CHAPTER 134

PARENTS AND CHILDREN RELATING TO ADOPTION PROCEDURE

AN ACT TO AMEND CHAPTER 88, ARTICLE 2, OF THE REVISED CODE OF DELAWARE, 1935, AS AMENDED, RELATING TO PARENTS AND CHILDREN AND EFFECTING ADOPTION PROCEDURE.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That Paragraph 3550, Section 3 of Chapter 88 of the Revised Code of Delaware, 1935, as amended, be and the same is hereby further amended by striking out all of the said section and enacting in lieu thereof a new section, as follows:

3550. Sec. 3. DEFINITIONS:--As used in this Act, the phrase "abandoned" shall be interpreted as referring to a child who, for a period of one year, has not received any financial help from or any visit from its parent or parents or any person having parental rights or responsibility and on whose behalf no contacts have been initiated by its parent or parents or any person having parental rights or responsibility. As used in this Act, the phrase "authorized agency" shall be interpreted as referring to any agency licensed by the State Board of Welfare of the State of Delaware to place children for adoption. As used in this Act, the phrase "legally separated" shall apply to any person whose marital status has been altered by a decree of divorce a mensa et thoro in accordance with the provisions of Revised Code of Delaware, 1935, Paragraph 3500, Chapter 86, or to any person or persons who, by a decree of the appropriate court of any other state of the United States, other than a decree of absolute divorce, entered in accordance with the laws of that state, has been accorded the right to reside separate and apart from his or her spouse, or is a party to a decree of divorce a mensa et thoro, or its equivalent.

Section 2. That Paragraph 3551, Section 4 of Chapter 88 of the Revised Code of Delaware, 1935, as amended, be and the same is hereby further amended by striking out all of the said section and enacting in lieu thereof a new section, as follows:

3551. Sec. 4.--WHO MAY ADOPT:--An unmarried resident of this state who is over twenty-one years of age, or jointly, a husband and wife, residents of this state who are not legally separated or who are not living apart from each other, or a divorced or legally separated resident of this state may petition the Orphans' Court of the county in which the petitioner or petitioners reside for an order authorizing the petitioner or petitioners to adopt a minor child or children not, his, hers or theirs, provided, however, that nothing herein shall in any way affect the right of any person or persons to adopt a person or persons upwards of twenty-one years of age as provided in 3553, Section 6 of this Chapter 88.

A natural parent need not join in the petition when a stepparent is adopting a child, whether the child was born in wedlock or out of wedlock.

In any case in which, before the proposed adoption has been finally approved or disapproved, the petitioner or petitioners move into a county other than the county in which the original petition was filed the Orphans' Court of the county in which the petition was originally filed shall continue to exercise jurisdiction over the proceeding until a final decision has been rendered on the petition.

Section 3. That said Chapter 88 be and the same is hereby further amended by adding immediately after 3551. Sec. 4 thereof twenty new paragraphs, designated as 3551A. Sec. 4A, 3551B. Sec. 4B, 3551C. Sec. 4C, 3551D. Sec. 4D, 3551E. Sec. 4E, 3551F. Sec. 4F, 3551G. Sec. 4G, 3551H. Sec. 4H, 35511. Sec. 41, 3551J. Sec. 4J, 3551K. Sec. 4K, 3551L. Sec. 4L, 3551M. Sec. 4M, 3551N. Sec. 4N, 35510, Sec. 40, 3551P. Sec. 4P, 3551Q. Sec. 4Q, 3551R. Sec. 4R, 3551S. Sec. 4S, 3551T. Sec. 4T, as follows:

3551A. Sec. 4A. PLACEMENT:--No petition for adoption shall be presented unless previous to the filing of the petition the child sought to be adopted has been placed for adoption by an authorized agency or by the State Board of Welfare, provided, however, no such placement shall be necessary in the case of:

(a) A child sought to be adopted by a step-parent.

