HOUSE BILL NO. 187
AS AMENDED BY HOUSE AMENDMENT NOS. 1, 2 AND 4
AN ACT TO AMEND SUBCHAPTER I, CHAPTER 9, TITLE 13, OF THE DELAWARE CODE RELATING TO THE ADOPTION OF MINORS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Subchapter I, Chapter 9, Title 13 of the Delaware Code by striking the subchapter in its entirety and substituting therefore the following:
"SUBCHAPTER I. MINORS. Section 901. Definitions. For the Purposes of this chapter:
'Authorized agency' means any agency duly approved, certified, recognized or licensed by the proper authority of any other state or country in which that agency is located to place children for adoption.
'Child' means any male or female who has not attained his or her eighteenth birthday.
'Department' means the Department of Services for Children, Youth, and Their Families of this State.
'Identified adoption' means an adoption in which the birth parents and adoptive parents first know each other, without the services or assistance of an intermediary, and then seek placement or adoption services from the Department, a licensed agency, or an authorized agency.
'Identifying information' means any data, including that described in Section 929 of this title, that can distinguish a party to the adoption from the general public.
'Intermediary' means any person for compensation and in his
professional capacity, firm, corporation, organization or other legal entity, except the Department or a licensed agency, which in any way acts, or offers to act, as a link between a birth parent and an adoptive family in any proposed placement of a child or any person who receives renumeration for so acting or offering to act.
'Legally free' means that there has been a prior termination or transfer of parental rights by judicial order.
'Legally separated' means 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 from bed and board or its equivalent.
'Licensed agency' means any agency granted a license by the Department to provide adoption services in the State of Delaware.
To place' includes any of the following activities, each of which may be performed only by the Department, a licensed agency or an authorized agency: the selection of an approved family for the child; the arrangement for the child's move into an adoptive home; or the relocation of the child with an adoptive family.
Section 902. Jurisdiction and venue; removal of petitioner from county. (a) Family Court shall have jurisdiction of proceedings under this chapter.
A petition for adoption shall be filed either in the Family Court of the county in which the licensed or authorized agency placing the child is located, or the Family Court of the county in which the petitioner resides.
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, or into another jurisdiction, the Family Court of the county in which the petition was originally filed may continue to exercise jurisdiction over the proceeding until a final decision has been rendered on the petition.
Whenever the Family Court shall assume jurisdiction for the purposes of terminating parental rights over a child, it shall be deemed to have retained jurisdiction for the purposes of proceeding under this chapter for the adoption.
Section 903. Persons eligible to petition to adopt.
An unmarried person or a husband and wife jointly, who are not legally, separated or who are not living apart from each other, or a divorced or legally separated person, being a resident of the state of Delaware at the time of filing the petition or with whom a child has been placed for adoption under Section 904 of this title, and being over 21 years of age, may petition the Family Court for an order authorizing the petitioner or petitioners to adopt a child not his, hers or theirs. Nothing herein shall in any way affect the right of any person to adopt a person who has reached age 18 as provided in Subchapter II of this chapter.
Section 904. Placement and supervision for adoption.
(a) No petition for adoption shall be presented unless prior to the filing of the petition the child sought to be adopted has been placed for adoption by the Department, a licensed agency or an authorized agency, and the placement has been supervised by the Department or a licensed agency, but no such placement or supervision shall be necessary in the case of:
A child sought to be adopted by a stepparent;
A child sought to be adopted by a blood relative, except as
provided in Section 926 of this title.
(b) No placement for an identified adoption in which an intermediary has been involved shall be approved or permitted by the Department or a licensed agency.
(c) No child shall be placed for adoption in this State pursuant to Section 926 of this title unless the placement is approved and supervised by the Department or a licensed agency.
(d) When the prospective adoptive parents are legal residents of the State but live elsewhere the approval and supervision required by this section shall be provided by an authorized agency located in close proximity to the family, as will the social report required by Section 912 of this title.
Section 905. Appeal from decision of the Department or licensed agency.
In any case where the Department or a licensed agency refuses to place a child for adoption when requested by the parent of the child, or refuses the request of any person that a child be placed with him for adoption, or terminates any placement prior to adoption contrary to the wishes of the birth parent or prospective adoptive parent of the child, the decision of the Department or a licensed agency in so refusing or so terminating shall be final unless within 30 days after notice of refusal or termination, the birth parent or proposed adoptive parent shall appeal to the Family Court of the county in which the adoption is proposed. The Department or licensed agency shall not remove a child who is legally free for adoption from an adoptive placement prior to the adoption without good cause.
