CHAPTER 433
FORMERLY
SENATE SUBSTITUTE NO. 1
TO
SENATE BILL NO. 215
AN ACT TO AMEND CHAPTER 9 AND CHAPTER 11, TITLE 13 OF THE DELAWARE CODE RELATING TO ADOPTION AND PROVIDING THAT ADOPTEES AND BIRTH PARENTS HAVE ACCESS TO CERTAIN INFORMATION.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Section 901, Chapter 9, Title 13 of the Delaware Code by deleting subsection (5) in its entirety and substituting in lieu thereof:
"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, and shall include, for purposes of Subchapter III of this Chapter, the full name, full address and birth date of the birth parent(s) and birth sibling(s), if any, as well as any other known names and addresses used by the birth parent(s), birth sibling(s), or the adoptee."
Section 901 is further amended to add the following definitions after subsection (10):
(11) "Adoptee" means a person whose birth parent(s)' rights were
terminated or who has been adopted in this State.
(12) "Adult adoptee" means an adoptee who is 18 years of age or older.
(13) "Birth parent" means:
(1) the biological mother of a child;
(2) the named father of a child who consented to the termination of his parental rights; or
(3) the father whose paternity is presumed pursuant to Chapter 8 of this Title.
(14) "Original birth certificate" means the certificate issued at the time of birth of the child which contains identifying information regarding birth parents and the child's full name at birth and which may provide such details as the time and place of birth.
Section 2. Amend Chapter 9, Title 13 of the Delaware Code by adding a new Subchapter, designated as Subchapter III, as follows:
"Subchapter III. Access to Identifying Information."
§961. Records.
As of January 1, 1995, all adoption records presently maintained in the Prothonotary's Office shall be transferred to Family Court for permanent retention.
§962. System of affidavit.
(a) A birth parent who has consented to the adoption of his or her child or whose parental rights have been terminated by a Delaware Court may file with Family Court at any time an affidavit which (1) authorizes Family Court to provide his or her child who is an adult adoptee or the adoptive parents of a minor adoptee with a copy of the adoptee's original birth certificate, and which authorizes Family Court, the Department of Services for Children, Youth and Their Families (hereinafter the Department"), or the licensed agency handling the termination of parental rights or adoption procedures to provide the adult adoptee or the adoptive parents of a minor adoptee with identifying information in their possession; or (2) denies the release of any identifying information concerning that birth parent to the adult adoptee or any other person by Family Court, the Department or a licensed agency.
Either affidavit shall be in effect at all times unless rescinded in writing by the birth parent.
(b) A birth parent who consents to the adoption of his or her child or whose parental rights are terminated at any time after the effective date of this Subchapter shall be advised by the Agency filing the petition to terminate parental rights of the right of the birth parent(s) to file at that time or any subsequent time the affidavit described in Section 962(a). The petition, as required in Section 1105(a), Chapter 11 of this Title, shall state that the birth parent has been advised of this right, and the affidavit, if obtained, shall be attached to the petition.
(a) In the case of a stepparent or relative adoption, the agency writing the social study report, as required by Section 1107(f), Chapter 11, and Section 912, Chapter 9 of this Title, shall state that the parent whose parental rights are being terminated has been advised of the right to file an affidavit at that time or any subsequent time, and the affidavit, if obtained, shall be attached to the social report.
(a) If a birth parent is deceased or mentally incompetent, the following relations of said birth parent may file an affidavit, with proof of the death or mental incompetency, authorizing the release of the relations' own name and address:
- either parent of the birth parent;
- sibling (full or half) of the birth parent;
- birth siblings (full or half) of the adoptee.
Such affidavit shall be in effect at all times unless rescinded in writing by the individual who filed it.
(a) An adult adoptee may file with Family Court at any time an
affidavit consenting to or denying the release of the adoptee's name and address to a birth parent or other birth relative as in Section 962(d) above. This affidavit shall be effective at all time unless rescinded in writing by the adoptee.
(a) The adoptive parents of a minor adoptee may file an affidavit with Family Court authorizing the release of the adoptive parent(s)' name and address to the birth parent(s) of the child. Such affidavit shall expire when the adoptee reaches the age of 18.
§963. Procedure for providing identifying information.
(a) When Family Court, the Department or a licensed agency receives a request for identifying information from an adult adoptee, the adoptive parents of a minor adoptee, the birth parent(s) of an adoptee, or adult birth relatives of the adult adoptee as in Section 962(d) above, the Court, Department or licensed agency shall determine within 30 (thirty) days whether any affidavit is on file and whether such affidavit or affidavits permit complying with the request. Any agency receiving such a request shall contact Family Court to determine whether any affidavit or letter rescinding an affidavit is on file.
(1) If a request is received from an adult adoptee or the adoptive parents of a minor adoptee, and an affidavit consenting to the release of identifying information has been filed by each known birth parent, a copy of the original birth certificate and other identifying information shall be released within 90 (ninety) days of the initial request. If an affidavit consenting to the release of identifying information is on file for one birth parent only, information released shall not include any identifying
information concerning the other birth parent. If an affidavit is on file from a birth relative as in Section 962(d) above, only that birth relative's information shall be released to the adoptee.
