding adoptive parents. Matter of N.C.L., 89 N.C. App. 79, 365 S.E.2d 213 (1988).
[FN5] In re Adoption of S. E. D., 324 A.2d 200 (D.C. 1974); Hargrave v. Gaspard, 419 So. 2d 918 (La.
1982).
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION X REF Page 1
2 Am. Jur. 2d Adoption X Refs.

Adoption
X. Liability of Adoption Agency or Employees Thereof Arising From Adoption or Failure to Complete Adop-
tion
Research References
A.L.R. Library
rights reserved.
AMJUR ADOPTION X REF
END OF DOCUMENT


Adoption
tion
§ 205. Generally; contract actions
A.L.R. Library
Liability of public or private agency or its employees to prospective adoptive parents in contract or tort for
failure to complete arrangement for adoption, 8 A.L.R. 5th 860
While some courts have failed to find an implied duty of good faith on the part of adoption agency social
workers who placed a child for adoption,[1] others recognize the right of preadoptive parents to maintain a con-
tract action against adoption agencies for breach of an implied duty of reasonable care and good faith in the
handling of the adoption.[2]
An adoptive child has been denied a right of action for breach of contract against a public adoption agency
for failure to place the child.[3]
[FN1] Engstrom v. State, 461 N.W.2d 309, 8 A.L.R.5th 1077 (Iowa 1990).
[FN2] Petrowsky v. Family Service of Decatur, Inc., 165 Ill. App. 3d 32, 116 Ill. Dec. 42, 518 N.E.2d
664 (4th Dist. 1987); Bardorf v. Rebecca Talbot-Perkins Adoption Soc., 240 A.D. 275, 269 N.Y.S. 794
(2d Dep't 1934).
Dist. 1979).
rights reserved.

END OF DOCUMENT


Adoption
tion
§ 206. Negligence; malpractice; infliction of emotional distress; fraud
A.L.R. Library
Attorney malpractice in connection with services related to adoption of child, 18 A.L.R. 5th 892
Telling the truth in adoption proceedings: Tort actions for wrongful adoption, 10 NO.1 Divorce Litig. 11
(1999)
An action for negligence arising out of the placement of a child for adoption has been refused.[1] In addi-
tion, a child's complaint seeking damages against an adoption agency for its alleged negligence in failing to find
him an adoptive home has been held not to state a cause of action.[2]
Courts generally refuse to recognize a cause of action for social worker or adoption agency malpractice
arising out of the failure to complete an adoption.[3] The courts have also declined to find that insufficient in-
vestigation of a child's paternity or adoptability could support an action against adoption agency employees or
adoption agencies for infliction of severe emotional distress.[4] However, a cause of action for fraud based upon
an adoption agency's intentional misrepresentation of a child's health and psychological background is recog-
nized in some jurisdictions.[5]
Observation:

Even if an adoption agency and its employees had fallen somehow short of "best efforts" to obtain medical in-
formation regarding a foreign-born child who carried the hepatitis C virus, causation could not be proven when
the adoptive parent hastened to proceed with the adoption even though she was aware, both through the caution-
ary contract language and her own research, of the risks the decision involved; thus, the parent did not establish
a claim against the agency and its employees based on a breach of duty.[6]
Whether an adoption specialist owes a duty to the natural father presents a cause of action not recog-
nized in Wyoming. JK ex rel. DK v. MK, 5 P.3d 782 (Wyo. 2000).
Dist. 1979).
664 (4th Dist. 1987); Engstrom v. State, 461 N.W.2d 309, 8 A.L.R.5th 1077 (Iowa 1990).
664 (4th Dist. 1987); Engstrom v. State, 461 N.W.2d 309, 8 A.L.R.5th 1077 (Iowa 1990).
[FN5] Roe v. Catholic Charities of the Diocese of Springfield, Ill., 225 Ill. App. 3d 519, 167 Ill. Dec.
713, 588 N.E.2d 354 (5th Dist. 1992) (distinguishing itself from the case of Petrowsky v. Family Ser-
vice of Decatur, Inc., 165 Ill. App. 3d 32, 116 Ill. Dec. 42, 518 N.E.2d 664 (4th Dist. 1987), cited
above, in that while the Petrosky court found no precedent or policy favoring recognition of the tort of
adoption agency malpractice, professional malpractice was a species of negligence, not fraud).
Traditional common-law causes of action grounded in fraud and negligence apply to the adoption set-
ting, so that an action may lie for intentional or negligent misrepresentation regarding a child's condi-
tion, or for negligent failure to disclose relevant information about the child at the time of adoption.
Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994).
[FN6] Sherman v. Adoption Center of Washington, Inc., 741 A.2d 1031 (D.C. 1999).
rights reserved.
END OF DOCUMENT


Adoption
tion
§ 207. Violation of civil rights
A.L.R. Library
A civil rights claim against adoption agency employees was rejected, where it was concluded that preadopt-
ive parents did not have a liberty interest in a prefamilial relationship with the prospective adoptive child.[1]
Likewise, the placement of a child with preadoptive parents for the purpose of an adoption that ultimately failed
was deemed not to violate the prospective adoptive parents' civil rights by creating a special relationship out of
which a substantive due process claim, based on the failure to complete the adoption arrangements, could arise.[
2]
rights reserved.
END OF DOCUMENT