(b) A child sought to be adopted by a blood relative.

(c) A child received by the proposed adopting parent or parents from an agency without the State of Delaware with the written consent of the State Board of Welfare.

3551B. Sec. 4B. CONTENTS OF PETITION:--The petition shall state the name and place of residence of the petitioner or petitioners, the name, sex and date of birth of the child whose adoption is sought, the name and residence of the person, persons or organization legally qualified to consent to the adoption and the basis for the existence in such person, persons or organization of the legal right to so consent. The actual consent shall be annexed to the petition as an exhibit thereto.

The petition shall contain the name and residence of the natural parents of the child whose adoption is sought; or, in the case of a child born out of wedlock, the name and residence of the natural mother; provided, however, if there has been a legal termination of parental rights with respect to the child, or if the consent of the State Board of Welfare or an authorized agency or an accredited out of state agency is the only consent required, the names and residences of the parent or parents shall not be included. The birth certificate of the child shall be annexed to the petition as an exhibit.

If it is desired to change the name of the child to be adopted, the petition shall so state and shall set forth the name to be assumed upon adoption.

A written consent to such adoption, duly acknowledged, must be given by any child fourteen years of age or over; provided, however, should the court deem it to be in the best interest of the child, such consent may be waived. Such consent, when obtained, shall be annexed to the petition as an exhibit thereto.

3551C. Sec. 4C. CONSENT:--No petition for adoption not containing a consent to the proposed adoption shall be filed. The consent shall be in writing, shall be notarized and shall be annexed to the petition as an exhibit. If consent is obtained or given outside the State of Delaware, it must be executed in accordance with the provisions of this section and in accordance with the Delaware Law governing the importation of non-resident children. The right to give consent shall be as follows:

(a) If the parental rights of the parent or parents with respect to the child have been terminated through legal termination of parental rights or through legal guardianship, the consent shall be granted by the organization or individual in whom the said parental rights exist at the time of the filing of the petition.

If the child to be adopted has been abandoned, legal termination of parental rights must precede the filing of the petition for adoption. The consent to the adoption shall then be granted by the organization or individual in whom the said parental rights exist.

If a parent or person in whom the parental rights exist is legally incompetent by virtue of insanity or feeble-mindedness, legal termination of parental rights must precede the filing of the petition for adoption. The consent to the adoption shall then be granted by the organization or individual in whom the said parental rights exist.

(b) If the parental rights of the parent or parents with respect to the child have not been legally terminated, the consent shall be given as follows:

1. By the mother only of a child born out of wedlock.

2. By both parents, if living, or the survivor if one is deceased, of a child born in wedlock, regardless of the marital status of the parents at the time the petition is presented; provided, should the parental rights of one parent have been terminated, consent of the remaining parent only will be required.

3. By the mother only if her legal husband at the time of the conception of the child to be adopted was not its father. In the absence of evidence to the contrary, a notarized statement of the legal husband that he is not the father of the child to be adopted, shall be prima facie proof thereof.

(c) If the individual in whom the right to consent exists is under the age of twenty-one years, this fact shall not be a bar to the giving of consent nor render the consent when given invalid.

3551D. Sec. 4D. WITHDRAWAL OF CONSENT OR PETITION:--In any case in which consent has been given in accordance with the provisions of 3551C. Sec. 4C. (b) 1, 2, 3 and (e) and the person giving the consent desires to withdraw the consent, he shall file, within sixty days from the date of the filing of the adoption petition containing the consent, a petition asking the court to revoke his consent and dismiss the adoption petition. The Orphans' Court shall refer the petition to revoke and dismiss to the State Board of Welfare or an authorized agency, and the said State Board of Welfare or the authorized agency shall, within thirty days of the said reference, make a formal report thereon to the court. Promptly upon receipt of the said report, the court shall rule upon the petition to revoke and dismiss.