(2) When a request is received from the birth parent(s), and an affidavit from the adult adoptee or from the adoptive parents of a minor adoptee consenting to the release of identifying information is on file, the agency shall release identifying information within 90 (ninety) days of the request.
(1) When a request is received from an adult birth relative as in Section 962(d) above, identifying information about the adult adoptee may be released only if an affidavit is on file from the adoptee consenting to the release of such information.
(b) If a request for information is received from an adult adoptee,
adoptive parents of a minor adoptee, or the birth parent of an adult adoptee and no affidavit is on file, Family Court shall instruct the agency that handled the adoption or the termination of parental rights or, in the case of an agency no longer licensed in this state, the designated custodian of the records of such agency, to undertake a diligent search for the individual being sought. A search shall be commenced within 90 (ninety) days from the date of Family Court's instructions to the agency.
(a) Within 15 (fifteen) working days of locating the individual, the
designated agency shall attempt to make personal and confidential contact. Upon contact, the agency will advise the individual of his or her right to file an affidavit as described in Section 962 above with Family Court and will provide the appropriate form of the affidavit to the individual, The
individual shall be advised that, in the event such affidavit is not received by the agency within 30 (thirty) days, identifying information will be released and, in the case of an adult adoptee, a copy of the original birth certificate will be provided. The individual shall also be advised that an
affidavit denying the release of identifying information may subsequently be rescinded or modified in writing at any time.
(a) If, after contact, the individual files an affidavit denying the
release of identifying information, a subsequent contact may be initiated by Family Court, the Department, or the agency upon a second request for information. Family Court, the Department, or an agency may refuse to contact in response to subsequent requests for information.
(a) If an affidavit denying the release of identifying information is
received, the Court shall not allow the release of identifying information with respect to the party requesting confidentialit Y.
(g) If an adult adoptee has initiated the search and neither birth parent can be located within one (1) year of the request for identifying information, the agency shall notify Family Court in writing. Family Court shall provide a copy of the original birth certificate to the adult adoptee.
§964. Immunity from liability.
Any person or agency, including the State of Delaware or any governmental subdivision of this State, who participated in good faith in any requirement of this section, shall have immunity from any liability, civil or criminal, that results from such person's or agency's actions. In any proceeding, civil or criminal, the good faith of any person participating in the requirement of this Subchapter shall be presumed.
§965. Affidavits,
The Department, licensed agencies and Family Court shall design a uniform affidavit that will be approved by the Chief Judge of Family Court prior to the effective date of this Subchapter. Subsequent revision of the affidavits must be approved by the Chief Judge of Family Court.
Section 3. Amend Sections 923, 924 and 925, Chapter 9, Title 13 of the Delaware Code by adding the phrase, "Except as provided in Subchapter III of this Chapter, " at the beginning of each respective section, and by changing the upper case letter at the beginning of the first sentence of each section to the respective lower case letter.
Section 4. Further amend Section 924, Chapter 9, Title 13 of the Delaware Code by adding and Subchapter III" after 1929" in the third sentence of the paragraph, and by adding at the end of said section a new sentence which shall read as follows:
If Family Court receives a report stating that a birth parent, another offspring of the birth parent, or the adoptee has a genetically transmitted disorder or a family pattern of a disease, Family Court shall instruct the agency that was involved with the adoption or the termination of parental rights to conduct a diligent search for the adult adoptee, adoptive parents of a minor adoptee, or birth parent(s) to inform them of the report."
Section 5. Amend Section 929(b), Chapter 9, Title 13 of the Delaware Code by striking the words "subsection (a)" and inserting in lieu thereof, "Subchapter III of this Chapter".
Section 6. Amend Section 1112(a), Chapter 11, Title 13 of the Delaware Code by striking the period (".") at the end of said subsection and adding in lieu thereof a comma (",") and the phrase "except as provided in Subchapter III of Chapter 9 of this Title."
Section 7. Amend Section 1112(c), Chapter 11, Title 13 of the Delaware Code by striking the period (".") at the end of said subsection and inserting in lieu thereof a semi—colon (";") and adding a new paragraph as follows:
"(3) According to Subchapter III of Chapter 9 of this Title."
Section 8. Amend Section 1105(a), Chapter 11, Title 13 of the Delaware Code by adding a new subsection (12) as follows:
"(12) A statement that each birth parent has been advised of the right to file an affidavit as provided by Subchapter III of Chapter 9 of this Title."
Section 9. Amend Section 912(b), Chapter 9, Title 13 of the Delaware Code by changing subsection (6) to (7) and adding a new subsection (6) as follows:
"(6) In stepparent/relative cases, a statement that the birth parent whose parental rights are being terminated has been advised of the right to file an affidavit as provided by Subchapter III of this Chapter."
Section 10. This Act shall become effective January 1, 1995.
Approved July 14, 1994.