Section 906. Contents of petition for adoption. The petition shall state:
(a) The name, address and marital status of the petitioner or
(b) The sex and date of birth of the child whose adoption is sought;
(c) The relationship of the petitioner to the child;
(d) The name 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 right to so consent;
(e) The date of the child's placement in the adoptive home, or, in
the case of a child to be adopted by a stepparent, the date of the marriage of the stepparent and the child's natural parent;
(f) The name to be assumed by the child upon adoption;
(g) If, in the case of an adoption by a stepparent or blood relative, there has not been a prior legal termination of parental rights, the petition shall also include:
(1) The name and residence of the mother and natural father or any presumed father, as defined in Chapter 8 of this title, of the child whose adoption is sought. If either or both parents are deceased, a statement to that effect, with a certified copy of the death certificate(s) attached.
(2) The mother's marital status at the time of the child's
conception and birth. In the event that the mother was not married at the time of the child's conception or birth, or in the event that she was married at the time of the child's conception or birth but her husband at those times is not the child's natural father, an affidavit by the mother setting forth either:
The name and last known address of the natural father; or
A statement that the mother knows the name of the natural father but is unwilling to disclose the name of the natural father; or
A statement that the mother does not know the name of the natural father; or
The name of the natural father, and a statement that the
mother has never known his address.
(3) In the case of a stepparent adoption where the petitioner is the wife of the alleged natural father and the child to be adopted has been born out of wedlock to the father and another woman, evidence of paternity blood testing which does not exclude the alleged natural father.
(h) In the case of a child being brought into this State from another state or country for adoption in this State, proof of compliance with all requirements of the Interstate Compact on the Placement of Children, as set out in Chapter 3 of Title 31 of the Delaware Code, relating to such placement.
(i) After execution of the petition by the petitioner or petitioners, there shall be attached so as to preserve the confidential nature of the information contained therein, as required by Section 923 of this title, the exhibits set out in paragraphs (1), (2), and (3) of subsection (6) above; provided, however that confidentiality is not required in the case of a petition by a stepparent or blood relative or where the birth parent(s) and adoptive parent(s) have exchanged identifying information as provided in Section 929 of this title and copies of the written agreements required thereunder are attached:
The birth certificate of the child.
The legal name of the child whose adoption is being sought.
c. All required consents, or facts justifying the absence of
consent, or a certified copy of the Court order terminating or transferring parental rights.
(j) All petitions for adoption filed shall have attached thereto
affidavits of the petitioners stating the amount of the service fee charged by all agencies and any other expenses paid by the adopting family in the adoption process, and attesting that no intermediary assisted in locating the child.
Section 907. Consent requirements.
A petition for adoption shall contain a consent to the proposed
adoption. The consent shall be in writing, notarized and attached to the
petition as an exhibit. If consent is obtained or given outside this State,
it must be executed in accordance with this section and Section 908 of this title.
A written consent to adoption, duly acknowledged, must be given by any child 14 years of age or over unless the Court, upon further investigation or inquiry, deems it to be in the best interest of the child that such consent be waived. Such consent, when obtained, shall be attached to the petition as an exhibit thereto.
Section 908. Right to Consent.
(a) Except in the case of an adoption by a stepparent or blood
relative, no petition for adoption shall be filed unless the child to be adopted is legally free for adoption. The consent to the adoption shall be granted by the Department or by the licensed or authorized agency in whom the parental rights are vested.
(b) In the case of an adoption by a stepparent or blood relative, the consent to the adoption shall be granted as follows:
By mother of a child; and
The biological father and any presumed father of a child;
provided, however, that the consent of the alleged biological father or presumed father need not contain an admission that he is the father. In the event that the named biological or presumed father
disclaims paternity, an affidavit signed by him to that effect shall be attached to the petition in lieu of a consent from the natural or presumed father. It is further provided that in the event of a
petition containing statements described in Section 906(9)(2) b., c. or d. of this title, after a hearing in which it is established on the record that the mother and father of the child are not living together as husband and wife openly and that they have not done so nor married since the birth of the child, the Court may, following consideration of the social report, dispense with the requirement of the father's consent in compliance with Section 932 of this title.