In any case in which the petition to adopt is withdrawn the court may order the removal of the child from the proposed adoptive home if, in the opinion of the court, such removal is in the best interest of the child. If such a removal is ordered, the court shall include in the order a grant of authority to the State Board of Welfare, or to an authorized agency, to make the removal and to provide for the future disposition of the child.

3551E. Sec. 4E. RELIGIOUS AFFILIATION:--No child born out of wedlock shall be placed for adoption unless at least one of the prospective adopting parents shall be of the same religion as the natural mother or of the religion in which she has reared the child or allowed it to be reared; provided, however, should the natural mother in a notarized statement made prior to the placement for adoption specify the religion in which she desires the child to be raised, the authorized agency shall make placement in accordance with such statement, and provided further that should the natural mother in a notarized statement prior to placement for adoption declare that she is indifferent to the religion in which the child shall be reared, or if the religion of the mother is not known, or there is none, then the authorized agency may make placement without regard to religion.

No child born in wedlock whose adoption is sought by anyone other than a step-parent shall be adopted unless at least one adopting parent shall be of the same religion with which the child is affiliated unless the natural parent or parents, if available, in a notarized statement exercised prior to the placement for adoption specify the religion in which the child is to be reared; provided, however, if the natural parent or parents in a notarized statement executed prior to placement for adoption declare indifference to the sect in which the child is to be reared, or, if the religion of the natural parent or parents is not known, or there is none, the authorized agency may make placement without regard to religion.

If the proposed adoptive parent is a step-parent, there shall be no restriction regarding the religious affiliation.

3551F. Sec. 4F. INVESTIGATION AND PROCEDURE: --Upon the filing of a petition for adoption, the Judge of the Orphans' Court in which the petition has been filed, after determining that the petition has been properly filed and that the petitioner or petitioners are eligible to adopt under the terms of this Act, shall order a social study and report by the State Board of Welfare or an authorized agency. If the report is to be made by an authorized agency upon the filing of the order, the Clerk of the Orphans' Court shall forward a copy of the order to the State Board of Welfare and the authorized agency shall forward a copy of the report to the State Board of Welfare. The report shall include:

(a) Information regarding the child, its background, its eligibility for adoption.

(b) Information regarding the adoptive parent or parents, and the proposed adoption home.

(c) Information regarding the physical and mental condition of the child.

(d) Information regarding the suitability of the placement.

(e) A statement as to whether all provisions of the adoption law have been complied with.

(f) A recommendation.

If the report is to be rendered by the State Board of Welfare, it shall be rendered within sixty days from the expiration of the period of supervision. If the report is to be rendered by an authorized agency, it shall be rendered within sixty days from the filing of the petition.

3551G. Sec. 4G. PERIOD OF SUPERVISION:--No decree of adoption shall be handed down unless the child to be adopted has resided in the adoption home continuously for a period of at least one year under the supervision of the State Board of Welfare, or an authorized agency, provided, however, upon the recommendation of the State Board of Welfare, or an authorized agency, and upon due cause being shown, a decree may issue at any time after six months' supervision.

For purposes of this section, when the placement is made by an authorized agency, the period of supervision shall date from the time of placement. In all other cases, the period of supervision shall date from the filing of the petition.

In any case in which placement has not been made by an authorized agency, the State Board of Welfare shall be the agency responsible for supervision and for the report to the court.

3551H. Sec. 4H. FINAL DECREE; WHEN GRANTED; CONTENTS:--Within sixty days from the date of the receipt by the court of the report, the court shall render a decision upon the petition. If the court is of the opinion that petitioner or petitioners are qualified properly to maintain, care for and educate the child, that the child is suitable for adoption and that the best interests of the child will be promoted by the adoption, a decree of adoption shall be entered. If the court is of the opinion that such a decree should not be entered, it shall order a hearing to which all interested parties shall be duly summoned, and, based upon the report and the evidence adduced at the hearing, the court shall issue its decree granting or refusing the prayer of the petition. At any time after the report has been filed, the court may order the removal of the child from the proposed adoptive home if, in the opinion of the court, such removal is in the best interests of the child. If such a removal is ordered, the court shall include in the order a grant of authority to the State Board of Welfare, or to an authorized agency, to make the removal and to provide for the future disposition of the child.