AMJUR ADOPTION COR Page 1
2 Am. Jur. 2d Adoption Correlation Table

Adoption
Topic Summary
Correlation Table
Adoption
............................................................................
1................................................................................. §1
2................................................................................. §6
3................................................................................. §2
4................................................................................. §4
5................................................................................. §4
6................................................................................. §3
7................................................................................. §5
8................................................................................. §7
9................................................................................. §8
10............................................................................... §10, §12
11............................................................................... §12
12............................................................................... §13
13............................................................................... §14
14............................................................................... §15, §17, §19, §20
15............................................................................... §21, §22
16............................................................................... §23
17............................................................................... §24
18............................................................................... §25
19............................................................................... §19
20............................................................................... §26
21............................................................................... §27, §28
22............................................................................... §29
23............................................................................... §30
24............................................................................... §205
25............................................................................... §206
26............................................................................... §207
27............................................................................... §36, §37, §38, §39
28............................................................................... §40, §41
29............................................................................... §42
30............................................................................... §42

31............................................................................... §43
32............................................................................... §44
33............................................................................... §45
34............................................................................... §31
35............................................................................... Deleted
36............................................................................... §32
37............................................................................... Deleted
38............................................................................... §31, §33
39............................................................................... §31
40............................................................................... §34
41............................................................................... Deleted
42............................................................................... §35
43............................................................................... §49, §51
44............................................................................... §49
45............................................................................... §50
46............................................................................... Deleted
47............................................................................... §52, §53, §54
48............................................................................... §53, §56
49............................................................................... §57
50............................................................................... §52, §56, §58
51............................................................................... §55
52............................................................................... §59
53............................................................................... §60, §61, §63, §64
54............................................................................... §62
55............................................................................... Deleted
56............................................................................... §63
57............................................................................... §63
58............................................................................... §62
59............................................................................... §64
60............................................................................... §65
61............................................................................... §66
62............................................................................... Deleted
63............................................................................... §67
64............................................................................... §68
65............................................................................... Deleted
66............................................................................... Deleted
67............................................................................... §69
68............................................................................... §70
69............................................................................... §71
70............................................................................... §72
71............................................................................... §73
72............................................................................... §74
73............................................................................... §75
74............................................................................... §76
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165.............................................................................. §155, §157

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Adoption

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Adoption

II. Federal Adoption Programs and Assistance

III. Governing Law; Interstate Compact on Placement of Children

IV. Intercountry Adoptions

V. Agreements Regarding Adoption

VI. Consent to Adoption

VII. Proceedings for Adoption; Procedure

IX. Access to Adoption Records

X. Liability of Adoption Agency or Employees Thereof Arising From Adoption or Failure to

American Jurisprudence, Second Edition

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Treatises and Practice Aids

Uniform Adoption Act (1994)

Uniform Putative and Unknown Fathers Act

West's Key Number Digest

West's Key Number Digest, Adoption

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West's Key Number Digest, Child Support

American Law Reports (ALR)

Am. Jur. 2d. (AMJUR)

Am. Jur. Legal Forms 2d. (AMJUR-LF)

Am. Jur. Proof of Facts (AMJUR-POF)

Am. Jur. Pl. & Pr. Forms (AMJUR-PP)

Am. Jur. Trials (AMJUR-TRIALS)

Code of Federal Regulations (C.F.R.)

Uniform Laws Annotated (ULA)

U.S. Code Annotated (U.S.C.A.)

14 U.S.C.A. § 514 (reimbursement of adoption expenses to Coast Guard members)

20 U.S.C.A. §§ 1915 to 1917 (adoptive placement of Indian children)

25 U.S.C.A. §§ 1902, 1903, 1911, 1912, 1914, 1915 to 1917

42 U.S.C.A. § 1996b (interethnic adoption)

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42 U.S.C.A. §§ 5111 to 5115 (adoption opportunities)

42 U.S.C.A. §§ 14901 to 14954 (intercountry adoptions)

A.L.R. Index: Adoption of Children

A.L.R. Index: Attorney or Assistance of Attorney

A.L.R. Index: Children

A.L.R. Index: Due Process

A.L.R. Index: Neglect of Child

A.L.R. Index: Poor Persons

A.L.R. Index: Termination of Parental Rights

A.L.R. Digest: Adoption

A.L.R. Digest: Attorneys

A.L.R. Digest: Constitutional Law

A.L.R. Digest: Descent and Distribution

A.L.R. Digest: Parent and Child

A.L.R. Digest: Wills

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Proof of Facts 3d 231

Grounds for Termination of Parental Rights, 32 Am. Jur. Proof of Facts 3d 83

Equitable Adoption, 18 Am. Jur. Proof of Facts 2d 531

Am. Jur. Legal Forms 2d, Adoption

Am. Jur. Legal Forms 2d, Descent and Distribution

Am. Jur. Legal Forms 2d, Wills

Am. Jur. Pleading and Practice Forms, Adoption

Am. Jur. Pleading and Practice Forms, Descent and Distribution

AMJUR ADOPTION SUM

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American Jurisprudence, Second Edition

Topic Summary Correlation Table

West's Key Number Digest

West's Key Number Digest, Adoption 1

A.L.R. Index: Adoption of Children