If, in the case of an adoption by a stepparent or blood
relative, any person from whom consent is required is deceased, a certified copy of the death certificate of such person shall be filed with the petition in lieu of consent.
(c) If the individual in whom the right to consent exists is under
the age of 18 years, this fact shall not be a bar to the giving of consent nor render the consent when given invalid.
Section 909. Withdrawal of consent.
In any case in which consent has been given in accordance with the provisions of Section 907 of this chapter, and the person, Department, licensed agency, authorized agency or child over age 14 giving the consent desires to withdraw the consent, he shall file, within 60 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 Family Court shall refer the petition to revoke and dismiss to the Department or licensed agency, and the Department or licensed agency shall, within 30 days of the reference, make a formal report thereon to the Court. Promptly
upon receipt of the report, the Court shall rule upon the petition to revoke and dismiss.
Section 910. Withdrawal of petition.
In any case in which the petition to adopt is withdrawn, the Court may order the removal of the child from the prospective 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 Department or to a licensed agency to make the removal and to provide for the future disposition of the child.
Section 911. Religious Affiliation.
If either natural parent, in a notarized statement made prior to the placement for adoption, specifies the religion in which he or she desires the child to be raised, the Department or licensed agency shall make placement in accordance with such statement. If the natural parents declare indifference to the religion in which the child should be reared, or if their religion is not known, or if there is none, then the Department or licensed agency shall make placement without regard to religion.
If the proposed adoptive parent is a stepparent or blood relative, there shall be no restriction regarding the religious affiliation.
Whenever the provisions as set forth in subsection (a) of this section appear to create a hardship for the child to be adopted in obtaining a suitable and prompt placement, the Family Court, in its discretion, may waive these requirements in the best interest of the child.
Section 912. Social Study and report.
(a) Upon the filing of a petition for adoption, the Judge of the Family 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 this chapter, shall order a social study report by the Department or licensed agency or authorized agency unless the report was filed with the petition.
(b) The report shall include:
Information regarding the child, its background, its
eligibility for adoption;
Information regarding the adoptive parent or parents, and the proposed adoptive home;
Information regarding the physical and mental condition of
Information regarding the suitability of the placement;
A statement as to whether all requirements of this chapter have been complied with;
(c) If the placement is made by the Department or licensed agency, the report shall be rendered within 60 days from the receipt of the order for the report unless the report is filed with the petition for adoption. In the case of adoption by a stepparent or blood relative, the report is to be rendered within 60 days following the completion of the social study, and shall include a statement of the cost of the study.
(d) If the Court orders any further social investigation or any supplement of the social report, any such investigation shall be conducted and a supplement shall be prepared by the Department or the licensed or authorized agency party to the proceedings.
Section 913. Time for filing the adoption petition.
A petition for adoption may be filed when the requirements of Section 904 of this title have been met, the child is legally free for adoption, and the adoptive placement of the child has been supervised for a period of one year by the Department or licensed agency, except that on recommendation of the Department or licensed agency, a petition may be filed at any time after six months supervision.
In the case of a child to be adopted by a stepparent or a blood
relative, the petition for adoption shall be filed only after the child has resided in the home of the petitioner for at least one year; except that, on recommendation of the Department or licensed agency, a petition may be filed after six months continuous residence of the child in the petitioner's home. In the case of adoption by a stepparent or blood relative, it is not necessary that the child be legally free prior to the filing of the petition.
Section 914. Death, divorce, annulment, separation of petitioner pending
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 Family Court in which the petition was originally filed shall then decide on the basis of a report to be obtained by it from the Department or licensed agency, whether the proceedings shall continue or whether the petition should be dismissed.
Section 915. Decree of adoption.
(a) Within 60 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 the 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 interest 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 notify the petitioner or petitioners and, if requested by any petitioner, it shall order a hearing to which all interested parties shall be duly summoned, and, based upon the report and evidence adduced at the hearing, the Court shall issue its decree granting or refusing the prayer of the petitioner.
(b) At any time after the report has been filed but prior to the Court's rendering a decision, 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 Department or to a licensed agency, to make the removal and to provide for the future disposition of the child.
(c) The decree of adoption shall state:
The name by which the child is henceforth to be known;
The sex and age of the child;
The name of the child at the time the petition was filed.