The decree of adoption shall state the name by which the child is henceforth to be known. The decree shall state the sex and age of the child and shall include the original name of the child unless the adopting parents request that the said original name be omitted.

3551I. Sec. 4. EFFECT OF ADOPTION, GENERAL:-- Upon the issuance of the decree of adoption, the adopted child shall be considered the child of the adopting parent or parents, entitled to the same rights and privileges and subject to the same duties and obligations as if he had been born in wedlock to the said parent or parents.

Upon the issuance of the decree of adoption, the adopted child shall no longer be considered the child of his natural parent or parents and shall no longer be entitled to any of the rights or privileges or subject to any of the duties or obligations of a child with respect to the said natural parent or parents; provided, however, that when a child is adopted by a step-parent his relationship to his natural parent who is married to the step-parent shall in no way be altered by reason of the adoption.

3551J. Sec. 4J. EFFECT OF ADOPTION ON INHERITANCE:--Upon the issuance of a decree of adoption, the adopted child shall lose all rights of inheritance from its natural parent or parents and from their collateral or lineal relatives. The rights of the natural parent or parents or their collateral or lineal relatives to inherit from such child shall cease upon the said adoption.

Upon the issuance of a decree of adoption, the adopted child shall acquire the right to inherit from its adoptive parent or parents and from the collateral or lineal relatives of such adoptive parent or parents and their collateral or lineal relatives shall at the same time acquire the right to inherit from the adopted child.

Nothing contained in this section shall limit in any way the right of any person to provide for the disposition of his or her property by will; provided, however, that the rights of a child adopted after the making of a will by the adopting parent or parents shall be the same as the rights of an after-born child, as established in Revised Code, 1935, Paragraph 3716. When the adopting' parent is a step-parent, married to a natural parent, nothing contained in this section shall affect the rights of inheritance between the child and the said natural parent or their collateral or lineal relatives.

3551K. Sec. 4K. RIGHT OF REVIEW:--In any case where the State Board of Welfare or an authorized agency shall refuse to place a child for adoption when requested by the parent or parents of the child to do so, or shall refuse the request of any person or persons that a child be placed with him or them for adoption, or shall terminate any placement prior to adoption contrary to the wishes of the natural or proposed adoptive parent or parents of the child, the decision of the State Board of Welfare or authorized agency in so refusing or so terminating shall be final unless within ten days after notice of refusal or termination the natural or proposed adoptive parent or parents shall appeal to the Orphans' Court of the county in which the adoption is proposed.

3551L. Sec. 4L. APPEAL; ERRORS CURED:--Appeal from any order or decree entered in any adoption proceedings shall lie to the Superior Court. No appeal shall lie from any order or decree involving proceedings for adoption unless taken within thirty days from the date of such order or decree.

The State Board of Welfare or any person or organization which is a party to the proceedings may file such appeal.

Court shall remand the cause to the Orphans' Court for a determination as to whether or not the child shall remain in the proposed adoptive home. If a removal is ordered, the Court shall include in the order a grant of authority to the State Board of Welfare or an authorized agency to make the removal and to provide for the future disposition of the child.

Upon the expiration of two years from the date of the entry of the decree of adoption, any irregularities in the proceedings shall be deemed cured, and the validity of such decree shall not thereafter be subject to attack either through collateral or direct proceedings.

3551M. Sec. 4M. REPORT TO THE STATE BOARD OF HEALTH:--Upon the entry of a decree of adoption, the Clerk of the Orphans' Court shall forward to the State Board of Health, Bureau of Vital Statistics, a report on the form provided for this purpose, which shall include the following information:

(a) Original name of child and its sex.