(d) Upon the entry of a decree of adoption the Clerk of Court shall issue to the adopting parent or parents a certificate of adoption stating the date of the decree, the age and sex of the child, the name by which the child is henceforth to be known, and the names of the adopting parent or parents. Neither the original name of the child nor the names of the birth parents shall be included in the certificate of adoption.
Section 916. Court costs.
The costs in all cases of adoption under this chapter shall be taxed by the Court on the person or persons filing the petition, and they shall pay the same to the Clerk of Court.
Section 917. Appeal.
Appeal from any order or decree entered in any adoption proceedings shall lie to the Supreme Court. No appeal shall lie from any order or decree involving proceedings for adoption unless taken within 30 days from the date of such order or decree.
The Department, licensed agency or any person party to the proceedings may file such appeal.
In any case in which the effect of the decision of the Supreme Court, on appeal, is to deny the petition for adoption, the Supreme Court shall remand the cause to the Family Court for a determination as to whether or not the child shall remain in the proposed adoptive home. If a removal is
ordered, the Family Court shall include in the order a grant of authority to the Department or a licensed agency to make the removal and to provide for the future disposition of the child.
Section 918. Finality of decree of adoption.
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.
Section 919. General effect of adoption.
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 has been born to the adopting parent or parents.
Upon the issuance of a decree of adoption, the adopted child shall no longer be considered the child of his birth 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 birth parent or parents; but, when a child is adopted by a stepparent his relationship to his birth parent who is married to the stepparent shall in no way be altered by reason of the adoption.
Section 920. 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 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 the adoptive parent or parents and the collateral or lineal relatives of the adoptive parent or parents 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. 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 prescribed in Section 301 of Title 12. When the adopting parent is a stepparent, married to the birth or legal parent, nothing contained in this section shall affect the rights of inheritance between the child and the birth or legal parent or their collateral or lineal relatives.
Section 921. Report of vital statistics data.
(a) Upon the entry of a decree of adoption, the Clerk of the Family Court shall forward to the Department of Health and Social Services, Office of Vital Statistics, a report on the form provided for this purpose, which shall include the following information:
(1) Prior legal name of the child and its sex;
Date and place of birth of child;
Name of the father as stated on the birth certificate, if stated;
Maiden name of mother;
Child's name after adoption;
Name of adoptive father, place and date of his birth, his
Maiden name of adoptive mother, place and date of her birth, and her occupation;
Address of adoptive parents.
(b) If the adoptive child was born in another state, the Clerk of the Family 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.
Section 922. Birth certificate.
If a child born in this State is adopted in this State or 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 this State, and a certificate of birth cannot be secured from the place 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.
Section 923. Confidential nature of information; old and new birth
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 biological or previous legal parent or parents or the former name of the child shall not be furnished to the adoptive parents, nor shall the name of the adoptive parents be furnished to the biological or previous legal parent or 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 former name or background or the fact of adoption.
Section 924. Confidential nature of Court records.
All Court records of any adoption shall be treated as strictly confidential and shall be kept by the Clerk of the Court in a sealed container which shall be opened only upon the order of the Judge of Family Court concerned. Nothing in the section shall be construed in such a way as to restrict the Department or licensed agency from releasing nonidentifying information in its records to any of the parties to the adoption. Except as otherwise provided in Section 929 of this title, identifying information, such as names and addresses, shall not be released except by order of the Court or with the consent of all the parties involved when it is deemed by the agency to be in the adoptee's best interest, except in cases where the adopted individual's health or the health of any blood relative of the adopted individual is concerned and the adoption agency has refused to release the health information to the individual, the Court may, through petition by the adopted individual, permit the party to inspect only that part of the adoption agency or Court record containing medical information for health reasons. The Court shall order open to inspection by the individual the part of the record containing the needed medical information if the Court finds that any medical information in the Court or adoption agency record of the individual's adoption is needed for the health of the individual or of any blood relative of the individual. This section shall apply to information as to the identification and location of any biological sibling of the individual if the individual's health or the
health of any blood relative of the individual depends on the sibling's participation in any medical treatment.
Section 925. Inspection of Court records.
Anyone wishing to inspect any of the papers filed in connection with any adoption shall petition the Judge of the Family Court concerned setting forth the reasons for the inspection. The Judge shall refer the petition to the Department or licensed agency for investigation and recommendation. If in the opinion of the Court, the information is necessary, and the interest of the adopted individual, the biological or previous legal parent or parents or of 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. Where the adoption proceedings were held in Superior Court, any petition under this section, shall be presented to that Court, which shall consider and decide the matter in accordance with this section.
Section 926. Receiving child into State for adoption.
No child shall be brought or received into the State for the purpose of adoption without the approval of the Department, pursuant to Section 381 of Title 31. No petition for adoption of a child brought or received into this State in violation of this section shall be presented or granted.
Section 927. Foreign adoptions; validity.
Adoptions finalized by a Court with appropriate jurisdiction in a foreign country or in another State or territory of the United States shall be entitled to the application of the principles of full faith and credit provided that the final adoption decree was issued in full accord with the adoption laws of that foreign country or that state or territory, and that the child was not brought into this State until after the finalization of adoption.
No adoption proceeding or order therein which occurs in a foreign country or in another state or territory of the United States shall be valid or recognized by any court in this State as respects persons who are residents of this State where a child is brought into this State prior to the finalization of the adoption, unless the adoption proceedings shall be in substantial compliance with the adoption laws of this State. This subsection shall not apply to any adoption proceedings or order therein initiated in a foreign country or in another State or territory of the United States as respects persons who are not residents of this State at the time of the commencement of such adoption proceedings.
Section 928. Contributions and fees.
No biological 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 court costs and legal services; provided, however, that the Department, licensed agency or authorized agency may charge a service fee for each adoption in an amount not exceeding the cost of services rendered, to be paid by the adopting parent or parents. The amount of any such fee shall be made a part of the petition as provided in Section 906(j) of this title.
Section 929. Exchange of identifying information.
(a) As part of the adoption planning and placement process, the Department or licensed agency may provide, when in the best interest of the child, identifying information to the birth parent(s) and to the adoptive parent(s) as follows:
(1) In the preplacement planning of adoption for children,
identifying information shall be limited to the viewing of photographs, provided that such viewing is with the consent of birth parent(s) and adoptive parent(s) and further provided that no additional identifying information is contained in the photographs;
(2) After the placement selection process has been completed, and prior to the finalization of the adoption, identifying information may include, but is not limited to, the exchange of names, addresses, photographs, and face to face meetings, provided that:
The birth parent(s) and adoptive parent(s) request the exchange of identifying information in writing; and
Birth parent(s) and adoptive parent(s) and the Department or licensed agency agree to the exchange of identifying information as specified in writing; and
The birth parent(s) and adoptive parent(s) acknowledge in writing their understanding that no legal right of or assurance of continuing contact after finalization of the adoption exists; and
The birth parent(s) and adoptive parent(s) acknowledge in writing and under oath that there has been no violation of Section 928 of this title.
(3) Written consent to the exchange of identifying information, duly acknowledged, must be given by any child 14 years of age or over unless the Department or licensed agency deems it to be in the best interest of the child that such consent be waived.
(b) The Department or licensed agency may participate in the exchange of identifying information after the finalization of the adoption only with the agreement of the parties required to consent in accordance with subsection (a) or an order of the Court.
Section 930. Advertising for Adoption.
No natural parent or prospective adoptive parent, nor anyone acting on behalf of such natural or prospective adoptive parent, and no person, firm, corporation, organization or other legal entity, except the Department or a licensed agency, shall advertise in this State regarding the availability of adoption services or for the placement of a child for the purpose of adoption.
Section 931. Penalties.
Except as provided in this subchapter, whoever places a child in this State for the purpose of adoption, brings or receives a child from outside this State into this State for the purpose of adoption, advertises in this State regarding adoption services or for the placement of a child for the purpose of adoption, or acts as an intermediary for the purpose of adoption, shall be fined not more than $5,000 or shall be imprisoned not more than 5 years, or both
Section 932. Interpretation.
This chapter is designed to achieve without undue delay the paramount objectives of the best interest of the child, and all questions of interpretation shall be resolved with that objective in mind. Where there appears to be a conflict between the best interest of the parent(s) and the child, the best interest of the child shall prevail.
Section 2. This act shall become effective 60 days after its enactment.
Actions commenced prior to the effective date of this act shall be governed by Chapter 9 of Title 13 operative prior to such effective date, and those provisions shall remain in effect as to those actions as if this act was not in effect.
Approved June 12, 1992.