(b) Date and place of birth of child.

(c) Name of natural father and his color, if child was born in wedlock.

(d) Maiden name of mother and her color.

(e) Child's name after adoption.

(f) Name and color of adoptive father, place and date of his birth; his occupation.

(g) Maiden name and color of adoptive mother, place and date of her birth; her occupation.

(h) Address of adoptive parents.

If the adopted child was born in another state, the Clerk of the Orphans' Court in which the order was entered, shall forward the same information to the Bureau of Vital Statistics, or like agency, in the state of the child's birth.

If a child born in Delaware is adopted in another state, the State Registrar shall file a new certificate of birth upon receipt of a certified copy of the decree of adoption from the proper authorities of the state in which the adoption took place.

If the adopted child was born outside Delaware, and no certificate of birth can be secured from the state of birth, the State Registrar may file and issue a special birth certificate as herein provided, upon receipt from the agency responsible for the adoption of evidence of the birth, considered satisfactory by the Registrar.

All information regarding any adoption which is furnished to any State Registrar shall be confidential and not open to public inspection. The names of the natural parents or the original name of the child shall not be furnished to the adoptive parents, nor shall the name of the adoptive parents be furnished to the natural parents, and after the entry of the decree of adoption, the original record of birth shall be impounded and all birth certificates shall be issued in the adoptive name only, if a new name has been assumed, and shall contain no reference to the original name or background or the fact of adoption.

3551N. Sec. 4N. CONFIDENTIAL NATURE OF RECORDS:--All records of any adoption shall be treated as strictly confidential and shall be kept by the Clerk of the Orphans' Court in a sealed container which shall be opened only upon the order of the Judge of the Orphans' Court concerned.

Anyone wishing to inspect any of the papers filed in connection with any adoption shall petition the Judge of the Orphans' Court concerned setting forth the reasons for the inspection. The Judge shall refer the petition to the State Board of Welfare or to an authorized agency for investigation and report. If, in the opinion of the court, the information is necessary, and the interests of the child, the natural parents or the adoptive parents will not be prejudiced by its disclosure, the court shall issue an order permitting the release of the information and setting forth the terms under which it shall be released.

3551O. Sec. 4O ABATEMENT: - In the event of the death of a sole petitioner, or of both petitioners, the proceedings shall abate and the petition shall be dismissed.

When, after a petition for adoption has been filed, one of two petitioners dies, or, as a result of divorce, annulment or separation, legal or otherwise, the petitioners would no longer be qualified to petition jointly, the proceedings shall be stayed. The Orphans' Court in which the petition was originally filed shall then decide on the basis of a report to be obtained by it from the State Board of Welfare, or any authorized agency, whether the proceedings shall continue or whether the 'petition should be dismissed.

3551P. Sec. 4P. IMPORTATION OF CHILDREN:--No person shall bring into the State of Delaware for the purpose of adoption within the State of Delaware a child born outside the State of Delaware unless such person shall first receive permission from the State Board of Welfare.

A child legally adopted in any other jurisdiction shall be entitled to the same rights and benefits in all respects as a child adopted within the State of Delaware.

3551Q. Sec. 4Q. FEES:--No natural parent of any child whose adoption is proposed shall receive any contribution, fee or emolument of any sort from any person or organization having any connection or association with the placement of the child for adoption or with the adoption.

No person or organization who is in any way connected with an adoption shall receive any remuneration in connection therewith, except for courts costs and legal services.

3551R. Sec. 4R. SEPARABILITY OF PROVISION:--If any provision of this Act, or the application of such provision to any person or circumstance is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby.

3551S. Sec 4S. REPEALED: - All Acts or parts of Acts inconsistent with any of the provisions of this Act are hereby repealed to the extent and only to the extent of any such inconsistency.

3551T. Sec. 4T. EFFECTIVE DATE:--This Act shall become effective July 1, 1952.

Approved May 28, 1951.